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VAT / Sales Tax - Case Laws
Showing 541 to 560 of 27514 Records
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2023 (8) TMI 987
Refund claim - It is the case of the petitioner that bearing in mind the provisions of Section 38(3)(a)(ii) of the DVAT Act, the refund application was liable to be granted within two months from the submission of the revised return and thus latest by 31 May 2015 - HELD THAT:- Once the objections had been duly lodged online, the mere fact that the respondents were unable to trace out the objections filed physically would not detract from the right of the petitioners to claim refund - it is further constrained to observe that the various status reports as well as the averments made in this respect relate to the objections which had been filed for FY 2014-15, those pertaining to FY 2015-2016 and the first quarter of FY 20172018. However, the claim for refund which is made in the instant writ petition, undisputedly, relates to and emanates from the return which was submitted for the quarter ending 31 March 2014. Undisputedly all objections which pertained to FY 2012-13 as well as the period for April 2013 to December 2013 had been duly considered and ultimately disposed of by the respondents themselves in terms of the order of the OHA dated 31 October 2019.
As would be evident from a bare perusal of Rule 34, a claim for refund of tax is liable to be made in Form DVAT-21 only if such a refund is not claimed in the return itself. This clearly emerges from Rule 34(1) which uses the expression “except claimed in the return”. The aforesaid position is again reiterated in sub-rule (2) and which stipulates that only such claim for refunds may be made in Form DVAT-21 which have not been claimed in any previous return. It is thus manifest that once a claim for refund stands embodied in the return itself, there is no additional obligation placed upon the assessee to file Form DVAT-21. This position, in any case, stands concluded against the respondents in light of the judgments rendered by the Court in Corsan Corviam [2023 (4) TMI 4 - DELHI HIGH COURT] and Consortium of Sudhir Power Projects [2023 (2) TMI 290 - DELHI HIGH COURT].
Once a claim for refund stands embodied in the return itself, there is no additional obligation placed upon the assessee to file Form DVAT-21. This position, in any case, stands concluded against the respondents in light of the judgments rendered by the Court in Corsan Corviam and Consortium of Sudhir Power Projects.
There thus existed no justification for the respondents adjusting the sum of Rs. 10,74,67,218/- on 03 December 2018. This since evidently the objections were yet to be disposed of by the OHA on that date - the stand as taken by the respondents cannot be sustained and it is observed that they clearly acted in flagrant violation of the mandate of Section 38 of the DVAT Act.
The impugned order dated 31 May 2022 is hereby quashed. The respondents are consequently directed to refund the amount of Rs. 6,62,74,405/- along with interest from the date it fell due - Petition allowed.
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2023 (8) TMI 986
Levy of luxury tax under the provisions of the Tamil Nadu Tax on Luxuries Act, 1981 - amendment Act No.24/2002 to the Tamil Nadu Tax on Luxuries Act, 1981, imposing 1% on gold, silver, platinum jewellery and other precious stones at every point of purchase - HELD THAT:- The respondent ought to have called upon the petitioner to show cause as to why the amount that was paid by the petitioner covered by the impugned order should be refunded back to the petitioner as the petitioner would have passed on the incidence of tax to its customers - If the petitioner had produced evidence that the incidence of tax was not passed on to the customers, it is not on the part of the duty of the Department/State Government to retain the tax, which was otherwise not due to it.
The impugned order set aside and case remitted back to the respondent to pass a fresh order after calling upon the petitioner to show cause as to how the tax amount, which has been paid by the petitioner pursuant to the impugned order should not be retained by the State Government on account of unjust enrichment.
The respondent shall pass appropriate orders keeping note of Paragraphs 97 and 98 of the decision of the Hon'ble Supreme Court in M/s.Godfrey Phillips India Limited case - petition allowed.
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2023 (8) TMI 935
Rejection of refund application - Assessment order set aside - HELD THAT:- By the order impugned before the High Court, the authority rejected the application for refund. The respondent filed a writ petition challenging such rejection before the High Court of Punjab and Haryana.
The Division Bench of the High Court examined the matter and having considered the order rejecting the refund came to the conclusion that there are no reasons accompanying the decision taken and following the decision in the case of SADHU OVERSEAS VERSUS STATE OF HARYANA AND ANOTHER [2007 (9) TMI 575 - PUNJAB AND HARYANA HIGH COURT] as well as RATTI WOOLLEN MILLS VERSUS STATE OF PUNJAB AND OTHERS [2007 (2) TMI 587 - PUNJAB AND HARYANA HIGH COURT], the High Court allowed the writ petition(s) and directed the refund to be made.
Further, the High Court directed that the interest shall be calculated at a statutory rate of 12 per cent for the first month of delay and at the rate of 18 per cent per annum in respect of delay caused for the subsequent months.
The interest payable confined to 12 per cent per annum for the entire period - application disposed off.
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2023 (8) TMI 934
Maintainability of petition assailing the assessment - availability of alternate remedy of appeal - Validity of assessment orders - Levy and recovery of Local Body Tax (LBT) - bringing the goods, subject matter of assessment within the municipal limits for use, consumption and sale or not - vires of sub-section 152D of the MMC Act - HELD THAT:- The municipal taxation in regard to the levy and recovery of the LBT is part of a well defined statutory scheme, which is a Code by itself. The question would be whether the petitioner has made out any exceptional case so as to be made an exception from deviating the statutory scheme and discipline as may be legitimately required in entertaining the present petition. Considering the case as averred by the petitioner in the petition, it is opined that at this stage of the proceedings, the vires of sub-section 152D of the MMC Act not examined, as challenged by the petitioner - this is because what was questioned by the petitioner are primarily the assessment orders.
