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Showing 121 to 140 of 668 Records
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2008 (10) TMI 623
Issues:
1. Transfer of case to another Bench by the Tribunal.
2. Discretion of the Chairman under regulation 11(3) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959.
3. Rejection of stay application for recovery of penalty amount.
4. Quashing of the order passed by the first respondent.
Transfer of case to another Bench by the Tribunal:
The petitioner, a dealer in home appliances, disputed the assessment made by the second respondent regarding the treatment of a contract receipt as a sale of air-conditioner. The petitioner filed appeals before the Appellate Assistant Commissioner and further to the Tribunal. However, due to the lack of quorum in the first respondent-Tribunal, the case could not be taken up for hearing. The petitioner sought the transfer of the case to another Bench as per regulation 11(3) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959. The High Court noted that the Tribunal failed to exercise its discretion to transfer the case to an Additional Bench, as required by the regulations. Consequently, the High Court allowed the writ petition, quashed the order passed by the first respondent, and directed the transfer of the application to the Additional Bench for a hearing.
Discretion of the Chairman under regulation 11(3) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959:
The High Court emphasized the provision in regulation 11(3) of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959, which grants the Chairman the discretion to transfer cases to another Bench in situations where the quorum is not met. The court highlighted that the Tribunal's failure to exercise this discretion led to the petitioner approaching the High Court for relief. By allowing the writ petition and directing the transfer of the case to the Additional Bench, the High Court reiterated the importance of adhering to the regulations governing such transfers for efficient case management and fair hearings.
Rejection of stay application for recovery of penalty amount:
The petitioner had also filed a stay application for the recovery of the penalty amount. However, this application was rejected by the Tribunal. The High Court did not delve into the specifics of this rejection in the judgment, as the primary focus was on the failure of the Tribunal to transfer the case to another Bench. The directive to transfer the case and halt penalty proceedings against the petitioner until heard by the Additional Bench indirectly addressed the issue of the rejected stay application.
Quashing of the order passed by the first respondent:
In conclusion, the High Court quashed the order passed by the first respondent in N. Dis. No. 9458/2008/A2 dated September 11, 2008. The court directed the first respondent to consider and transfer the petitioner's application to the Additional Bench promptly for a fair hearing. Additionally, the High Court instructed that penalty proceedings against the petitioner should not proceed until the case is transferred and heard on merits by the Additional Bench. The judgment aimed to rectify the procedural lapse by ensuring the proper transfer of the case for adjudication in line with the applicable regulations, thereby upholding the principles of natural justice and procedural fairness.
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2008 (10) TMI 622
Issues: Liability to tax and penalty under section 12(3)(b).
Liability to Tax:
The judgment of the court highlighted two key issues - liability to tax and penalty under section 12(3)(b). The assessment in question was based on the books of account produced. The learned counsel focused solely on the penalty under section 12(3)(b). Referring to the case of Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer, the court emphasized that penalty can only be levied in cases of best judgment assessments made on an estimate, not solely relying on the accounts furnished by the assessee. The court noted that assessments made on the basis of accounts, without estimates, do not attract penal provisions under section 12(3). Therefore, once books of account are produced and the assessment is made based on them, it cannot be considered a best judgment assessment.
Penalty under Section 12(3)(b):
The court, following the precedent set by the Appollo Saline case, allowed the tax case only in relation to the levy of penalty under section 12(3)(b). The judgment set aside the penalty levied for the assessment years 1993-94 and 1994-95, as these assessments were made based on the accounts provided by the assessee and not on any other material or estimates. Consequently, the court partly allowed the tax case, ruling in favor of the petitioner on the issue of penalty under section 12(3)(b. No costs were awarded in the matter.
In conclusion, the judgment focused on the distinction between assessments made on the basis of accounts and best judgment assessments, clarifying that penalties under section 12(3) are applicable only in cases of the latter. The court's decision to set aside the penalty for certain assessment years underscores the importance of proper assessment procedures and adherence to statutory provisions in tax matters.
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2008 (10) TMI 621
Issues:
Levy of penalty under section 12(3)(b) - Whether justified or not.
