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VAT / Sales Tax - Case Laws
Showing 701 to 720 of 27514 Records
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2023 (4) TMI 823
Seeking recovery of arrears of tax - petitioner mainly contended that Form 19 B signed by the said Kanthimathi would reveal that it is a security bond given by her, personally undertaking to pay the Tax Fee or other amount due that will occur against the said Kanthimathi - HELD THAT:- As the dealer did not pay the tax arrears of Rs.2,99,525/- action was initiated under the Revenue Recovery Act by initially addressing the Sub-Registrar, Vadavalli by creating encumbrance on the property belonging to the defaulter's wife, which was made as security at the time of registration. Subsequently, the Department came to know that the writ petitioner / Tmt.M.Karpagam had purchased the property under sale deed dated 07.03.2008 - The Government usually does not create mortgage at the time of registration. However, such security bonds are executed with the property details and with a personal undertaking and therefore, the said undertaking is binding in respect of the property schedule provided in the bond. Thus, the contentions of the writ petitioner is to be rejected.
The Explanation-I to Section 24 (15-A) of the erstwhile Tamil Nadu General Sales Tax Rules, 1959 reveals that, where the security furnished in the form of immovable property, the person furnishing it may in any town to which Sub-Section (f) of Section 58 of the Transfer of Property Act, 1882 Central Act IV of 1883 is applicable, mortgage such property to the Government by deposit of title deeds. Therefore, it is necessary to create a mortgage as contemplated under the Transfer of Property Act. In the absence of creating any such mortgage, mere personal undertaking cannot be construed as a mortgage or charge created under Explanation I to Section 24 (15-A) of the erstwhile TNGST Act or under the Transfer of Property Act.
The Form 19-B security bond signed by the vendor of the petitioner smt R.Kanthimathi is restricted only to the extent of her personal undertaking and there is no mortgage or charge created in respect of the property purchased by the petitioner from the said Kanthimathi. Thus, the security bond executed by the vendor of the petitioner is not in consonance with the Form prescribed under the erstwhile TNGST Rules - When the subject property, which has not been mortgaged or charge has been created in consonance with the provisions of the erstwhile TNGST Act and Rules. The contention of the respondent that they are entitled to create an encumbrance in the office of the Sub-Registrar is untenable and the encumbrance made without creating any mortgage or charge cannot be held as in consonance with the provisions of the erstwhile TNGST Act.
This being the factum established, the actions initiated against the petitioner is in violations of the provisions of the TNGST Act and more so the petitioner is not a sales tax assessee and she is the bonafide purchaser of the property from her vendor Smt.Kanthimathi.
The order impugned and the consequential entry of encumbrance made by the 2nd respondent / Sub-Registrar of Assurances on the petitioner's property Door No.12/36 A Ramalakshmi Nagar, Goundampalayam Road, Idayarpalayam, Coimbatore – 641 044 are quashed - Writ Petition stands allowed.
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2023 (4) TMI 761
Waiver of penalty and interest levied under subsection (6) of Section 45 of the Gujarat Sales Tax Act, 1969 - classification of services - contract of coating of pipes - civil works contract or not - case of Revenue is that the composition amount is payable not at the rate of 2% as deposited by the respondent but it falls under Residuary Entry8 to the notification dated 18.10.1993.
The High Court has set aside the penalty and interest on the ground that the assessee was under the bonafide opinion and following the advice, paid the tax at 2% and that thereafter, when the enhanced tax as imposed has already been paid by the assessee, the penalty and interest is not required to be paid by the assessee.
HELD THAT:- On a fair reading of Section 45 of Gujarat Sales Tax Act, 1969, it can be seen that as per subsection (2) of Section 45 of the Act, 1969, penalty is leviable if it appears to the Commissioner that a dealer has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax. In the present case, it cannot be said that the dealer has concealed the particulars of any transaction or deliberately furnished inaccurate particulars of any transaction liable to tax. However, in so far as penalty leviable under subsection (6) of Section 45 of the Act, 1969 is concerned, the penalty leviable under the said provision is as such, a statutory penalty and there is no discretion vested with the Commissioner as to whether to levy the penalty leviable under subsection (6) of Section 45 of the Act, 1969 or not. Subsection (5) of Section 45 provides that in the case of a dealer where the amount of tax assessed for any period under sections 41 or 50 or reassessed for any period under Section 45 exceeds the amount of tax already paid by the dealer in respect of such period by more than 25% of the amount of tax so paid, the dealer shall be deemed to have failed to pay the tax to the extent of difference between amount so assessed or reassessed as aforesaid and the amount paid - Considering subsection (5) of Section 45 of the Act, 1969, if a dealer is deemed to have failed to pay the tax to the extent mentioned in subsection (5), there shall be levied on such dealer a penalty not exceeding one and onehalf times the difference referred to in subsection (5). Under the circumstances, to the aforesaid extent and on the difference of tax, as per subsection (5) of Section 45, the respondent – assessee – dealer shall be liable to pay the penalty as mentioned under subsection (6) of Section 45.
