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Case Laws
Showing 201 to 220 of 984 Records
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2009 (7) TMI 1200
Levy of tax and penalty - Held that:- There is no dispute that the petitioner initially availed of the concessional rate of tax based on form 17 and then subsequently there was a sale covered by section 3(4) of the Act and consequently the levy of two per cent of tax under section 3(4) cannot be availed of and therefore, the challenge made in respect of the said levy cannot also be interfered with.
As far as the levy of penalty is concerned only between the period from December 3, 1979 to May 27, 1993, the levy of penalty even in cases of assessment under section 12(1) of the Act can be made. Therefore, since in the present case, the assessment relates to the period 1994-95 and inasmuch as the period was subsequent to May 27, 1993, there is no scope to invoke section 12(3)(b) of the Act as it is not a case of best judgment assessment. Thus levy of penalty imposed in the assessment order dated May 31, 1996, as confirmed by the appellate authorities, deserves to be set aside. Appeal partly allowed.
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2009 (7) TMI 1199
Petitioner praying for appointment of the arbitral tribunal to adjudicate the claims and disputes between the petitioner and the respondent - Held that:- As it is clearly provided in the Arbitration and Conciliation Act 1996 that an arbitral tribunal can, if necessary, take the help of experts in terms of Section 27 of the said Act. If the sole arbitrator requires the assistance of an expert it can always take such assistance.
Thus accordingly appoint Justice D.P. Wadhwa, a former Judge of this Court, the sole arbitrator in this case.
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2009 (7) TMI 1198
Whether in view of substitution of section 30(2) the substituted provisions will hold sway from the commencement of the Kerala Value Added Tax Act, 2003?
Held that:- There is no merit in the contention of the petitioner that substitution has retrospective operation and it has effect from the commencement of the Act. Section 30(2) provided for prohibition against collection of tax except in respect of two categories. In other words, it created a substantial right in respect of the assessees who were eligible to collect tax under the provision and it created a liability on the buyer from such assessees to pay the tax. Apart from creating a right in such assessees to collect tax, in the same way, the assessees against whom there was a prohibition against collection of tax were visited with the disability against collecting tax. This necessarily also would mean that the persons to whom they sold the goods had equal right to insist that they shall not be called upon to pay tax. Collection of tax by persons who were not entitled to collect tax under section 30 is made liable to be visited with penal consequences under the Act.
Legislation can be vetoed by a Constitutional court only if such result is wholly unavoidable. Judicial deference to the Legislature's declaration of its value judgment is not constitutional anathema. On the other hand, it is one which squares with a long tradition of the judicial exposition of the true role of the court.
In the light of the above discussion, the petitioner has failed to establish any ground to grant any relief in its writ petition. The writ petition fails, and it is dismissed.
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2009 (7) TMI 1197
Natural justice - refund claim - The allegation of the petitioner, at a very threshold, is failure of the Commissioner-first respondent to respond to the petitioner's legal notices - Held that: - The failure to respond to the petitioner's request is a serious matter, since it is the duty of the Commissioner to be proactive and answer all reasonable requests made to him - The failure to respond to the petitioner's request is a serious matter, since it is the duty of the Commissioner to be proactive and answer all reasonable requests made to him - petition allowed - decided in favor of petitioner.
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2009 (7) TMI 1196
Issues involved: Challenge to the course and procedure followed by the appellate authority in entertaining the appeal against assessment conducted u/s 17(D); Oppression in satisfying entire tax liability for availing appellate remedy; Validity of stipulation u/s 17D(5); Precedents set by Division Bench and Supreme Court regarding tax liability at the time of filing appeal.
Summary:
The petitioner challenged the course and procedure followed by the appellate authority in entertaining the appeal against the assessment conducted u/s 17(D). The petitioner argued that being compelled to satisfy the entire tax liability to avail of the statutory remedy through appeal rendered the remedy meaningless and oppressive. The petitioner also contested the stipulation u/s 17D(5) as oppressive in nature.
