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VAT / Sales Tax - Case Laws
Showing 481 to 500 of 27514 Records
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2023 (9) TMI 1366
Industrial Promotional Assistance (IPA) scheme - principle of promissory estoppel - whether the respondent authorities can claim to have changed their policy midway vis-à-vis the petitioners and the entities covered by the special package only? - HELD THAT:- Nothing in the materials on record or from the arguments of the respondent authorities indicate that there was a declared change of policy or withdrawal of the special package given to the petitioners at any point of time.
In the present case, not only was a special package specifically granted to the petitioners on March 2, 2006, but the respondent authorities went on continuously acting on the same for more two years by duly disbursing the subsidies in favour of the petitioners - The present case is not a case where the State made a promise of giving a subsidy, but subsequently changed the policy decision, thereby depriving prospective applicants for such subsidy from getting the subsidy.
The attempt of the respondent authorities to invoke the principles of the 2004 scheme and the caps stipulated therein as well as the principles embodied in the 2000 scheme, per se, is entirely mala fide and arbitrary and designed to defeat the petitioners’ legitimate claim for the balance amount under the special package - there is no scope of giving a premium to such arbitrary endeavour of the State.
The respondent authorities to ensure that the balance amount due to the petitioners, to the tune of Rs. 1,18,22,02,436/-, in terms of the break-up given in the supplementary affidavit filed by the petitioners today, to which the petitioners are entitled to under the special package-in-question, be disbursed to the petitioners at the earliest, positively within three months from date - Application allowed.
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2023 (9) TMI 1365
Validity of preassessment notices - challenge on the premise that the impugned notices are barred by limitation in terms of Rule 5 (6) of the Central Sales Tax (Puducherry) Rules 1967 - time limitation - HELD THAT:- Though the question here relates to one of limitation, this Court is not inclined to entertain the batch of writ petitions at the stage of show cause notice for it is trite law that though there is no absolute bar or embargo against entertaining writ petitions against notices, however, interference should be in rare cases and not as a matter of routine. Though, the restriction is self imposed it has been consistently held that High Court shall exercise restraint in entertaining writ petitions under Article 226 of the Constitution of India at the stage of show cause notice. This Court is of the view that whether the notices are barred by limitation or not can be adjudicated by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation.
Limitation is a mixed question of fact and law which is yet another reason as to why this Court is not inclined to entertain the writ petition at the stage of show cause notice. The writ petitions are disposed of with liberty to the petitioner to file their objections within a period of 6 weeks from the date of receipt of a copy of this order, if any such objections are filed, the Respondent shall consider the same after providing the petitioner reasonable opportunity of personal hearing.
Petition disposed off.
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2023 (9) TMI 1276
Seeking refund of the amount paid in excess in view of the TDS deducted from the State bills of the petitioner and paid to the State Government - rejected in view of non-passing of the order of assessment orders for the assessment years 2010-11 to 2015-16, within the provisions of Section 29 of the Tripura Value Added Tax Act, 2004 - HELD THAT:- The impugned order dated 31-8-2021 is hereby set aside. The case for the assessment year of 2010-11 to 2015-16 under the Tripura Value Added Tax Act, 2004 is remanded back to the Respondent No. 3 for passing the order under Sections 29 and 43 of the Tripura Value Added Tax Act, 2004 after giving the petitioner a reasonable opportunity of being heard.
Petition disposed off.
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2023 (9) TMI 1250
Applicability of ratio of decision of the Apex Court for the similar matters in other states - Classification of goods - Mosquito Mats, Coils and Vaporizers - Mortein Insect Killers - Petition sought clarification of the observations of this Court in M/S RECKITT BENCKISER (INDIA) LTD. VERSUS COMMISSIONER COMMERCIAL TAXES & ORS.[2023 (4) TMI 408 - SUPREME COURT] as the said observations ought not to be construed to be general observations, but only in the context of the Kerala Value Added Tax Act and the notifications issued thereunder.
HELD THAT:- It is clarified that the observations made by this Court in judgment dated 10.04.2023 in paragraphs 9.1. and 9.4 are made in the context of Kerala Value Added Tax Act and are not general observations, which could apply to other State enactments.
Application disposed off.