On a bare reading of subsections (5) and (6) of Section 45, it is evident that it is integral part of the assessment that the penalty be levied on the difference of amount of tax paid and amount of tax payable as per the order of assessment or reassessment as the case may and the same shall be automatic. Therefore, when the penalty on the difference of amount of tax paid and tax payable is more than 25% of the amount of tax so paid, there shall be automatic levy of penalty under Section 45(6) of the Act.
The Gujarat High Court while considering the very provision and penalty and interest imposed under Section 45(6) and Section 47(4A) of the Act, 1969, has taken a consistent view in the cases of Riddhi Siddhi Gluco Biols Ltd. [2017 (4) TMI 309 - GUJARAT HIGH COURT] and Oil and Natural Gas Corporation Limited [2016 (4) TMI 94 - GUJARAT HIGH COURT] that the penalty leviable under Section 45(6) of the Act is a statutory and mandatory penalty and there is no question of any mens rea on the part of the assessee to be considered. In the aforesaid decisions, it is observed and held that levy of penalty is automatic on the eventualities occurring under subsection (5) of Section 45 of the Act, 1969.
On strict interpretation of Section 45 and Section 47 of the Act, 1969, the only conclusion would be that the penalty and interest leviable under Section 45 and 47(4A) of the Act, 1969 are statutory and mandatory and there is no discretion vested in the Commissioner/Assessing Officer to levy or not to levy the penalty and interest other than as mentioned in Section 45(6) and Section 47 of the Act, 1969. It is needless to observe that such an interpretation has been made having regard to the tenor of Sections 45 and 47 of the Act, 1969 and the language used therein.
The impugned judgment and order passed by the High Court on the grounds that the amount of tax has already been paid by the assessee – dealer; that the assessee – dealer was under the bonafide belief that it was liable to pay the tax at the rate of 2%, is unsustainable.
The impugned judgment and order passed by the High court is hereby quashed and set aside - Appeal allowed.
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2023 (4) TMI 760
Suppression of sales or not - peas - confirmation of order based on conjectures and surmises - doubt and suspicion - Levy of penalty - satisfaction of the Assessing Officer that the escapement of tax was without reasonable cause - Section 43(2) of the Odisha Value Added Tax Act, 2004.
HELD THAT:- The discretionary exercise of power amounts to something that is not compulsory, but it is left to the discretion of the person or authority involved, such as a discretionary grant. It is opposite to “mandatory”. Therefore, “discretionary” is a term which involves an alternative power, i.e., a power to do or refrain from doing a certain thing. In other words, it would be power of free decision or choice within certain legal bounds - The significant words employed in Section 43(2) of the OVAT Act are “he may direct the dealer to pay, by way of penalty”. The language itself gives clear indication of application of discretion. Discretion, as it appears from generic sense, may be unrestricted, but in its application it demands certain rule of law to be followed and reposes conduct and application of mind, testing whether the delegates of it acted rationally, fairly without fear and favour taking all relevant fact and material considerations. Discretion conferred, if unqualified and untrammelled, it has to be exercised sparingly with abundant caution when facts and circumstances warrant.
Such being conceptual understanding of the term “discretion” based on well-settled dicta of different Courts and its application to fact-situation of given case, considering the present case in the said perspective, it seems that the learned Odisha Sales Tribunal, while considering certain allegations out of eight categories as reflected in the Assessment Order based on the contents of Fraud Case Report as unsustainable but for two, failed to apply its judicial discretion while imposing penalty by invoking powers under Section 43(2) of the OVAT Act. Discretion as applied by the Tribunal should have been supported by independent reason for exercise of said power.
In the case at hand, the learned Odisha Sales Tax Tribunal after computing the tax effect on establishing suppression of turnover to the tune of Rs. 6,00,332/-, as if there is absence of discretion in invoking power under Section 43(2) and construing the provision as mandatory in every circumstance, without discussing anything more, simply imposed penalty equal to twice the amount of tax so determined. Such exercise of power, in the opinion of this Court, is arbitrary, illogical and indicative of non-application of mind.
