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VAT / Sales Tax - Case Laws
Showing 81 to 100 of 27658 Records
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2025 (1) TMI 472
Violation of principles of natural justice - passing a non-speaking order without considering the submissions of the Petitioner - classification of product as "Rusk" under Entry 77B of the Schedule of the OVAT Act, 2004, instead of classifying it as "Bread (branded or otherwise)" under Entry 34 of Schedule A of the OVAT Act, 2004 - non-consideration of judgment of KESHARWANI ENTERPRISES VERSUS STATE OF CHHATTISGARH AND OTHERS (AND OTHER CASES) [2018 (3) TMI 1683 - CHATTISGARH HIGH COURT] - HELD THAT:- The product in question is essentially bread. However, the Odisha Act provides for two separate entries in respect of bread. When something more is done to it to result in toasted bread, it is included in the separate taxable entry. On perusal of the assessment order, the first appellate order and impugned order we do find there has been different findings on fact regarding the product. However, the Tribunal does not appear to have suffered from any confusion in finding, as the last forum to find on facts that the product is toasted bread. Though entry 77B in Schedule B includes products other than rusk, but given meaning by the entry, of rusk to be hardened bread, the Tribunal cannot be faulted for coming to a finding that petitioner’s product is hardened bread as in toast. It is a clear case of the product of bread having two applicable classifications.
The decision in Kesharwani Enterprises is not applicable since the Chhattisgarh Act does not have an entry corresponding to entry 77B in Schedule B. Also, revenue’s submission regarding G. RADHAKRISHNA MURTHI & CO. AND OTHERS VERSUS COMMERCIAL TAX OFFICER-IVB, VIJAYAWADA AND OTHERS (AND OTHER APPEALS AND WRIT PETITION) [1997 (2) TMI 474 - SUPREME COURT], of a distinct and separate product said by the Supreme Court as cannot come within the entry, as cannot be expanded to accommodate it, to be inapplicable because the Odisha Act provides for two separate entries in respect of essentially the same products bread and rusk, the latter being hardened bread as in toast.
Conclusion - The product in question is essentially bread. The Tribunal's classification of the product under Entry 77B and imposition of penalty is upheld.
There are no substantial question of law to arise from impugned judgment of the Tribunal. The review petition is dismissed.
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2025 (1) TMI 471
Applicability of provisions of sub-section (4) of Section 16 of HP VAT Act, 2005 - HELD THAT:- Without there being a specific finding with regard to applicability of sub-section (4) of Section 16, the orders passed by the authorities below cannot sustain.
The present revision petition is allowed and the matter is remitted back to the assessing authority to decide the case afresh and while doing the assessing authority shall take into consideration the ratio of the judgments laid down by the Hon’ble Supreme Court in HINDUSTAN STEEL LIMITED VERSUS STATE OF ORISSA [1969 (8) TMI 31 - SUPREME COURT], the judgment of Rajasthan High Court in ASSISTANT COMMERCIAL TAXES OFFICER VERSUS KAMAL GLASS BOTTLES SUPPLY CO. [1992 (3) TMI 340 - RAJASTHAN HIGH COURT], A Division Bench judgment of Orissa High Court in INDIAN PAINTS AND CHEMICALS (P) LTD. VERSUS SALES TAX OFFICER, CUTTACK CENTRAL I CIRCLE [1997 (5) TMI 409 - ORISSA HIGH COURT] and the judgment of Hon’ble Supreme Court in DAYLE DE’SOUZA VERSUS GOVERNMENT OF INDIA THROUGH DEPUTY CHIEF LABOUR COMMISSIONER (C) AND ANOTHER [2021 (11) TMI 67 - SUPREME COURT], wherein it was held that 'Under the Proviso (a) to Section 200 of the 1973 Code, there may lie an exemption from recording pre-summoning evidence when a private complaint is filed by a public servant in discharge of his official duties; however, it is the duty of the Magistrate to apply his mind to see whether on the basis of the allegations made and the evidence, a prima facie case for taking cognizance and summoning the accused is made out or not.'