The learned Government Pleader, however, referred to the Division Bench's decision in Viani Papers v. Fast Track Team, where the validity of the provision was upheld. Additionally, the apex court's ruling in Ravi Gupta v. Commissioner of Sales Tax, Delhi, which addressed the liability to pay tax at the time of filing the appeal, was cited as a precedent that bars the petitioner's way.
Given the legal position already established against the petitioner by the Division Bench and the Supreme Court precedents, the court found no grounds for interference. Consequently, the writ petition was dismissed.
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2009 (7) TMI 1195
Enhancement of the rate of tax to 16 per cent from ten per cent for the paper based laminated sheets - Held that:- It is an admitted fact that there was ambiguity/doubt with regard to the collection of tax on paper based laminated sheets to the respondents, i.e., whether tax is leviable at ten per cent or 16 per cent. Till May 30, 2008, the tax leviable was only ten per cent even according to the respondents and the petitioners have also paid the said rate of tax for their sales turnovers. Since the respondents were not firm in their view with regard to collection of tax, viz., percentage of tax, the benefit of doubt should be extended to the assessees, particularly when it is pleaded by the petitioners before this court that they have not collected more than ten per cent of tax while selling the paper based laminated sheets.It is also well-settled that if there is ambiguity with regard to the rate of tax to be collected, the benefit should go to the assessee.
The contention of the learned counsel for the respondents that the writ petitions filed challenging the reassessment notice to reopen the assessment is not maintainable as the writ petitions are premature in nature, cannot be sustained. Similarly, the revised orders passed are also bad in law. Admittedly, the second respondent issued the notice to reopen the assessments already finalised based on the clarification of the first respondent dated May 30, 2008. Once the clarification itself is found untenable and also found not having any retrospective effect, the second respondent is not justified in issuing the impugned notices to the petitioner for reopening the already finalised assessments as well as to pass reassessment orders. In view of the said findings the objections raised by the respondents to maintain the writ petition challenging the notices are also untenable.The writ petitions are allowed.
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2009 (7) TMI 1194
Enhancement of turnover - Whether the Tribunal is legally correct in having affirmed the order of the first appellate authority while the assessee had claimed exemption from tax on the purchase of silver leg chains for ₹ 13,41,528 and sales of silver leg chains for ₹ 12,25,023 and, therefore, the burden of proof that those transactions were not liable to tax shall be upon the dealers as enjoined under section 10 of the Tamil Nadu General Sales Tax Act, 1959?
Whether the order of the Tribunal is not having restored the penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959, is legally sustainable?
Held that:- In the present case, as rightly pointed out by the Tribunal, the assessing officer cannot simply taking into consideration the report of the Enforcement Wing has not applied its mind, but simply has been carried away by the report of the Enforcement Wing and has come to the conclusion. As stated earlier, the assessing officer should have decided the matter on the merits, independently unbiased and uninfluenced by any other subsequent factors and also should not have stated that it is not a court of law.
Therefore, the authority, i.e., assessing officer has basically committed a mistake in stating that it cannot conduct a court of law. Rightly this has been set aside both by the first appellate authority and the second appellate authority, who are also actual fact-finding authorities, rightly concluded that such an attitude of the assessing authority in totally rejecting the contentions of the assessee without applying the basic principles of law, is not legal and valid in law. Hence, the reasoning of the appellate authority is valid in law and we do not find any reason to interfere with the said findings. The question of law is answered against the Revenue.
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2009 (7) TMI 1193
Whether the High Court/Supreme Court has the power to transfer a suit from a Civil Court to the DRT?
Whether Article 142 is applicable to direct a transfer from a Civil Court to DRT, especially when the DRT Act does not bar the jurisdiction of the Civil Court to entertain a suit against a bank and therefore powers under Article 142 ought not to be exercised to have such an effect or Article 142 is not applicable where a statute occupies the field or Power under Article 142 should be exercised only to prevent injustice and do complete justice between the parties?