It would quite justified in taking such view considering the clear averments as made in the memo of petition in paragraph 5(f) when the petitioner takes a position contrary to the well settled principles of law, i.e. when the petitioner contends that the provision of not allowing filing of a statutory appeal without deposit of the disputed tax is arbitrary, harsh and irrational (when the validity of the said provision of pre-deposit has already been upheld]. Also when the petitioner clearly avers in the petition that it is difficult for the petitioner to pay the entire amount of disputed tax to maintain the appeal, and for such reason this petition is filed.
The Division Bench of this Court in case KHARGHAR CO-OP. HOUSING SOCIETIES FEDERATION LTD. AND ORS. VERSUS MUNICIPAL COMMISSIONER, PANVEL MUNICIPAL CORPORATION AND ORS. [2023 (4) TMI 1241 - BOMBAY HIGH COURT] when in the context of payment of municipal taxes the Division Bench referring to the provisions of Section 406 and considering the several decisions of the Supreme Court in Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta and Anr. [1963 (12) TMI 6 - SUPREME COURT]; Income-Tax Officer Lucknow Vs. M/s S.B. Singar Singh & Sons & Anr. [1976 (8) TMI 5 - SUPREME COURT]; Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors. [1984 (11) TMI 63 - SUPREME COURT]; M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors. [2023 (2) TMI 64 - SUPREME COURT] has held that the petition under Article 226 of the Constitution assailing the assessment and demand order ought not to be entertained and the proper remedy would be to challenge the assessment order by taking recourse to the statutory remedy of an appeal - Such decision is squarely applicable in the facts of the present case, as contention of the petitioner is similar to one considered by the Division Bench in Kharghar Co-op. Housing Societies’ case.
Petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally - HELD THAT:- In so far as the contention of the petitioner on merits are concerned namely that the petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally and therefore such goods are not liable for the levy of the LBT, is a factual contention, which can be effectively examined on the basis of the documents and which can be certainly examined in the proceedings of a statutory appeal.
The petitioner has not made out any case for interference in these petitions so as to pursuade the Court to make an exception to entertain the petitions, notwithstanding the statutory remedy of an appeal available to the petitioner as provided under the provisions of Section 406 of the MMC Act - merely for the reasons that the vires of a statutory provision namely Section 152D of the MMC Act being assailed by the petitioner, would not mean that de hors a strong foundation and a cause of action for assailing such provision being made out, the Court nonetheless would be under an obligation to examine the vires of the said provision and entertain the petitions.
The petitioner is permitted to avail the remedy of an appeal under Section 406 of the MMC Act to assail the impugned assessment orders. Let such appeal be filed within four weeks from today - If such appeals are filed, the same be adjudicated by the appellate authority on its merits without an objection as to limitation as the petitioner was bonafide pursuing the present proceedings. All contentions of the parties on the merits of the proceedings if any instituted before the appellate authority are expressly kept open.
Petition disposed off.
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2023 (8) TMI 933
Validity of assessment orders - demand under Section 19(2)(v) of the TNVAT Act - Invisible loss - Deficit stock - HELD THAT:- It was incumbent on the part of the assessee as also the revenue to have to applied for a modification of the aforesaid order. It however went unnoticed. The revenue was under the assumption that the amount stood confirmed as far as deficit stock issue was concerned while the petitioner has assumed the issue all the issues were answered as the impugned orders were set aside and case was remitted back. The Department also did not choose to issue further prerevision notice on deficit stock which culminated in the subsequent orders.
The issue relating to the stock deficit has not been addressed after the order was set aside by this Court on 18.09.2017 in W.P.Nos.16000 to 16004 of 2017 on account of the confusion that prevailed. Be that as it may, the issue has been alive in these proceedings, all through though the other two issue have been settled in favour of the petitioner and have been dropped. As far as deficit stock is concerned, it has be construed that the issue is still alive. Neither the Department can be deprived of the revenue if the amount was payable by the petitioner nor the petitioner deprived of a chance to defend itself.
The case is remitted back to the respondent to pass a fresh order as far as deficit stock is concerned - Petition disposed off.
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2023 (8) TMI 932
Refund of Pre-deposit alongwith interest - Adjustment of pre-deposit with pending demand - pre-deposit made for the purposes of pursuing an appeal under the Act can be treated as duty or not? - HELD THAT:- MRF LIMITED VERSUS COMMISSIONER OF TRADE AND TAXES [2015 (5) TMI 462 - DELHI HIGH COURT] has unequivocally held that a deposit made in terms of a provision connected with the preferment of an appeal cannot be treated to be tax or duty. In fact that is the position which has been consistently held by various courts as would be evident from the discussion which follows. It thus remains undisputed that a pre-deposit cannot partake the character of a tax or duty. This since, it would clearly be connected only with the right of the assessee to pursue an appeal.
As is manifest from a clear reading of sub-section (1) of section 30, the said provision relates to a claim made by a person for refund of an amount of tax paid by him. The express language as employed in Section 30(1) itself takes the case of refund of pre-deposit out from the rigors of the procedural formalities which are contemplated therein. We further note that as in the present case, claims for refund which may arise as a consequence of an order passed by the Appellate Authority or a Court would be governed by Section 30(4) of the Act - The same position would also appear to flow from a reading of Rule 29 and which contemplates Form ST- 21 and Form ST-22 being moved by an assessee when claiming refund. Rule 29 (2) speaks of an application for refund of any tax or penalty imposed under Section 30(1) or reimbursement of tax under Section 30(8). Neither sub-section (1) nor sub-section (8) of Section 30 deal with the subject of refund of pre-deposit.
Thus, a pre-deposit would become refundable the moment an Appellate Authority comes to hold in favour of the assessee and demands come to be annulled. This principally since pre-deposit is not tax or duty and the refund of which alone is regulated by Section 30(1) of the Act - the decision of the Bombay High Court in SUVIDHE LTD. VERSUS UNION OF INDIA [1996 (2) TMI 136 - BOMBAY HIGH COURT] was assailed before the Supreme Court. While dismissing the appeal of the Union, the Supreme Court in Union of India Vs. Suvidhe Limited. [1996 (8) TMI 521 - SC ORDER] held as A deposit under Section 35-F is not a payment of duty but only a pre-deposit for availing the right of appeal. Such amount is bound to be refunded when the appeal is allowed with consequential relief.