Matter remanded back to the assessing authority for fresh consideration with specific instructions to comply with procedural requirements and exercise discretion judiciously.
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2025 (1) TMI 470
Condonation of delay in filing the appeal against the ex-parte assessment order - no sufficient cause has been made out for condoning the delay - HELD THAT:- The First Appellate Authority as well as the MSTT have correctly come to the conclusion that no sufficient cause has been made out for condoning the delay. It is the case of the Appellant that the ex-parte assessment order, and which was challenged under Section 26, was served upon the brother of one of the partners of the Appellant-Firm. That brother did not inform any of the partners of the passing of the assessment order and therefore the delay in filing the Appeal. Both the Authorities below have disbelieved this story and hence refused to exercise their discretion in condoning the delay. After going through the record we also find the story of the Appellant rather unbelievable.
There is absolutely no explanation coming forward as to how the brother of one of the partners of the firm, and who claims that he was never a partner of the Appellant-firm, got his hands on the seal of the partnership firm. Even the affidavit filed by the said brother, and which is on record at Exhibit- “F” of the Petition, is completely silent on how he (the brother) had in his possession the seal of a partnership firm of which he claims he was never a partner. Even in the above Appeal, no explanation is given as to how the brother of the one of the partners had in his possession the seal of the partnership firm.
Conclusion - The delay in filing the appeal was not condoned due to the lack of sufficient cause.
Appeal dismissed.
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2025 (1) TMI 335
Disallowance of claims of branch transfers by CMS Computers under section 6A of the CST Act - inter-state sale or not - levy to tax under the CST Act with interest and penalty - HELD THAT:- It is seen that the Assessing Officer has not provided any specific finding and had given a general finding that there were pre-existing orders for movement of goods. Mere existences of pre-existing purchase orders, prior to movement of goods, does not automatically imply that the entire movement constitutes an inter-state sale, particularly when the goods are stock transferred in the regular course of business. CMS Computers had to maintain ample stock at the branch office to fulfill the orders placed by the different customers. The Assessing Officer was obliged to evaluate each transaction involving the transfer of goods before deciding whether to allow or disallow the branch transfer.
In this connection reference can be made to the judgment of the Supreme Court in Tata Engineering Locomotive [1970 (3) TMI 104 - SUPREME COURT], wherein it was held that 'It has been suggested that all the transactions were of similar nature and the appellant’s representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-state sale exigible to tax under the provisions of the Act.'
Conclusion - The State Tribunal had meticulously examined the decisions and the factual position and has, therefore, considered it appropriate to remand the matter to the Assessing Officer to verify the lorry receipts/dispatch proof in respect of each of the transactions. There is, therefore, no infirmity in order passed by the State Tribunal.
Appeal dismissed.
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2025 (1) TMI 303
Challenge to Assessment Orders - despite earlier writ petitions were filed and the petitioner had secured orders quashing the Assessment Orders that were passed earlier, now the present Impugned Orders have been passed - tax demanded and the penalty imposed together with interest recovered from the petitioner - lack of consideration of the petitioner's submissions and evidence - violation of principles of natural justice - HELD THAT:- It is noticed that the orders passed are stereotype orders. They have merely recorded that having considered the submissions of the petitioner, the submissions of the petitioner were not acceptable and therefore the demands have been confined in the Impugned Assessment Orders.
Conclusion - Since the reply of the petitioner has not been considered properly and there is no discussion in the order, the Impugned Assessment Orders are liable to be quashed as arbitrary.
The Impugned Assessment Orders are quashed. The respective cases are remitted back to the respondent to pass a fresh orders on merits and in accordance with law within a period of 6 months from the date of receipt of a copy of this Order - Petition allowed by way of remand.
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2025 (1) TMI 262
Civil revision under Section 86 of the Rajasthan Sales Tax Act, 1994 challenging the order of Rajasthan Tax Board - exercise of jurisdiction under Section 22 A of the Rajasthan Sales Tax Act - HELD THAT:- Evidently, explanation II of Section 22 A of the Rajasthan Sales Tax Act, 1954, makes it abundantly clear that “goods in transport” means goods which have been handed over to a carrier and complete delivery thereof has not taken from such carrier. In the case on hand, none of the five asserted consignee claimed that in fact they had purchased the goods as claimed by the petitioner. The addressee Satyam Enterprises gone to the extent of making complaint against act of the petitioner. Therefore, at the time of seizure, the goods was with the carrier as such was in transit and covered by the explanation of Section 22A.