Analysis:
The court addressed the issue of whether the levy of penalty under section 12(3)(b) was justified in this case. The Tribunal had previously relied on a judgment in Indian Metal and Metallurgical Corporation v. State of Tamil Nadu and held that the penalty was valid in cases where a claim of exemption by an assessee was disallowed, resulting in a best judgment assessment. However, the Tribunal argued that the assessment in question was not a best judgment assessment but was based on the books of accounts provided by the assessee.
In a previous case, Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer, the court had ruled that penalty under section 12(3) should only be levied in cases where the assessment is a best judgment assessment made on an estimate, not solely relying on the accounts furnished by the assessee. The court highlighted the legislative intent behind the relevant sections and explained that assessments based on accounts, without any other material or estimates, should not attract penal provisions under section 12(3).
The court also noted that the assessing authorities had not considered whether the provisions of section 12(4) and 12(5) applied, as they had been deleted. The assessee had argued that the uncertainty in the law regarding the taxability of certain turnover was resolved by the court in a previous case. The court ultimately ruled in favor of the assessee, setting aside the penalty based on the principles established in the Appollo Saline Pharmaceuticals case.
In conclusion, the court allowed the tax case and set aside the penalty, finding that the levy of penalty under section 12(3)(b) was not justified in this instance based on the specific circumstances and legal interpretations presented in the case.
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2008 (10) TMI 620
Issues: Review of order examining validity of legislation under Article 14 of the Constitution.
The judgment pertains to a review petition challenging an order passed in a writ petition. The main contention raised in the review petition was that the court did not analyze the validity of the impugned legislation in the context of the terminology used to question its validity, specifically regarding arbitrariness in the distribution of tax burden. The petitioner argued that the legislation resulted in discrimination due to the uneven distribution of tax burden, making it an arbitrary provision of law. The review petitioner's counsel emphasized that the impact of the legislation led to discrimination and arbitrariness, which necessitated further examination by the court.
The court highlighted that when assessing the validity of legislation, especially concerning issues of arbitrariness and discrimination, it is crucial to evaluate the provisions in light of Article 14 of the Constitution of India. The court emphasized that arbitrariness is a component of Article 14 and should not be considered in isolation. The examination of a writ petition challenging legislation always revolves around constitutional provisions, particularly Article 14, which deals with discrimination. The court clarified that the terminology used in the legislation is not as significant as testing it against Article 14 to determine discriminatory aspects, with arbitrariness being a subset of discrimination as interpreted by both lower courts and the Supreme Court.
In its analysis, the court affirmed that the questions raised in the petitions were duly examined, with due consideration given to the aspect of arbitrariness and discrimination while disposing of the writ petition. The court concluded by stating that if the petitioners remained dissatisfied, they were free to pursue other available legal remedies. Consequently, the review petition challenging the order examining the legislation's validity under Article 14 was dismissed by the court.
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2008 (10) TMI 619
Whether the Deputy Commissioner of Sales Tax has jurisdiction under section 35(2A) of the Kerala General Sales Tax Act, hereinafter called the "KGST Act", to order reopening and revision of a best judgment assessment based on the subsequent information that pursuant to raid by Income-tax Department the assessee conceded unaccounted sales and business income based on which revised income-tax assessment was concluded by orders of the Settlement Commission?
Held that:- In order to bar jurisdiction of the Deputy Commissioner under section 35(2)(b) read with section 35(2A), the basis for revision adopted by him should be exactly the same decided in appeal and not anything in relation to it. In other words, if the point raised by him was not the issue decided in appeal, the Deputy Commissioner is free to invoke jurisdiction.
Once accounts are rejected, the assessing officer is free to assume that the business is viable and profitable. Thereafter he should estimate the income which can keep the business going with reasonable profit and then project turnover based on it. We feel if this principle is followed, subsequent revision of assessment and controversy of this nature could be avoided. We therefore dismiss STRV No. 133 of 2006 filed by the assessee upholding the order of the Tribunal and restoring that of the Deputy Commissioner and allow STRV No. 480 of 2004 by quashing the order of the Tribunal and restoring that of the Deputy Commissioner issued under section 35(1) of the KGST Act.