There are no justification to accord a judicial imprimatur to such an interpretation since it would go against the very grain of a pre-deposit - Whether the respondents would be entitled to adjust a pre-deposit against an outstanding demand in case the assessee were to lose in the appeal is a question which, in any case, does not arise in the present proceedings.
The respondent is hereby directed to refund a sum of Rs.50,76,485/- along with interest in terms of Section 30(4) with effect from 04 December 2017 till the date of actual payment - Petition allowed.
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2023 (8) TMI 893
Best Judgement assessment - scope of term 'goods' - electrical energy comes within the definition of goods or not - petitioner submits that since the definition of ‘goods’ specifically excludes electricity, the contention that electrical energy is included under the 1st Schedule to the Act as exempted goods would not make any difference to the situation - HELD THAT:- It is noticed that Ext. P19 notice proceeds on the basis that the goods brought in by the petitioner on 24.3.2008 had been disposed of during the financial year 2008-’09 without disclosing the same to the Department. It is, therefore, presumed that the petitioner had brought in three different windmills and had effected sale of the same which has not been disclosed to the Department. It is on this basis that tax at the rate of 4% on the value of three windmills with cess and interest has been calculated by Ext. P20.
The petitioner has produced material to show that what was brought into the State was one windmill in a knocked down condition in three separate vehicles and also to show that the said windmill is still operational and that electrical energy is being generated and supplied to the KSEB. The further contention appears to be that electrical energy being goods included in the 1st Schedule, for which, no tax is payable, the sale of electrical energy also ought to have been disclosed by the petitioner, who is a registered dealer under the KVAT Act, in his returns as turnover which has not been done in the instant case.
The remaining question is with regard to the sale, if any, of the windmill as such. From the materials produced by the petitioner, especially Exts. P15, P22 and P24, it is clear that what has been brought into the State of Kerala was one windmill in knocked down condition in three separate vehicles as part of the same bill or invoice. The KSEB is on record stating that one windmill is still functional at Ramakkalmedu and that electrical energy is being generated and supplied to the KSEB from the same.
Thus, Ext.P20 order, which does not satisfy the ingredients of Section 25(1) of the KVAT Act is completely unsustainable. Exts. P19, P20 and P26 are, therefore, set aside - petition allowed.
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2023 (8) TMI 845
Maintainability of petition - availability of efficacious and alternative remedy of appeal - Validity of assessment order - barred by time limitation or not - principles of natural justice.
Time Limitation - HELD THAT:- Admittedly, the basis for issuing show cause notice and passing of impugned Assessment Order was the inspection dated 21.05.2013 of V&E Department and its report to the 1st respondent. In such an event, the 1st respondent owes a responsibility to furnish the copy of the said report at least after receiving the request letter dated 08.07.2015 of the petitioner, a copy of which is filed along with material papers. Thus the petitioner was deprived of a valuable opportunity to submit her objections against the said report and impugned Assessment Order - The net result is that though the Assessment Order pertaining to the tax period 2013-14 is within the period of limitation, however, the same is liable to be set aside for non-furnishing of the report of the V&E Department forwarded to the 1st respondent and also non-consideration of subsequent report issued by the V&E Department as claimed by the petitioner and not giving an opportunity of hearing to the petitioner in this regard.
In this case, the principles of natural justice were violated and further a major part of assessed period is barred by limitation and thereby, the 1st respondent had no jurisdiction to pass assessment order to that extent. In such an event, this Court can entertain writ petition.
The Assessment Order dated 11.01.2019 so far as it relates to the period 2008-09 to 2012-13 (upto November, 2012) is barred by limitation and hence set aside to that extent, however, the said order relating to the tax period 2013-14 is held to be within the period of limitation - Petition allowed in part.
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2023 (8) TMI 844
Determination of appellant's turnover under Section 3-B of the TNGST Act 1959 - levy of penalty under Section 16(2) of the Act - revision of assessment on the basis of third party records - assessment confirmed on the basis of information collected from the place of business of a third party that too when those information reveal only the commission received by the said third party, for the invoices allegedly raised in the name of the appellant - burden to prove - violation of principles of natural justice.
HELD THAT:- Admittedly, the assessments of the appellant have been revised based upon certain records said to have been seized by the Enforcement Wing from the Photo Marketing Service in Chennai which is said to have revealed that the assessee had purchased the goods vide six invoices from one Jindal Photo Films, New Delhi. Therefore, it is clear that the assessments have been revised based upon third party documents and not based upon any inspection conducted in the premises of the assessee. The authorities have failed to furnish a copy of the said third party document to the assessee, especially when the assessee has taken a stand that their names and registration number have been misused by some one to evade tax. No opportunity has been provided to the assessee to cross examine the said third party.
Therefore, it is clear that the entire revision of assessment has been made based on documents which have been screened from the purview of the assessee. On the other hand, the burden has been fixed upon the assessee to prove the negative that he did not have any transaction with those third party entities.
The orders of the authorities are clearly in violation of the principles of natural justice and they are liable to be set aside and accordingly, set aside - All the substantial questions of law are answered in favour of the appellant - Appeal allowed.
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2023 (8) TMI 843
Initiation of Reassessment proceedings - time barred or not - Levy of penalty u/s 10 A of the CST Act - deliberate intent or not - Mis-utilization of Form 'C' for purchase of goods at concessional rate - assessee was carrying out manufacturing activity on job work basis and the goods manufactured by it was not sold by it but was sold by Tata Motors Limited.
