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VAT / Sales Tax - Case Laws
Showing 461 to 480 of 27514 Records
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2023 (10) TMI 490
Rejection of challenge to the impugned orders of assessment for the assessment years 2006-07 and 2007-08 - rejection on the premise that the appellant is bound to prefer an appeal and the filing of the rectification petition is only to circumvent the filing of a statutory appeal, which mandates pre-deposit.
HELD THAT:- It is trite law that the Court in exercise of its power of judicial review under Article 226 of the Constitution of India, would not direct a statutory authority to exercise its discretion in a particular manner, but would only command the statutory authority to perform its duty by exercising the discretion according to law.
In the instant case, the learned Judge has proceeded to examine and reject the rectification petition, which is a discretion vested with the assessing authority and has thus substituted his views as that of the assessing officer, which is impermissible in law.
In such view of the matter, the order of the learned Judge passed in the writ petitions is liable to be set aside and is thus, set aside. As a sequel, the respondent is directed to pass orders on the rectification petition filed by the appellant on 30.01.2014, on merits and in accordance with law, after affording an opportunity of personal hearing to the appellant, without being influenced by any of the observations made by the learned Judge.
Appeal disposed off.
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2023 (10) TMI 489
Legality and validity of the Notice of Assessment of Value Added Tax (VAT) - extension of period of assessment to six years by the Telangana Value Added Tax (Second Amendment) Act, 2017 - HELD THAT:- This enactment was struck down by this Court as being unconstitutional in M/S. SRI SRI ENGINEERING WORKS AND OTHERS VERSUS THE DEPUTY COMMISSIONER (CT) , BEGUMPET DIVISION, HYDERABAD, AND OTHERS. [2022 (7) TMI 420 - TELANGANA HIGH COURT] where it was held that the Second Amendment Act is unconstitutional being devoid of legislative competence. It is accordingly declared as such. Consequently, the notices issued and orders passed under Section 32 (3) of the VAT Act which have been impugned in the present batch of writ petitions are hereby set aside and quashed.
From a perusal of the impugned notice dated 21.06.2023, it is found that the said notice is clearly beyond the limitation period of four years from the end of the assessment period. Evidently, respondent No.4 has invoked the extended period of limitation of six years provided by Act 26 of 2017 though not specifically mentioned in the impugned notice. When this provision has been declared unconstitutional by this Court, we are at a loss as to why respondent No.4 had issued the impugned notice based on such a provision.
Writ Petition is accordingly allowed.
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2023 (10) TMI 488
Time Limitation - Point of initiation of re-assessment/revision of assessment under the provisions of Section 27 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The judgement in Bhatinda District Co-ooperative Milk Producers Union [2007 (10) TMI 300 - SUPREME COURT] was rendered in the context of the exercise of power of suo motu revision under Section 21 of the Punjab General Sales Tax Act, 1948. No time limit had been set out for exercise of suo motu revision. However, in view of the provision for completion of assessment within three years in cases falling under sub-section 11(1) or 11(3) and within 5 years in cases falling under subsection 11(6), the Bench held that revisional jurisdiction should ordinarily be exercised within three years and, in no circumstance, beyond five years.
The Allahabad High Court in Mass Awash Private Limited [2017 (7) TMI 664 - ALLAHABAD HIGH COURT]] considered the question relating to limitation for completion of proceedings under Section 201(1)/201(1A) of the Income Tax Act, 1961. No period of limitation was prescribed under Section 201 for exercise of power thereunder and the argument of the assessee was that if no period was prescribed, then such power could be exercised only within reasonable time and not thereafter. Several decisions were cited in support of that proposition. In those decisions, the Court had held that limitation of four years should be taken as reasonable for exercise of power under Section 201(1) / 201 (1A).
An assessment under the sales tax laws relates to the period commencing from the 1st of April of a particular year till 31st of March of the next year. The usage of the phrase ‘after completion of that year’ in Section 22(4) means that an assessment under that Section shall be completed only after the 31st of March of the assessment period. Any such assessment, if framed after 31.10.2017 would supersede the assessment deemed to have been made under Section 22(2) on or before 31.10.2017. This is for the reason that an assessment under Section 22(4) is one framed after enquiry in line with the principles of natural justice - Such an assessment would have to be preferred to a deemed assessment passed under Section 22(2) deeming the returns and annexures to be in order.
