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VAT / Sales Tax - Case Laws
Showing 621 to 640 of 27514 Records
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2023 (6) TMI 896
Cancellation of the permission to pay tax on compounded basis for the year 2015-16 - alleged shifting of business premises - principles of interpretation - HELD THAT:- The statutory provision that enables an assessee to pay tax on compounded basis [Section 8(f) of the KVAT Act] does not mandate that the assessee should not change its place of business during the year in which it has sought to pay tax on compounded basis. The provision of sub clause (iv) of Section 8(f) only empowers an Assessing Authority to cancel a permission already granted for valid and sufficient reasons such as shifting of place of business, furnishing of false information, suppression of relevant information, failure to furnish such information demanded etc. It can be seen therefore that sub clause (iv) of Section 8(f) uses the phrase 'shifting of place of business' along with other phrases such as 'furnishing of false information', 'suppression of relevant information' etc. to denote those reasons which are treated as valid and sufficient by the Statute for the purposes of cancellation of a permission already granted.
It is a settled principle of interpretation of statutes that the true scope and ambit of a phrase used in a statute must be gathered from the other words/phrases which are used along with it in the statutory provision. The principle of noscitur a sociis is a rule of interpretation that stipulates that where the general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of the restricted words. The Latin term, noscitur a sociis contemplates that a statutory term is recognised by its associate words.
On applying the principle of noscitur a sociis, to determine the scope and ambit of sub clause (iv) of Section 8(f), it can be safely stated that the shifting of a place of business can be cited as a valid and sufficient reason for cancelling a permission already granted only if such shifting is without the knowledge of the Assessing Officer and thereby had an element of suppression of relevant information or failure to furnish relevant information.
Justification refers to the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. Demonstrated expertise refers to the requirement of the decision maker establishing the reasonableness of his decision by demonstrating therein his experience and expertise. On the facts in the instant case, it is not found that the Assessing Authority or the Tribunal to have indicated or provided a clear justification for the action of the Assessing Authority in cancelling the permission that was granted to the petitioner to pay tax on compounded basis for the assessment year 2015-16. The cancellation of the permission already granted was illegal and unreasonable, and hence, liable to be set aside.
The O.T. Revision is allowed.
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2023 (6) TMI 895
Violation of principles of natural justice - opportunity for cross-examining the driver of the lorry not provided - Validity of assessment order and penalty - attempt to fraudulently bring goods into the State - HELD THAT:- The specific contention of the petitioner that he had not been given a reasonable opportunity to prove that the transactions were fraudulent in nature and that the consignments were not intended and did not reach him requires consideration - the contention of the respondent that an opportunity to cross-examine the driver of the vehicle would not be practical in the circumstances, is accepted.
The petitioner was entitled to be granted reasonable opportunity to substantiate his contention that the consignments were not intended for delivery to him. It is clear from the orders of assessment that the contention of the petitioner that interstate purchase had not been effected by him and that he has to be granted an opportunity to rebut the allegations levelled against him has been rejected largely relying on Section 9 of the KVAT Act stating that the burden of proving that any transaction of a dealer is not liable to tax under the Act shall lie on the dealer. Reasonable opportunity” as provided in the statute has to be a full and proper opportunity to the dealer not only to raise his contentions, but also to make available and rely on material which would support his contentions - In the instant case, the petitioner had relied on a letter dated 28.7.2012 by which he had informed the authorities that there was an attempt to misuse his TIN for bringing in consignments into the State. It is to be noted that it was only from 1st February, 2012 that the electronic filing of declaration in Form 8F had been made mandatory. The assessment years are 2011-12, 2012-13, 2013-14.
In the facts and circumstances of the instant case, the petitioner ought to have been given a full and proper opportunity to substantiate his contention that the consignments which passed the check posts purportedly in the name of the petitioner were actually not intended for delivery to the petitioner. The assessment completed and the penalty imposed without giving such an opportunity to the petitioner is, therefore, unsustainable for want of a reasonable opportunity being granted to substantiate his case.
The impugned orders are set aside. There will be a direction to the respondents to give the petitioner a reasonable opportunity to place on record any material to show that the consignments were not intended for him or that the consignments did not reach the petitioner - Petition allowed.
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2023 (6) TMI 842
Calculation of VAT - expenses charged are separate than the food charges despite only one coupon of composite amount issued at the entry by the respondent or not - penalty imposed under Section 61 of RVAT Act - HELD THAT:- The assessee cannot split up the amount charged for the sale of food, even if assessee provides certain services in addition to the food, and VAT has to be paid on the entire consideration charged for the food. The assessee, undisputedly, issued coupons that were adjustable against food only and therefore the assessee is liable to pay VAT on the entire consideration charged from its customers for supply of food.
