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VAT / Sales Tax - Case Laws
Showing 81 to 100 of 27514 Records
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2024 (9) TMI 58
Taxability - tax-free transactions entered into by the appellant - disallowance of entire purchase/ sale transaction and levying tax at a higher rate on the same - failure to take into consideration and take proper cognizance of the various documentary evidences placed - failure in not considering, adjudicating and dealing with the arguments and submissions made by the appellant - failure to take cognizance of the fact that even on merits of the appellant's case no amount of tax and interest is required to be paid by the appellant in the facts and the circumstances of the case - non-deletion of penalty levied by the adjudicating authority.
HELD THAT:- The appellant has referred to ledger accounts of supplier of the goods from the books of accounts which are supported by purchase invoices. However, on perusal of the ledger account, it appears that payment is made by the appellant by passing journal entries in name of the persons to whom goods have been sold. Thus, there is no banking transaction involved in transaction of purchase and sales by the appellant. It is true that such an issue has never been considered by any of the authority however on perusal of ledger account, it is clear that there is no banking transaction reflected in the ledger account which shows that appellant had not entered into a genuine purchase and sale transaction and merely by passing journal entries it appears that the appellant has obtained the purchase invoices and issued the sale invoices or transfer invoices to its branch at Rajasthan to show transactions of Agro commodity which are exempted from VAT.
It also appears that the appellant has shown that search was carried out for four years from 2008-2009 to 2011-2012 however no details are available with regard to the subsequent years of purchases and sales as the same are not placed on record or even pleaded before any of the authority so as to distinguish the facts of the year under consideration.
Thus, on perusal of the impugned order of the Tribunal and the order passed by the First Appellate authority there are concurrent findings of fact and we find no perversity in either of the orders which are based upon the evidence placed on record and therefore, it is opined that no question of law much-less any substantial question of law arises from the impugned orders.
Appeal dismissed.
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2024 (9) TMI 1
Justification of upholding the penalty imposed u/s 51 (7)(b) for the goods being imported to Chandigarh from Himachal Pradesh on the ground of undervaluation merely on the basis of provisions for levy of excise duty on MRP basis under Central Excise Act - justification in upholding the penalty levied on road side checking under Section 51 (7)(b) even though the determination of actual valuation of goods is within the domain of the assessing authority.
Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in upholding the penalty imposed under Section 51 (7)(b) for the goods being imported to Chandigarh from Himachal Pradesh on the ground of undervaluation merely on the basis of provisions for levy of excise duty on MRP basis under Central Excise Act? - HELD THAT:- It is found that the invoices have been issued by the manufacturer, who is placed in Himachal Pradesh where the excise duty is exempted. In the circumstances, the valuation of goods i.e. purchase price for any person would be comparatively much lower than that of other places where excise duty is payable. It is also not a case of the State authorities that the invoices were different for the appellant in comparison to other distributors. Once there is no finding in this regard, a presumption cannot be drawn that the invoices were under valued merely because MRP rate mentioned on the product was on a much higher side. So far as the dealer is concerned, namely the appellants, they would further sell the goods to various distributors. If the sale price is comparatively low, the case of tax evasion would arise - to presume that there is an evasion of tax at the level of the person who is a dealer going to further sell the goods to a distributor, is a farfetched presumption. The action of the respondents imposing penalty on such a presumption would be an exercise of arbitrary power - the question is answered in favour of the appellants.
Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in upholding the penalty levied on road side checking under Section 51 (7)(b) even though the determination of actual valuation of goods is within the domain of the assessing authority? - HELD THAT:- The Division Bench of this Court in Xcell Automation [2006 (11) TMI 582 - PUNJAB AND HARYANA HIGH COURT], has also answered the aforesaid question in favour of the assessee. The invocation of jurisdiction on allegations of attempt of tax evasion is without sufficient reasons and the order is totally laconic - the relates to the penalty imposed by invoking Section 51 (7) (a) and (b) of the Act of 2005. However, such power of imposing penalty was not required to be invoked at the stage of road side checking and the power can only be exercised by the assessing authority who shall reach to the conclusion that there has been an attempt to evade tax after actual valuation of the goods.
The questions answered in favour of the assessee.