Conclusion - The goods are considered in transit until delivery is confirmed by the consignee, and proper documentation is essential to avoid penalties.
This Court does not find any merit in this Civil Revision. Accordingly, this Civil Revision stands dismissed.
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2025 (1) TMI 261
Maintainability of appeal - requirement of 7.5% pre-deposit as a condition for appeal can be waived or interfered with by the court - HELD THAT:- It is clear from Manoranjan Chakraborty [2000 (11) TMI 1079 - SUPREME COURT] that the provisions were upheld by the Supreme Court. So much so, there was no exercise of power under article 142 in the Constitution to do complete justice, to permit the respondent to pay any lesser amount than 50%. Nevertheless, the Court said, it was clear that if gross injustice is done and it can be shown for good reason Court should interfere then notwithstanding alternative remedy, a writ Court can in an appropriate case exercise its jurisdiction to do substantive justice.
Conclusion - Statutory pre-deposit requirements are generally binding unless gross injustice is clearly demonstrated.
Petition disposed off.
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2025 (1) TMI 218
Whether the benefit of exemption under the provisions of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 would ennure for exemption under Section 8(2) of the Central Sales Tax (CST) Act, 1956? - HELD THAT:- Identical issue arose for consideration in NATESAN VERSUS THE STATE TAX OFFICER, ATTUR [2025 (1) TMI 135 - MADRAS HIGH COURT] where it was held that 'the petitioner is entitled to the benefit of exemption under Notification No.II(1)/CTR/30(a-2)/2007 (TNGG Extraordinary/March 23, 2007 [G.O.Ms.No.79, Commercial Taxes and Registration (B2) Department] dated 23.03.2007 with consequential relief.'
Conclusion - The petitioner is entitled to the exemption under the TNVAT Act for interstate sales under the CST Act, as no notification to the contrary was issued under Section 8(5) of the CST Act.
Petition allowed.
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2025 (1) TMI 217
Demand of central sales tax on movement of goods from the manufacturing unit of the appellant situated in the State of Rajasthan to its depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers - HELD THAT:- A perusal of the order dated 04.10.2017 passed by the Rajasthan Tax Board shows that it has reproduced the observations of the Rajasthan Tax Board in Appeal No’s. 1229-1233 decided on 24.11.2014. It is the order passed in these five appeals that were assailed by M/S CARLSBERG INDIA PVT. LTD., M/S UNITED BREWERIES LTD. AND M/S MOUNT SHIVALIK INDUSTRIES LTD. VERSUS THE STATE OF RAJASTHAN, THE COMMISSIONER COMMERCIAL TAXES, JAIPUR, THE ASSISTANT COMMISSIONER COMMERCIAL TAX DEPARTMENT, JAIPUR, THE STATE OF BIHAR AND THE STATE OF JHARKHAND [2024 (10) TMI 1124 - CESTAT NEW DELHI]
It was held in the case that 'The movement of goods cannot also be considered incidental to the Master Agreement. Reliance placed by the Rajasthan Tax Board and the learned senior counsel for the State of Rajasthan on clause 2 of the Master Agreement to justify that the movement of goods occurred incidental to the Master Agreement, is not correct.'
Conclusion - The transactions were stock transfers, not sales.
Appeal allowed.
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2025 (1) TMI 135
Entitlement to claim a concessional tax rate under the Central Sales Tax (CST) Act, 1956, without furnishing 'C' forms - It is submitted that in absence of specific notification issued under Section 8(5) of the CST Act, the petitioner cannot claim benefit of exemption under the above notification issued under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 for local clearance - HELD THAT:- As per Sub-Section (5) to Section 8 of the CST Act, the State Government has to issue a notification which should specify the conditions - In this case, no notification has been issued under Sub-Section (5) to Section 8 of the CST Act which has been brought to the attention of the Court.