This position of law is well settled now and explained in great detail by the Hon’ble Apex Court in the case of K. Damodarasamy Naidu and Bros. [1999 (10) TMI 598 - SUPREME COURT], holding that the price that the customer pays for the supply of food in a restaurant cannot be split up as suggested by learned Counsel.
The contention of the assessee that as per aspect theory, the dominant supply was of supply of entertainment/service is also untenable - the questions of law framed hereinabove have to be answered in favour of the revenue and against the assessee - Accordingly, the impugned order of the Tax Board is quashed and set aside and the levy of penalty is maintained.
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2023 (6) TMI 841
Classification of goods - rate of tax - stainless steel scrap - to be taxable at the rate of 2% under the Himachal Pradesh Tax on Entry of Goods into Local Area Act, 2010 or taxable at the rate of 0.25% under Entry No. 9 of Schedule-II appended to the Entry Tax Act? - 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 20.06.2017, passed by the Tax Tribunal being clearly beyond the period of limitation, as prescribed under Section 48 of the Act - There is no denial to the fact that no distinction has been made in the Entry Tax Act between ferrous metal and alloys and non ferrous metal and alloys. The Tax Tribunal has rightly interpreted the terms of the Entry Tax Act as decipherable from its provision and entries in the Schedule appended thereto. The alloys have been included in Entry 19(b) of Schedule-II to the Entry Tax Act, which has been declared to be taxed at the rate of 0.25%. The Tax Tribunal had rightly interpreted the terms of Schedule-II appended to Entry Tax Act by holding that the tax statutes have to be read as it is without inferring anything extra.
There are no erroneous decision of law or failure to decide a question of law in the impugned order dated 20.06.2017 passed by the Tax Tribunal, therefore, no question of law has arisen for consideration of this Court - petition dismissed.
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2023 (6) TMI 781
Valid notice or not - resent challenge is to a document styled as 'notice' - perusal of the same makes it clear that it is in fact an order passed by the assessing officer disposing the additional rectification petition dated 12.04.2023 filed by the petitioner under Section 84 of the Tamil Nadu Value Added Tax Act, 2006.
HELD THAT:- Being an order, it was incumbent upon the authority to issue notice to the petitioner, hear it and thereafter dispose the request for rectification of order of assessment dated 30.08.2019. This has not been done and though no counter has been filed in the matter since the matter is listed for admission only today, Mrs.E.Ranganayaki, learned Additional Government Pleader, who accepted notice for the Commercial Taxes Department has obtained instructions from the officer and confirms this fact fairly.
In light of the fact that the additional rectification petition dated 12.04.2023 is now pending in light of setting aside of order dated 04.05.2023, the petitioner is permitted to appear before the authority for hearing of both the rectification petition as well as additional rectification petition dated 16.03.2023 and 12.04.2023 respectively on 23.06.2023 at 10.30 a.m. without expecting any notice in this regard to the hearing as scheduled aforesaid.
These writ petitions are disposed.
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2023 (6) TMI 780
Forbearance from assessing or recovering any sums under Section 13 of the Tamil Nadu Value Added Tax, Act, 2006 from members - HELD THAT:- The writ petition is maintainable. As pointed out, not just a common, but identical cause of action has been espoused by 1087 assesses. Though, it is added that their status i.e., whether they are proprietorship concerns, partnership firms or HUF constitutes a question of fact that this Court would not touch upon, their prayer in common is based upon a circular issued by R2 and hence nothing found untoward in they having filed a single writ petition.
It is an admitted position that 1087 members who have filed this writ petition form a significant majority of all the association members and it is only 10, who would stand distanced from this cause of action.
In the present case as well, the petitioner association is registered under the provisions of the Tamil Nadu Societies Registration Act, 1975. Though the association is not recognized as an assessee by the Commercial Taxes Department, this would not stand in the way of the maintainability of this writ petition itself since admittedly, the cause of action espoused by all the members before the Court is identical, and relates to clarification dated 04.11.2015.
Maintainability is addressed towards the prayer itself, which is for a mandamus as against the respondents - HELD THAT:- The respondents are agreed upon that the mandamus of the nature sought for is not liable to be granted. The petitioners pray for a direction that respondents must not assess or recover any sums under Section 13 of the Act. Section 13 deals with deduction of tax at source in works contract and fastens, on 'every person' responsible for paying any sum to any dealer for execution of works contract, the necessity to deduct an amount calculated at certain stipulated rates.
The statutory position supports the position that the responsibility of tax deduction falls only upon certain specified persons and proprietorships, partnership firms and HUF stand excluded from this responsibility. - In the present case, the petitioner states that 1087 members whose cause it espouses are proprietary concerns, partnership firms or HUF. This is question of fact. That apart, individual assessee / members have received notices from the respondents and it is for them to respond to those notices clarifying and establishing their status, as to whether they are indeed proprietary concerns, partnership firms or HUF. Failure to do so will entail consequences that they must suffer. Likewise, adverse orders of assessment could also be challenged relying upon the relevant provisions of law.