Whether Section 42(3) is in itself the substantive provision provided under the JVAT Act for initiation of re-assessment proceeding or it merely enumerates additional circumstances/grounds under which re-assessment proceeding can be initiated under the substantive provision of re-assessment contained under Section 40 of the JVAT Act? - HELD THAT:- The Hon’ble Supreme Court, in the case of Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT], has clearly laid down that the phrase “levy and collection” indicates that all the steps in making a man liable to pay a tax and exaction of tax from him must be in accordance with law. All steps must be taken according to statutory provisions and no one can be subjected to levy and collection of tax without authority of law. It is a settled law that completion of assessment of an assessee confers valuable right upon the said assessee and the said assessment proceeding can be subjected to re-assessment strictly in accordance with the statutory provisions contained under the Act.
Pior to insertion of Section 42(3), the Assessing Authority, could have treated audit objection as an information and could have initiated re-assessment proceeding. However, Section 42(3) provides that when information is received by way of observation/objection from the Comptroller and Auditor General of India, the Assessing Authority has to proceed to re-assess the dealer. Thus, what is dispensed with under Section 42(3) is recording of reasons to believe by the Assessing Authority for initiation of re-assessment proceeding.
Further, in the Judgment rendered by Hon’ble Apex Court, in the case of Larsen and Toubro [2017 (3) TMI 1064 - SUPREME COURT], Hon’ble Apex Court, after examining almost all earlier Judgments, although held that an audit objection would be well within the parameters of being construed as information, but at the same time, it has been held that merely because audit objection has been raised, the same would not authorize the Assessing Authority to proceed with re-assessment and the Assessing Authority has to record his satisfaction on the audit objection. In the said Judgment, Hon’ble Supreme Court noticed that the Assessing Authority was not agreeing with the audit observation, but, despite the same, proceeded to issue Notice on the ground of direction issued by Audit Party and not on its personal satisfaction and it was clearly held by Hon’ble Apex Court that same was not permissible under law; and the very initiation of re-assessment proceeding was declared as without jurisdiction.
The law is no more res integra that a quasi-judicial authority cannot abdicate its jurisdiction on the dictate of an external authority and proceed to pass order on such external dictate - In the present case, it has been argued by learned Advocate General, Section 42(3) mandates the assessing authority to initiate re-assessment proceeding on the dictate of the Audit Party which, on the face of discussions, would amount to abdication of jurisdiction of the assessing authority being a quasi-judicial body to external dictates, which would be contrary to the ratio laid down by the Judgment of Hon’ble Apex Court in the case of Indian Eastern Newspaper Society, New Dehi [1979 (8) TMI 1 - SUPREME COURT] and in the case of Larsen and Toubro.
Whether Section 42(3) is an independent provision conferring power of re-assessment or is merely as additional ground conferred under the Act upon the assessing authority for carrying out re-assessment proceedings? - HELD THAT:- Since it is already declared that Section 42(3) is to be read with Section 40(4) of JVAT Act and limitation period for carrying out re-assessment proceeding is five years, we are not deliberating further over the said issue - However, it would be apt to also refer to the Judgment rendered by Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Bhatinda District Cooperative Milk Producers Union Ltd. [2007 (10) TMI 300 - SUPREME COURT] wherein Hon’ble Apex Court, while examining the provisions contained under the Punjab General Sales Tax Act conferring power of suo-motu revision upon the Commissioner, held that although said Section prescribed no period of limitation but the same would not mean that suo-motu power can be exercised at any time. The Hon’ble, in the said Judgment, held that if no period of limitation is prescribed, statutory authority must exercise jurisdiction within reasonable time and the reasonable period would depend upon the nature of the statute, liabilities and other relevant factors.
In the said Judgment, Hon’ble Supreme Court, while examining the scheme of Punjab General Sales Tax Act, held that revisional power should ordinarily be exercised within a period of three years and, in any event, the same should not exceed the period of five years. Said finding was given by the Hon’ble Apex Court by considering various provisions of the Punjab Act which contains provision of limitation varying from three years to five years from the end of the tax period.
Similarly, under the scheme of JVAT Act also, provisions of limitation for carrying out assessment, audit assessment, scrutiny assessment, re-assessment proceedings, etc. have been prescribed to be three years to five years. It is for the said reason also, in our opinion, while incorporating provision of Section 42(3), the Legislature, in its wisdom, had not sought to extend the period of limitation by inserting non-obstante clause.
Whether imposition of penalty under Section 10A of the CST Act against the Petitioner-assessee for alleged violation of provisions of Section 10(b) of the CST Act is sustainable in the eye of law? - HELD THAT:- The Assessing Authority failed to discharge its burden to prove the existence of circumstances constituting the said offence under Section 10(b). It may also be noted here that Show Cause Notice, pursuant to audit objection, was issued for alleged violation of Section 10(d) of the Act, but orders were passed for alleged violation of Section 10(b) of the Act. The first Revisional Authority i.e. Additional Commissioner of Commercial Taxes also held that the audit objection is not valid in view of the Judgment of East India Mfg. Company Ltd. [1981 (7) TMI 205 - SUPREME COURT], but still upheld the order of the Assessing Authority imposing penalty, which compelled the Petitioner to move before the second Revisional Authority i.e. Commercial Taxes Tribunal.
The Commercial Taxes Tribunal, interestingly, upheld levy of penalty on a completely new ground by recording, inter alia, that in the original Registration Certificate of the Petitioner, although Petitioner was entitled to purchase goods at concessional rate for re-sale, but the word ‘Wahi’/’Do’ was missing in the Registration Certificate and Petitioner was not entitled to purchase goods for manufacturing and processing of the goods for sale. This finding rendered by Commercial Taxes Tribunal is clearly travelling beyond the impugned orders and has been raised for the first time before the Tribunal.
The imposition of penalty against the Petitioner under Section 10A of the Act is not sustainable in the eye of law, and, the assesse was under the bona fide belief that its Registration Certificate entitled it to purchase goods at concessional rate for manufacturing and processing of goods for sale and the said bona fide belief of the assesse is fortified by the stand taken by the Revenue itself, wherein at no stage it was disputed that assesse was not entitled to purchase goods at concessional rate for manufacturing and processing activity. The assesse-Petitioner, therefore, cannot be said to have falsely represented knowingly and willfully with guilty mind and, thus, we are of the opinion that the order of penalty levied against the assesse is not sustainable.