Unless a specific notification has been issued under Sub-Section (5) to Section 8 of the CST Act, only General Notification issued under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 will apply to the interstate transactions by applying Sub-Section (2) to Section 8 of the CST Act.
Conclusion - Since there is no notification issued under Section 8(5) of the CST Act, the conditions of Section 8(5) of the CST Act will not apply to the facts of the case.
The petitioner is entitled to the benefit of exemption under Notification No.II(1)/CTR/30(a-2)/2007 - Petition allowed.
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2025 (1) TMI 134
Recovery of arrears of sales tax - priority charge over the assets - Whether the Respondent No. 5 (The Deputy Commissioner of State Tax) will have priority charge over the secured assets sold by Petitioner bank (secured creditor) under the SARFAESI Act?
HELD THAT:- The dicta of the Full Bench in Jalgaon Janta Sahakari Bank Ltd. [2022 (9) TMI 163 - BOMBAY HIGH COURT] is squarely applicable to the present proceedings. In the ratio of the said judgment it has been held that even where there is an attachment order of the State Tax authorities prior to the secured assets’ attachment, without any further steps being taken towards issuing a proclamation of sale, the State Tax Authorities cannot claim priority over the dues payable to the secured creditor, whose security interest is registered with CERSAI.
In the present case, the order of attachment issued by the State Tax Department is dated 11th December, 2018. It is thereafter that steps have been taken to attach the immovable property. As noted above, the registration of the Bank Security Interest with CERSAI is dated 18th December, 2014 which is much prior to the order of attachment issued by the State Tax Department.
Conclusion - The claim of secured creditor that is the Petitioner – Bank, will have preference over the claim of Respondents (State Tax Department).
Petition disposed off.
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2025 (1) TMI 62
Recovery of Tax dues - Effect of CIRP Proceedings under IBC - Challenge to action of respondents, directing the respondent No. 2 to recover the outstanding amount from its Bank account - non-payment of the entry tax for the goods purchased by the petitioner from outside the State of Rajasthan - HELD THAT:- As per Sections 31 and 238 of the IBC, the approved Resolution Plan has been made binding on the Corporate Debtors - McNally Bharat Engineering Company Ltd., its employees, members, creditors, guarantors including the Central Government, any State Government or any local authority and other stakeholders involved in the Resolution Plan, to whom a debt in respect of payment of dues arising under any law for the time being in force, is owed. Section 238 of the IBC provides that the Code will prevail in case of inconsistency between two laws.
This court also examined similar controversy in the case of Ultra Tech Nathdwara Cement Ltd. [2020 (4) TMI 269 - RAJASTHAN HIGH COURT] and held that any demands made by the Statutory Creditor, i.e. Commercial Taxes Department, for the period prior to the effective date stand extinguished with the approval of the Resolution Plan by the NCLT - Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date.
Conclusion - Law is well-settled that with the finalization of insolvency resolution plan and the approval thereof by the NCLT, all dues of creditors, Corporate, Statutory and others stand extinguished and no demand can be raised for the period prior to the specified date.
The impugned communication/notice dated 17.07.2019 is invalid - Petition allowed.
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2025 (1) TMI 61
Jurisdiction of Additional Commissioner to pass an order u/s 64 of the Karnataka Value Added Tax Act, 2003 after the expiry of more than 4 years since the passing of the original order - HELD THAT:- In the instant case, the order sought to be revised was passed on 31.07.2017. The records were called for under letter dated 13.07.2021 which was dispatched on 14.07.2021 and records were received by the Additional Commissioner on 22.07.2021 and notice under Section 64 (1) of KVAT Act was issued to the appellant on 28.07.2021. If the proceedings is initiated within 4 years from the date of order sought to be revised, the date of serving notice on the assessee would have no consequence. Initiation of proceedings and issuance of notice under Section 64 (1) of KVAT Act is relevant for computing limitation of 4 years and not service of notice or passing of order under Section 64 (1) of KVAT Act.