Under Section 27, the authority may, at any time within a period of six years from the date of assessment, determine to the best of his judgment, turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as he may consider necessary. The reference to ‘assessment’ in section 27 includes a re-assessment, and can, in my considered view, connote either (i) a speaking, written order of assessment under Section 22(2) (ii) a deemed order of assessment under Section 22(2) (iii) a best judgement assessment under Section 22(4) or (iv) a revision under Section 27 of the Act in respect of subjects different from those dealt with in previous reassessments.
These writ petitions are disposed off.
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2023 (10) TMI 420
Levy of penalty on revisionist - no intent to evade the payment of tax - HELD THAT:- Admittedly, the goods were intercepted during transportation from State of Telangana to Ghaziabad, U.P. and at the time of interception the goods were accompanying with all required documents along with form 38. The purpose of form 38 is that the department should know that the goods are being imported from one State to another State. Some defects were pointed out by the department i.e. the name of the goods was not properly mentioned in form 38 and the allegation was made that the form was filled with magical ink which will be evaporated on high temperature and therefore the presumption has been drawn that the form can be re-used. On the said observation, the goods were seized and penalty was imposed.
This Court in Sale / Trade Tax Revision No. 5 of 2020 (Commissioner, Commercial Tax, U.p. Vs. S/S Atul Trading Company [2020 (3) TMI 820 - ALLAHABAD HIGH COURT] held that Even Form 38 was found to be duly filled up evidencing the transaction under which the goods were being imported. The assessee had duly produced his books of accounts in which the transaction in question is duly accounted for. In such circumstances, merely on assumption that Form 38 could be re-used, the Assessing Officer was not justified in imposing penalty.
In view of aforesaid identical case, the allegation that form which was filled with magical ink can be re-used, cannot be accepted by this Court - revision allowed.
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2023 (10) TMI 419
Maintainability of Revision petition - creation of additional demand - sale or works contract - Section 46(3) before the H.P. VAT Appellate Tribunal - HELD THAT:- The Tribunal that by filing the appeal, the petitioner was actually seeking reconsideration of the order dt. 29.08.2013, is patently erroneous in law. The view of the Tribunal that the petitioner is trying to reagitate the same issues which stood decided by the Tribunal in its order dt. 29.08.2013, cannot be agreed and, therefore, the appeal is not maintainable and cannot be entertained.
The order dt. 29.08.2013 passed by the Tribunal, decided only certain broad principles and did not give any findings on the actual facts and had remitted the matter back to the 2nd respondent by directing a Committee of two or three Members of TRU and Assessing Authority to be constituted to examine the case.
There is no question of the appellant seeking review and reconsideration of the order dt. 29.08.2013 by filing the appeal before the Appellate Authority challenging the order dt. 26.10.2020 passed by the 2nd respondent, as has been wrongly held by the Tribunal - the Civil Revision Petition is allowed.
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2023 (10) TMI 346
Rejection of Petitioner’s claim of deduction/exemption on Prime Location charges - works contract or not - HELD THAT:- Undisputed facts of the case are, assessee is engaged in the business of development and construction of residential apartments. Assessee has collected PLC and FRC from the buyers and discharged the service tax payable on PLC/FRC.
The estimate and actual cost of construction depends upon the material used for construction. The cost of construction shall be the same without reference to the direction of the flat, the view from a particular flat vis-à-vis the other flat situated on the same floor. The PLC/FRC are based on the choice of buyer and cannot be treated as cost of construction. For example, a flat situated on a higher floor over-looking a garden or seashore shall have better locational advantage than the flat in the same floor from where the garden or the seashore may not be visible. Nonetheless the cost of construction of both flats situated in a particular floor shall be the same.
By definition, ‘works contract’ does not include preferential location. Therefore the Revenue rejecting assessee’s request to exempt PLC/FRC from payment of KVAT is not sustainable in law.