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2023 (9) TMI 1249
Provisional attachment of Bank Accounts - validity of notice being an intimation under Section 38 of the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Section 35 of the MVAT Act pertains to provisional attachment to protect revenue in certain cases. The same was issued more than a year back, hence, such provisional attachment stands automatically revoked by operation of law by virtue of the provisions of sub-section (2) of Section 35 of the MVAT Act, which mandates that every provisional attachment shall cease to have an effect after the expiry of one year from the date of the service of an order issued under Sub-section (1) - there are no order, whereby the proviso below sub-section (1) was invoked and/or for any reasons to be recorded in writing, the period of one year as contained in the order was in any manner and as permissible in law was extended. Thus, in our opinion, by operation of law, the provisional attachment of all demat accounts has come to an end.
The interest of justice would require to stay the impugned notice dated 11th April 2022, issued by the Respondents under Section 38 of the MVAT Act against the Petitioner - the provisional attachment of the Demat Accounts of the Petitioner and his family members has lapsed by virtue of the provisions of Subsection (2) of Section 35 of the MVAT Act.
List the matter on 15th September 2023, High on Board.
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2023 (9) TMI 1187
Recovery of penal interest - Violation of principles of natural justice - impugned order of recovery of interest has been passed without hearing the petitioner - non-renewal of license of Excise vends - HELD THAT:- It is not the respondents case that the licence gets automatically renewed without its cancellation or suspension, therefore, for the period of three financial years from 1995-1998, the petitioner having no licence to run the business of liquor, it was not liable to pay the licence fee for that period. It seems that the petitioner under the hope and expectations that his application for shifting of his business from Link Road to Bus Stand, Jammu shall be considered which was ultimately allowed by the respondents had paid an amount of ₹8.50 lacs as licence fee for that period besides an amount of ₹6.00 lacs deposited earlier in terms of Court’s order. The petitioner, has thus, deposited the amount of ₹14.50 lacs on account of licence fee and on withdrawal of his petition and till then interim order passed by this Court was operating which had conditioned that the petitioner shall pay an amount of ₹6.00 lacs and remaining amount shall be payable after the disposal of the writ petition.
The impugned communication requiring the petitioner to remit penal interest of ₹14.49 lacs in terms of Section 24-A of the J&K Liquor Licence and Sales Rules, 1984 can be ordered to be deposited only on non-payment of the licence fee. Since the licence fee had been deposited by the petitioner in terms of the Court order, the same cannot be said to be a delayed payment so as to incur the penal consequences of paying interest in terms of Section 24-A of the J&K Excise Act. Rule 20 of the J&K Liquor Licence and Sales Rules, 1984 provided that licence unless renewed is determined on 31st March at the end of the financial year.
Petition allowed.
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2023 (9) TMI 1057
Levy of purchase tax - penultimate sale - raw hides and skin purchased without tax were converted as dress hides using materials purchased at concessional rate of tax under Section 3(3) of the TNGST Act - It was held by High Court that the petitioner is therefore not entitled to exemption under Sections 5(3) and 5(4) of the Central Sales Tax Act, 1956 - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
SLP dismissed.
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2023 (9) TMI 1056
Title: Supreme Court Order - Settlement reached, petition withdrawn
Summary: The Supreme Court, with Justice Aravind Kumar presiding, allowed the petitioner's counsel to withdraw the petition due to a settlement being reached. The petition was dismissed as withdrawn.
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2023 (9) TMI 1006
Refund of Input Tax Credit - Adjustment of refund with tax demand - Delay in processing the refund beyond - petitioner did not respond to several notices issued under Section 59 (2) of DVAT Act - time limitation - HELD THAT:- A fortiori the impugned adjustment letter dated 18 November, 2022 cannot be sustained in law since the mandate of Section 38 read with Section 39 and 59 of the DVAT Act was not followed. Therefore, the petitioner is entitled to the refund claimed.
Validity of default notices of tax & interest - HELD THAT: All said and done, in so far as issuance of the impugned default notices of tax & interest is concerned, in light of the case of the respondent that revised return dated 31 March 2017 was filed for the 4th quarter 2015-16 and notices under Section 59(2) DVAT Act dated 19 February 2016, 27 May 2016 and 25 May 2018 were not complied with by the petitioner, the only recourse in law is to file a statutory appeal under Section 74 of the DVAT Act and it would be open to the petitioner to raise all objections regarding untenability of the impugned default notices of tax & interest including under Section 34 of the DVAT Act with regard to the limitation prescribed for assessment or re-assessment.