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2024 (8) TMI 1485
Challenge to order of assessment was passed on self-assessment basis, accepting the returns filed - Denial of exemption on the ground of second sales of cashew kernels - Penalty under Section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 - burden to prove - HELD THAT:- Admittedly, the petitioner has not produced any material, barring invoices, to establish purchases from the alleged sellers. No attempt was made at any stage of the proceedings to produce the three entities who are stated to have effected sales to the petitioner. Moreover, the enquiry conducted by the respondents has established that the dealer registration numbers furnished by the petitioner belonged to other registered dealers and not the entities named as sellers by the petitioner.
The burden of proving a transaction falls upon the entity making the claim in respect of that transaction and thus, the onus of establishing a claim of second sales falls solely upon the dealer making such claim. Section 10(2) specifically states that 'Notwithstanding anything contained in this Act or in any other law for the time being in force, a dealer in any of the goods liable to tax in respect of the first sale or first purchase in the State shall be deemed to be the first seller or first purchaser as the case may be of such goods and shall be liable to pay tax accordingly on his turnover of sale or purchase relating to such goods, unless he proves that the sale or purchase, as the case may be of such goods had already been subjected to tax under this Act.'
In the present case, the dealer could well have produced the alleged vendors to support the claim of second sales. This was never done at any stage of the proceedings and hence of the categoric view that there is nothing to support the assessee's contention in this regard.
In Govindan & Co. [1974 (2) TMI 69 - MADRAS HIGH COURT], there was an inspection of that assessee's premises. Clarifications were sought in regard to certain purchases and the explanation put forth by Govindan and Co., was that the purchases had been made from 12 dealers. Since that dealer had not been in a position to prove the purchases, that turnover had been estimated and brought to tax.
Actual payment of the tax at the point of sale is not necessary to establish a second sale. However, in the present case, the petitioner has not discharged the burden of proving the first sale and thus can draw no benefit from the ratio of Govindan and Co. In light of the discussion supra, the concurrent conclusion of the authorities in rejecting the claim of second sales is unassailable and we uphold the same.
The admitted facts on record establish the position that the petitioner has (i) consciously put forth a claim of exemption on second sales (ii) furnished the details of fictitious dealers in support of the aforesaid claim (iii) the supporting particulars submitted are false to the knowledge of the petitioner as no attempt was made to produce those dealers before the authorities for confirmation of the alleged first sales. The aforesaid factual position would establish fully that the matter falls within the four contours of the phrase 'wilful non-disclosure of assessable turnover'. Hence, the levy of penalty upheld as well.
This writ petition is dismissed.
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2024 (8) TMI 1394
Appropriation of amount that was due and payable to the Petitioner after the adjustment of the tax liability of the Petitioner for various assessment years - HELD THAT:- The challenge to the Impugned Order is unsustainable. However, the appropriation made in the Impugned Order is unsustainable. If the amounts are due and payable to the Petitioner after adjustment of the tax they have to be refunded back to the Petitioner.
There is no question of lapsing of the aforesaid amount so as to enable the Government to appropriate the amounts of refund that is/was due and payable to the Petitioner under the provisions of the PVAT Act, 2007 and CST Act, 1956.
The Respondent is directed to refund a sum of Rs. 5,89,030/- to the Petitioner. Since the amount is refundable, the Respondent is directed to refund the amount by crediting the amount in the Electronic Cash Register in terms of Section 142(8)(b) of the CGST Act.
Petition disposed off.
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2024 (8) TMI 1326
Interpretation of provisions of the Maharashtra Municipal Corporation Act, 1949 (the Act) and the Maharashtra Municipal Corporation (Local Body Tax) Rules (the Rules) - Scope of the phrase “disputed tax” as appearing in Section 406 (8) of the Act - whether Petitioner is liable to pay Local Body Tax (LBT)? - HELD THAT:- The scheme of levy of LBT makes a distinction between levy of tax and interest and penalty. Rule 5 of the said rules provides for liability to pay LBT in certain cases and various sub-rules therein prescribes liability to pay LBT including any interest and penalty. Rule 27 of the said Rules provides for lump sum payment of LBT in case of registered dealer having small turnover and the LBT based on the turnover ranges from Rs. 2,000/- to Rs. 5,000/-.
The provisions in the Act, the said Rules and Forms point to the fact that even the law makers wanted to indicate that tax, interest and penalty are distinct. If the legislature intended to make tax, interest and penalty as a pre-condition they would have simply stated “disputed demand” and not “disputed tax”.