This writ petition is disposed permitting those assessees who are in receipt of notices to file replies before the authority establishing their status. If they do establish their status to be either proprietary concerns, partnership firms or HUF, then evidently they would be protected by virtue of the statutory exclusion in the explanation to Section 13(1) of 2006 Act.
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2023 (6) TMI 755
Disbursal of subsidies/incentives under a Scheme floated by the State of West Bengal, being The West Bengal State Support for Industries Scheme, 2008 - promotion of large and medium scale industries in the background regions of the State - no liability to pay VAT - HELD THAT:- It transpires from the records that the Scheme in question was floated for the purposes of extending certain additional financial support for promotion of large and medium scale industries in the background regions of the State, as mentioned in the very first paragraph of the Notification dated February 28, 2011, which contains the Scheme.
In the said Gazette Notification, clause 16 is one of the modes of payment but not an eligibility criterion. Eligibility criteria for incentive under the Scheme are stipulated in clause 6 of the Scheme. There is nothing in the said clause to indicate that the payment of VAT to the State is a necessary pre-requisite for getting benefit of the Scheme.
An empirical statement generated from the data base of the Commercial Tax Department on the basis of the quarterly returns filed for each of the four quarters of the consecutive financial years reflects the tax payment behaviour of the dealer, in the light of which the Additional Commissioner opined that the present case be treated not as an EOU dealer but as a situation where the applicant dealer is not in a position to fully/partly adjust VAT payable with the sanctioned amount of capital and interest subsidies as per the T&C [Terms and Conditions] of the WBISS 2008 Scheme.
There is no scope of the petitioners being liable to pay any further VAT dues under the Scheme. Hence, as the petitioners are otherwise eligible to get the benefit of the Scheme and have already being admitted to be so twice, once for the subsidy under the Scheme and once for the interest subsidy by the respondent Authorities themselves, there is no impediment on the part of the respondent Authorities at all in disbursing the entire subsidy to the petitioners, including the interest subsidies, as already sanctioned.
Petition allowed on contest, thereby directing the respondent Authorities to immediately disburse the entire amount of the subsidy which the petitioners are entitled to get under the West Bengal State Support for Industries Scheme, 2008 [as amended up to December 31, 2010] to the petitioners within an outer limit of three months from date.
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2023 (6) TMI 752
Withdrawal of Exemption from payment of tax payable under the provisions of the KVAT Act 2003 - Doctrine of Promissory Estoppel - exemption for sale of food articles and beverages by new tourism units - no notifications have been issued in exercise of the powers conferred under Section 5(2) of the KVAT Act 2003 granting exemption.
Revenue’s case is, in the absence of any notification issued under the provisions of the KVAT, assessee is not entitled for any exemption.
HELD THAT:- A perusal of Exemption Certificate dated March 25, 2003 makes it is clear that assessee is a registered Tourism Industry and is eligible for 100% tax exemption for a period of 7 years.
By Government Order No. FD 303 CSL 99, dated January 07, 2000, the State Government discontinued sales tax based incentives. However the incentives already offered and committed were saved. By issuing subsequent Notification No. FD 363 CSL 2006, dated July 17, 2007 under the KST Act, it was clarified that the incentives offered earlier would remain unaffected.
In the present case, assessee has availed the benefit for 100% sales tax exemption in the year 2003. The KAT has rightly recorded that the vide Notification dated July 17, 2007, the State Government have clearly stated that rescinding of the Notification dated November 12, 1999 shall not be applicable to the dealers who have made investment in establishment in a new tourism units and the incentives offered and committed by the Government shall not get affected.
Revenue has placed reliance on Hotel Madhuvan Case [2008 (12) TMI 703 - KARNATAKA HIGH COURT], where this Court was examining whether a tourism unit is an industrial unit or not - In the instant case, the issue involved is whether petitioner is entitled for benefit of exemption. Admittedly, assessee has obtained exemption certificate dated March 25, 2003 for a period of seven years with effect from February 27, 2003. Though the State Government issued a Notification on January 07, 2000 discontinuing sales tax based incentives, the same has been clarified vide Notification dated July 17, 2007 to the effect that the notification dated January 07, 2000 shall not affect the dealers who have made investment in establishing new tourism units. This question was not under consideration in Hotel Madhuvan Case. Therefore, the said authority does not lend any support to the contention advanced on behalf of the Revenue.
It is recorded further that even in the notification dated 07.01.2000 it is stated that the discontinuation shall not affect the incentives that have been already offered or committed by the Government until the eligibility of such incentives are completed. The eligibility certificate was valid for 7 years and could not have been rescinded before the period of eligibility expired as it is sovereign assurance.
The contention urged by the Revenue that in absence of any specific notification under the KVAT Act, assessee is not entitled for exemption, is untenable - There are no error in the impugned order passed by the KAT - Revision Petition is dismissed.