The Full Bench of this Court in M/S.KHIMIJIBHAI MILLS [2000 (12) TMI 883 - KARNATAKA HIGH COURT] held that 'Emphasis in the earlier provision was in affirmative terms to exercise the power only within 4 years, whereas now the emphasis is in the negative terms by saying that the authority shall not exercise the power beyond the period of 4 years. There is no material difference either to the exercise of the power to revise or to the period of limitation prescribed.'
It is clear from the above that four years limitation prescribed under Section -64 of KVAT Act is to call for records and to initiate proceedings and not to pass final order.
Conclusion - The limitation period under Section 64 of the KVAT Act pertains to the initiation of revisional proceedings, not the conclusion of such proceedings.
Appeal dismissed.
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2025 (1) TMI 4
Authority and jurisdiction of respondent to issue show cause notices after entering into a One Time Settlement (OTS) with the petitioner - no allegation of any fraud being committed by the petitioner - HELD THAT:- The fact remains that very purpose of bringing such OTS scheme is to encourage the tax payers to settle their disputes. Interestingly, in the OTS scheme issued by the Government of Telangana, the entire exercise of determination of tax/penalty amount was in the hands of the respondents and for that purpose, a committee consisting of senior officers was constituted. After having undertaken the entire exercise of determination of amount, a proposal was given by the respondents to the petitioner, which was duly accepted. The most important thing is that between the date of acceptance dated 22.06.2022 and actual recording of OTS on 17.08.2022, the Audit Officer by communication dated 11.07.2022 informed the respondents about the alleged short levy of tax/penalty. Despite having full knowledge about it, the respondent entered into OTS. There is no allegation against the petitioner in the show cause notice that petitioner had committed any fraud.
After having entered into OTS, it was not open for the respondents to issue the impugned show cause notice. Curtains were finally drawn by the respondents by entering into OTS. If we permit the respondents to undertake aforesaid exercise of issuance of show cause notices even after entering into settlement, the very purpose of such scheme will vanish in thin air. This practice will certainly discourage the tax payers to enter into settlement. The settlement should draw the curtains for all times to come otherwise the very meaning of OTS will pale into insignificance.
Conclusion - The finality of settlements under OTS schemes should be respected, and reopening is not permissible without statutory authority or allegations of fraud.
The impugned show cause notices cannot sustain judicial scrutiny - Petition allowed.
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2024 (12) TMI 1548
Challenge to penalty imposed - seeking a declaration that the Marketing Discipline Guidelines, 2018 (MDG) on the basis of which penalty was imposed, is not having any force of law and as beyond the purview of the agreements entered into with the respondent Corporation.
Is the respondent Corporation entitled to impose monetary penalty with reference to the provisions of MDG? - HELD THAT:- By a judgment INDIAN OIL CORPORATION LIMITED AND OTHERS VERSUS ALL INDIA PETROLEUM DEALERS ASSOCIATION REGISTERED AND OTHERS; ALL HARYANA PETROLEUM DEALERS ASSOCIATION REGISTERED AND OTHERS; BIHAR PETROLEUM DEALERS ASSOCIATION AND ANOTHER [2022 (1) TMI 1484 - DELHI HIGH COURT], a Division Bench of the Delhi High Court has found that such monetary penalty can be imposed under the MDG, and hence the judgment of the learned Single Judge was set aside. In the light of the afore, the respondent Corporation is entitled to impose monetary penalty with reference to the provisions of the MDG, on the petitioners herein.
Is the time limit prescribed under Clause 4.2(viii), mandatory in nature? - HELD THAT:- A detailed procedure is prescribed under the MDG, for initiation of appropriate actions against the distributers. The initiating authority has to prima facie satisfy himself as to the requirement for taking steps under the relevant chapter of the MDG - the provisions of Clause 4.2 cannot be taken to be mandatory in nature, since for arriving at a decision to proceed in accordance with Clause 4.2(viii), the procedure prescribed thereunder has to be complied with. Therefore, the stipulation of the period of 30 days for initiation of the notice can only be reckoned as “directory” in nature. Furthermore, it is noticed that the Delhi High Court, in the judgment referred to earlier, had found that the MDG has legal backing, especially when the intention behind the introduction of the MDG was laudable. Therefore, the provisions of Clause 4.2(viii) can only be directory in nature.