Held that:- Having regard to our finding that even Section 24 of the Code of Civil Procedure cannot be taken recourse to, there cannot be any doubt whatsoever that the Punjab and Haryana High Court could not have transferred the suit from the civil court Ludhiana to DRT. Appeal allowed.
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2009 (7) TMI 1192
Cast iron moulds or patterns dealt with by the assessee - Held that:- In the light of the judgment of State of Tamil Nadu v. Pyare Lal Malhotra [1976 (1) TMI 151 - SUPREME COURT OF INDIA] and Vasantham Foundry v. Union of India [1995 (8) TMI 190 - SUPREME COURT OF INDIA] which examined the difference between the cast iron and other finished products in the context of entry 4 of the Second Schedule, and uniformly held that cast iron casting in its basic or rough form must be held to be cast-iron, but, if thereafter any machining or polishing or any other process is done to the rough cast-iron casting to produce things like pipes, manhole covers or bends, these cannot be regarded as "cast iron castings" and cannot be treated as "declared goods" under section 14(iv) of the Central Sales Tax Act, 1956, inasmuch as we have come to the conclusion that the goods supplied are to the prescribed specifications and dimensions and measurements of the purchaser for their immediate use in their manufacturing activity in all finished form, the one and only conclusion that could be arrived would be that the goods supplied by the assessee would not come within the purview of item 4(i) of the Second Schedule to the TNGST Act. Hence, we are not able to take a different view than the one taken by the Appellate Tribunal.
Contention of the petitioner regarding filing of appeal, despite the fact that for earlier years the Department accepted the contrary view, we are not able to concur with the argument of the learned counsel for the petitioner as the issue is well settled that each assessment year is a unit by itself and non-filing of appeal in respect of one assessment year cannot be a bar or cannot prevent the State from filing an appeal in respect of another assessment year
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2009 (7) TMI 1191
Penalty for noncompliance with the requirements of sub-sections (2), (3), (3A), (3B) of section 28A of the Karnataka Sales Tax Act, 1957
Held that:- In the present case, there is no dispute that the document in question has been produced the next day and it has also been accepted by the check-post officer himself. If so, a levy will be justified only if the assessing officer was of the view that the dealer had failed to come up with sufficient cause for non-furnishing when it was demanded. We do not find any recording of such nature by the assessing officer. On the other hand, there is absolutely no awareness bestowed by the assessing officer to the explanation offered by the dealer for non-production when it was demanded to be produced by the check-post officer. Whether it was justified or not is not an aspect which we are required to go into in this appeal as the question is only about the legality of the levy of penalty and in the absence of a finding that the dealer had not come up with sufficient cause for non-furnishing of the documents at the time of the check, the penalty is not sustainable. Appeal allowed.
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2009 (7) TMI 1190
Correctness of the order of the Tribunal in having set aside the revised order of assessment made under section 16(1) of the Act, as confirmed by the Appellate Assistant Commissioner on the ground that the petitioner failed to establish the "escaped turnover" by merely relying upon extract issued by the Intelligent Wing of the Karnataka State challenged
Held that:- This court ultimately declined to interfere with the order of the Appellate Tribunal and dismissed the Tax Case (Revision) since the materials have not been provided after reasonable opportunity, it can be concluded that the alleged purchase omissions by the dealers are not proved beyond doubt.
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2009 (7) TMI 1189
Issuance of notice under section 21 of the U.P. Trade Tax Act, 1948 challenged - Held that:- While issuing notices under section 21 of the Act on March 29, 2000 the assessing authority has not recorded any reasons for his satisfaction. The material on which the Assistant Commissioner (Assessment), Trade Tax, formed its belief must be on record and those material should be relevant for forming the belief that the turnover had escaped assessment to tax.