Since penalty is a statutory liability and is substantive in nature, the provisions for imposition thereof are to be strictly construed. It is, therefore, pertinent to put forth the well-accepted principle with regard to strict interpretation. In a taxing statute one has to look at what is clearly said. There is no equity about a tax. There is no intendment. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly on the language used. If the meaning of the provision is reasonably clear, Courts have no jurisdiction to mitigate harshness. A Court of law, has nothing to do with the reasonableness or unreasonableness of a provision of a statute except so far as it may hold it in interpreting what the Legislature has said - The Court is to ascribe the natural and ordinary meaning to the words used by the Legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions.
Section 43(2) of the OVAT Act specifically requires satisfaction of the Assessing Authority to be recorded while proceeding to exercise said power to impose penalty. The authority has to determine whether a penalty should be imposed and if it decides to impose a penalty the extent of the penalty liable to be imposed has been fixed in the statutory provision under Section 43(2) of the OVAT Act - Sri Rudra Prasad Kar, learned counsel for the petitioner laid stress upon the fact that the learned Tribunal accepted the explanation proffered by the petitioner with respect to 29 written pages contained in small note book which related to transactions procured through brokers and held that the allegation in the Fraud Case Report is not established - Agreeing with the contention of the learned counsel for the petitioner, there is no warrant for imposition of penalty under Section 43(2) of the OVAT Act.
Since this Court held that there is little scope in interfering with the factual adjudication made by the learned Odisha Sales Tax Tribunal, Cuttack, question Nos. I, II and III are answered against the petitioner-assessee and in favour of the Revenue-opposite party. So far as question No. IV is concerned, this Court, having noticed infirmity in exercise of power and improper use of discretion to impose of penalty under Section 43(2) of the OVAT Act by the learned Odisha Sales Tax Tribunal, answers said question in the affirmative, i.e., in favour of the assessee-dealer and against the opposite party- Revenue.
The sales tax revision petition is disposed off.
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2023 (4) TMI 759
Validity of assessment order - benefit of C-forms denied - framing of default assessment on the basis that the C Forms relied upon by the petitioner, were subsequently cancelled by the Rajasthan Tax Authority - whether respondent No. 3 is justified in denying the benefit of C Forms to the petitioner that were issued by the Rajasthan Tax Authorities at the instance of the selling dealer located in the said State? - HELD THAT:- Undisputedly, the selling dealer who had furnished the C Forms was registered with the Rajasthan Tax Authorities in respect of the goods purchased by the petitioner at the material time.
In the present case, there is no dispute that the purchasing dealer was duly registered with the Rajasthan Tax Authorities in respect of the goods sold by the petitioner. There is also no dispute that the C Forms are genuine and had been issued by the concerned authority at the material time - the benefit of the C Forms cannot be denied to the petitioner.
It is necessary to bear in mind that C Forms are an integral part of the consideration received by the selling dealer. The commercial bargain struck by dealers factors in the value of these forms. The effect of denying the benefit of the C Forms would amount to rewriting a commercial transaction that has been consummated. The cancellation of C Forms at a subsequent date would have a disruptive effect on the stream of commercial transactions, which is impermissible - the benefit of C Forms, on the ground that they have subsequently been cancelled, is not sustainable.
Petition allowed.
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2023 (4) TMI 707
Levy of penalty u/s 51(7)(b) of the Punjab VAT Act - goods imported in Punjab on the basis of RC number of other dealers - documents were not genuine - attempt to evade tax - HELD THAT:- The facts in the present case which cannot be disputed are that on the GRs and invoices M/s. Arihant Industrial Equipment, Amritsar was the consignee of the goods and had made sale in transit to M/s. Bhushan Thukral. The GRs were self in account of Crompton Greaves Ltd. and in the GRs there was mentioning of M/s. Arihant Industrial Equipment, Amritsar. The Tribunal held that if the sale made by M/s. Arihant Industrial Equipment to M/s. Bhushan Thukral was to be treated as transit sale, then first these facts would be endorsed in favour of M/s. Arihant Industrial Equipment and then by M/s. Arihant Industrial Equipment to M/s. Bhushan Thukral with proper endorsement - Both the above said dealers were based in Punjab. There were no documents to show that it was a transit sale by M/s. Arihant Industrial Equipment to M/s. Bhushan Thukral during the course of inter-State trade.
Even if the sale is taken as transit sale by M/s. Arihant Industrial Equipment to Bhushan Thukral, Govt. contractor, can it be taken as inter-State sale for the purpose of tax? - HELD THAT:- The goods were purchased from M/s. Crompton Greaves Ltd. and it was M/s. Arihant Industrial Equipment, Amritsar who had purchased the goods from M/s. Crompton Greaves Ltd. and during the course of transit of goods, the goods were delivered to M/s. Bhushan Thukral, Govt. contractor at Ludhiana. The detaining officer need not to go in the issues of absence of documents, whether the sale was in transit or whether M/s. Arihant Industrial Equipment had accepted any price of sale from M/s. Bhushan Thukral. He was only required to see the documents that it was a case of inter-State sale which in the present case is not in dispute as the goods were travelled from Nasik to Amritsar.