Are the impugned orders in tune with the provisions of Clause 4.2(x) of MDG? - HELD THAT:- The allegations raised in the show cause notices are essentially with reference to the violation of the TDT norms under Chapter IV. When the MDG provides the dealer an opportunity to show cause against proposed action, it is imperative on the part of the officer concerned to consider the contentions raised/explanations offered and then arrive at a considered decision. As already found, by virtue of the judgment by the Division Bench of the Delhi High Court, the respondent Corporation is having every power and authority to act under the provisions of MDG. When that be so, it goes without saying that the directives in the MDG that a speaking order is required to be issued is also an essential pre-requisite for imposing a monetary penalty.
In the case at hand, it is seen that Ext.P2 series [W.P(C) No.9331 of 2020) are the orders imposing the monetary penalty. A perusal of these orders would show that apart from the name of the distributor, the quarter concerned, the figures with respect to the alleged violation/commission/penalty, all other portions are one and the same. In other words, Ext.P2 series are stereotyped orders wherein, there are no reasons given for imposing the penalty.
The impugned orders, to the extent of not following the mandate under Clause 4.2(x), need to be set aside.
Is the imposition of penalty under Clause 4.2, with reference to average commission, illegal? - HELD THAT:- Clause 4.2 (Ext.P8 of W.P(C) No.30986 of 2023) only requires the imposition of a fine of 20% with respect to 20% of AMDC and that only visualizes the right of the petroleum company to levy a fine of 20% of the commission received for the “poor” rating in a quarter. Merely because the commission paid is for the performed part (not attracting penalty) and non-performance (poor performance attracting penalty), it cannot be said that there is any irrationality. Apart from the above, the vires of the MDG have already been upheld by the Division Bench of the Delhi High Court IOCL, and therefore, the afore contention raised cannot be accepted.
Is there any ambiguity with reference to the rating prescribed under Clause 4.1 of MDG? - HELD THAT:- It may be noticed that the rating of “excellent” is provided in a situation where “more than 85%” delivery is effected within two days. The 1-star “poor” rating is provided in cases where the delivery in excess of 8 days period is “over 15%” of total deliveries. Clause 4.1(iii) provides “1 Star = 15% delivery in > 8 days ‘poor’”. Therefore, no case can fall under both “excellent” and “poor” category. In such circumstances, the afore contention raised is also to be rejected.
Conclusion - i) It is declared that the respondent Corporation is entitled to proceed in accordance with the provisions of the MDG. ii) The time limit prescribed under Clause 4.2(viii) is only directory in nature. iii) The impugned orders are not in tune with the provisions of the MDG, since they are non-speaking orders. iv) The imposition of penalty under Clause 4.2 with reference to average commission cannot be said to be illegal. v) There is no ambiguity with reference to the rating prescribed under Clause 4.1 of the MDG.
The impugned orders are set aside - Petition disposed off.
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2024 (12) TMI 1447
Refusal of doctrine of mutuality on the ground that majority of the members of the different categories other than the permanent members were persons with no voting right or any right to participate in the affairs of the management of the club - HELD THAT:- The order of the Tribunal confirming the assessment made and the law on the point, as prima facie occurs, it is opined that the following questions of law arise: -
(i) Whether the Tribunal was correct in having declined the application of ‘doctrine of mutuality’ on the transactions entered into by the appellant?
(ii) Whether the appreciation of facts by the Tribunal was correct and was it not perverse since the findings were on mere surmises and conjectures?
(iii) Whether the Tribunal was correct in having determined a proportion of members to decline application of the ‘doctrine of mutuality’ with respect to certain transactions, on the finding that certain category of members did not have any control over the affairs of the club and thus could not be included within the ambit of ‘doctrine of mutuality’?
The Tribunal is directed to state the case and make a reference to this Court on the above noted questions of law arising from the order of the Tribunal under Section 48 (3) of the Bihar Finance Act.