The instant Writ Petition is partly allowed to the effect that the impugned adjustment order dated 18 November 2022 is hereby quashed and the respondent is consequently directed to refund the amount of Rs. 17,10,15, 285/- for the 4th quarter of 2015-16 and also Rs. 5,44,39,148/- for the 1st quarter of 2017-18 along-with interest as per Section 42 of the DVAT Act from the date it fell due till realisation.
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2023 (9) TMI 1005
Validity of assessment order - failure of appellant to deposit the pre-deposit amount - disallowance of input tax credit - HELD THAT:- The appellant shall deposit Rs. 50 lakhs within a period of 15 days from today and Rs. 50 lakhs shall be deposited before 31.10.2023 and Rs. 1 crore before 30.11.2023 with the respondent instead of bank guarantee - The appellant shall also file an undertaking to the aforesaid effect before this court within a period of one week from today - The appellant shall tender a bond to the satisfaction of the Assessing Officer for the remaining amount of pre-deposit as directed by the Tribunal.
The matter should be remanded to the First Appellate Authority as the First Appellate Authority has dismissed the appeals of the appellant without going into the merits. The matter is therefore remanded to the First Appellate Authority.
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2023 (9) TMI 911
Refund of excess Input Tax Credit - purchases from dealers covered by the Deferment Scheme, 2005 notified under section 62 of HP VAT Act - presumptive taxation - it was held by High Court that the appellant is entitled for refund - HELD THAT:- There are no merit in the Special Leave Petition.
SLP dismissed.
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2023 (9) TMI 862
Cancellation of C-Forms issued with retrospective effect or not - requirement of assessment u/s under Section 17 of the HVAT Act - HELD THAT:- The question whether C-Forms issued by the authorities can be cancelled retrospectively is no longer res integra. The same is covered by various decisions including the decisions of this Court in JAIN MANUFACTURING (INDIA) PVT. LTD. VERSUS THE COMMISSIONER VALUE ADDED TAX & ANR. [2016 (6) TMI 304 - DELHI HIGH COURT] where it was held that the order passed by the DT&T cancelling the C Form issued to the Petitioner in the present case with effect from 27th November 2015 is hereby set aside. The Petitioner will continue to treat the said C-Form issued to it as having been validly issued. The DT&T shall, not later than ten days from today, make the necessary corrections on its website to indicate the validation of the above C-Form.
The respondents concurs that the question raised by the petitioner is covered by the aforesaid decision.
The present petition is allowed and the C-Forms issued by the Sales Tax Department to the purchasing dealer (Ghanshyam Industries, TIN No. 07106917681) cannot be cancelled. The concerned authorities shall act accordingly.
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2023 (9) TMI 861
Recovery of arrears of tax for the Assessment Year 2004--2005 and 2005-2006 - assessment completed on 01.02.2012 for the Assessment Year 2004-2005 and on 10.02.2012 for the Assessment Year 2005-2006 and now revised order passed - HELD THAT:- The issue as to whether the amount has been properly re-quantified in the rectification proceedings is a matter, which has to be only determined by the Officers in the hierarchy under the provision of the TNGST Act, 1959. The question of filing the second rectification application under Section 55(4) of the TNGST Act also cannot be countenanced - The revised Assessment Orders passed on 19.03.2012 are appealable orders under the provisions of the TNGST Act, 1959. Considering the above, pursuant to the direction of this Court dated 24.02.2023, the petitioner has paid a sum of Rs 15,37,823/-.
This Court is inclined to dispose this writ petition giving liberty to the petitioner to challenge the revised Assessment Orders dated 19.03.2012 for the respective Assessment Years by filing an appeal, within a period of thirty (30) days from the date of receipt of a copy of this order - Petition disposed off.
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2023 (9) TMI 860
Maintainability of petition - availability of alternative remedy - Section 65 of the Gujarat Value Added Tax Act, 1969 - HELD THAT:- In view of the provisions of Sub-section 2 of Section 65 of the Gujarat Value Added Tax Act, 1969, the petitioners have efficacious alternative remedy to canvass its grievances before the Tribunal. Hence, it is opined that the petitioners, if relegated to the Tribunal for adjudication of its grievances, the ends of justice would be met with.