In M/S THYSSEN KRUPP ELEVATOR (INDIA) PVT. LTD. VERSUS STATE OF PUNJAB AND ANOTHER [2010 (9) TMI 873 - PUNJAB AND HARYANA HIGH COURT], the goods were being transported from Maharashtra to State of Punjab. The goods were detained on the ground that the transaction in question was clearly of intra-State sale in the State of Punjab as the goods were to be used in the works to be executed in the State of Punjab. The writ petition was allowed by not giving plea of alternative remedy to the respondents on the ground that once the petitioner had furnished all the information and there was a dispute of taxability, there could not be any attempt of tax evasions.
Appeal allowed.
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2023 (4) TMI 653
Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - failure to follow the mandatory provisions of Section 21 of the Himachal Pradesh Value Added Tax Act, 2005 - validity of Tax Demand Notice/Assessment Order - HELD THAT:- A perusal of the provision of Section 45 of HP VAT Act, shows that remedy of appeal is available against order assailed by way of instant petition, subject however to the limitation provided therein. As per the above provision, no appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against, or such longer period as the Appellate Authority may allow, for reasons to be recorded in writing.
In the present case, the Assessing Authority had passed the order on 30.12.2022. During the course of arguments, the learned counsel for the petitioner on a query by this Court, has submitted that the same was supplied to the petitioner on 30.12.2022 itself. It appears that since the petitioner had failed to file the appeal within the prescribed period of limitation, therefore, he has approached this Court by invoking the extraordinary writ jurisdiction to overcome the hurdle of limitation for filing the statutory appeal.
The petitioner had statutory remedy available to it but had failed to avail the same within the stipulated period. Thus, the instant petition is not bonafide. No reason whatsoever has been assigned for not availing the remedy of appeal by the petitioner.
The writ petition is dismissed, being not maintainable.
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2023 (4) TMI 597
Validity of assessment orders in respect of turnover from the manufacture of kraft paper - reversal of Input Tax Credit - basis for reversal was that sale of the goods to SEZ in other States are exempt from payment of tax and ITC is impermissible in terms of such exempted sales - HELD THAT:- The question of reversal of ITC in regard to supply made to SEZ was considered by a Division Bench of this Court in W.A.No.703 of 2020 & Batch in the case of M/S. CONSOLIDATED CONSTRUCTION CONSORTIUM LTD. VERSUS THE ASSISTANT COMMISSIONER (CT) [2023 (3) TMI 884 - MADRAS HIGH COURT]. In conclusion, the assessments have been remanded to the Assessing authority for fresh consideration.
In light of the aforesaid order, the impugned assessment also stands remanded.
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2023 (4) TMI 596
Disallowance of ITC - It is alleged that no documentary evidence has been produced as required in terms of Rule 10(6)(b) of the Tamil Nadu Value Added Tax Rules, 2007 - HELD THAT:- The entirety of the reply has been extracted in the assessment order. However, while confirming the disallowance of ITC, the officer merely refers to Section 19(13) of the Act and nothing else and does not address the contentions put forth by the petitioner in the reply.
There are no justification for the reversal of ITC, finding the impugned order cryptic and arbitrary. The reversal of ITC & penalty are set aside.
Petition allowed.
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2023 (4) TMI 595
Violation of principles of natural justice - ex-parte order - impugned order has been passed on an ex parte basis (on the very first day of hearing) without recording any satisfaction about service upon the revisionist - HELD THAT:- In view of specific assertion made by revisionist that no notice whatsoever was ever served upon revisionist, a perusal of impugned order makes it evident that although it has been indicated that notice was served upon partner of firm on 27th February, 2008, the order does not indicate anywhere as to whether and by which mode the notice was issued to revisionist-respondent. The only fact indicated in the order is that notice was served upon partner of firm on 27th February, 2008 fixing 15th April, 2008 as the first date of hearing. It is also evident from the impugned order that hearing took place on the very first day of hearing and impugned order has thereafter been passed on 26th April, 2008. Evidently the order impugned is an ex parte order.
In the considered opinion of this Court, the second appellate authority has clearly erred in not recording a finding as to when and by which mode notices were issued to the revisionist-respondent and how service can be said to have been effected upon the said person. Even otherwise it would have been in the interest of justice for the second appellate authority to have fixed at least another date to permit representation of revisionist-respondent in the said proceedings prior to deciding it on an ex parte basis, which has resulted in substantial injury to the revisionist-respondent.
