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Showing 221 to 240 of 984 Records
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2009 (7) TMI 1180
Issues: Assessment order, penalty under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959.
Assessment Order:
The assessing authority levied a penalty of Rs. 43,988 under section 12(3) and confirmed a turnover of Rs. 5,10,000 for the financial year 1994-95. The assessee appealed to the Appellate Assistant Commissioner, who upheld the order. The assessee then appealed to the Sales Tax Appellate Tribunal, disputing both the turnover and the penalty. The Tribunal confirmed the turnover but focused on the penalty issue, stating that if the assessment was made under section 12(1) based on the accounts produced by the assessee, the penalty under section 12(3) cannot be imposed.
Penalty under Section 12(3) of the Act:
The Tribunal, referencing the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer, held that penalty under section 12(3) cannot be imposed if the assessment was completed under section 12(1) based on the accounts provided by the assessee. The court emphasized that the legislative intention was to permit the levy of penalty only in cases of best judgment assessments made on estimates, not solely relying on the accounts furnished by the assessee. The Tribunal, following this ruling, set aside the penalty imposed under section 12(3) of the Act.
Conclusion:
The High Court found no reason to interfere with the Tribunal's decision, stating that the ruling in Appollo Saline Pharmaceuticals case applied to the present case. It was concluded that no question of law, let alone a substantial question of law, arose for revision, and the revision petition was dismissed without costs.
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2009 (7) TMI 1179
Winding up - Lifting of corporate veil - recovery proceedings - Held that:- In the present case, there is not even a whisper that the company has been wound up, which would result into attracting of applicability of section 18 of the CST Act.
On principle as well as on precedent it becomes obvious that the writ petition merits acceptance. Accordingly, all recovery proceedings against petitioner No. 2 are set aside and a direction is issued to the respondents to restrain from issuing any notice to petitioner No. 2 or his attorney, petitioner No. 1, on the pretext of effecting recovery of sales tax under the Act or under the CST Act. The action of the respondents being wholly unwarranted and against the settled law, the respondents are liable to be saddled with cost. The cost is assessed at ₹ 20,000.
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2009 (7) TMI 1178
Whether the Appellate Tribunal was justified in deleting certain observation that had been made by the first appellate authority holding that the refund claim which had been put forth by the respondent-dealer under sub-section (4) of section 5 of the KST Act in respect of the sales effected under this Act for the accounting period April 1, 2000 to March 31, 2001 was to be entertained and allowed even without the production of form 32B declaration by the dealer?
Held that:- For the relevant accounting period the proviso under section A of the Act is not attracted, and if so, there is no question of form 32B being filed as part of the requirement of the dealer proving the payment of tax both under the KST Act and the CST Act as a requirement, which if not applied could disentitle the dealer the claim for reimbursement. The Tribunal is justified in deleting the observation of the first appellate authority as the requirement of filing form 32B was not a requirement in terms of statutory provision as it existed corresponding to the accounting period in question. Revision dismissed.
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2009 (7) TMI 1177
Issues involved: Appeal u/s 68(2) of Punjab Value Added Tax Act, 2005 challenging order of Value Added Tax Tribunal regarding mandatory issuance of notice to consignee of goods u/s 14B(7)(iii) of the Act.
Summary:
The High Court of Punjab and Haryana heard an appeal filed by the State of Punjab challenging an order passed by the Value Added Tax Tribunal. The Tribunal held that the issuance of notice to the consignee of the goods as per the amended provisions of section 14B(7)(iii) of the Act was mandatory. The Tribunal found that the order imposing penalty on the dealer-respondent was unsustainable due to non-compliance with the amended provision. Despite the driver not reporting the transaction at the ICC barrier, all other documents were complete and in possession of the driver. The Tribunal concluded that there was no attempt to evade or avoid tax in this case.
The High Court did not feel persuaded to interfere with the Tribunal's order. It was undisputed that the amendment requiring notice to the consignee became effective from July 15, 2002, and the goods were intercepted after this amendment on October 13, 2002. Since no notice was issued to the consignee as required by the amendment, the Tribunal correctly held that the penalty imposed was vitiated. The Tribunal also found that all other documents were complete and in the possession of the person in charge of the vehicle, indicating no intention to evade tax.
The Court found no merit in the appeal, stating that it did not raise any substantive question of law warranting its admission. The appeal was dismissed as wholly without merit. As the main appeal was dismissed on merit, the Court did not see the need to pass any order on the application seeking condonation of delay in filing the appeal.
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2009 (7) TMI 1176
Concessional rate of tax from eight per cent to four per cent - Whether not applicable to the assessee as he has stated that it is a mere packaging material?