These revision petitions are allowed.
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2023 (10) TMI 160
Imposition/levy of entertainment tax by the petitioners - admission fee in the form of ticket to allow people to visit trade fairs / Pragati Maidan - grievance of the petitioners is that respondent No. 1 was initially exempted from payment of entertainment tax for several years but a policy decision was taken on 18 November 1996 by the Competent Authority and exemption from payment of entertainment tax was withdrawn - HELD THAT:- A careful perusal of the various provisions would show that Section (6) is the charging Section whereby the government may prescribe a levy of entertainment tax on all “payments for admission to any entertainment”, while Section 15 of the Act lays down the procedure for the assessment of tax. A bare perusal of unamended Section 2(a) of the Act, which would be applicable in this case, as it stood prior to the amendment w.e.f. 01 February 2010 would show that it is an inclusive definition defining “admission to any place in which entertainment” subject to the context in which it comes for consideration that may provide otherwise. Further, a bare perusal of the Section 2(i) of the Act would show that the definition of the word “entertainment” is a restricted one to mean any exhibition, performance, amusement, game, sport, or race, further extending the meaning of “entertainment” to cinematographic exhibitions.
In the case of GEETA ENTERPRISES AND OTHERS VERSUS. STATE OF U.P. AND OTHERS [1983 (9) TMI 319 - SUPREME COURT], the Supreme Court had an occasion to interpret the word “Entertainment” as used in Section 2(3) of the United Provinces Entertainment and Betting Tax Act, 1937, which defined the word “entertainment” to include any exhibitional, performance, amusement, game or sport to which persons are admitted for payment. The issues arose in the background of the factual matrix where the assessee/petitioner permitted persons to enter the premises without any charge to view a show on the video which consisted mainly of sports, games etc. played on the screen of the video. It was canvassed that the petitioner was not charging any admission fee but the electronic machines imported from Japan having educational value for persons playing the games were meant to provide educational entertainment by showing sea warfare, battle field, space warfare, sports and many other things which were likely to provide both education and entertainment to the viewers, particularly to young children.
In the case of HOTEL RAJDOOT PVT. LTD. VERSUS UNION OF INDIA (UOI) AND ORS. [2008 (8) TMI 1022 - DELHI HIGH COURT], the question for determination was whether the petitioner was liable to pay entertainment tax on the payment received for admission to “Pussycat Discotheque” in its Hotel under the provision of U.P. Entertainment and Betting Tax Act, 1937, as extended to Union Territory of Delhi in which Section 3(1) was the charging Section. Section 2(3) of the above mentioned Act defined the word “entertainment” to include any exhibition, performance, amusement, game or sport to which persons are admitted for payment - It was held that entertainment tax was leviable on the coverage/fixed entry charges to access to the discotheque, this Court out rightly rejected the plea by the petitioner that the primary object of running the “Pussycat discotheque” was to provide a different menu and atmosphere to the customers. The Court found no merit in the plea that only couples were permitted entry so that there could be an element of privacy. It was held that the petitioner was charging entry fee and the serving of meals and alcohol undoubtedly had an element of amusement as the customers were not only enjoying music but also dancing on the floor.
There are regulated hours for the purposes of trade and commerce, where the main purpose apparently is promotion of trade and business, however there is no challenge to the fact that entry of general public is not restricted, and people of all ages and genders visit the site for a variety of gratification, entertainment or amusement on payment of additional or higher charges/fee. It is pertinent to mention here that the assessee may also be imposed with a levy of entertainment tax wherever people are allowed free of charge inside the complex by virtue of Section 14 of the Act.
The impugned order dated 30 November 2007 passed by the FC cannot be sustained in law - Petition allowed.
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2023 (10) TMI 159
Benefit of Central Sale against I Form C provided - HELD THAT:- It is admitted that the sales have been disclosed by the revisionist through 23 invoices for a sum of Rs. 2,11,47,201/- to M/s Yash Traders, for which one Form – C No. 4930498 has been submitted, but on verification from the corresponding State, i.e., Rajasthan, the information was given that the purchasing dealer has only shown purchase against one invoice no. 45 dated 12.12.2013 for a sum of Rs. 2,75,049/-. The benefit of concession has been given to the revisionist for the said invoice. So far as other 22 invoices are concerned, the same have been disbelieved.