In Chennai Network Infrastructure Limited [2017 (4) TMI 1152 - BOMBAY HIGH COURT] the issue that arose before Co-ordinate Bench of this Court was for filing an appeal under Section 406 of the Act for challenging the penalty imposed under Section 267-A of the said Act, whether the appellant is required to pay the said penalty as a condition precedent for entertaining appeal. It was the contention of the appellant therein that penalty is not a tax and Section 406 requires, as a condition precedent for entertaining appeal, payment of disputed tax and since the penalty imposed was not a tax, no amount is required to be paid. This Court rejected the contention of the appellant after analysing the provisions of Sections 128-A, 129 and 267-A which dealt with property taxes - the Court came to a conclusion that an appellant has to pay penalty amount for entertaining the appeal.
In the present case the issue does not relate to property tax under Sections 128-A, 129 and 267-A of the Act nor it is the case made out by respondent in the impugned order that Section 406 (2) of the Act is applicable to petitioner. The issue raised in the appeal by petitioner is with respect to levy of LBT on entry of goods within the Municipal limits of respondents and the interest is charged on the premise that the demand made for the period 2015 to 2017 has not been paid and further penalty of Rs. 15,000/- is imposed under Rule 48 of the said Rules. The levy of LBT is governed by Section 127 of the Act read with the said Rules. Therefore, the provisions of Sections 128-A, 129 and 267-A are not applicable and are also not the subject matter of the appeal filed by petitioner.
The impugned order dated 22nd February 2024 is hereby quashed and set aside and the matter is remanded for denovo consideration. The appellate authority shall dispose the appeal in accordance with law by giving a personal hearing, notice whereof shall be communicated atleast 5 working days in advance - Petition disposed off.
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2024 (8) TMI 1325
Refusal of the 1st respondent in accepting the ‘C’ Forms and ‘F’ Forms produced by the petitioner - refusal on the ground that the assessment had been completed - HELD THAT:- The Hon’ble Division Bench of the erstwhile High Court of Andhra Pradesh in the case of RAJESWARI STONE POLISHERS VERSUS STATE OF ANDHRA PRADESH [1982 (11) TMI 158 - ANDHRA PRADESH HIGH COURT]. The Hon’ble Division Bench, after considering the proviso had held that the dealer can file the said ‘C’ Forms at any time after making of the assessment as long as he is able to satisfy the authority about the sufficient cause why the ‘C’ Forms could not be filed within time.
This judgment was followed by another Hon’ble Division Bench of the erstwhile High Court of Andhra Pradesh in the case of GODREJ AGROVET LTD. VERSUS COMMERCIAL TAX OFFICER, ELURU, WEST GODAVARI DISTRICT & NOVARTIS HEALTH CARE PVT. LTD. (FORMERLY NOVARTIS NUTRITION INDIA PVT. LTD.) VERSUS COMMERCIAL TAX OFFICER, BENZ CIRCLE, VIJAYAWADA [2005 (10) TMI 516 - ANDHRA PRADESH HIGH COURT]. The Hon’ble Division Bench, in the subsequent judgment, had also held that the assessing authority need not wait for the ‘C’ Forms to be received before passing an assessment order, if there is a danger of limitation expiring for passing of such an assessment order. However, the assessing authority would have to consider any ‘C’ Forms filed subsequent to the assessment order, provided the dealer is able to make out sufficient cause while such ‘C’ Forms could not be filed within the time stipulated under Rule 12 (7) of the CST (R&T) rules. The Hon’ble Division Bench went on to hold that passing of an assessment order would not preclude the assessing authority from taking these into account and modifying the assessment order.
A perusal of the assessment order would show that the objections raised by the petitioner, in relation to the arithmetical or clerical mistakes in the order should also be considered as a prima facie reading of the order shows that there are various discrepancies in the figures and such discrepancies can be construed to be arithmetical or clerical mistakes.
This Writ Petition is disposed of directing the 1st respondent to consider the request of the petitioner to accept the ‘C’ Forms and ‘F’ Forms produced by the petitioner subject to the 1st respondent being satisfied that sufficient cause has been shown by the petitioner explaining the delay in filing these Forms.