The learned Tribunal was clearly unjustified in deciding the second appeal on ex parte basis on the very first day of hearing and as such the order impugned is clearly vitiated due to violation of principles of natural justice - Revision allowed.
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2023 (4) TMI 408
Classification of goods - Mosquito Mats, Coils and Vaporizers - Mortein Insect Killers - Harpic Toilet Cleaner and Lizol Floor Cleaners - Dettol Antiseptic Liquid - classifiable under Entry No. 44(5) of the III Schedule to the Kerala VAT Act as being 'pesticides, insecticides' corresponding to HSN Code 3808 and therefore subject to VAT at the rate of 4% or not? - Dettol Antiseptic Liquid, classifiable under Entry 36(8) (h) (vi) being medicaments corresponding to HSN Code 3004.90 of the III Schedule or not - HELD THAT:- It is required to be noted that HSN Code 3808 has been deleted from Entry 44(5) w.e.f. 01.07.2006 and from 21.01.2006 the aforesaid products would fall under Sl. No.66 namely ‘Mosquito repellant’, which is the specific entry and subject to VAT at 12.5%. The insecticides under Entry 44(5) therefore can be said to be a general entry. Once there is a specific entry the ‘Mosquito Repellant’, thereafter one is not required to go to the definition under another Act namely Insecticides Act. Sl.No.66 of Notification SRO 82/06 dated 21.01.2006 issued under Section 6(1)(d) of the Kerala VAT Act which covers "Mosquito Repellants” - Even otherwise it is required to be noted that Entry 44(5) which includes insecticides relates to products which are used in agricultural operations. All the products in the Entry are used in the agricultural field in relation to growing of agricultural products and controlling of pets, insecticides etc. which are attacking the plants. Therefore, in view of the specific Entry 66 of Notification SRO 82/06 dated 21.01.2006 the aforesaid products namely Mosquito Repellants, electric or electronic mosquito repellants, gadgets and insect repellants, devices and parts and accessories thereof are rightly classified as Mosquito repellants.
In the present case under the KVAT Act there is a specific Entry Mosquito repellant so far as the product electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof are concerned and therefore the said specific entry shall be applicable in any case, the same cannot be said to be insecticides. We are in complete agreement with the view taken by the High Court that Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers products shall not be classifiable under Entry 44(5) as insecticides.
Harpic and Lizol - HELD THAT:- What is required to be considered is the dominant use which is cleaning and removal of stains of floor and the toilet. Thereafter, the same shall not fall under Entry 44(5) – HSN Code No.3808 as insecticides or disinfectant. Entry 27(4) of SRO No. 82 of 2006 is with respect to stain busters, stain removers, abir, blue and all kinds of cleaning powder and liquids including floor and toilet cleaning. In that view of the matter Entry 27(4) being a specific entry the same shall be applicable and the aforesaid two products namely Harpic and Lizol shall not be classifiable under general Entry 44(5) and in any case the same cannot be classifiable under Entry 44(5) as insecticides - the product Harpic and Lizol shall not be classifiable under Entry 44(5) and shall be classifiable under Entry 27(4) of SRO 82/2006 chargeable to tax at 12.5%.
Dettol - HELD THAT:- The active ingredients of Dettol are Chloroxylenol IP, Terpineol BP, Alcohol Absolute IP (denatured) and it is an antiseptic having germicidal properties and it kills germs, bacteria and it prevents infection therefore it is applied on wounds, cuts, grazes, bites and stings. It is also used in hospitals for surgical use and medical use - the Dettol is used as an antiseptic liquid and is used in hospitals for surgical use, medical use and midwifery, due to therapeutic & prophylactic properties. Therefore, the same can be said to be an item of medicament to be treated as a drug and medicine. Here also the dominant use is a relevant consideration.
In the case of PONDS INDIA LTD. VERSUS COMMISSIONER OF TRADE TAX, LUCKNOW [2008 (5) TMI 46 - SUPREME COURT] this Court has held that while deciding the issue whether any particular item would be covered under relevant entry or classification, different tests viz. the dictionary meaning, technical meaning, user’s point of view, popular meaning etc. are to be applied.
The dominant use of Dettol and the active ingredients of Dettol referred to hereinabove and that the Dettol is used as an antiseptic and is used in hospitals for surgical use, medical use and midwifery due to therapeutic & prophylactic properties the same would fall under Entry 36(8) (h) (vi) as claimed by the appellant and would not fall under the residuary entry as claimed by the Revenue. To that extent the impugned judgment and order passed by the High Court deserves to be quashed and set aside.