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2023 (6) TMI 751
Refusal of stay on the order qua the interest, as demanded under Section 30(2) of the Maharashtra Value Added Tax Act, 2002 (stay is granted to the petitioner on the tax as demanded) - separation of Composite order - exercise of appellate jurisdiction under Section 26(6B) of the Act.
The petitioner has contended that once the nature of order passed by the first appellate authority itself was a composite order, it was not correct for the tribunal to dissect such composite order by bifurcating/ separating the order as to the interest component and to reject the petitioner’s stay application qua the interest amount as demanded under Section 30(2) of the Act.
HELD THAT:- The provisions being Sections 23 providing for assessment, Section 26 read with 26(6A) and 26(6B) providing for a first appeal and a second appeal respectively. We also need to note the provisions of Section 30 providing for interest payable by a dealer or a person. Section 30 falls under an independent Chapter namely “Chapter VI” providing for “Penalty and Interest”.
The orders, which include an order on payment of interest by the assessee, necessarily are composite orders. Thus, the basis for any demand for interest is primarily the liability to pay tax. Hence both the orders namely the direction to pay tax and the direction to pay the interest, are interconnected and become part of a common order, which is an appealable order.
It is rightly contended by the petitioner that an appeal against such composite order would necessarily include within its ambit appealability of the orders pertaining to the interest. Such composite orders are appealable orders under the provisions of sub-section (6A) and (6B) of Section 26. As a corollary the provisions of sub-section (6C) would become applicable in so far as such appeals as provided under sub-sections (6A) and (6B) are concerned, namely an entitlement of the assessee to seek stay of the recovery of the disputed dues including on interest.
The legislature itself has avoided to provide anything in regard to an order on interest to be kept away from the purview of such appeals which the assessee would file under either sub-section (6A) or (6B) of Section 26. Thus to read any bar to appealability in regard to an order on interest, forming part of a composite order passed by the assessing authority or by the first appellate authority, to be read in sub-section (6B) sub-section (6C) would be reading something into such provisions, which has not been expressly provided by the legislature - it is not the intention of the legislature that a composite order cannot be passed either by the assessing authority or by the first appellate authority. In any event, it is quite possible that in a given situation, the order passed under Section 30(2) of the Act levying interest on the assessee, itself would fall to the ground, in view of setting aside of the principal order on assessment.
Provisions of Section 85 of the Act which provide for a ‘bar to certain proceedings’ - HELD THAT:- Sub-section (2)(b-3) of Section 85 provides that an order passed under sub-section (2) or (4) of section 30 in regard to the interest payable by the dealer under the provision of the Act, no appeal shall lie - the bar under sub-section 2(b-3), such provisions would be applicable in regard to the proceedings where the issue is only in regard to an independent order on interest passed under Section 30(2) or (4) of the Act. Hence, it would not be appropriate to read the bar under sub-section (2)(b-3) of Section 85 of the Act, to the appealibility of composite orders, being assailed in appeals under Section 26 (6A) and (6B) of the Act, when the order passed by the assessing officer or first appellate authority is a composite order - the submissions as urged on behalf of the petitioner on the interpretation of the provisions of Section 26 (6A) and (6B) of the Act to be kept distinct from the provisions of Section 85(2)(b-3) of the Act, agreed upon.
The petitioner’s reliance on the decision of the Supreme Court in Arcot Textile Mills Limited vs. Regional Provident Fund Commissioner and Ors. [2013 (10) TMI 1570 - SUPREME COURT] is also well founded on the principles of interpretation of the provisions in question although the Supreme Court was considering the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Supreme Court, interpreting the provisions of Section 7A and 7Q of the Employees P.F. Act, observed that the competent authority under the Employees P.F. Act while determining the moneys due from the employee shall be required to conduct an inquiry and pass an order which, according to the petitioner, is akin to the order passed by the assessing officer. The Supreme Court observed that an order under Section 7A of the Employees P.F. Act is an order that determines the liability of the employer under the provisions of the Act and while determining the liability, the competent authority offers an opportunity of hearing to the concerned establishment - The Supreme Court observed that such an order shall be amenable to appeal under Section 7I of the Employees P.F. Act, and the same is true of any composite order a facet of which is amenable to appeal under Section 7I of the Employees P.F. Act. It was observed that if for some reason when the authority chooses to pass an independent order under Section 7Q, the same would not be appealable.
Respondent’s (Revenue's) contention that the provisions of Section 85(2)(b-3) be read with the provisions of Section 26(6A) and (6B) of the Act, cannot be accepted. If such an interpretation is accepted, it would certainly lead to an absurdity.
The tribunal directed to consider the petitioner’s stay application qua the challenge to the interest component - petition allowed.