It is observed that as and when the petitioners approach to the Tribunal by way of an appeal, the issue of pre-deposit of the amount is left open and if any application for waiver of the condition of pre-deposit is made by the petitioners, the Tribunal shall decide the same in accordance with law.
The petition is disposed of.
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2023 (9) TMI 801
Interpretation of statute - Effect of the amendment - Retrospective or prospective - sub-section (1) of Section 25 of KVAT Act as well as the third proviso of the said Section - initially the third proviso was not part of the Section but was later inserted in the year 2010 by the Finance Act 2010 and every year till Finance Act, 2018 the said proviso has been substituted - interpretation to be given to the words “at any time within five years from the last date of the year to which the return relates, proceed to determine” as found in sub-section (1) of Section 25 and the third proviso to the said sub-section as inserted with effect from 01.04.2015, extending time limitation for initiation of proceedings for reassessment of escaped turnover.
Whether, the third proviso to sub-section (1) of Section 25 extends the period of limitation for the initiation of proceedings for reassessment insofar as escaped turnover is concerned? - HELD THAT:- What has to be interpreted is the expression “proceed to determine” as it occurs in sub-Section (1) of Section 25 as well as the third proviso to the said sub-Section as amended in Finance Act, 2017. No doubt, in both the provisions, the expression used is “proceed to determine.” The said expression must be considered in light of the words that occur prior to and subsequent to the said expression. Under sub-Section (1) of Section 25, the intention of the use of the expression “proceed to determine” is in the context of initiation of proceedings at any time within five years (now six years after the 2018 amendment) from the last date of the year to which the return relates. The object and purpose is that there cannot be a belated initiation of proceedings and at the whims and fancies of the Department so as to re-open stale returns, which had already been concluded under the provisions of the said Act. However, the object of the proviso which also uses the words “proceed to determine” must be in the context of completion of the Assessment which had already been initiated in accordance with sub-Section (1) to Section 25 within the time-frame as prescribed therein.
The department is not right in contending that the expression “proceed to determine” in the third proviso gives a lease of life or an extension of the period of limitation by one year at a time for “initiation” of the reassessment proceeding under sub-section (1) of Section 25 of the Act. Such an interpretation would lead to absurdity as a proviso cannot militate against the intention of the main provision in sub-section (1) of Section 25 and thus a proviso cannot extend the limitation period which is fixed under the main provision. The normal function of a proviso is to exempt something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision.
It may be clarified that the expression “proceed to determine” is found in the amendment made to the KVAT Act with effect from 2017 Finance Act, whereas in the earlier amendment, the expression clearly was to “complete the assessment” in the third proviso of sub-section (1) of Section 25 which is also a clear indication of the intention of the Legislature to give a command to the concerned assessing officers seized of the proceedings which had been initiated under sub-section (1) of Section 25 to complete within the time-frame as stipulated in the said proviso. The amendment to the Kerala Finance Act, 2017 is with effect from 01.04.2017 and does not have any retrospective effect.
There are no merit in these appeals. The appeals are hence dismissed.
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2023 (9) TMI 800
Validity of remanding the case on the issue which had already attains finality after the order of the first appellate authority passed in appeal filed against the provisional assessment order - HELD THAT:- On perusal of the aforesaid observation made in provisional assessment order, it transpires that query was put to the revisionist that at the time of survey dated 13.5.2015, calcium octet was not found at his business premises but on production of stock register, entries of 1710 kgs of calcium octet were mentioned however while issuing show cause notice for provisional assessment the commodities has wrongly been mentioned but the assessing authority has not discussed anything about the fact that at the time of survey stock of some specific chemical was not found though the same has been mentioned in the stock register. Further the assessing authority observed that no adverse inference should be drawn against the revisionist. The assessing authority has neither assigned any reason nor any finding has been recorded for not drawing any adverse inference against the revisionist.