The impugned judgment and order passed by the High Court in so far as the products Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers; Harpic Toilet Cleaner and Lizol Floor Cleaners is hereby confirmed. So far as the impugned judgment and order passed by the High Court with respect to Dettol Antiseptic Liquid is concerned, the impugned judgment and order passed by the High Court is set aside and it is held that the product Dettol would fall under Entry 36(8) (h)(vi) of Schedule III of the KVAT Act and shall be liable to be taxed at 4%.
Appeal allowed in part.
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2023 (4) TMI 407
Maintainability of appeal - movement of goods in terms of Section 3(1)(a) of the Central Sales Tax Act, 1956 - HELD THAT:- The Supreme Court in VINOD KAPOOR VERSUS STATE OF GOA & ORS [2012 (10) TMI 1041 - SUPREME COURT] had, while examining whether a special leave petition against an order passed by the High Court would be maintainable in a case where on a prior occasion, the special leave petition had been dismissed, held that the appeal would not be maintainable.
The principle is now well settled that the litigant cannot file repeated appeals against the same order. Once the appellant has withdrawn the appeal without reserving any liberty to file afresh, the said remedy will stand exhausted.
The present appeals are dismissed as not maintainable.
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2023 (4) TMI 344
Maintainability of appeal - Availability of alternative remedy - rejection of returns filed by the assessee - interstate sales - Contract amounted to a turn-key job or not - composite works contract - HELD THAT:- Undisputed facts of the case are, Purchase orders are placed by the purchasers of Elevators with the assessee's unit situated at Thane in Maharashtra. The Hon'ble Single Judge has held that the documentary evidence viz. specimen copy of the Purchase Order, supporting transporter challans, delivery documents and the tax invoices reflected that the goods were manufactured in Maharashtra and movement of goods had occasioned from Maharashtra to Karnataka pursuant to the Purchase Order. It is further held by the Hon'ble Single Judge that it is discernable that supply of Elevators from the manufacturing unit at Thane in Maharashtra falls within the ambit of Section 3(a) of the CST Act.
It is not in dispute that the decision in STATE OF KARNATAKA AND OTHERS VERSUS ECE INDUSTRIES LIMITED [2004 (11) TMI 518 - KARNATAKA HIGH COURT], has been accepted by the Revenue. It is also not in dispute that the assessee has taken over ECE Industries Ltd. Therefore, Revenue is bound by the said decision.
Maintainability of appeal - Availability of alternative remedy - HELD THAT:- Hon'ble Single Judge has exercised her discretion and entertained the petition. The matter being fully covered by the Division Bench decision of this Court in ECE Industries Ltd., the said ground in the facts of this case is untenable.
There are no legal infirmity in the impugned order - appeal dismissed.
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2023 (4) TMI 319
Reassessment where original assessment is sought to be superseded on the ground that it was erroneous - change of opinion on the basis of subsequent decision, where different view adopted - taxability of sale of mobile phones in the state of Uttar Pradesh - It was held by HC [2016 (12) TMI 630 - ALLAHABAD HIGH COURT] where it was held that This writ petition has to be allowed with cost as law is well settled that assessment once having become final should not have been reopened on the basis of judgment of the Apex Court which has no applicability to the facts of this case and is in ignorance of factual position as is very clear from facts - HELD THAT:- The SLP is dismissed.
Seeking withdrawal of petition - seeking appellate remedies available in law in respect of the re-assessment order - HC [2019 (9) TMI 1153 - RAJASTHAN HIGH COURT] held that It certainly cannot be said to be a case of inherent lack of jurisdiction. Aside of the fact whether or not the re-assessment order could have been legally passed, the appellants cannot be allowed to contend that such orders have been passed dehors the principles of natural justice - HELD THAT:- The special leave petition is dismissed as withdrawn.
List [2015 (12) TMI 239 - PUNJAB AND HARYANA HIGH COURT] and [2016 (12) TMI 1897 - PATNA HIGH COURT] along with these petitions subject to orders of Hon’ble the Chief Justice of India as it is submitted that the same questions of law arise.
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2023 (4) TMI 318
Inclusion of value of damaged and obsolete/ unsaleable goods from previous assessment years in the assessable value (disallowance of deduction) - Form 53 not uploaded, which was a necessary pre-requisite to claiming such deduction - HELD THAT:- The assessing authority has now accepted that the documents produced by the petitioner are reliable, and that the only reason for disallowing the claim of the assessee was the non-production of those documents along with Form 13 audit report, Form 13A audited Balance Sheet and the audited Profit and Loss Account for the year ended 31.03.2012, the said technical reasons need not be a reason to deny the petitioner the substantive benefit of deduction of the amounts from the taxable turnover for the year.