Application allowed.
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2023 (8) TMI 787
Date of commencement of production of the unit - initial date of production of the commencement of service of the petitioner’s unit has been recorded as 12.06.2012 instead of actual date of production, i.e., 28.03.2012 - Grievance projected by the writ petitioner is that the petitioner has although submitted the documentary evidence of having commenced the production of the unit on 28.03.2012, the final decision for grant of DOP (date of production) has not been taken by the Director Industries and Commerce
HELD THAT:- As on account of inaction on part of the respondents by not taking the decision timely regarding the date of production, the benefits which have been availed by the petitioner under the provision of Section 80IB of the Income Tax Act which have been duly accepted by the department at the relevant point of time by accepting the returns are being withdrawn.
The record reveals that although the petitioner continued to carry out the production of biscuits with effect from 28.03.2012 and have been filing the returns with the Income Tax Department and the assessment proceedings u/s 153(A)/143(3) of the Income Tax Act for the annual years, 2014-15, 2015-16 and 2016-17 were initiated because of the date of production shown as 12.06.2012 and the deductions claimed by the petitioner were being withdrawn.
Since the respondents have failed to take a decision for grant of date of production as on 28.03.2012 in conformity with the interim direction passed by this Court coupled with the observation of the Director Industries and Commerce, the learned senior counsel appearing on behalf of the petitioner-unit submitted that he would be satisfied at this stage in case if a direction is issued to the respondents to accord consideration to the unit of the petitioner within some reasonable time in the light of the observations of the concerned Director, i.e., respondent No. 2 and to the aforesaid preposition, the learned counsel appearing on behalf of the respondents have no objection.
The present petition is disposed of with the direction to the respondents to accord consideration to the case of the petitioner to have commenced the production of the unit on 28.03.2012 instead of 12.06.2012 by granting final DOP in conformity with the observations of the Director Industries and Commerce, which find mention in communication dated 14.06.2012 addressed to the General Manager District Centre, Jammu within a period of six weeks from the date copy of the order along with writ petition and the annexures appended thereto, are made available to the respondents.
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2023 (8) TMI 786
Maintainability of writ petition - availability of alternative remedy - Validity of Re-assessment order - statutory period of limitation prescribed under the JVAT Act not followed - Section 42(3) of the JVAT Act.
Existence of alternative remedy - HELD THAT:- It is trite law that existence of alternative remedy is not an absolute bar to the maintainability of writ petition under Article 226 of the Constitution of India. There are circumstances under which writ petition can be entertained namely; breach of fundamental right; violation of principles of natural justice; and excess of jurisdiction or a challenge to vires of a statute or delegated legislation. In the present case, writ petitioner has raised the issue of limitation which is a jurisdictional question and, thus, writ petition is maintainable.
Interpretation of statute - Whether Section 42(3) is in itself the substantive provision provided under the JVAT Act for initiation of re-assessment proceeding or it merely enumerates additional circumstances/grounds under which re-assessment proceeding can be initiated under the substantive provision of re-assessment contained under Section 40 of the JVAT Act? - HELD THAT:- The Hon’ble Supreme Court, in Mafatlal Industries [1996 (12) TMI 50 - SUPREME COURT], has clearly laid down that the phrase “levy and collection” indicates that all the steps in making a man liable to pay a tax and exaction of tax from him must be in accordance with law. All steps must be taken according to statutory provisions and no one can be subjected to levy and collection of tax without authority of law.
Completion of assessment of an Assessee confers valuable right upon the said assessee and the said assessment proceeding can be subjected to re-assessment strictly in accordance with the statutory provisions contained under the Act - under the scheme of the Act, there is provision for assessment, self-assessment, audit assessment, assessment of dealers not registered, and, specific provisions have also been incorporated for carrying out re-assessment proceedings under Section 40(1) of the JVAT Act.
Even earlier, prior to insertion of Section 42(3), the Assessing Authority, could have treated audit objection as an information and could have initiated re-assessment proceeding. However, Section 42(3) provides that when information is received by way of observation/objection from the Comptroller and Auditor General of India, the Assessing Authority has to proceed to re-assess the dealer. Thus, what is dispensed with under Section 42(3) is recording of reasons to believe by the Assessing Authority for initiation of re-assessment proceeding.
In the Judgment rendered by Hon’ble Apex Court, in the case of Larsen and Toubro [2017 (3) TMI 1064 - SUPREME COURT], Hon’ble Apex Court, after examining almost all earlier Judgments, although held that an audit objection would be well within the parameters of being construed as information, but at the same time, it was held that merely because audit objection has been raised, the same would not authorize the Assessing Authority to proceed with re-assessment and the Assessing Authority has to record his satisfaction on the audit objection. In the said Judgment, Hon’ble Supreme Court noticed that the Assessing Authority was not agreeing with the audit observation, but, despite the same, proceeded to issue Notice on the ground of direction issued by Audit Party and not on its personal satisfaction and it was clearly held by Hon’ble Apex Court that same was not permissible under law; and the very initiation of re-assessment proceeding was declared as without jurisdiction.
It is trite law that a quasi-judicial authority cannot abdicate its jurisdiction on the dictate of an external authority and proceed to pass order on such external dictate. In the present case, it has been argued by learned Advocate General that Section 42(3) mandates the assessing authority to initiate re-assessment proceeding on the dictate of the Audit Party which, on the face of discussions held above, would amount to abdication of jurisdiction of the assessing authority being a quasi-judicial body to external dictates, which would be contrary to the ratio laid down by the Judgment of Hon’ble Apex Court in the case of Indian Eastern Newspaper Society, New Delhi [1979 (8) TMI 1 - SUPREME COURT] and in the case of Larsen and Toubro.