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2008 (10) TMI 618
Assessment of tax in respect of the transaction under the KST Act - Held that:- The revisional order makes cryptic reference to the documents produced and concludes that the head office has executed the contract works and there is no inter-State sale. The appellant has supplied DG sets to the head office which executed the contract works. The revisional authority should have referred to all the documentary material produced by the parties to give finding on the fact whether contract works were executed by the branch office or the head office. The revisional authority has failed to refer to the documentary material produced by the parties.
It is, therefore, just and necessary that the revisional authority shall consider all documentary material produced by the parties, if need be allow the additional documents to be produced by the parties and then decide the question whether the transaction is liable for tax under the KST Act. Accordingly, the order of the revisional authority is set aside. The matter is remanded
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2008 (10) TMI 617
Levy of purchase tax and the related component of interest - benefit of notification - Held that:- For whatever reason the tax was not charged or collected, the operation of the said notification dated March 7, 1994 is plain and clear; and in view thereof, there would arise no question of the Revenue suggesting levy of purchase tax in the present cases. The said notification dated March 7, 1994 appears to be taking in its sweep the transactions of the present nature too and existing such notification, demand of purchase tax does not appear to be justified. There appears no illegality in the order passed by the Tax Board.
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2008 (10) TMI 616
Whether, on the facts and circumstances of the case, the Tribunal was justified in law in declaring that the conditions in paragraph (i) and (m) of the certificate of entitlement dated January 25, 2000 be deleted ab initio?
Whether, on the facts and circumstances of the case, the Tribunal was justified in law in going a step further in declaring that proportionate benefits theory is not applicable to expansion units covered under 1993 Package Scheme of Incentives, when it was not asked for by the applicant (appellant sic) and their prayer was simply to delete the conditions from the certificate of entitlement?
Held that:- In the absence of any provision under the 1993 scheme and alternatively, in the absence of any ratio prescribed by the State Government by framing Rules, it was not open to the Deputy Commissioner of Sales Tax to direct the assessee to avail of the incentives under the 1993 scheme in proportion to the production attributable to the newly acquired fixed assets. The decision of the Tribunal in holding that the impugned conditions are contrary to the 1993 Scheme and accordingly directing the sales tax authorities to delete condition Nos. (i) and (m) incorporated in the entitlement certificate issued to the assessee cannot be faulted. The second question raised by the Revenue is also without any merit, because, the conditions (i) and (m) imposed in the entitlement certificate could be directed to be deleted only after recording a finding that the 1993 scheme did not empower the Deputy Commissioner of Sales Tax to impose such conditions.
In the result, both the questions are answered in the affirmative, i.e., in favour of the assessee and against the Revenue.
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2008 (10) TMI 615
Provisions of section 76(5)(a) provisions of of the Rajasthan Value Added Tax Act, 2003 - Held that:- In this case, obviously the petitioner is challenging the notices issued to him although the petitioner has brought to the notice of this court certain facts with regard to his innocence as also the fact that respondent No. 3 while issuing the notice has asserted that forgery has been committed by the petitioner, meaning thereby, respondent No. 3 has presumed the illegality without deciding the matter finally. It is true that the authorities should not take decision with a pre-occupied mind. They are required to act in accordance with law. Therefore, in my opinion, as held by the apex court in case of Assistant Commissioner, Anti-Evasion, Commercial Taxes, Bharatpur v. Amtek India Limited reported in [2007 (2) TMI 9 - SUPREME COURT OF INDIA] officers should not act in a manner as if they are bloodhound and not watchdogs of revenue.
Writ petition is hereby disposed of with a direction to the respondent-Department to decide the matter within a period of one week positively from today and, at the time of deciding the matter, the concerned authority shall not traverse beyond the ambit and scope of section 76(5)(a) of the Act and shall ignore the allegations levelled in the notices impugned with regard to alleged forgery allegedly committed by the petitioner and shall decide the matter independently after providing opportunity of hearing to the petitioner, by a speaking order.