Held that:- The assessee is able to establish that what was manufactured and supplied is in consonance with the said G. O., viz. cones and there cannot be any interpretation made by the Joint Commissioner on suo motu application stating that the cones are only paper cones and such paper cones could not be used for manufacturing purpose or in the alternative that cones could have been only used for packaging materials are unwarranted and unjustified.
As rightly pointed out in the G.O. it is not the difference between the metal or paper cone, what is stated is only cones. So long as the cones has been supplied, the assessee has made out a very good case for invoking the provision of the said G.O. and as rightly pointed out and held by the Appellate Assistant Commissioner, the reduced rate of tax is correctly applied to the assessee concerned. In favour of assessee.
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2009 (7) TMI 1175
Whether, in the facts and circumstances of the case, the Tribunal is legally right in setting aside the estimation which was made on the basis of electricity consumption, survey test and nonmaintenance of any record?
Whether, on the facts and in the circumstances, the Tribunal is right in deleting the consequent levy of penalty?
Held that:- As rightly pointed out by the assessing authority, the exorbitant consumption of electricity energy, as compared to an extent of turnover reported with the discrepancies noted in the stock position at the time of inspection did call for re-examination of the taxable turnover based on the consumption of electricity energy. We are therefore convinced that the remittal order passed by the Appellate Assistant Commissioner was well justified and the Tribunal ought not to have interfered with the same. Therefore, while setting aside the order or the Tribunal, we restore the order of the Appellate Assistant Commissioner dated February 17, 1995 and remand the matter back to the file of the assessing authority for carrying out re-examination, as directed by the Appellate Assistant Commissioner, in the said order. Inasmuch as the assessment relates to the year 1992-93, we only direct the assessing authority to carry out the exercise of re-examination expeditiously, preferably within a period of three months from the date of receipt of a copy of this order, after giving due opportunity to the respondent-assessee.
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2009 (7) TMI 1174
Whether after repeal of the PGST Act, 1948 with effect from April 1, 2005 by the repealing section 92(1) of the Punjab VAT Act, any amendment was valid for extending the period of limitation from three years to five years by promulgation of section 11CC by Punjab Act 10 of 2005 which came into force with effect from May 12, 2005?
Whether the rights vested in the assessee acquired on April 30, 2005 would extinguish by an amendment made by Act No. 10 of 2005 with effect from May 12, 2005 although the amendment has not been given retrospective effect or could the time-barred assessment be re-opened on the basis of statutory extension of time?
Held that:- On the basis of legislative intendment discernible from the amendments either by the 2005 Ordinance or by the Punjab Act No. 10 of 2005, the principles applicable to re-opening of time-barred assessments, which are explicit from various precedents no doubt is left that the questions of law deserve to be answered in favour of the appellant-Corporation and against the Revenue. Accordingly, appeals are allowed. The assessment orders and consequential demands are also quashed.
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2009 (7) TMI 1173
White oats sold by the respondent in air tight containers - whether attract tax under entry 173 of the First Schedule to the Kerala General Sales Tax Act, 1963 which provides tax at four per cent on flour of all cereals?
Held that:- As all value added products of cereals sold in air tight containers except in cooked form are also covered by entry 173. We therefore hold that the item sold by respondent was rightly classified by the first appellate authority and the Tribunal as an item falling under entry 173 taxable at four per cent.
White oats sold in sealed containers attract tax at four per cent under entry 49(2) of the Third Schedule to the KVAT Act. Going by our above finding the more appropriate classification of oats in the form which it is sold probably is entry 48(5) and not under entry 49(2) of the Third Schedule to the KVAT Act. However so far as the rate of tax was rightly found to be four per cent under VAT, it is immaterial whether the classification should have been under entry 48(5) as against the consignment of the item to entry 49(2) under the judgment. Appeal dismissed.
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2009 (7) TMI 1172
Cancellation of interest levied under section 23(3A) of the Kerala General Sales Tax Act, 1963 for belated payment of turnover tax on the excise duty component of the price.
Held that:- Interest under section 23(3A) is mandatory in nature irrespective of pendency of any case or orders passed by any court or authority. Therefore, we allow the revisions on this issue by reversing the order of the Tribunal and by restoring the assessments levying interest under section 23(3A) of the Act.
The next grievance of the respondent against the appropriation of the amount paid first towards the interest payable under the Act in terms of section 55C of the Act find no substance in this contention because the payments are made much after the introduction of section 55C which authorises the Department to adjust payment first towards interest and balance, if any, towards tax. This contention is also rejected.