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2024 (8) TMI 1324
Clarification of the galvanized iron sheets - whether the Deputy Commissioner, could have refused deferment of hearing despite the said question being before this Court? - HELD THAT:- Under Section 14 (iv) of the CST Act, the various products of Iron & Steel were sub-categorised into (i) to (xvi). The issue before the Hon’ble Supreme Court in the case of STATE OF TAMIL NADU VERSUS PYARE LAL MALHOTRA [1976 (1) TMI 151 - SUPREME COURT] was whether a product, which is created or procured from another product within the same sub-category, can be treated commercially as a different product, whose sale is exigible to tax. The Hon’ble Supreme Court replied in the negative - This entry under the Central Sale Tax, Act has now been shifted as the Entry 70 (vi) of the IV Schedule of the AP VAT Act.
Entry 70 (vi) of the IV Schedule of the AP VAT Act includes sheets, hops, strips and skelp, which could be black or galvanished or hot and cold rolled or plain and corrugated. This would mean that corrugating plain sheets resulting in corrugated iron sheets or corrugated coil from iron or steel into sheets would not move any of the products out of the sub-entry.
The view of the Calcutta High Court in the case of PHANINDRA NATH MANNA AND COMPANY VERSUS COMMERCIAL TAX OFFICER AND OTHERS [1973 (9) TMI 85 - CALCUTTA HIGH COURT] can also be taken into account. The Calcutta High Court while dealing with a similar issue had held 'In commercial parlance galvanised sheet includes both corrugated and plain sheets. The certification marks scheme formulated by the Indian Standard Institute for steel products shows that galvanised sheet includes corrugated and plain sheets. Such sheets after corrugation do not lose their character as iron sheets.'
Petition disposed off.
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2024 (8) TMI 1272
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 - the High Court held 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' - HELD THAT:- It is not required to interfere with the impugned judgment and order passed by the High Court.
Hence, the Special Leave Petitions are dismissed.
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2024 (8) TMI 1271
Recovery of dues - priority of the secured creditor or the Sales Tax Department for recovering its dues from the borrower / entity - HELD THAT:- While the secured creditor seeks to rely upon the Deed of Equitable Mortgage dated 7th March 2007 as well as the orders passed in Company Petition No.119 of 2013 that was filed against the borrower, the Sales Tax Department seeks to rely upon the communication dated 7th September 2013 that was issued by it to the Talathi not to record any sale transaction in the Revenue Records on account of steps being taken by it for recovering its dues.
This very issue based on the provisions of Section 26E of the SARFAESI Act as well as Section 38 of the Act of 2002 was the subject matter of consideration before the Full Bench of this Court in Jalgaon Janta Sahakari Bank Ltd. and Anr. [2022 (9) TMI 163 - BOMBAY HIGH COURT]. After considering the provisions of the Code as well as the Rules of 1967 along with other relevant provisions, it was held that 'if the immovable property of the defaulter is shown to have been attached in accordance with law prior to Chapter IV-A of the SARFAESI Act, or for that matter Section 31B of the RDDB Act, being enforced, and such attachment is followed by a proclamation according to law, the ‘priority’ accorded by Section 26E of the former and Section 31B of the latter would not get attracted.'
In the light of the aforesaid law it would be necessary to consider as to whether the Sales Tax Department has undertaken the attachment of the secured assets in the manner prescribed by the Code and the Rules of 1967. In the affidavit-in-reply filed on behalf of the Sales Tax Department it has stated that notices under Section 38 of the Act of 2002 came to be issued on 22nd July 2013 - Since the steps for attachment were taken prior to the provisions of Section 26E being brought on the statute book, the Sales Tax Department had the necessary priority to sell the assets in question.
There is no material on record to indicate that an order of attachment was duly passed under the Code and the proclamation thereof was made in accordance with the Rules of 1967 prior to 24th January 2020 when Section 26E of the Securitization Act came into force or 1st September 2016 when Section 31B of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was enforced, the Sales Tax Department would not have priority over the dues of the secured creditor. In absence of any valid order of attachment as well as a proclamation in that regard, the Sales Tax Department cannot claim precedence over the dues of the secured creditors in view of Section 26E of the Securitization Act. Mere issuance of communication to the Talathi not to permit sale of a secured assets would be of no consequence as the law requires passing of a valid order of attachment and issuance of a proclamation in accordance with the Rules of 1967 to claim priority.