The first appellate authority has observed that at the time of survey dated 3.5.2015 stock of calcium octet was not found but same was available in the factory. The said fact is accepted by the Assessing Authority. However, neither anything was brought on record to support the said finding nor any discussion had been made in the provisional assessment order to clarify the justification given by the assessee, as such, the findings recorded by the first appellate authority in this respect is perverse - Further the observation of the 1st appellate authority that the chemical was available in the factory is without any material on record or discussion, therefore has no leg to stand. Once neither any discussion nor any finding has been recorded by any of the authority about shortcomings of chemical found at the time of survey dated 13.5.2015, it will be incorrect on the part of the revisionist to argue and suggest that once on the provisional assessment order the finding has been recorded in favour of the revisionist, which was confirmed by the first appellate authority, the matter ought not to have remanded the matter for redetermination of the said fact.
Thus, no interference is called for by this Court in the impugned order. The revision is dismissed.
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2023 (9) TMI 724
Validity of preassessment notices - impugned notices are barred by limitation in terms of Rule 5 (6) of the Central Sales Tax (Puducherry) Rules 1967 or not - HELD THAT:- This Court is not inclined to entertain the batch of writ petitions at the stage of show cause notice for it is trite law that though there is no absolute bar or embargo against entertaining writ petitions against notices, however, interference should be in rare cases and not as a matter of routine. Though, the restriction is self imposed it has been consistently held that High Court shall exercise restraint in entertaining writ petitions under Article 226 of the Constitution of India at the stage of show cause notice. This Court is of the view that whether the notices are barred by limitation or not can be adjudicated by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation.
Limitation is a mixed question of fact and law which is yet another reason as to why this Court is not inclined to entertain the writ petition at the stage of show cause notice.
The writ petitions are disposed of.
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2023 (9) TMI 709
Legality of impugned recovery notice - proceedings initiated against the Petitioner before the National Company Law Appellate Tribunal (NCLAT) and substantive order dated 15th October 2018 passed by the NCLAT - HELD THAT:- All the materials are required to be considered by the designated officer and the officer to take a decision whether the impugned notice dated 28th June 2021, in the peculiar facts and circumstances of the case and in view of the order passed by NCLAT, needs to be withdrawn. The Petitioner's detailed representations are required to be considered in accordance with law.
The Assistant Commissioner of State Tax are directed to hear the Petitioner on the Petitioner’s representation dated 6th July 2021 (Exhibit-“D”) and the representation dated 28th April 2023 (Exhibit -“H”) and pass a reasoned order, considering as to whether the impugned action under the impugned notice ought to be withdrawn - petition disposed off.
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2023 (9) TMI 708
Classification of services - HIMANI BOROPLUS ANTISEPTIC CREAM - Medicament or not - to be classified as medicines falling within the scope of Entry 46 of Part-II of Schedule B appended to the Orissa Value Added Tax Act, 2004 - HELD THAT:- Reliance placed on judgment of the Supreme Court in Puma Ayurvedic Herbal (P) Ltd. v. Commissioner, Central Excise, Nagpur, [2006 (3) TMI 141 - SUPREME COURT], in which the two tests were accepted.
There can be no fact finding in adjudication of the revision petition. Keeping that in mind we have to understand what are the two tests that have been accepted by the Supreme Court. The first test is common understanding of the product to be a medicament, which is called the common parlance test. A user of the product would use it only for treating a particular ailment and stop its use after the ailment is cured. The second test is regarding ingredients used in the product, whether mentioned in authoritative textbooks on Ayurveda.
The Tribunal did not direct remand, for ascertaining the question of fact regarding ingredients of the product. Instead, without itself ascertaining on the fact, it went on to dismiss the appeal of revenue.
There was no satisfaction rendered by opposite party (assessee) on the second test. It must be said that it was for opposite party to prove the product fell under the entry as the Tribunal erred in saying the burden was on petitioner (Revenue) to prove the negative.
Coming back to the first test, on perusal of both, impugned order as well as the one made by the Commissioner carrying concurrent findings, we have been unable to notice that there was finding also on fact, regarding common parlance test. It must be mentioned here that the advertisement relied upon by petitioner was so done at this stage and not in the earlier proceedings, ascertained by us on query made. Hence, we disregard the advertisement in our adjudication.
Revision disposed off.
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2023 (9) TMI 639
Classification of goods - toffee - to be covered under the Entry No. 137 Schedule II Part A and liable to tax @ 4% as against the claim of the revenue that the said commodity was taxable as an unclassified commodity @ 12.5%? - HELD THAT:- The SLP is dismissed.
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