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2023 (6) TMI 689
Maintainability of appeal - failure to file appeal within time (delay of 83 days) - sufficient reason for delay given or not - main contention of the petitioner is that he accounted for the alleged deficit of stock of 11,179 bags of cement but the same was not considered properly by the concerned authorities - HELD THAT:- Since the said aspect is a pure question of fact which can well be appreciated by AP VAT Appellate Tribunal if an appeal were to be filed before the Tribunal, the delay in filing the appeal can be condoned and liberty can be given to the petitioner to file appeal on suitable terms. The impugned order dated 12.11.2021 shows that an appeal can be filed before AP VAT Appellate Tribunal at Visakhapatnam within sixty days. The said period of sixty days should be reckoned from the date of receipt of a copy of the order. However, the said order was served on petitioner’s GST Counsel who died on 20.11.2021 without disclosing the said fact. Therefore, the petitioner’s knowledge can be reckoned from the date of receipt of notice dated 20.01.2023 issued by the 3rd respondent. The appeal has to be filed within sixty days from 20.01.2023. However appeal was not filed till date. Hence there is a delay of 83 days.
The writ petition is disposed of giving liberty to the petitioner to file appeal against the impugned revision order dated 12.11.2021 passed by the 5th respondent and consequent demand notice dated 20.01.2023 issued by the 3rd respondent before AP VAT Appellate Tribunal, Visakhapatnam on the condition of petitioner depositing 25% of the demanded tax within three weeks from the date of receipt of copy of the order.
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2023 (6) TMI 640
Scope of order of the tribunal - Levy of tax on self consumption of petrol - disallowance of shortages regarding evaporation loss - selling of downgraded HSD as LDO - use of the self-consumption - levy of penalty in terms of Section 5 of Jammu and Kashmir Motors Spirit & Diesel Oil (Taxation of Sales) Act, 2005 - HELD THAT:- It is settled proposition of law that failure to give reasons amounts to denial of justice. The reasons are live links between the minds of the decision maker to the controversy in question and the decision or the conclusion arrived at by the Tribunal or the Court. It goes without saying that the reasons substitute subjectivity by objectivity.
Right to reason is an indispensable part of sound judicial system, which indicates the application of mind to the matter before the Court. Another rationale could be that the affected party can know why the decision has gone against him. One of the salutary requirement of natural justice is spelling out reasons for the orders made, in other words, a speaking order, but in the present case, the orders passed by the Tribunal are silent as no reasons have been spelled out with respect to all the questions of law raised in the applications - The non-recording of reasons could lead to dual infirmities. Firstly, it may cause grave prejudice to the affected party and secondly it hampers the proper administration of justice. These two cardinal principles are not only applicable to the administrative or executive actions, but they apply with equal force and in face with great degree of precision to judicial pronouncements.
Reliance is being placed on the Judgment passed in case titled ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT & LEASING, KOTA VERSUS M/S SHUKLA & BROTHERS [2010 (4) TMI 139 - SUPREME COURT], wherein the Hon’ble Apex Court in similar facts and circumstances has remanded the matter back to the High Court with a request to hear the case de-novo and pass appropriate order in accordance with law.
In the case of Principal Commissioner of Income Tax-1 vs. M/s. Bajaj Herbals Pvt. Ltd, [2022 (4) TMI 398 - SUPREME COURT], the Hon’ble Supreme Court has held that unreasoned order should be remanded back to decide and dispose of the same afresh in accordance with law and on its own merits.
The Tribunal has failed to record any reasons with respect to seven out of eight questions raised in the reference applications. It is well settled law laid down by the Hon’ble Supreme Court in various and authoritative pronouncements mentioned supra that reasons must be recorded in a judicial order even when it relates to the non-reference of certain questions raised in the reference applications. The applicants had the right to know that what weighed with the Tribunal in not referring or even discussing the questions raised by the applicants in the applications.
It is deemed appropriate to dispose of all the STR’s and remand back matter to the Tribunal to decide and dispose of the reference applications afresh in accordance with law and on its own merits. If the Tribunal is of the opinion that proposed questions of law raised in the reference applications are not substantial questions of law and they are on factual aspects, it will be open for the Tribunal to consider the same in accordance with law.
Revision disposed off.
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2023 (6) TMI 639
Levy of surcharge under Section 5A of the Orissa Sales Tax Act, 1947 - tax payable under the OST Act is independent of the provisions of the OET Act or not - HELD THAT:- The matter is no longer res integra. It stands covered against the dealer and in favour of the Department in view of the judgment of the Supreme Court of India in Commissioner of Commercial Taxes v. M/s. Bajaj Auto Ltd. [2016 (11) TMI 31 - SUPREME COURT] where it was held that on a conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, we are of the considered opinion that the amount of surcharge under Section 5A of the OST Act is to be levied before deducting the amount of entry tax paid by a dealer. - the question is answered in favour of the Department by holding that the surcharge under Section 5A of the OST Act is to be levied before deducting the entry tax paid by the dealer pursuant to the Orissa Entry Tax Act, 1999.