Whether Section 42(3) is an independent provision conferring power of re-assessment or is merely as additional ground conferred under the Act upon the assessing authority for carrying out re-assessment proceedings? - HELD THAT:- What has been dispensed with in Section 42(3) is the requirement of recording ‘reasons to believe’ only. It is under the said circumstances, non-obstante clause was not inserted in Section 42(3) extending the period of limitation from the date of receipt of audit objection, and, thus, the period of limitation would be governed by Section 40(1) read with 40(4) of the JVAT Act - If the assessing authority is allowed to initiate repeated re-assessment proceeding against an Assessee merely on the dictate of Audit Party, there would be no finality of assessment and the Assessee would be having domical sword hanging over in it in perpetuity, which is not the scheme of the Act.
Since it is already declared that Section 42(3) is to be read with Section 40(4) of JVAT Act and limitation period for carrying out re-assessment proceeding is five years, we are not deliberating further over the said issue. However, it would be appropriate to also refer to the Judgment rendered by Hon’ble Supreme Court in the case of STATE OF PUNJAB VERSUS BHATINDA DISTRICT CO-OP. MILK P. UNION LTD. [2007 (10) TMI 300 - SUPREME COURT] wherein Hon’ble Supreme Court, while examining the provisions contained under the Punjab General Sales Tax Act conferring power of suo-motu revision upon the Commissioner, held that although said Section prescribed no period of limitation but the same would not mean that suo-motu power can be exercised at any time. Hon’ble Supreme Court, in the said Judgment, held that if no period of limitation is prescribed, statutory authority must exercise jurisdiction within reasonable time and the reasonable period would depend upon the nature of the statute, liabilities and other relevant factors.
Thus, under the scheme of JVAT Act also, provisions of limitation for carrying out assessment, audit assessment, scrutiny assessment, re-assessment proceedings, etc. have been prescribed to be three years to five years. It is for the said reason also, in our opinion, while incorporating provision of Section 42(3), the Legislature, in its wisdom, had not sought to extend the period of limitation by inserting non-obstante clause.
Whether suo-motu extension orders extending the period of limitation passed by Hon’ble Supreme Court would apply to original adjudication proceedings? - HELD THAT:- A bare perusal of the said Circular would reveal that CBIC, in exercise of its power under Section 168A of CGST Act, has issued the said guidelines which was deliberated in 43rd meeting of the GST Council and in the said guidelines, it was clearly noted that the orders of Hon’ble Supreme Court only apply to quasi-judicial and judicial matters relating to petitions/ applications/suits/appeals/all other proceedings and not to original adjudication proceedings. In fact, the Parliament has enacted the ‘Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and, under the said Act, provisions were incorporated extending the period of limitation specifically for passing of adjudication orders.
A careful reading of the Judgment of Hon’ble Apex Court in S. Kasi [2020 (6) TMI 727 - SUPREME COURT] would leave no iota of doubt in our mind that the purpose of extending the period of limitation was for the benefit of litigants who have to take remedy in law as per the applicable statute for a right, as the law of limitation bars the remedy but not the right. Thus, in view of the ratio of the Judgment of Hon’ble Apex Court, in the case of S. Kasi read with the amendments carried out by the Parliament and the State Legislature extending the period of limitation by amending Acts, it is opined that the benefit of suo-motu extension orders of Hon’ble Apex Court would not be available to original adjudication proceedings which is to be governed by applicable Statutes including its amendments.
The suo-motu orders extending the period of limitation passed by Hon’ble Apex Court is not applicable to original adjudication proceedings and re-assessment proceedings would be governed by provisions of JVAT Act read with the Amendment Act of 2020.
Application disposed off.
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2023 (8) TMI 652
Purchase of gold for manufacturing of jewellery and ornaments - Claim of exemption from tax under Rule 33A of the West Bengal Value Added Tax Rules, 2005 (the Rules).
It was held by the High Court that the arguments that by preventing the petitioner from carrying out job work outside the State of West Bengal would violate Article 301 and 304 of the Constitution is an argument which is stated to be outrightly rejected.
HELD THAT:- There are no reason to interfere with the judgment and order impugned in the petition - SLP dismissed.
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2023 (8) TMI 651
Payment of the Local Body Tax (LBT) under the Maharashtra Municipal Corporation Act, 1949 - Chole Village is included in the local urban area of the Kalyan-Dombivali Municipal Corporation, or not - refund of amount paid by the Petitioner or recovered from the petitioner on account of LBT, interest and penalty - vires of sub-rule (2) and sub-rule (3) of Rule 48 of the LBT Rules respectively for levy of penalty and interest to the Municipal Act - cancellation of LBT registration Certificate - levy of interest and penalty.
HELD THAT:- It is clear from the notification that it is issued in exercise of the powers conferred on the State Government under clause (a) of sub-section (3) of Section 3 of the MMC Act. It also specifically refers to the factors mentioned in clause (2) of Article 243Q of the Constitution, as also to the revised boundaries of the municipal corporation, to the effect that after inclusion of the area specified in Schedule-I, it shall be such area as specified in Schedule-II. Schedule-II of the notification provides for the revised boundaries of the larger urban area for which the Municipal Corporation for the City of KalyanDombivali, in which in paragraph 1 under the title “North”, Village Chole has been included. Thus, on a conjoint reading of Article 243Q read with Section 3(3)(a) and (b) of the MMC Act, as also the definition of the larger urban area as provided in Section 2(30A) of the MMC Act, it is clear that Village Chole forms part of the revised boundary of the larger urban area as Article 243Q read with the provisions as noted by us above of the MMC Act would contemplate.