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2008 (10) TMI 614
Whether the appellant is entitled to issue form 18 declaration for the purchase of kerosene oil used in the manufacture of titanium dioxide?
Held that:- In the instant case superior kerosene oil is not used as an input in the use of production of finished product and it is not identifiable in the final product and it is just used as a fuel in the calciners as an aid in the production of finished product and therefore, would not answer the description of the expression "raw material".
Thus the Commissioner of Commercial Taxes is right while clarifying that the appellant cannot use form 18 declarations for purchase of kerosene oil used as a fuel in the manufacture of titanium dioxide. Therefore, the appeal requires to be rejected and accordingly, it is rejected.
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2008 (10) TMI 613
Whether the Tribunal have not held that the transaction in question is one coming under section 5(2) of the CST Act more so in view of the judgment of the Supreme Court in State of Maharashtra v. Embee Corporation reported in [1997 (8) TMI 443 - SUPREME COURT OF INDIA]?
Whether the Tribunal have not cancelled the levy of penalty imposed under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules, 1963 after holding that the transaction under question is one coming under section 5(2) of the CST Act and hence exempt?
Held that:- The Appellate Tribunal while concurring with the findings of the first appellate authority has observed that, since ONGC has not come into the picture with the foreign supplier at any time during the course of import, it cannot be a transaction under section 5(2) of the CST Act. The Tribunal has further observed that the petitioner had attempted to manipulate the records to establish that the transactions are well within the scope of section 5(2) of the CST Act. This, in our view, is mere presumption and surmise by the Tribunal and not supported by any material. The transaction matrix shows that the transaction between the parties are inextricably linked with each other with each knowing their part of the transaction. We do not see any attempt of manipulation, since the two customs-duty-paid documents establish that the goods imported are the same goods ordered by BPL as a back-to-back order of ONGC. All the other so-called "mistakes" do not appear to affect the true nature of the transaction being one falling under section 5(2) of the CST Act.
Revision petition filed by the assessee requires to be allowed and accordingly it is allowed and the impugned orders passed by the authorities under the Act and the Appellate Tribunal is set aside.
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2008 (10) TMI 612
The High Court of Madras dismissed the revision petitions based on the decision of the Division Bench regarding the exemption of tarpaulins from tax under the Tamil Nadu General Sales Tax Act.
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2008 (10) TMI 611
Issues:
1. Interpretation of rule 29(xii) under the Punjab Value Added Tax Act, 2005 for deduction in turnover.
2. Rejection of deduction claim by the revisional authority.
3. Applicability of previous court judgments on the interpretation of the rule.
4. Dispute regarding the State's intention to file a review petition against the Supreme Court judgment.
Interpretation of rule 29(xii) for deduction in turnover:
The petitioner, a registered dealer, filed a petition under section 68 of the Punjab Value Added Tax Act, 2005 against the Sales Tax Tribunal's order. The issue arose when the revisional authority revised the assessment order for the year 1998-99 and demanded additional tax. The petitioner claimed deduction under rule 29(xii) for goods subject to tax under section 5(1A), including exempted goods. However, the revisional authority rejected this claim, stating that the deduction applied only when actual payment was made, not when purchasing from a tax-exempt unit.
Relevance of previous court judgments:
The petitioner relied on the judgment in Perfect Synthetics v. State of Punjab, affirmed by the Supreme Court in State of Punjab v. Perfect Synthetics. These judgments interpreted rule 29(xii) to allow deduction for goods subject to tax, even if exempted. The Supreme Court held that exempted goods were on par with taxed goods under the exemption scheme. The State did not dispute the applicability of these judgments but indicated its intention to file a review petition against the Supreme Court's decision.
Court's decision and reasoning:
The High Court, led by Justice Adarsh Kumar Goel, considered the delay, heard the arguments, and analyzed the situation. Despite the State's plan to seek a review, the Court emphasized that the Supreme Court's judgment was over seven months old and could not be disregarded. Therefore, the Court allowed the petition, set aside the impugned order of the Sales Tax Tribunal, and reinstated the assessing authority's order, granting the petitioner the deduction claimed under rule 29(xii).