The present proceeding is an original proceeding, i.e., the revisionist is claiming concession rate on the strength of Form – C. Once the corresponding State authority has sent information that only one purchase made by the purchasing dealer could be verified, the benefit of other purchases as alleged to be made by the revisionist against the said Form – C cannot be granted. The onus is upon the dealer to prove its case beyond doubt when the dealer is claiming concession rate of tax. The said onus has not been discharged by the revisionist.
The Supreme Court in the case of ITC. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [2004 (9) TMI 103 - SUPREME COURT] has held that the Assessing Authority is competent to scrutinize the certificate to find out the contents to be genuine and he is competent to inquire about the contents of the certificate to satisfy himself that the goods purchased are verifiable and once the truth of declaration on verification was not found to be correct, the benefit cannot be granted.
The judgement relied upon by the revisionist in Star Paper Mills Limited [2003 (10) TMI 625 - ALLAHABAD HIGH COURT] is of no aid to it as in the said case, in the first paragraph of the judgement itself it has been mentioned that reassessment proceedings for the assessment year 1984-85 have been initiated under section 21 of the U.P. Sales Tax Act. When the reassessment proceedings are being initiated, the burden is shifted to the Revenue, but in the original proceeding, the onus is upon the dealer to discharge beyond doubt the claim so made.
The revisionist has failed to discharge its burden by any cogent material - revision dismissed.
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2023 (10) TMI 158
Classification of goods - Bakery Shortening and Vanaspati (Hydrogenated Vegetable Oil) - both are one and the same commodity or not - whether bakery shortening should be covered under Entry 130, Part – A, Schedule II of UP GST Act or to be taxed as unclassified goods at a higher rate of tax, i.e., 12.5%?
HELD THAT:- After considering various materials brought on record from the stage of Assessing Authority to the stage of Tribunal, the Assessing Authority brushed aside the evidence brought on record and levied higher rate of tax, which has been turned down by the appellate authority after due consideration of materials on record, holding that bakery shortening is one and the same thing as vanaspati. The Apex Court in Mauri Yeast India Private Limited [2008 (4) TMI 101 - SUPREME COURT] has specifically held that if there is a conflict between the two entries, one which favours the assessee must be followed.
he judgement relied upon by the Revenue of the Kerala High Court in the case of M/s Parisons Food Private Limited [2018 (1) TMI 1195 - KERALA HIGH COURT] is distinguishable and not applicable in the present case, since the entries in both the Kerala VAT Act/UP VAT Act are different. Under the aforesaid case, entry of “others”, including 'vanaspati' was interpreted by the Kerala High Court by holding that the general word “other” is followed by the specific word “including vanaspati”. Hence, the definition is exhaustive, coupled with the fact that 8 digit HSN Code is provided against the said entry under the Kerala VAT Act, while under the UP VAT Act, entry is 'Vanaspati (hydrogenated vegetable oil)', which is specific word being followed by general words.
Further, the notifications dated 16.12.1998 and 30.04.2003 issued by the Government of India were not placed for consideration before the Kerala High Court, wherein, it has been acknowledged by the Government of India that bakery shortening means and is commonly known as 'vanaspati'.
The revision fails and is hereby dismissed.
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2023 (10) TMI 157
Revision of assessment - revision sought on the premise of non-disclosure certain transactions of sales - time limitation - HELD THAT:- This Court finds that the submission of the respondent that limitation must be reckoned from the date of assessment i.e., 25.01.2016 is misconceived. The above submission overlooks the fact that in view of the deeming contained in Section 22 of the TNVAT Act the petitioner must be deemed to have been assessed on 31.10.2012. In view thereof, the order dated 25.01.2016 itself is a reassessment traceable to Section 27 of the TNVAT Act. The present proceeding is also traceable to Section 27 of the TNVAT Act. Though exercise of power of assessment / reassessment under Section 27 of the TNVAT Act would not result in exhaustion of the power and it is open to exercise the power vested under Section 27 of the TNVAT Act on more than one occasion - though there is no limitation as to the number of occasions the power of assessment / reassessment under Section 27 of the TNVAT Act may be exercised. However, any such exercise ought to be made within the period of six years from the date of original assessment including deemed assessment as stipulated under Section 27 of the TNVAT Act.