Jurisdiction of municipal corporation when the provisions of the LBT stand deleted - HELD THAT:- Section 78 of the Maharashtra Act No. XLII of 2017 which is a saving provision, which provides that the amendments made by the said Act to the Maharashtra Municipal Corporations Act shall not affect the provisions of the MMC Act, when it provides that notwithstanding the amendments made in the Mumbai Municipal Corporation Act, by such Act (Maharashtra Act No. XLII of 2017), those laws and all rules, regulations, orders, notifications, form, certificates and notices, appointments and delegation of powers issued under the MMC Act which were in force immediately prior to the appointed day of the Maharashtra Goods and Services Tax Act, 2017, shall subject to the other provisions of the said Act, in so far as they apply, continue to have effect after the appointed day of the Maharashtra Goods and Services Tax Act, 2017, for the purposes of the levy, returns, assessment, re-assessment, appeal, determination, revision, rectification, reference, limitation, production and inspection of accounts and documents and search of premises, transfer of proceedings, payment and recovery, calculation of cumulative quantum of benefits, exemption from payment of tax and deferment of due date for payment of tax, cancellation of the certificate of Entitlement etc. as also whether or not the tax, penalty, interest, sum forfeited or tax deducted at source, if any, in relation to such proceedings is paid on or before the appointed day - Section 78 has clearly saved the applicability of the LBT provisions for the relevant period even after coming into force of the GST regime. Thus, Section 78 of the Maharashtra Act No. XLII of 2017 itself provides that the repeal is in view of the provisions of the MGST Act, 2017 being brought into force.
The contention that in view of the deletion of the provisions of the LBT by Maharashtra Act No. XLII of 2017, the saving clause would not operate and the entire exercise of assessment as undertaken by the municipal corporation in regard to the LBT being levied by the municipal corporation is without jurisdiction, cannot be accepted - Such argument is in fact contrary to the provisions of Section 78 of the Maharashtra Act No. XLII of 2017 and Section 173 of the MGST Act.
Interest and penalty - HELD THAT:- The rules themselves are clear that they would provide for interest and penalty to be levied in the event the circumstances so arise and the tax has not been paid as per the provisions of the Act. It is not the petitioner’s case that the rules are framed without any corresponding provision and the power vested under the MMC Act. This apart, it is also found that such a challenge as mounted in the petition on the interest and penalty, is a contention in desperation. In the context of the contention as raised by the petitioner, we also cannot be oblivious of the fact that the petitioner had voluntarily registered itself as a dealer under the provisions of the MMC Act, as also has partly deposited the LBT due and payable, and now after the assessment orders are passed, and a demand is made by the petitioner against the petitioner, the petitioner decided to knock the doors of this Court.
Thus, the petitions cannot be entertained and are liable to be dismissed.
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2023 (8) TMI 608
Suo moto revision taken under Section 34 of Tamil Nadu General Sales Tax Act, 1959 - Classification of goods - rate of tax - two wheeler and tractor fan belts - goods were specifically included under Entry 50(vi) of Part-D of the first schedule of TNGST Act 1959 or not - HELD THAT:- The invoice bills produced by the appellant would clearly establish the fact that the belts that have been sold by them are accessories to two wheeler or a tractor. Therefore, it is clear that the said goods would clearly fall within entry 30 of Part-C of the first schedule attracting 5% tax for the two wheeler parts. As far as the tractor belts are concerned, they fall under entry 27 of Part-B of the first schedule attracting 3% tax.
A perusal of item 50(vi) of Part D of the first schedule indicates that it relates to conveyor, transmission or elevator belts or belting of rubber whether combined with any textile material or otherwise which would attract 8% tax - As rightly pointed out by the learned counsel appearing for the appellant the Division Bench in THE STATE OF TAMIL NADU REP. BY THE DEPUTY COMMISSIONER (COMMERCIAL TAXES) VERSUS PM. ENGINEERING AND CO. [2014 (3) TMI 233 - MADRAS HIGH COURT] had categorically found that when there is a specific entry to deal with an item in question, the same cannot be brought under the general entry.
In the present case, the two wheeler fan belts and tractor fan belts are specifically found mentioned under entry 30 of Part-C and entry 27 of Part-B. Therefore, the first respondent was not right in invoking entry 50 which is a general entry.
It is brought to the notice of the Court that the first respondent had initiated suo moto revision proceedings only for the assessment year 1993-1994 and 1994-1995. However, the assessment for the previous and subsequent assessment years have not been subjected to suo moto revision. Therefore, it is clear that the first respondent has cherrypicked the said assessment years for exercising his suo moto powers for reasons best known to him.
All the substantial questions of law are answered in favour of the appellant and the order impugned in the petition is set aside and this Tax Case is allowed.
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2023 (8) TMI 607
Intra-State Transaction or Inter-State transaction? - entire turn over relating to the works contract is at all taxable under the TNGST Act, 1959 or not - goods have moved from Raipur State of Chhattisgarh to Madurai in the state of Tamil Nadu and the petitioner duly collected Form-D from Southern Railway - HELD THAT:- It is an admitted position that the petitioner is based at Raipur, first address, and has undertaken the fabrication work there only. The second address, the railway yard, is one assumed by the respondents, where the onsite team of the petitioner has undertaken the task of readying the sleepers for fitment onto the tracks. The third address as confirmed by learned Government Advocate, the address of the sales tax consultant at Coimbatore.
Upon completion of the contract, the petitioner has, through consultant, sought refund of the sales tax deducted at source upon payments remitted to it by the Railways. It was only then, when the sales tax department was required to refund the amount, that show cause notices came to be issued to the petitioner proposing to treat the transactions as domestic 'works contracts'.
In the present case, the contract is between the assessee in Raipur and Southern Railways. It is not known where the contract was entered into by the parties. However, there is no dispute on the position that the goods forming the subject matter of the contract, have been fabricated in Raipur and thereafter brought to Tamil Nadu for installation - Explanation-3 to Section 2(n) of the Act would not stand attracted in such a case and the transaction would fall outside the ambit of domestic sale, assuming the character of interstate sale only. In fact, these very transactions have been the subject matter of assessments under the Central Sales Tax Act 1956 and CST assessment orders for the periods 2002-03 and 2003-04 have been placed on record by the petitioner at page Nos.263 and 269 of compilation dated 17.07.2023.