The communication dated 7th September 2013 issued by the 2nd respondent to the Talathi, Asangaon, Taluka Shahapur, District Thane would not preclude the petitioner from taking steps to enforce its security interest. Accordingly, the petitioner would have priority over the Sales Tax Department in respect of the secured assets referred to in the aforesaid communication.
Petition disposed off.
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2024 (8) TMI 1270
Challenge to assessment order - required period of seven (07) days for hearing was not granted to the petitioner - violation of principles of natural justice - HELD THAT:- This Court would have to accept the fact that the notice of assessment was sent by the 1st respondent only on 25.06.2021 and the period of seven (07) days mentioned in the said notice was not granted to the petitioner before an assessment order was passed on 28.06.2021. There also remains the question of whether the petitioner received this notice as the petitioner has denied the receipt of notice.
The petitioner had not been granted adequate opportunity to set forth his case.
This Writ Petition is allowed setting aside the assessment order of the 1st respondent, dated 28.06.2021 and the matter is remanded back to the 2nd respondent, who is the assessing authority to the petitioner now, for completing the assessment for the year 2017-2018 after giving due notice and opportunity to the petitioner.
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2024 (8) TMI 1201
Recovery of dues - priority of dues - Petitioner-Bank's registered security interest with CERSAI has priority over the dues claimed by the GST and Sales Tax Departments or not - HELD THAT:- In the present case, the order of attachment issued by the Sales Tax Department is dated 19th April 2022. It is thereafter that steps have been taken to attach the immovable property. It is on this basis that the respondents seek to rely upon the provisions of Section 37 of MVAT Act.
The registration of the Bank Security Interest with CERSAI is dated 17th March 2017 which is much prior to the order of attachment. In view of the clear position of law under Section 26-E of the SARFAESI Act and further the ratio as laid down by the Full Bench of this Court in Jalgaon Janta Sahakari Bank Ltd. and another [2022 (9) TMI 163 - BOMBAY HIGH COURT] and the judgment of the Division Bench of this Court in Indian Bank thr. Chief Manager [2024 (7) TMI 1309 - BOMBAY HIGH COURT], there are no hesitation to hold that the claim of secured creditor that is the Petitioner – Bank, will have preference over the claim of Respondents (GST Department and the Sales Tax Department).
Petition allowed.
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2024 (8) TMI 1099
Recovery of dues - Validity of certain read entries/charge over the properties of petitioner no. 1 on account of dues recoverable from the erstwhile Management of the 1st petitioner-Company under the Himachal Pradesh Value Added Tax Act, 2005 (HP Vat Act), the Central Sales Tax Act, 1956 (CST Act) and Himachal Pradesh Goods and Services Tax Act, 2017 (HPGST Act).
Petitioners contend that after approval of acquisition plan, it became binding on all including respondents and any act contrary to the approved plan would be illegal, particularly, when none of the respondents had challenged the acquisition plan which had also been approved by the NCLT.
HELD THAT:- It is clear that the 1st petitioner-Company, who was unable to pay its dues to Financial Creditors, was made subject to a Corporate Insolvency Resolution Process by one of its Creditors , i.e., the State Bank of India under Section 7 of the IBC and it was admitted on 05.04.2018 vide Annexure P-1.
As per sub-Section (4) of Section 14 of the Code, the said order of moratorium would have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process - Since the provisions of the said Code had overriding effect on all laws in view of Section 238 of the Code, it was not permissible for the respondents to create a charge on the property of the petitioner-Company during the currency of the moratorium vide Annexure P-4 dt. 07.01.2020 in violation of the provisions of the IBC. Therefore, ex facie, the said order Annexure P-4 is void in law.
When the IBC permits Sale of Assets of a Company in Liquidation as a going concern under Regulation 32 (e) & 32A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulation, 2016, and in such an e-auction conducted by the Liquidator, the current management made a plan for acquisition vide Annexure P-5A for Rs.49.95 crore and the same was approved by the NCLT on 11.05.2022 vide Annexure P-6 and Sale Certificate was also issued vide Annexure P-7 on 31.05.2022, all the claims of the respondents stood extinguished - the legislative intent was to extinguish all debts owed to the Central Government or any State Government or any Local Authority including the Tax Authorities, when once an approval was granted to Resolution Plan by the NCLT.