The submission of the learned counsel for the respondent that by participating in the assessment proceeding, the petitioner must be understood to have waived his right to question the impugned proceeding which is otherwise barred by limitation, is unsustainable. Since, limitation relates to jurisdiction which cannot be conferred by consent, waiver or acquiescence. The impugned order being barred by limitation is thus a nullity.
This Court finds that the impugned proceeding is barred by limitation and thus the impugned proceeding is set aside - Petition disposed off.
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2023 (10) TMI 107
Power of review - error apparent on the face of record or not - Extraction of coal primarily for captive consumption in its Industrial Unit situated at Jamshedpur - transfer of goods for captive consumption and not for sale - demand of additional tax liability - HELD THAT:- It transpires that Petitioner-Tata Steel Ltd. is having its industrial unit at Jamshedpur wherein it is engaged in manufacturing of Iron and Steel. It has its colliery in the District of Dhanbad known as ‘Jamadova Colliery’ and from the said colliery, coal is being extracted and stock transferred to its unit at Jamshedpur in the District of East Singhbhum for captive consumption, which is ‘intra-state stock transfer’. Original assessment proceedings of the petitioner were completed and its gross turnover was accepted and no dispute was raised with respect to intra-state stock transfer of goods.
A bare perusal of Section 21(1A) of the Bihar Finance Act would reveal that if any dealer claims that he is not liable to pay any tax on the part of his turnover by reason of transfer of such goods to any other dealer or agent or principal ‘for sale’ the burden of proving this claim shall be on the dealer and the dealer would furnish before the prescribed authority a declaration in the form and in the manner prescribed. Under the Rules, the declaration prescribed is Form IX-D - In the instant case, admittedly, the dealer-Tata Steel Ltd. stock transferred its goods to its Jamshedpur Unit for ‘captive consumption’ and not for ‘sale’ and, thus, on a bare reading of Section 21(1A), it would be evident that there was no requirement of furnishing of statutory Form IX-D.
A perusal of the review order would demonstrate that the review order has been passed not for correcting any mistake or error apparent on the face of record, but review order has been passed to change alleged erroneous decision which is not permissible in the eye of law. Reference in this regard may be made to numerous decisions of Hon’ble Apex Court, wherein it has been clearly held that power of review is limited to correcting ‘mistake/error apparent on the face of record’ and not to change an ‘erroneous decision’ - reliance can be placed in the case of S. Madhusudan Reddy v. V.Narayan Reddy, reported in (2022) SCC Online SC 1034 [2022 (8) TMI 1337 - SUPREME COURT].
Thus, the very initiation of the review proceedings pursuant to Show Cause Notice dated 04.01.2011 was void ab initio, as neither any satisfaction was recorded by the Assessing Authority nor any reason was assigned for initiation of review proceedings - It is a settled law that vague show cause notice lacking details amounts to violation of the principles of natural justice and in that view of the matter, we are inclined to entertain the present writ applications.
Petition disposed off.
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2023 (10) TMI 106
Maintainability of petition - availability of alternative remedy - levy of penalty, interest and a direction to deposit a sum of Rs. 86,04,010/- after adjusting a sum of Rs. 5,82,646/- deposited in excess, in the year 2008-09 - delayed payment of tax - HELD THAT:- From the arguments advanced and the materials brought on record it is satisfied that this is not a fit case where the existence of alternative remedy can be bypassed. The petitioner shall have all liberty to raise all such plea/ grounds as raised before us before the Appellate Forum. In such view of the matter the petitioner is relegated to file an appeal before the Appellate Authority under Section 57 of the VAT Act 2008.
The writ petition is dismissed on the ground of availability of alternative remedy.