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2024 (12) TMI 1295
Challenge to order of penalty passed under the APVAT Act, 2005 - without issuing a SCN the order of penalty came to be passed - violation of principles of natural justice - HELD THAT:- It is failed to understand the basis for the revenue to challenge such orders before this Court. It has been fairly conceded before us that the order of penalty was passed without issuing any show cause notice.
What is more disturbing is that instead of accepting the order passed by the High Court and issuing a show cause notice so as to give an opportunity to the assessee to show cause as regards the penalty, the revenue has wasted six years in this litigation which is now coming to end with the dismissal of this petition.
Petition dismissed.
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2024 (12) TMI 1294
Challenge to order of re-assessment passed by Respondent No. 1 u/s 39 (1) of the Karnataka Value Added Tax Act, 2003 on the ground of being barred by time limitation - case of appellant is that Section 40 of the Act of 2003 provided for a period of limitation for passing an order of assessment or re-assessment - whether the learned Single Judge is justified to hold that the limitation for the purpose of re-assessment would start running from the date of passing of the order by the Commissioner under Section 64 (2) of the Act of 2003?
HELD THAT:- There is no dispute that, we are concerned with the tax period between April 2007 to September 2007, and the Assessing Authority has passed an order of re-assessment on 16.01.2010. The Appellate Authority exercising jurisdiction under Section 62 of the Act, had allowed the first appeal filed by the appellant vide order dated 31.05.2010. Pursuant thereto, even the Revisional Authority had by initiating the suo-moto revision, has dropped the proceedings on 13.06.2012. It is only on 17.07.2014 the Commissioner of Commercial Taxes had initiated the proceedings under Section 64 (2) of the Act and set aside the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment.
It follows that the period taken for disposal by different authorities like Appellate Authority/Revisional Authority/Commissioner of Commercial Taxes in the manner depicted by the appellant, which we have reproduced above, need to be excluded. In other words, as stated above, if 07 years of limitation for assessment or re-assessment need to be computed, the same shall expire on 31.05.2014, but, if 391 days are added to the same, then the period will come to an end just five days before 30.06.2015. So in other words, the re-assessment cannot be carried out after 26.06.2015.
In the present case, the re-assessment was done only on 30.05.2018, much after 26.06.2015. Hence, in that sense, the bar under proviso to Section 40 of the Act of 2003 shall come into play.
The appellant is also justified in relying upon the judgment of the Hon’ble Supreme Court in the case of Jaipuria Brothers Limited [1964 (10) TMI 57 - SUPREME COURT]. In the said case the facts were, on March 20, 1952, the Sales Tax Officer, Kanpur, issued a notice under Section 21 of the Uttar Pradesh Sales Tax Act 1948, calling upon the appellant/Company to file a return of its turnover for the Assessment Year 1948-49 on the ground that the turnover had escaped assessment. On March 31, 1952, the Sales Tax Officer has made a best judgment assessment and determined the taxable turnover of the appellant/Company at Rs. 50/- for the year 1948-49 and determined the appropriate tax liability.
In the judgment reported, as the Assessing Authority, Amritsar and another [1969 (5) TMI 49 - PUNJAB AND HARYANA HIGH COURT] the Full Bench of Punjab and Haryana High Court was considering the reference made to it on the question whether the jurisdiction of the Commissioner under Section 21(1) of the Punjab General Sales Tax Act, 1948 is subject to period of limitation prescribed under Section 11(A) of the Act. In the said case also, the Commissioner while disposing of the revision under Section 21 of the Act had set aside the Order of Assessment and ordered the Assessing Authority to make a fresh assessment in accordance with law. The court held the proceedings are governed by the period of limitation prescribed in subsections (4), (5) and (6) of Section 11 or Section 11(A) of the Punjab General Sales Tax Act, 1948 - The Court held that, the view is well-founded based on the judgment of the Hon’ble Supreme Court in Jaipuria Brothers Limited. It was also held that once the Commissioner while exercising revisional powers decided to direct the Assessing Authority to make a reassessment in accordance with law, the proceedings for re-assessment were fresh proceedings which were governed by the period of limitation prescribed under Section 11(A) of the Act and accordingly, the appeal was dismissed.