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2009 (7) TMI 1171
Section 44(10) of Kerala Value Added Tax Act, 2003 (and the provision under which penalty is levied, namely, section 44(8) ) challenged as illegal and unconstitutional
Held that:- No violation of article 14 because dealers engaged in storing goods in undeclared godowns without giving prior intimation to the registering authority are a class different from the other class of dealers who store the goods in declared godowns and in undeclared godowns after prior intimation in writing to the registering authority in terms of the Rules. So much so, we are of the view that there is no violation of article 14 as well. Therefore, the challenge against constitutional validity of section 44(10) was rightly turned down by the learned single judge and we uphold the judgment in this regard.
The maximum penalty levied at half the value of goods found in undeclared godowns under section 44(8) read with section 44(10) is not tenable. Discretion provided to the officer in regard to quantum of penalty itself indicates that he has to consider facts relating to each case and penalty should be levied based on the gravity of the offence. Appeals partly allowed vacating the penalty orders, but with direction to the officer to reconsider penalty after giving opportunity to the appellant to produce records and evidence in support of their contentions.
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2009 (7) TMI 1170
Proceeding under section 21 of the U. P. Trade Tax Act, 1948 against the petitioner - Held that:- The petitioner has failed to show that during the period between 1999 and January 25, 2005 he carried on the business of manufacture and sale of cloth. The survey dated March 23, 2005 does not in way help the petitioner.
At the stage of issuance of notice the considerations which has to weigh is whether there is some relevant material giving prima facie inference that some turnover has escaped assessment. The question as to whether material is sufficient for making reassessment under section 21 of the Act could not be gone into, at the time of issuance of notice. The assessing authority while reassessing has to decide the matter in the light of material already in its possession as well as fresh material which was in possession, procured as a result of inquiry, which may be considered necessary. Respondent No. 1 while granting permission under section 21(2) of the Act has recorded his reasoning and no fault can be found in the order of respondent No. 1. Thus no illegality or infirmity in initiating the proceeding under section 21 of the Act against the petitioner. Appeal dismissed.
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2009 (7) TMI 1169
The Bombay High Court dismissed the appeal regarding the availability of depreciation under Section 32 of the Income Tax Act for a barge not used in the subject assessment year but used in the previous year. The appeal was dismissed as the issue was already covered by previous court judgments.
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2009 (7) TMI 1168
Issues: Interpretation of section 7(7) of the Kerala General Sales Tax Act, 1963 regarding payment of tax at compounded rate for construction of culverts and boat jetties.
The judgment by the Kerala High Court addressed the issue of whether contractors are entitled to payment of tax at the compounded rate under section 7(7) of the Kerala General Sales Tax Act, 1963 for the construction of culverts and boat jetties. The court considered the amendment introduced by the Finance Act, 2004, which included an Explanation to section 7(7) defining "civil works" to cover various constructions, including culverts. The court analyzed previous decisions, including one regarding a culvert not being considered a civil work. However, the court determined that a culvert can be equated to a mini bridge and falls within the definition of "bridge" under section 7(7), entitling contractors to payment of tax at the compounded rate. The judgment also referenced a separate decision regarding boat jetties, where it was held that they qualify as civil works under section 7(7). Therefore, the court overruled previous decisions and allowed the revision cases, directing the assessing officer to complete the assessment at the compounded rate for the construction of culverts and boat jetties.
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2009 (7) TMI 1167
Whether dealers who have collected sales tax are entitled to retain it as an incentive?
Held that:- Notification SRO No. 1729/93 and the previous notifications providing for exemption to small-scale industrial units gave an option to such industrial units to collect tax and retain the same with them as loan later repayable to the Government. Admittedly the petitioner has not opted for collection of tax to avail of it as a loan repayable later. On the other hand, the petitioner chose to avail of exemption which denies the petitioner the right to collect tax and if collected, the tax so collected will be forfeited to the Government in terms of section 46A(1) of the Act. Annexure E judgment relied on by the petitioner does not lay down the correct law because the decision is rendered without reference to relevant statutory provisions namely, section 46A(1) and (2) and the provisions of the notifications abovereferred to. We, therefore, uphold the order of the Tribunal and dismiss the revision petitions filed by the petitioner.
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2009 (7) TMI 1166
Classification - petitioner is a manufacturer and seller of magnesium sulphate which is a chemical fertilizer - Held that:- Entry 29 does not visualise any chemical fertilizer to be covered therein. The petitioner has produced various literature from the Agricultural Department proving the nature of use of the item which is only application as a fertilizer, particularly to prevent yellowing of plants. Sales tax being a commodity tax is borne by the customer and a lower rate of tax to fertilizer and plant protection chemicals are provided only to help the farmers who are the only consumers of the same. Admittedly, the entire sales of the petitioner are to a fertilizer company for marketing the product in combination with other fertilizers made by them. Therefore, on merits also the petitioner's claim is well-founded and we, therefore, hold that the product irrespective of the clarification, is assessable under entry 50 of the First Schedule to the KGST Act of the relevant year.