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2023 (10) TMI 105
Violation of principles of natural justice - no opportunity of cross-examination was given to the dealer - rejection of sales which were not proven - non-production of ‘F’ forms - HELD THAT:- In the present case, opportunity of hearing could only be granted to the appellant had he appeared before the assessing authority. As per order Annexure A-2, dated 28.12.2007, number of opportunities had been given to the appellant, however, he did not put in appearance nor produced any ‘F’ form and the authority proceeded against ex-parte and had passed the order on the basis of evidence with them and the verification carried out at their own level from Delhi. When it was found that the dealer had accounted for these transactions at Delhi, they extended the benefit of ‘F’ form to the appellant. The appellant authority has not referred to the provisions of Section 3(a) of the Central Sales Tax Act, Rules 1957 as reflected at Page 43 of the paper book where the assessee apart from producing form ‘F’ is required to maintain all the conditions to claim the benefit of exemption to claim these sales on consignment basis.
The appellant has not assisted in giving complete addresses of the Company namely, Shakti Trading Company and Ghansi Ram & Co. and on the basis of F forms they could not get benefit under Section 3(a) of the Central Sales Tax Act Rules 1957. The appeal has been rightly accepted by the tribunal.
No substantial question of law arises for consideration in the present appeal as the appellant-assessee never chose to appear before the Excise and Taxation Officer-cum-Designated Officer, Mansa and this finding of fact recorded by the authorities, after giving verification is not a question of law which needs to be examined now.
Since the appellant had not appeared and lead any evidence to show that his sales were interstate or within the State, the order passed by the Tribunal does not require any interference as no substantial question of law arises for consideration - Appeal dismissed.
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2023 (10) TMI 5
Classification of goods - installation cables, outlet or connection modules, patch cords, patch panels, network cards, fibre optic cables etc. - covered in Entry C. 20 (ii)(b) of the Second Schedule to the Karnataka Sales Tax Act, 1957 or not - HELD THAT:- Reliance placed in the case of Collector of Central Excise v. Grasim Industries [2005 (4) TMI 64 - SUPREME COURT] and Castrol India Ltd. v. C.C.E. [2005 (2) TMI 847 - SUPREME COURT], which had ruled that the phrase “that is to say” are to be given a restrictive meaning, rather than expanding the scope of the preceding words. In Castrol India, it was held the expression “that is to say” in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading “others”.
Having regard to these facts, the Court is satisfied that the final decision classifying all the items in question, as falling in Part ‘E’ of the Second Schedule to the Karnataka Sales Tax Act, 1957 is correct.
Appeal dismissed.
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2023 (9) TMI 1498
Interpretation of earlier judgments and their applicability in the present case - HELD THAT:- A perusal of the material on record will indicate that the learned single Judge has proceeded to allow the petition by placing reliance and following an earlier judgment of a co-ordinate Bench in the case of Sonal Apparel Pvt. Ltd. Vs. State of Karnataka and another [2016 (3) TMI 1286 - KARNATAKA HIGH COURT], which were allowed by this Court. A perusal of the said order will indicate that the coordinate learned Single Judge had followed and placed reliance upon an earlier judgment of Division Bench in the case of State of Karnataka Vs. Centum Industries [2015 (10) TMI 47 - KARNATAKA HIGH COURT].
There are no merit in the appeal and the same is hereby dismissed.
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2023 (9) TMI 1429
Adjustment of Demand with the Refund while objections were pending - Refund the amounts claimed along with interest as per the return which was submitted by the petitioner for the first quarter of Financial Year 2016-2017 - deeming fiction as envisaged u/s 74(9) had come into play or not on the failure of the OHA to make the decision against the objections of 2010-11 within a period of 15 days form the service of notice in DVAT-41 - HELD THAT:- In the case of FLIPKART INDIA PRIVATE LIMITED VERSUS VALUE ADDED TAX OFFICER, WARD 300 & ORS. [2023 (8) TMI 987 - DELHI HIGH COURT] it was held that where a refund is claimed and stands embedded in the self-assessment form which is submitted, the respondents are liable to release the amount as claimed within two months from the date when the return is furnished in a situation where the assessee submits return on a quarterly basis. Undisputedly it is the provisions of Section 38(3)(a)(ii) of the Act which apply to the petitioner here.