As per the amended Section 31 of the Code, the said principle of taking over Corporate Debtor under a Resolution Plan, will also apply to taking over by way of acquisition plan. This is referred to as the “Clean Slate” principle of IBC - The plea of the respondents that the tax dues claimed by them will have priority as a “Crown Debt”, therefore, cannot be accepted, and their action in continuing the said red entry/charge on account of dues recoverable from erstwhile management of the 1st petitioner-Company under the H.P. Vat Act, 2005, HPGST Act, 2017 and the CST Act, 1956, would be clearly illegal & arbitrary.
A Writ of Mandamus is issued directing the 4th respondent to remove its charge/red entries/claim for the tax dues of the erstwhile management of the 1st petitioner-Company on the properties of the said petitioner forthwith, from the revenue record - Petition allowed.
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2024 (8) TMI 989
Concessional rate of duty at 2% for goods described in Section 8 (3) of CST Act - Eligibility of the petitioner to issue declarations in C-Forms for inter-State purchase of natural gas post-GST implementation - Trade Circular No. 37T of 2017 dated 24 August, 2017 - HELD THAT:- The issue which has fell for consideration in the present proceedings would stand squarely covered by the said decisions of the High Courts and the decision of the Supreme Court in The Ramco Cements Ltd. [2021 (3) TMI 1184 - SUPREME COURT] where it was held that 'Considering the consistent view of nine High Courts, including dismissal of special leave petitions by different Bench of this Court, and being satisfied about the exposition on the matters in issue by the High Court of Madras vide impugned judgment and order being a possible view, we decline to interfere in these special leave petitions.'
Thus, the petitioner would be entitled for issuance of ‘C Form’ in respect of natural gas purchased by the petitioner from the oil company in Gujarat and used in their manufacturing activities as also in generation of electricity at captive power plant.
The petition is allowed.
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2024 (8) TMI 957
Liability to pay tax under the KGST Act on the value of the goods supplied inter-State for execution of the works contract in Kerala - intra-State sale - HELD THAT:- The scope of the petitioner’s obligation under the contract was to source the goods, forming part of the electric Sub-Station, from specified vendors or from its own manufacturing units outside the State and make them available for incorporation in the works contract carried out in the State. It will also be apparent that the goods in question were ‘non-standard goods’ which had to be in accordance with the designs and specifications supplied by KINFRA. The goods to be supplied were not standard goods which the petitioner company could have fabricated based on its own designs and specifications. It follows therefore that when such goods, as were covered by the contract entered into between the petitioner and KINFRA, were sourced from outside the State, the mere fact that there was an initial transaction whereby the petitioner obtained possession/title of the goods in Kerala from a movement of the goods that originated from outside of Kerala, could not have made a difference while determining the nature of the sale transaction namely ‘inter-State’ or ‘intra-State’.
In the instant case, the movement of the goods, in respect of which the petitioner had claimed exemption from tax under the KGST Act, was clearly incidental to their obligations under the contract entered into with KINFRA. The goods themselves were not standard goods but goods that answered to the specifications and make that was prescribed in the contract entered into between the petitioner and KINFRA. Under such circumstances, merely because there was an intervening event that broke the chain of movement of the goods from outside the State to within the State, prior to their incorporation in the works contract, the transaction could not have been viewed as an ‘intra-State sale’.
These S.T. Revisions allowed by setting aside the impugned orders of the Appellate Tribunal and answering the questions of law raised in these Revision Petitions in favour of the petitioner assessee and against the Revenue.
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2024 (8) TMI 905
Levy of penalty u/s 51 (7) (b) of the Punjab VAT Act - Non-disclosure of necessary information in consignment - appellant submits that the Tribunal has failed to take note of the fact that the appellant himself had surrendered at the barriers - HELD THAT:- This Court while examining the similar case titled as M/S. PUNJAB WOOL SYNDICATE VERSUS THE STATE OF PUNJAB AND ANOTHER [2023 (2) TMI 96 - PUNJAB AND HARYANA HIGH COURT] noted that the invoices reflected the inter-state sale. In the present case also, the sales were inter- State but the driver did not possess the Goods Receipt (GR) and no explanation for the same has been mentioned. In the present case, 1000 pieces of LPG valves at the rate of Rs. 1500/- per piece valuing Rs.15 lacs were being sent.
As per Section 51 (2) of the Punjab VAT Act, the driver Incharge of the vehicle has to carry invoice and GR which were admittedly not available with him, nor any tax has been charged.