Conclusion - The reassessment done by the Assessing Officer leading to impugned orders dated 30.05.2018 is without jurisdiction, being beyond the statutory limitation period, and accordingly the impugned order of the learned Single Judge is set aside, and consequently, the orders of the Assessing Authority and the demand made thereof, are also set aside.
Appeal allowed.
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2024 (12) TMI 1293
Entitlement to recall or set aside an assessment order issued under the Kerala Value Added Tax Act, 2003 based on a subsequent order issued due to a mistake - benefit of an Amnesty Scheme - HELD THAT:- The petitioner is not entitled to any relief in the present writ petition. It is not disputed before that Ext. P2 order, which is issued under Section 25 (1) of the KVAT Act on 15.12.2018, has not been set aside or modified in any proceedings. If that be the case, the provisions of Section 25 (1) of the KVAT Act does not permit the Assessing Authority to pass a fresh order for the same assessment year. If such course of action is permitted, it would result in contradictory orders being passed without the original order being set aside or modified in a manner known to law. In such circumstances, there are no hesitation to hold that the second assessment order (Ext. P3) dated 29.03.2021 is non-est in law and cannot be sustained. Therefore, in that view of the matter, it is not necessary to consider the question as to whether the prayer to recall the earlier assessment order dated 15.12.2018 was maintainable under Section 66 of the KVAT Act.
The petitioner is not entitled to any reliefs as sought for in the writ petition. The writ petition will stand dismissed.
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2024 (12) TMI 1234
Sale u/s 2 (g) (iv) CST Act or not - transfer of right to use - hiring of helicopters - transfer of effective control and possession and right to use the helicopters to its customer - Deemed Sale or not - HELD THAT:- On a consideration of the contractual stipulations, it becomes apparent that while the appellant was obliged to place a helicopter or an equivalent model at the service of the A & N Administration, the right to operate and maintain remained with the appellant. The helicopter was to be maintained, flown and operated by the appellant. The appellant was required to ensure that the requirements of the A & N Administration were duly met. However, at no point of time was the helicopter placed in the hands of the latter to be operated as it thought fit. The pilot and crew who actually worked the helicopter were to be provided by the appellant.
It becomes evident that there was no transfer of dominion or control of the helicopter to the A & N Administration. This was essentially an agreement in terms of which the A & N Administration acquired an exclusive medium of transportation as opposed to an absolute right over an aircraft, helicopter or means of conveyance which could be said to be under its dedicated and undivided control.
There is an occasion to notice a decision of recent vintage rendered by the Supreme Court in Commissioner of Service Tax vs. Adani Gas Ltd. [2020 (8) TMI 789 - SUPREME COURT]. As the Supreme Court succinctly explained in Adani Gas, the key elements which are liable to be found to exist in order to qualify what is spoken of in Article 366 (29A) (d), are a transfer of a right of possession as well as effective control being conferred upon the transferee. It is these precepts on the basis of which the contractual stipulations may now be examined.
There was no contractual relationship that existed between those operators and staff on the one hand and the A & N Administration on the other. Additionally, the obligation to keep the equipment insured was also one which stood placed upon the appellant. There was also no transfer of permits and licenses which were necessarily required in order to undertake the operations contemplated under the agreement. Those permits and licenses undisputedly remained in the hands of the appellant.
The Supreme Court in Aggarwal Bros. [1998 (9) TMI 532 - SUPREME COURT] had on facts found that there was a complete transfer of shuttering for consideration and the same being exclusively placed in the hands of the hirer to be used and utilized as it thought fit.
Article 366 (29A) (d) is not concerned with delivery of goods for use but envisages the levy of a tax on the transfer of a right to use goods. It proceeded further to explain that clause (d) of Article 366(29A) cannot be placed in the same category as that of bailment where goods are left in the possession of the bailee solely for the purposes of use on a hire basis.
The conclusions rendered by the Tribunal cannot be suatained - appeal allowed.
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