The ambit of Section 38(2) of the Act is explained and it is held that an adjustment against a refund claim could only be made in respect of a tax demand which is “due” and “enforceable”. On a conjoint reading of the said provision along with Section 35(2) of the Act, it is concluded that till such time as objections are pending before the OHA, the tax demand cannot be said to have “crystalised” so as to be adjusted against the refund as claimed.
In the facts of the present case it is found that not only have adjustments been made contrary to the mandate of Section 38 of the Act, the demand as raised for FY 2010-2011 and which has been adjusted against the refund as claimed is additionally liable to be set aside on grounds resting on the provisions contained in Section 74 of the Act.
The position which therefore emerges is that not only would the Hearing Notice of 24 May 2022 be rendered unsustainable in law, even the adjustments which have been made in the Refund Order of 29 April 2022 would be contrary to the provisions of the Act. It is concluded that since it is manifest that insofar as the demand for FY 2010-2011 is concerned, the objections would be deemed to have been accepted and granted by the Commissioner upon the expiry of 15 days when computed from 04 May 2022. The demand as created in terms of the assessment order as framed would thus clearly not survive - as a consequence of which the Commissioner would stand denuded of the jurisdiction to adjudicate upon those objections once the statutory fiction comes into effect. Section 74(9) in that sense not only accords a closure but commands to hold that the objections preferred by the assessee would be deemed to have been accepted.
Turning then to the adjustments which have been made with respect to the demand for the first quarter of FY 2017-2018, the respondents do not dispute that the objections tendered by the petitioner before the OHA remain pending on its board. The demand for the first quarter of FY 2017-2018 is clearly rendered unenforceable and could not have been adjusted against the refund as claimed by the petitioner for the first quarter of FY 2016-2017. This aspect is clearly covered by the decision in Flipkart.
The instant writ petitions is allowed and the Hearing Notice dated 24 May 2022 is quashed. The Refund Order of 29 April 2022 shall for reasons aforenoted stand set aside to the extent that it adjusts an amount of Rs. 13,60,14,547/-.
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2023 (9) TMI 1419
Classification of goods - Whether specific entry no.35 of Schedule-IV do not cover the 'Argon Carbon Dioxide, Oxygen, Hydrogen, Carbon gases as "Other non metals? - HELD THAT:- It is quite apparent that gases involved in the products in question are individually covered under Entry No. 35 of Part B of Schedule IV to the RVAT Act.
Whether a combination/mixture of these gases, which are individually covered, can be ousted from the said Entry? - HELD THAT:- It cannot be emphasized enough that in indirect tax matters, long standing classification cannot be disturbed merely on personal opinion/knowledge. The revenue has to discharge its burden to prove that the change in classification is warranted and necessary by adducing cogent and corroborating evidence. Mere assertion or personal opinion, even of the Commissioner, without any supporting evidence is of no use or value. Since the revenue has not discharged its burden to show that the products in question, i.e. mixture of the gases which are individually covered under Entry No. 35 ('Industrial Inputs'), would not be covered in the broad Entry No. 35 of Part B ('Industrial Inputs') of Schedule IV to the RVAT Act, the levy of additional tax and interest cannot be sustained.
The question of law framed have to be answered in favour of the petitioner- assessee and against the respondent-revenue.
All STR allowed.
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2023 (9) TMI 1369
Time limitation - present Writ Petition was filed by the petitioner on 04.07.2022 immediately after the impugned order dated 01.06.2022 was served within the statutory period prescribed for filing the appeal before the expiry of limitation for filing statutory appeal before the Appellate Authority had expired - Wrongful determination of taxable turnover under Rule 8(5)(d) of the TNVAT Rules, 2007, r/w Section 5 of the TNVAT Act, 2006.