In the circumstances, judgment passed in M/s Punjab Wool Syndicate’s case has no application in the present case as in that case, this Court had found that the driver had produced the invoices and the Court observed that once, he had produced the invoices, he is not expected to give further details relating to the invoices - In the present case as noticed above, the facts are altogether different. In the absence of GR, the authorities have taken a correct course of action and the Tribunal has rightly rejected the appeal of the appellant.
There are no reason to interfere with the order passed by the VAT Tribunal as no substantial question of law arises for consideration - the present VAT appeal stands dismissed.
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2024 (8) TMI 843
Stay on attachment order - pre-deposit has already been made by the petitioner for the Assessment Year 2010-11 and 2011-12, and complete amount has been paid for Assessment Years 2013-14, 2014-15 and 2015-16 - HELD THAT:- This Court had stayed the attachment orders on the ground that the pre-deposit has already been made by the petitioner for the Assessment Year 2010-11 and 2011-12, and complete amount has been paid for Assessment Years 2013-14, 2014-15 and 2015-16. The Court also while passing the order of interim stay, observed that officials of the petitioner-Company and officials of respondent No.2 may sit together and sort out the issue.
However, it is found that, apparently, nothing is coming out from the said observations, as the same time, since the pre-deposit has already been made, it is deemed appropriate to direct the Appellate Authority to proceed and decide the appeal on merits.
In view of the appeal being considered on merits, there is no question of the attachment of the bank accounts of the petitioner. The plea of learned counsel for the respondents to block the bank accounts is also found not in accordance with law - petition disposed off.
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2024 (8) TMI 842
Challenge to order of re-assessment - escapement of assessment - reason to believe that the turnover of the petitioner’s business assessable to tax for the assessment period from 2014 – 2015 has escaped assessment as the petitioner has failed to deposit VAT on transmission charge - HELD THAT:- The monthly returns for the annual year 2014 - 2015 was not submitted within the 21st day of the succeeding month, in other words, it was not submitted within the time prescribed under 17 (1) of the said Rules, 2005, which is within next 21 days of the succeeding months.
Reference is made to the decisions of the Division Bench of this Court in the case of INDIAN OIL CORPORATION LTD. VERSUS STATE OF ASSAM AND OTHERS [2012 (8) TMI 872 - GAUHATI HIGH COURT] wherein it has been held that when the time limit for completion for assessment has been indicated and after expiry of the said period no assessment can be made.
Reference is made to the decision of the Apex Court in the case of Vs. Regional Assistant Commissioner Of Sales Tax Nagar [1963 (8) TMI 2 - SUPREME COURT], wherein the Apex Court held that unless return is filed within the time limit, there cannot be an assessment.
Section 39 of the said Act, 2003 provides that no assessment shall be completed after the expiry of five years from the end of the year to which the assessment relates and as evident from the above, in the present case, no assessment under section 34, 35, 36 or 37 of the Act, 2003 was completed by the assessing authorities. Therefore, assessment for the year 2014 – 2015 ought to have been completed within 5 years from the end of the year in respect of which the assessment relates. In terms of Section 39 of the said Act, 2003, assessment for the assessment year 2014 – 2015 got barred by limitation on 31.3.2020 - Since, the time limit for completion of assessment as in terms of Section 39 of the Act expired on 31.03.2020, it appears that the assessing authority did not complete assessment within the prescribed time period. However, assessment was initiated under Section 40 of the Act without completion of assessment under Sections 34, 35, 36 or 37 of the Act, 2003.
Since in the facts of the instant case, no self-assessment can be deemed under Section 35 of the Act, 2003 re-assessment under Section 40 of the said Act, 2003 could not have been made under the provisions of the said Act.
The ‘existence of assessment’ is a condition precedent for making a reassessment under Section 40 of the Act, 2003 and if such condition precedent exist, the assessing authorities had no jurisdiction to make the reassessment. As such, without assessment under section 34, 35, 36 or 37 of the Act, 2003, the respondent authorities could not have resorted to the provisions of the reassessment stipulated under Section 40 of the said Act.
In the present case, there was no assessment under section 35 of the Act, 2003, made during the prescribed period. Therefore, no assessment can be deemed to have been made in law - the said order of re-assessment having been completed without any assessment made under section 35 of the Act, 2003, the order of reassessment dated 05.03.2022 is absolutely illegal and without jurisdiction.