Whether on the facts and in the circumstances of the case the Tribunal is justified in determining the surcharge is to be levied after giving set off- of the entry tax paid by the dealer, when on the conjoint reading of Section 5 of the OST Act, Section 4 of the OET Act and Rule 18 of the Rules, the surcharge under Section 5A is to be levied before deducting the amount of entry tax paid by the dealer? - HELD THAT:- The question is answered in the negative i.e. in favour of the Department and against the Dealer/Assessee.
The impugned order of the Tribunal is accordingly set aside. The matter will now be remitted to the Assessing Officer to re-compute the demand - revision petition is disposed of.
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2023 (6) TMI 631
Benefit of Amnesty Scheme - after the amount of Rs. 5,37,686/- is paid by the petitioner, the petitioner is orally informed that it has paid Rs. 2,000/- less and therefore, by way of the impugned communication dated 06.10.2022, the petitioner was informed that the application made by it under Amnesty Scheme has been disposed of, on the ground that the petitioner failed to make the payment of full principal amount of tax.
HELD THAT:- It appears that the petitioner made an application under the Amnesty Scheme. However, while so doing, the petitioner through inadvertence mentioned the amount of outstanding tax as Rs. 5,37,686/-, instead of Rs. 5,39,787/- - From a perusal of the record, it is revealed that, as per Clause-7(3) of the Amnesty Scheme, after the submission of application by the petitioner, within the period of 15 days, but, not later than 28.02.2020, the concerned officer of the Respondents was required to intimate the petitioner online, about the amount to be paid under the Amnesty Scheme.
From the observations made by the Division Bench of this Court in SUNFLOWERS DEVELOPERS [2020 (1) TMI 265 - GUJARAT HIGH COURT], it can be said that the object of the amnesty scheme is to bring about expeditious and effective resolution of old disputes and recoveries of old outstanding dues of the Government and reduction of administrative costs. Since such scheme is applicable to all pending cases, the officers acting under the relevant statutes are expected to respect the object of the scheme and to ensure that the assessees get the benefit under the scheme.
Merely because the petitioner inadvertently paid Rs. 2000/- less towards principal outstanding amount of tax, it cannot be denied the benefit of the Amnesty Scheme. This petition, therefore, deserves to be allowed.
Petition allowed.
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2023 (6) TMI 581
Stay - Waiver of pre-deposit - power of Appellate Authority to insist on the assessee paying more than 20% of the disputed tax as a condition for stay of recovery of the balance amount of disputed tax pending disposal of the appeal - HELD THAT:- There are force in the submissions of the learned Government Pleader that while on payment of 20% of the disputed amount of tax along with the collected tax, the assessee would be entitled to a stay against recovery of the balance amount of tax confirmed against it pending disposal of the appeal by the First Appellate Authority, the legislature does not prevent the Appellate Authority from insisting on a deposit of more than 20% of the disputed tax amount as a condition for a stay of recovery of balance amount pending disposal of the appeal, from an assessee who has chosen not to pay the 20% of the disputed amount of tax along with the collected tax or at least at the time of filing the appeal before the Appellate Authority.
As per the statutory provisions, while the assessee has an option of payment of 20% of the disputed tax along with the collected tax, or at the time of filing the appeal before the Appellate Authority and seeking immunity from recovery proceedings for the balance amount of tax pending disposal of the appeal, he/she virtually takes the risk of losing the benefit of the said proviso, and a stay on deposit of 20% of the disputed tax, if he/she chooses to contest the stay application so as to obtain better terms (payment of less than 20% of the disputed tax) for the grant of stay of the balance disputed tax pending disposal of the appeal.
Unless the assessee remits 20% of the disputed amount of tax along with the collected tax or at the time of filing the appeal, he/she will not be entitled to the benefit of the proviso, and he/she runs the risk of losing the benefit of the remittance of the 20% of the disputed amount of tax as a condition for grant of stay of recovery of the balance amount pending disposal of the appeal. This would be the legal position that flows from the main statutory provision, namely, Section 55(4) of the Act, which obliges an assessee to pay the entire amount of tax confirmed against him by the assessing authority as a condition for maintaining an appeal before the First Appellate Authority subject to the discretion to be exercised by the Appellate Authority in terms of First Proviso of Section 55(4).
Since these appeals have been pending before this Court since 2017, and it is likely that the statutory appeals which were the subject matter of the Writ Petitions have since been finally disposed by the statutory authority, the findings in this judgment are solely for the purposes of clarifying the scope and ambit of the statutory provision and not to affect the decisions already taken by the Appellate Authorities in the individual appeals.
Appeal disposed off.