Matter remanded back to the assessing authority for passing a fresh assessment order, taking into consideration the documents now produced by the petitioner before the assessing authority, and which were found as acceptable by the assessing authority, for the limited purposes of passing a revised assessment order.
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2023 (4) TMI 317
Violation of principles of natural justice (audi alterem partem) - assessment orders were passed without affording a reasonable opportunity to the appellant company - HELD THAT:- It is a fact that the judgment of the learned Single Judge in ATLAS JEWELLERY [P] LTD., VERSUS THE DEPUTY COMMISSIONER, SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX (FORMERLY ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KERALA). THE JOINT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, STATE TAX, THE COMMISSIONER OF STATE TAX, THIRUVANANTHAPURAM [2022 (3) TMI 268 - KERALA HIGH COURT] pertained to a sister company of the appellant that was functioning with the same management. It follows, therefore, that the difficulties that were faced by the said sister company were identical to those faced by the appellant as narrated in the statement of facts in the Writ Appeal. Taking note of the said circumstances and finding the reasons for non-appearance of the appellant before the Assessing Officer in response to the notice for hearing to be genuine, thus a similar treatment, as extended to the petitioner in WP(C).No.21798 of 2021, can be extended to the appellant herein as well.
The impugned judgment of the learned Single Judge in the Writ Petition, as also the order in the Review Petition, to the limited extent that it does not set aside the assessment orders impugned in the Writ Petition, set aside - appeal disposed off.
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2023 (4) TMI 316
Rejection of petitioner’s applications for grant of stay order under Section 31 (3) (a) of AP VAT Act - rejection on the ground that there is no prima facie case made out to grant stay on collection of the tax demands - HELD THAT:- Once the appeal has been admitted, application for stay ought not to have been rejected on the ground, it has been so rejected.
Rejection of the stay application by observing that on the grounds of appeal, prima facie case for stay is not made out, in an admitted appeal, does not appeal. In MOOL CHAND YADAV AND ANR. VERSUS RAZA BULAND SUGAR COMPANY [1982 (10) TMI 209 - SUPREME COURT] the Hon’ble Apex Court held that “the judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted.” The Act provides for grant of stay in admitted appeal subject to the conditions as under Section 31 (3) (a) of the Act, and consequently, the 1st respondent while considering the stay application in an admitted appeal ought to have decided the same by such judicial approach.
The 1st respondent shall make endeavour to decide the appeals expeditiously and within the statutory period - the disputed tax under the orders under challenge in the appeals before the 1st respondent shall not be collected from the petitioner, subject to the condition that the petitioner deposits 25% of the disputed amount, in every appeal, within a period of six weeks from the date of receipt of a copy of this order.
Writ petition is disposed off.
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2023 (4) TMI 310
Rejection of option for settling arrears of sales tax under the Amnesty Scheme - petitioners assail the order of the Lok Ayukta on merits and on the ground of jurisdictional infirmity - HELD THAT:- Section 7 of the Lok Ayukta Act provides for matters which may be investigated by the Lok Ayukta and provides that, subject to the provisions of the Act, the Lok Ayukta may investigate any action which is taken by or with the general or specific approval of the persons specified therein, in any case where a complaint involving a ''grievance'' or an ''allegation'' is made in respect of such action.
Going by the definition of 'maladministration', only unreasonable, unjust, oppressive or improperly discriminating action taken or purporting to have been taken in exercise of administrative functions would amount to maladministration. The power exercised by the Sales Tax Officer in rejecting the application of the complainants opting for the Amnesty Scheme-2020 is a quasi judicial function and a hierarchy of remedies is provided against the said order under Chapter-VII of the KGST Act apart from the remedy available before this Court under Article 226 of the Constitution in appropriate cases - It cannot assume any jurisdiction otherwise confirmed by the Lok Ayukta Act. This Court, in John Joseph [2011 (5) TMI 1141 - KERALA HIGH COURT], observed that, if the authority does not have the requisite jurisdiction to adjudicate the dispute brought before it, permitting such an examination would only create chaos in the administration. Ext. P1 complaint before the Lok Ayukta does not reveal any allegation or grievance in consequence of maladministration. Therefore, Ext. P1 complaint, is not maintainable before the Lok Ayukta and the Lok Ayukta has no jurisdiction to decide the correctness of the order rejecting the option for settling the arrears under the Amnesty Scheme-2020. Accordingly, Ext.P3 report of the Lok Ayukta is set aside.
If orders passed by quasi-judicial functionaries exercising powers under a statute are for any reason untenable in law, resort must be had to the remedies under the statute and the complainants cannot bypass the procedure and approach the Lok Ayukta.