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2009 (7) TMI 1165
Penalty imposed under section 45A of the Kerala General Sales Tax Act, 1963 - Held that:- After obtaining time from the Departmental authorities for producing the C forms, the petitioner produced photocopies of the C forms on July 15, 2002 and thereafter produced the originals as well. The C forms were actually dated July 9, 2002, which shows that at the time of procurement of the said C forms, the petitioner was admittedly having a copy of the letter dated June 26, 2001 sent by the Assistant Commissioner of Commercial Taxes, Check-post, Mangalore, stating that there was no consignee in the address and that it was only a fictitious person. It was without any regard to the intimation given by the authorities, that the petitioner chose to produce the above C forms, without conducting further enquiry or investigation as to its credibility, thus seeking to sustain the concession availed of, having remitted the reduced tax at the rate of four per cent.
It was pursuant to this, that the genuineness of the C forms was got verified by the Department by sending them to their "counterpart" in Mangalore, whereupon it was categorically revealed that the Departmental authorities in Mangalore had not issued any such C forms. Accordingly, the third respondent arrived at a finding that the course pursued by the petitioner deserved maximum penalty and thus passed exhibit P3 order. It was after considering all the relevant aspects covered by exhibit P3, that the revisional authorities passed exhibit P4 and exhibit P5, upholding and confirming exhibit P3 order. This court does not find any tenable ground to interfere with the findings and reasoning of the Departmental authorities, which is perfectly within the four walls of the law. Appeal dismissed.
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2009 (7) TMI 1164
Demand for payment of entry tax as contemplated in the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990 - Whether the entry tax has to be paid on the full value of the new vehicle being registered, irrespective of the fact whether the chassis was purchased in Tamil Nadu or elsewhere and it has already suffered sales tax?
Held that:- While upholding the order of the third respondent dated October 10, 1994 insofar as its decision that the whole of the vehicle is liable to be assessed under the Act for the purpose of levy of entry tax is concerned, if the appellant is aggrieved against the rate of tax applied in the impugned order, it is open to the appellant to work out its remedy by filing an appeal before the appropriate authority constituted under section 6 of the Act, within a period of 15 days from the date of receipt of a copy of this order.
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2009 (7) TMI 1163
Stay application rejected - Held that:- In the instant case, the order communicated to the parties dated June 4, 2009 clearly discloses no reasons as to why the application for stay as moved by the petitioner herein was not considered. In our opinion, therefore, that order will have to be set aside.
The ends of justice will be met if the application for interim stay as applied for by the petitioner before the Tribunal is allowed and they are allowed to proceed with the appeal without any pre-deposit. We however, direct the Commissioner (Appeals) to dispose of the appeal not later than two months from today
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2009 (7) TMI 1162
Whether, on a true and proper construction of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, read with the Approved Rehabilitation Scheme by BIFR, the Tribunal was justified in not following the said order?
Whether, on the facts and under the circumstances of the case, the Tribunal was justified in retaining the quantum of interest at 25 per cent of the amount of the interest and penalty, though directed to be waived in entirety without any condition?
Whether, on the facts and under the circumstances of the case, the Tribunal was justified in not exercising its discretionary power judiciously by remitting 100 per cent interest and penalty as per the direction of the BIFR through approved "Rehabilitation Scheme"?
Whether, on the facts and under the circumstances of the case, the Tribunal was justified in overlooking the legal position that the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, had an overriding effect on all State enactments?
Held that:- The second appellate authority having not considered the true import of section 32 of the SICA Act, the order to that extent in not granting the complete relief of interest and penalty as up to March 31, 2007 is liable to be set aside. Consequently questions (a) and (b) will have to be answered in the negative against the Revenue and in favour of the assessee. As the questions (a) and (b) are answered in the negative against the Revenue, in our opinion, question (c) is not required to be answered. In view of the answer to questions (a) and (b), question (d) is also answered in the negative against the Revenue and in favour of the assessee.
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2009 (7) TMI 1161
Whether the transaction was a works contract?
Held that:- There is no dispute about the fact that the first respondent printed labels to specifications for a particular customer on biscuit boxes. The labels contained the pictures of cookies and the name and address of the manufacturer, thus the transaction was a works contract. Appeal dismissed.
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