HELD THAT:- Section 5(1) of the TNVAT Act, 2006 is the charging provisions for works contract. The taxable turnover is to be determined under Rule 8(5) of the TN VAT Rules,2007. Only the amounts specified in Clauses (a) to (i) to Rule 8(5) of the TNVAT Rules, 2007 are to be allowed to be deducted for determining the taxable turnover in the case of works contract - If amount is not ascertainable from the books of accounts maintained and produced by a dealer before the assessing authority, deduction shall be of such amount as is calculated at the rate specified in column (3) of the Table to Rule 8(5) of the TNVAT Rules, 2007.
Since, it is the case of the petitioner that few more TDS certificate have been issued to the Petitioner by the Greater Corporation of Chennai, the petitioner is directed to furnish the same to the respondent within a period of thirty (30) days from the date of receipt of a copy of this Order.
The 1st respondent is directed to issue a corrigendum to the impugned order by revising the tax liability after adjusting the TDS certificates said to have been issued during the pendency of this Writ Petition, within a period of sixty (60) days from the date of receipt of a copy of this order.
The petitioner shall thereafter file an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, within a period of ninety (90) days from the date of receipt of a copy of this order.
Petition dismissed.
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2023 (9) TMI 1368
Principles of natural justice - rejection of application for recovery of arrears in mechanical manner without assigning any reasons - authority to adjust under Rule 51 of the Bombay Sales Tax Rules, 1959 against dues payable under the Maharashtra Purchase Tax on Sugarcane Act, 1962 - HELD THAT:- The reply affidavit does not justify order dated 21st August 2019 passed by the Deputy Commissioner of State Tax in rejecting the Petitioner’s application under Section 7 of the Maharashtra Settlement of Arrears of Tax, Interest, Penalty or Late Fee Ordinance, 2019. It does not furnish any reasons whatsoever to disentitle the Petitioner for such settlement. Insofar as the refund adjustment order is concerned, it also appears that the Deputy Commissioner has proceeded to issue such orders patently without jurisdiction as he could not have assumed jurisdiction of an authority under the 1962 Act. On such count, the impugned refund adjustment order is rendered bad and illegal.
It appears that although such refund order is passed on 25th July 2019, the Deputy Commissioner has proceeded to exercise jurisdiction under Rule 51 of the Bombay Tax Rules, 1959 (the 1959 Rules), whether it was at all permissible to invoke the provisions of the 1959 Rules is another question, which also goes to the root of the matter. Be that as it may, the refund adjustment order cannot be sustained for want of jurisdiction.
The impugned order dated 21st August 2019 is quashed and set aside. The refund application of the Petitioner would be required to be restored to the Deputy Commissioner to be decided in accordance with law - Petition allowed.
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2023 (9) TMI 1367
Validity of assessment order - disallowance of claim of exemption made by the petitioner under Section 6(2) of the Central Sales Tax Act. 1956 - denial on the ground that the sale in question to the ultimate buyer was not taken place during the inter-State movement of the goods in question and according to the Assessing Officer sale by the petitioner to its ultimate buyer took place prior to the purchase by it from its seller - HELD THAT:- On a plain reading of Section 3 along with explanation (i) and (ii) and Section 6(2) of the Central Sales Tax Act along with the aforesaid Trade circular it clearly appears that the commencement of movement of the goods is effected in case of movement from one State to another State from the time of delivery of such consignment to the transporter and is terminated at the time when delivery is taken from such transporter and also is effected by transfer of documents of title of such consignment to a subsequent buyer during the movement from one State to another State.
The main grounds of refusal to grant exemption to the petitioner, under Section 6(3) of the Central Sales Tax Act, 1956, by all the Authorities below are that the transfer of title/sale by the petitioner to the ultimate buyer was effected before the commencement of movement and not during the movement of the goods in question which finding on considering the facts and circumstances of the case and provisions of law, is perverse and misinterpretation of relevant provisions of the Act and the notification in question.
The respondents could not show any piece of evidence to establish that the subsequent sale to the ultimate buyer effected prior to the commencement of movement of goods in question as defined under Section 6(2) read with explanation 2 and 3 under Section 3 of the Central Sales Tax Act as well as the aforesaid notification dated 4th October, 2010.
The impugned order of all the impugned Authorities are not sustainable in law - Petition disposed off.
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9911796707