The impugned orders of the Tribunal are set aside and questions of law are answered in favour of the petitioner to the effect that the transactions in question constitute interstate sales, not liable to tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959 - Petition allowed.
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2023 (8) TMI 533
Classification of goods - milk cream - tax free item in view of Entries 16 and 23 in Schedule-B of the Act or taxable @ 12.5%/13.75% - exercise of suo moto revisional powers by the 1st respondent - HELD THAT:- As per Section 46(1) of the Act, the 1st respondent may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein, and on finding the proceedings or the orders prejudicial to the interest of revenue, he may pass such order in relation thereto as he may think fit - Similar provision is contained in the Punjab General Sales Tax Act, 1948.
A Division Bench of the Punjab and Haryana High Court in HOTEL OBEROI MOUNTVIEW VERSUS ASSESSING AUTHORITY, UT., CHANDIGARH [1996 (1) TMI 392 - PUNJAB AND HARYANA HIGH COURT] held that though the Revisional Authority has to act of his own motion; he can indeed exercise such power whenever he receives any information about any illegality or impropriety committed by any of his subordinate authorities; that such information may come from any source – whether it be the department or any other person, including an assessee; and the object of giving this power of Revision to the Commissioner is for proper administration of the Act, and it is his duty to see that neither the assessee should be allowed to escape from the tax net, nor should he be required to pay tax ,which he is not liable to pay under the law.
In fact the Supreme Court in THE BOARD OF REVENUE, MADRAS VERSUS RAJ BROTHERS AGENCIES [1973 (2) TMI 114 - SUPREME COURT] also held that even an assessee can invoke the suo moto revisional power of the Board of Revenue under the Madras General Sales Tax Act, 1959. The Supreme Court held that such a suo moto revisional power is conferred on the Board to remedy any injustice and it was open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It held that it is upto the Board to consider whether the case is a fit case for exercising its revisional jurisdiction.
The information to exercise suo moto revisional power can come from any source and can even come from the assessee or from the Department itself.
In the instant case also, a scientific or technical meaning of the term ‘milk cream’, as is sought to be projected by the assessee, should not be adopted and the popular meaning of milk cream as is commonly understood, should be taken note of, i.e. that it is a product which is different from milk. This is because a person who wishes to buy milk cream would not go to the market and ask for milk. He would only ask for milk cream because it is a separate product though also a milk product.
There are no merit in this Revision petition, it is accordingly dismissed.
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2023 (8) TMI 532
Invocation of revisional jurisdiction of this Court under Section 48(1) of the VAT Act, 2005 - rectification of mistake or error apparent in the order - rate of tax on mobile/cell Phones, electronic and electrical goods - HELD THAT:- The clear mandate of law is that this Court can exercise revisional jurisdiction under Section 48 of the Act only against the orders passed by Tax Tribunal either under Section 45(2) or Section 46(3) of the VAT Act. Such jurisdiction can be exercised if the person aggrieved applies to this Court within 90 days of the communication of the order and also if the involvement of any question of law arising out of erroneous decision of law or failure to decide a question of law is found to exist.
The impugned order passed by the Tax Tribunal in Rectification Application filed by the petitioners under Section 47 of the VAT Act is not open to challenge by the petitioners before this Court under Section 48 of the VAT Act. Petitioners can also not be allowed to assail the order dated 14.06.2017, passed by the Tax Tribunal being clearly beyond the period of limitation, as prescribed under Section 48 of the Act.
Revision petition dismissed.
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2023 (8) TMI 531
Levy of entry tax on granites - tax levied on the premise that the goods viz., granites which were purchased from dealers across the State were exported as such or sold to exporters - non-application of mind - violation of principles of natural justice - HELD THAT:- This Court finds that there is no finding in the assessment order with regard to the above objections which relates to the jurisdiction to levy tax. It is rudimentary that when objections are raised, the same ought to be dealt with by the Assessing Authority. Non-application of mind to the objection would vitiate the proceedings. The learned counsel for the Respondent would submit that they would redo the assessment.
This Court is inclined to set aside the impugned order and remit the matter back to the Assessing Authority to redo the assessment. The petitioner is permitted to file fresh objections within a period of 4 weeks from the date of receipt of a copy of this order - It is also open to the petitioner to place reliance on the assessment completed under CST Act in respect of the above transactions wherein the transactions in issue is stated to be treated as export sales in terms of Sections 5(1) and 5(3) of the CST Act.
Petition disposed off.
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2023 (8) TMI 530
Rectification of Assessment Order - Assessing Officer has exceeded its jurisdiction under Section 24(1) of the MVAT Act - non-application of mind - opportunity of hearing was before the order rectifying the mistake - re-determination of turnover of the petitioner No. 1 so as to add to the turnover, a tax liability which is worked out in the operative part of the order.
HELD THAT:- The Assessing Officer appears to have totally overlooked his jurisdiction under Section 24 which is purely for rectification of mistakes, and which would be exercised to rectify the mistake which was apparent on the face of the record.
On perusal of the impugned order passed by the Assessing Officer under Section 24(1), it clearly appears that the Assessing Officer has exceeded his jurisdiction, inasmuch as, from the reasoning of the impugned order, which we have noted above, it cannot be said to be an order of rectification of mistake apparent on record. The Assessing Officer also appears to have resorted to a formality of a hearing and inviting reply to his notice for purported rectification of mistake, inasmuch as, the position on record as pointed out by the petitioners, of the Coimbatore Authorities not agreeing for issuance of Form “F” for transfer of the goods in question from Mumbai to Coimbatore for processing, has not been taken into consideration in passing the impugned order.
The Assessing Officer has thus acted without application of mind as also completely mis-applied the provisions of Section 24 in passing the impugned order - Petition allowed.
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