In view of the foregoing discussions the impugned notices issued under section 21 of the U.P. Trade Tax Act as well as under Central Sales Tax Act, 1956 cannot be sustained and are accordingly quashed. Appeal allowed.
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2009 (7) TMI 1188
Interpretation of entry 57 of the First Schedule to the KGST - Held that:- As already held that the term "which" referred to in entry 57(i) refers to hotel and restaurant which again means the dealer owning or running the restaurant, and therefore the turnover referred to therein is the total turnover of the dealer in all the goods. In other words, if the sale of all the goods in the hotel or restaurant reaches or exceeds ₹ 20 lakhs, then the dealer running the hotel or restaurant will be liable to pay sales tax on the turnover of cooked food and beverages at the rate provided under entry 57(i) of the Act. Therefore, the decision rendered by this court abovereferred cannot be said to have laid down the correct position of law. We accordingly overrule the same. The S.T. revision cases are consequently dismissed.
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2009 (7) TMI 1187
Whether retrospectivity of exhibit P6 [Notification S.R.O. No. 958 of 2002], taking away the benefit of S.R.O. No. 1731 of 1993 from a previous date than the date of actual promulgation of exhibit P6, can be sustained or not?
Held that:- The petitioner was disabled from collecting tax or from procuring form C declarations during the period when S.R.O. No. 1731 of 1993 was in force. Since the said notification was superseded by exhibit P6 notification (S.R.O. No. 958 of 2002) issued only on November 21, 2002, the petitioner cannot be put to the burden of tax liability or obligation for production of declaration, for any period prior to November 21, 2002. Therefore the retrospectivity given in exhibit P6 is held as unsustainable. Hence it is held that the petitioner is entitled for exemption from payment of tax on the turnover of inter-State sale effected during the period between June 1, 2002 to November 22, 2002.
In the result, exhibit P7 assessment is hereby quashed. The matter is remanded to the first respondent for fresh assessment on the basis of the findings rendered above. The liability for payment of interest also need be re-worked accordingly. The revised assessment may be issued as early as possible, at any rate within a period of two months from the date of copy of this judgment.
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2009 (7) TMI 1186
Issues involved: Validity of assessment and reassessment orders under the Andhra Pradesh Value Added Tax Act, 2005 and the Andhra Pradesh General Sales Tax Act, 1957.
Validity of Assessment Orders: The court noted that the assessing officer issued show-cause notices solely based on a notice from the Central Excise Department, without any adjudication under the Central Excise Act, 1944. The petitioner contended that without a conclusive finding under the Central Excise Act, the show-cause notice could not be the basis for action under the APVAT Act or the APGST Act. The court held that the authorities should have conducted an independent inquiry under the APVAT Act and the APGST Act instead of solely relying on the Central Excise Department's notice. Consequently, the assessment orders were quashed on this ground.
Validity of Reassessment Orders: Similar to the assessment orders, the reassessment orders were also found to be invalid as they were based solely on the show-cause notice from the Central Excise Department without any independent inquiry or adjudication under the Central Excise Act, 1944. The court emphasized that for levying tax under the APVAT Act or the APGST Act, an independent conclusion regarding the nature of transactions should have been reached. Since the orders were solely based on the Central Excise Department's notice, they were quashed.
Conclusion: The court allowed the writ petitions, quashed the impugned orders, and stated that the respondents could issue a fresh show-cause notice, provide the petitioner with an opportunity to be heard, and pass assessment or reassessment orders in accordance with the law. No costs were awarded in the circumstances.
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2009 (7) TMI 1185
Whether the item "power tillers" is taxable at 12.5 per cent under the Assam Value Added Tax Act, 2003 for the period May 1, 2005 to July 28, 2005, i.e., prior to its inclusion in serial No. 65 of the Second Schedule to the enactment?