This Court has not adjudicated the correctness or otherwise of the order of the assessing authority rejecting the application opting for Amnesty Scheme- 2020, but only the jurisdiction of the Lok Ayukta in entertaining Ext. P1 complaint - Petition allowed.
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2023 (4) TMI 256
Levy of tax - labour and service charges involved in the works contract executed between the Petitioner and the Railways - tax on transportation charges, which was separately charged - transportation charges shown separately is deductible from the GTO as per section 5(2)(A)(a)(ii) of the OST Act - Chips and ballast exigible to tax @4% being minor minerals covered under the Mines Act, 1952 read with Mines and Mineral Development Act, 1957 as well as Odisha Minor Minerals Concession Rules, 2004 - ballast comes under Entry 117 of List C of the Rate Chart under the OST Act and exigible to tax @4% being minor minerals or not.
HELD THAT:- The learned Tribunal observed that the goods, viz. ballasts and chips in question fall within the scope of Entry 189 of scheduled goods declared taxable under the OST Act and the transportation of such goods being pre-sale event falling within the ambit of Section 5(2)(iii) read with Section 2(h), the charges relating thereto would form part of taxable turnover.
Since no written replies are forthcoming from the side of the Revenue, and the matter is of the year 2015, this Court proceeded to hear the matter on merits on the basis of available material and arguments advanced by respective counsel for the parties - This Court, on perusal of record, finds that the factual position obtained in STATE OF ORISSA REPRESENTED BY COMMISSIONER OF SALES TAX, ORISSA, M/S. SRIRAM MINERALS M/S. HINDUSTAN MINERALS M/S. ESSKAY STONE VERSUS M/S. D.K. CONSTRUCTION, M/S. MAHASHAKTI GRANITE CRUSHER PRIVATE LIMITED, M/S. SHIVA MINERALS, M/S. HINDUSTAN MINERALS, M/S. C.C. SAHU & SONS (CONSTRUCTION) PRIVATE LIMITED, M/S. KHUSHRAJ ENTERPRISES, M/S. NARAYANI TRADERS [2017 (3) TMI 535 - ORISSA HIGH COURT] is identical to the present case and similar questions of law as posed in the present revision petition are decided in favour of the petitioner-assessee and against the revenue.
The Assessing Authority is directed to re-compute the tax liability as per observation made and taking into consideration the Judgment of this Court - the revision petition is allowed.
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2023 (4) TMI 255
Levy of Entry Tax - stainless steel scrap was a ferrous metal and alloy - liable to be taxed at the rate of 2% under the Himachal Pradesh Tax on Entry of Goods into Local Area Act, 2010 - HELD THAT:- The clear mandate of law, thus, 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 20.6.2017, 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 20.6.2017 passed by the Tax Tribunal, therefore, no question of law has arisen for consideration of this Court - the petition fails and the same is dismissed.
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2023 (4) TMI 164
Assessment of turnover of the applicant as per Section 4(3) of the Value Added Tax Act or as per Rule 9 of the Value Added tax Rules - applicability of provision of Section 4(3) of the VAT Act in the case of work contract - estimation of value of goods imported out of State on the basis of pro-rata basis against the actual import provided under Rule 9(1) and Clause (e) of the U.P. VAT Act Rules, 2008 - HELD THAT:- The combined reading of Rule 8 and 9 establishes that Rule 8 prescribes the methodology for computation of taxable turnover for all classes of dealer while Rule 9 is applicable for determination of taxable turnover of sales of tax involved in execution of works contract and specifies deductions only for the dealers who are involved in execution of works contract, thus, provisions of Rule 9 are considered to be grant of deductions. This leads to an inevitable conclusion that levy of tax on turnover of sale has to be done in the manner provided in Section 4(3) of the Act and Rules 8 and 9 do not restrict the power of the assessing authority in doing so. Section 4(3) read in harmony with Rule 8 and 9 and the interpretation given by the Tribunal while extending the benefit of Rule 9(1)(e) to the dealer and denying the benefit of computation of tax as per the formula provided under Section 4(3) of the Act does not hold good.
The finding recorded by the Tribunal to the extent of non-applicability of Section 4(3) of the Act is hereby set aside and the revisions filed by the assessee/dealer challenging the order passed by the Tribunal are hereby allowed.
The revisions filed by the Revenue challenging the benefit extended to the dealer/assessee under Rule 9(1)(e) stand dismissed - matter is remitted back to the Tribunal to compute the tax component as per Section 4(3) of the Act giving the benefit to the dealer/assessee under Rule 9(1)(e) - the question of law raised through these revisions stands answered i.e. in favour of the assessee and against the revenue.
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