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2023 (6) TMI 292
Violation of principles of Natural Justice (audi alterem partem) - no opportunity of personal hearing granted before passing the impugned order - HELD THAT:- In the impugned order dated 02.12.2022, it is seen that the notice has been given to the petitioner and the petitioner has also submitted his reply and thereafter enquiry has been conducted. The request of the dealer is seen to be not capable for consideration and that finding is recorded after considering the materials produced by the petitioner.
Even if the petitioner is aggrieved due to any omission committed on the part of the respondent authority, there is an effective alternative remedy available to the petitioner to challenge the impugned orders by way of filing revision/ appeal before the competent authority.
This is a fit case which should be considered for lack of opportunity in compliance of the principles of natural justice. Sufficient opportunity is given to the petitioner - petition disposed off.
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2023 (6) TMI 234
Interpretation of statute - term ‘gross turnover’ as contained in the Composition Scheme 2006 - Composition Scheme for Gem and Stones, 2006 - exclusion of export amount from gross turnover for calculation of Composition Amount - N/N. F.12(63)FD/Tax/2005-37 dated 06.05.2006.
HELD THAT:- From the conjoint reading of notification dated 06.05.2006 and Section 5 of RVAT Act, it is abundantly clear that the composition amount as envisaged under the Composition Scheme 2006 is levied so that assessee can discharge his/her tax liability by paying a lump sum amount / composition amount. The Composition Scheme 2006 was introduced with a beneficial purpose with the objective to streamline/simplify the tax paying process and to reduce the otherwise rigorous and complex compliance with respect to tax return. Thus, composition amount paid by the assessee, essentially to discharge his/her tax liability, retains its characteristic of tax even though the same is called ‘composition amount’.
As per Article 265 (Taxes not to be imposed save by authority of law) of Constitution of India, no tax can be levied or collected except by authority of law. Further, as per Article 286 (Restrictions as to imposition of tax on the sale or purchase of goods) of Constitution of India, no State law can impose tax on supply of goods or services outside the State or in the course of import or export of goods or services outside the territory of India. In these circumstances, the contention of the Revenue that gross turnover would include export sale as well cannot be accepted as that would tantamount to permitting State to collect tax on exports, which is constitutionally impermissible.
This Court is of the view that the assessee was rightly excluding the export sales form the gross turnover and was accordingly paying composition amount on gross turnover of local sales. Therefore, the question of law framed hereinabove is answered in favour of the assessee and against the revenue.
Revision dismissed.
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2023 (6) TMI 233
Penalty under Section 76(9) of the RVAT Act - Contrary views for same offence - in the case of the petitioner against whom the demand has been restored while in case of the driver, the appeal filed by the Department has been dismissed for the same offence - production of VAT 47, an afterthought - HELD THAT:- It is undisputed that for the same offence, the penalty imposed upon the driver under Section 76(9) of the RVAT Act has been set aside. Further, as per settled position of law, penalty is not to be applied automatically in each case. To invoke penal provision, the Revenue has to necessarily conduct investigation, afford opportunity of defence/hearing to the assessee and inspect/analyse the documents. The same are sine qua non for imposition of penalty. Imposition of penalty can never be said to be automatic or per se. The foundational facts and premises for the imposition of such penalty and for upholding such penalty have to be established by the Revenue and the burden of the same also lies upon the Revenue.
In the case in hand, the learned Tax Board had erroneously reached the conclusion that the production of VAT 47 subsequently was merely an afterthought as the VAT 47 was produced the same day and the reference of the particular VAT 47 was also reflected in the invoice dated 29.08.2012, which was produced on the spot of inspection. The imposition of penalty would have been valid if the declaration forms later produced were found to be false or fabricated but since that is not the case, the penalty was wrongly imposed by the Assessing Officer and wrongly upheld by the learned Tax Board.
The lis in question is also squarely covered by the judgment of Apex Court in case of D.P. Metals [2001 (10) TMI 881 - SUPREME COURT], where it was held that The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes article 19, courts would naturally be circumspect and cautious" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in section 78(5) of the Act.
The question of law framed hereinabove is answered in favour of the petitioner-assessee and against the respondent-revenue - Revision allowed.
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2023 (6) TMI 188
Availment of irregular Input Tax Credit (ITC) - evasion of tax - forged and fabricated invoices against bogus purchases to credit bogus ITC - grant of registration certificate only for resale of nuts and bolts and HR sheets but illegal trading in iron and steel also done - HELD THAT:- Section 57 of the Act provides for imposition of penalty for issuance of false invoice. Section 58 of the Act provides for imposition of penalty for using a false registration number. A perusal of both the above provisions leaves no manner of doubt that the allegations levelled in the FIR in question are squarely covered and fall under the exclusive purview of the Act - It would be pertinent to note here that the Act is a complete Code in itself and there is no provision provided in the Act for the registration of an FIR. The Act only provides for imposition of penalty in case there is any contravention of its provisions. Since the Act is a special law, principle of generalia specialibus non derogant would apply, meaning thereby, it would operate in exclusion to the general law i.e. the IPC.