Held that:- The unsubstantiated plea of the legislative intendment of exclusion of power tillers from the purview of agricultural implement contemplated in entry 1 of the Second Schedule to the Act, in the absence of any tangible and persuasive materials on record in support thereof thus cannot validate the order impugned. The fact that the same rate of tax for an agricultural implement envisaged in entry 1 of the Second Schedule to the Act as well as "power tillers" on its insertion in entry 65 thereof has been maintained, cannot also be lost sight of. Had it been the intention of the Legislature to distinguish a "power tiller" from an agricultural implement, within the meaning of entry 1 of the Second Schedule to the Act, there would have been a clear indication to that effect either in the Act or in the notification effecting the amendment.
The inclusion of power tiller in clear terms in entry 65 though may be viewed as an endeavour to set at rest any possible controversy with regard to its identity and entitlements as an agricultural implement, in the considered opinion of this court, the same ipso facto does not signify that at the commencement of the Act, such a recognition was neither in contemplation nor approved by the law makers. Appeal allowed.
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2009 (7) TMI 1184
Constitutional validity of sections 4B and 4BB of the Karnataka Tax on Entry of Goods into Local Areas Act, 1979 and the Notification No. FD 41 CET 2003(iii) dated July 26, 2003 issued by the Government of Karnataka prescribing the rate of entry tax on the motor vehicles mentioned therein challenged
Held that:- All the writ petitions are allowed. The impugned provisions namely sections 4B, 4BB of the Karnataka Tax on Entry of Goods into Local Areas Act, 1979 are declared as ultra vires the articles 301 and 304(a) of the Constitution of India and accordingly quashed.
The notification issued in pursuance of the said impugned provision namely Notification No. FD 41 CET 2000(iii) dated July 26, 2003 and other notifications issued under the said provisions are all quashed. Consequently, wherever the assessment orders are passed and demands made in pursuance of the impugned provisions they also stand quashed.Taxes paid, if any, in pursuance of the aforesaid provisions, assessment orders and demands are ordered to be refunded to the respective parties within four weeks from the date of receipt of copy of this order.
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2009 (7) TMI 1183
Exemption application rejected under section 4A of the U.P. Trade Tax Act, 1948 - Held that:- In the instant case, it is not disputed that the company of the oppositeparty is situated at plot No. D-23, Parshakhera Industrial Area, Bareilly, whereas Vadilal Industries Ltd., is situated at plot No. D-24, Parshakhera Industrial Area, Bareilly, which is owned by U.P.S.I.D.C. In the report of Shri R.B. Yadav, Assistant Commissioner, it has come on record that the companies are maintaining separate production books, account books and excise record. It is also not disputed that the directors in both the units were separate and both the units are manufacturing different varieties of ice-creams bearing different code numbers. The revisionist has failed to establish that the director of the company who owned the existing unit controlled the unit themselves and the unit of opposite-party is nothing, but one man show of the one director. It is settled law that exemption can only be denied when the company, as a whole, has interest in other units, which is missing in the instant case. Revision dismissed.
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2009 (7) TMI 1182
Whether the appellant is liable to pay penal interest on the alleged belated payment of additional sales tax?
Held that:- As per the assessment order nothing remained unpaid on that date, so no additional tax was imposed by the assessing authority. Therefore, we do not see how interest can be demanded. On this ground alone the impugned order deserves to be quashed and the writ appeal is allowed.
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2009 (7) TMI 1181
Levy of Central sales tax on the alleged export of cotton yarn - Held that:- The date of invoice of the petitioner should be the relevant date to find out whether the penultimate sale occurred either prior to or after the date of the export order. In the case on hand, the export order was admittedly on December 26, 1987, the invoice prior to which the sales came to be effected by the petitioner was on November 14, 1988, which was long after the date of export order and consequently on this ground as well the petitioner is bound to succeed.
Thus the impugned order of assessment of the first respondent dated April 8, 1991 and the order of the Appellate Assistant Commissioner dated November 5, 1992, as well as that of the Tribunal dated January 9, 1998, are hereby set aside. The writ petition stands allowed.
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