As such, the very initiation of proceedings under section 40 of the Act, 2003 is absolutely illegal, without jurisdiction and not tenable in law - the impugned Order of re-assessment dated 05.03.2022 and the Notice of Demand dated 08.07.2021 are set aside and quashed - Petition allowed.
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2024 (8) TMI 778
Challenge to impugned notice and Assessment Orders - input tax credit availed by the petitioner under Section 19 of the TNVAT Act - HELD THAT:- This Court is inclined set aside the impugned orders and remit the cases back to the respondent to pass separate common orders for each of the Assessment Years along with the Applications filed by the petitioner on 07.01.2023 under Section 84 of the TNVAT Act, 2006. To the extent the orders of the Appellate Commissioner for the Assessment Years 2006-2007, 2007-2008, 2008-2009 and 2014-2015 have been accepted and the demand may be dropped and to the extent the demands have been confirmed by the respondent, the demand may be confirmed for the petitioner to pursue the remedy before the Appellate Authority.
Petition disposed off.
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2024 (8) TMI 777
Challenge to assessment order - wrongful availment of input tax credit - misuse of TIN number - HELD THAT:- Although the impugned order is a detailed order, it is noticed that the impugned order merely sets out the order passed by this Court on 13.12.2023, reply of the petitioner and has thereafter referred to transactions for the previous assessment years, namely 2011-12, 2012-13 and has referred to few dealers, who have allegedly availed input tax credit on the strength of the invoices generated from the petitioner's TIN number. As far as the subject assessment year 2014-15 is concerned, the details have not been furnished, although the impugned order states that the petitioner has not produced any documentary evidence for the orders already passed for assessment year 2014-15 with respect to the audit points. Hence, the order, dated 20.08.2019 which stood quashed by order in W.P(MD)No.29434 of 2023, dated 13.12.2023 was correct and in accordance with law.
For the first time a reference is made to the sale made by the petitioner to one Tv.Malarvizhi Constructions. This ought to have been informed to the petitioner before confirming the demand vide impugned order, dated 14.05.2024. Thus, there is a violation of principles of natural justice. Hence, the impugned order, dated 14.05.2024 is quashed and the case is remitted back to the respondents to pass a fresh order on merits and in accordance with law.
Petition disposed off by way of remand.
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2024 (8) TMI 776
Validity of assessment order - impugned order is passed without giving opportunity of hearing to the petitioner - violation of principles of natural justice - HELD THAT:- It is not in dispute that the impugned order is passed without giving opportunity of hearing to the petitioner and without considering the directions issued by the coordinate Bench of this Court in MALANI CONSTRUCTION COMPANY VERSUS STATE OF GUJARAT [2019 (9) TMI 171 - GUJARAT HIGH COURT] in case of the petitioner where it was held that 'The respondent No. 2 shall once again hear the writ applicant and take into consideration all the relevant materials earlier adduced by the writ applicant and also the materials that may be once again adduced at the time of rehearing of the matter.'
On perusal of the impugned order also, it appears that no findings are recorded by the respondent No. 2 in the impugned order for applying the provision of Section 2 (30) (c) of the Act though learned Assistant Government Pleader has tried to explain the same during the course of hearing as well as relying upon the averments made in the affidavit-in-reply.
The show-cause notice for penalty also appears to be a cyclostyled show-cause notice. Therefore, without entering into the merits of the matter, the impugned order dated 14th November, 2019 and the notice for penalty dated 14th November, 2019 are hereby quashed and set aside and the matter is remanded back to respondent No. 2, with a direction to give opportunity of hearing to the petitioner and pass fresh de novo order in accordance with law after complying with the directions issued by this Court in MALANI CONSTRUCTION COMPANY VERSUS STATE OF GUJARAT by applying mind to the method of accounting and also to take into consideration the decision of the Apex Court in the case of GANNON DUNKERLEY & CO. VERSUS STATE OF RAJASTHAN & LARSEN & TOUBRO LTD. & UNION OF INDIA [1992 (11) TMI 254 - SUPREME COURT] by giving detail reasons for coming to the conclusion if the respondent No. 2 is of the view that the method adopted was in accordance with Section 2 (30) (c) of the VAT Act.
Petition disposed off by way of remand.
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