A Coordinate Bench of this Court in Pritpal Singh Vs. State of Punjab [2012 (3) TMI 576 - PUNJAB AND HARYANA HIGH COURT], while relying upon a judgment of Hon'ble Supreme Court in Dilawar Singh's case [2005 (11) TMI 502 - SUPREME COURT] held that the provision of the Act are sufficient and equipped to deal with the matter where an attempt is made to evade the Tax and the registration of FIR in such like matter is totally an abuse of the process of law.
This Court has no hesitation to hold that continuation of criminal proceedings arising out of the FIR would be nothing but an abuse of process of the process of law - Petition allowed.
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2023 (6) TMI 187
Validity of assessment order - impugned order passed by the first respondent, as barred by limitation and the same came to be passed without giving any opportunity to the petitioner - principles of natural justice - HELD THAT:- A Full Bench of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in ECIL, after referring to the judgments of (i) The Kerala Education Bill, 1957 [1958 (5) TMI 47 - SUPREME COURT]; (ii) Minerva Mills vs. Union of India [1980 (7) TMI 262 - SUPREME COURT]; and (iii) L. Chandra Kumar vs. Union of India [1997 (3) TMI 90 - SUPREME COURT], held that writ jurisdiction conferred upon the High Court under Article 226 of the Constitution of India is part of the inviolable basic structure of the Constitution and any law which seeks to take away or restrict the jurisdiction of the High Court under Article 226 of the Constitution of India must be held to be void.
From the judgment of Apex Court in Glaxo Smith Kline [2020 (5) TMI 149 - SUPREME COURT], it is very clear that the request of the Petitioner therein came to be rejected mainly on the ground of inability to file an appeal within the prescribed time was not properly substantiated or explained. Further, the Court also observed that the Order of the High Court does not indicate violation of principles of natural justice or non-compliance of statutory requirements in any manner. The Court also held that the Order of assessment does not get merged with the order rejecting the request to condone the delay.
In the instant case, the Appellate Authority as well as VAT Tribunal, categorically held that there was sufficient cause for preferring the appeal with delay, but, as they have no power to extend the period of limitation, rejected the appeals. Apart from that, it is also urged that, the assessment order came to be passed without giving an opportunity of hearing and there is no material to show that the show-cause notice was served on the Petitioner. Since, the delay in filing the appeals was explained and the reason given by the Petitioner was accepted, but the delay was not condoned due to limitation prescribed under the Act and as the Assessment Order is said to have passed without giving an opportunity of hearing, more particularly, the non-service of show-cause notice, it is felt a fit case where the matter requires reconsideration.
The Writ Petitions are disposed of setting aside the Orders under challenge, in both the writ petitions and the matters are remanded back to the Assessing Authority to deal with the same afresh in accordance with law.
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2023 (6) TMI 140
Rejection of application of the complainant seeking for benefits under Karasamadhana Scheme - rejection only on the ground of the assessee not being eligible for refund of any amount that may become excess as a result of adjustment of amount or the penalty or interest paid by him at the time of filing the appeal - Circular No. 1/2018-19 dated 13.08.2018 - HELD THAT:- The Endorsement records the facts including filing of the appeal and in the conclusion it is observed that the Assessee has withdrawn its petition from the KAT and subsequently, filed an application under Karasamadhana Scheme and that there was recovery of arrears of Rs. 43,23,703/-. It is further observed that only after full recovery of arrears, the assessee has withdrawn the petition to obtain benefit under Karasamadhana Scheme and filed application requesting for refund of interest amount. The Authority in the impugned endorsement has rejected the application referring to the Circular No. 1/2018-19 dated 13.08.2018.
It must be noticed that there is some ambiguity in the Endorsement and if the Endorsement is construed as having rejected the application only on the ground of Clause 2.4, which in substance has been referred to by placing reliance on the Circular dated 13.08.2018 at the concluding part of the impugned endorsement, there is no clarity as regards satisfaction of Clause 2.4 insofar as Clause 2.4 refers to the amount paid at the time of filing the appeal. In this case, the peculiar facts are that the petitioner has paid 30% of the amount due on 17.01.2013. If that were to be so, the question that requires adjudication by the Authority is whether a subsequent recovery from the banker of the petitioner after the appeal was taken on record and payment was made is an amount that could be taken note of.
Learned counsel for the petitioner has specifically raised a contention that Clause 2.4 refers only to the amount paid at the time of filing the appeal and accordingly, the subsequent recovery cannot be an amount deemed to have been paid by the petitioner and accordingly, recovery of 70% of the demand from the petitioner's banker, ought not to be taken note of, while invoking Clause 2.4 is also an aspect that is required to be considered by the Authority. In light of the same, the matter requires reconsideration at the hands of the Authority after hearing the petitioner.
Petition allowed by way of remand.
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