This detailed analysis of the judgment showcases the interpretation of the law, the impact of previous judgments, and the Court's decision in light of the legal principles involved.
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2008 (10) TMI 610
Non sufficient opportunity given to the petitioner to produce all the documents - Held that:- A perusal of the impugned order dated March 26, 2008 would show that the respondent-Department has not adverted to the correct facts and referred to the documents furnished by the petitioner as well as the State buyer, J.K. Paper Mills Limited, Orissa, properly. Further, the subsequent request made by the petitioner for granting personal hearing to them and to their advocate were also not considered by the respondent. Therefore, the order passed by the respondent, without considering these aspects, cannot stand the scrutiny of law and as submitted by the learned Senior Counsel the opportunity of personal hearing has not been given to the petitioner. Hence, the impugned order is liable to be set aside
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2008 (10) TMI 609
Whether, on the facts and circumstances of the case, the impugned order (A-9) passed by the Tribunal in rectification proceedings on September 6, 2007, was beyond the scope of rectification jurisdiction under section 21A(2) of the PGST Act, 1948 and therefore without jurisdiction, hence liable to be set aside?
Whether the impugned order, annexure A-9, is beyond the prescribed period of limitation of two years, given in section 21A(2) of the Act and therefore without jurisdiction and, hence liable to be quashed?
Whether, on the facts and circumstances of the case, the learned Tribunal was bound to adjudicate all the issues raised in original appeal which were not decided by the Tribunal while passing the original order?
Whether the order passed by the Assessing Authority is barred by limitation as prescribed under section 11(3) as amended by notification dated March 3, 1998?
Whether, on the facts and circumstances of the case, the original order of assessment was time-barred even under the unamended ection 11(4) of the PGST Act, as no notice of best judgment assessment was ever given to the assessee before passing any order?
Held that:- In view of the settled legal position, we are of the view that the assessment was not barred by limitation. In Murlidhar Mahabir Parshad [1967 (4) TMI 169 - SUPREME COURT OF INDIA] the honourable Supreme Court held that if notice of assessment had already been given, the assessment was to be treated to be within limitation. In the present case, notice of assessment was prior to the enforcement of amending law. The order of the Tribunal dated July 8, 2005, thus, suffered from error apparent on the face of record, which could be rectified.Accordingly, question No. (i) is decided against the assessee and in favour of the Revenue.
For Question No. (ii) as the order of rectification was passed on September 6, 2007, while original order of the Tribunal was dated July 8, 2005 and thus, order of rectification was beyond limitation. In favour of assessee.
If the order of the Tribunal holding the assessment to be barred by limitation was to be set aside, the Tribunal was bound to adjudicate on all issues in the original appeal. However, in view of our answer to question No. (ii), all the other questions has become academic.
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2008 (10) TMI 608
Adequate opportunity to substantiate contentions seeked - whether exhibit P4 will show a mis-apprehension of exhibit P2 judgment by the officer?
Held that:- We are only at the stage of show-cause notices issued by the first respondent. In our opinion, the writ court can entertain a petition, if for any reason, the authority who has issued the notice has no competence to issue such notice or the notice issued is contrary to the statutory provisions, etc. These grounds are neither urged nor argued by the writ petitioner.
Accordingly, it is normally desirable to let all statutory authorities develop the necessary factual background upon which decision should be based. And since the decision of the statutory authorities frequently requires expertise, the authorities should be given the first chance to exercise their discretion and further apply their expertise. Apart from this, the statutory authorities are created as a separate entity and are vested with certain powers and duties, the courts ordinarily should not interfere with the action of the statutory authorities until it has completed its own action or else has clearly exceeded its jurisdiction. We hasten to add, the exhaustion doctrine is not inflexible and when the reasons supporting the doctrine are found inapplicable, the doctrine should not be blindly applied.
In view of the above, the learned single judge has not committed any error, whatsoever, which would call for our interference. Accordingly, the writ appeal requires to be rejected and it is rejected, without reference to the respondents.
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2008 (10) TMI 607
Proceedings of cancellation of registration certificate challenged - Held that:- In view of the fact that neither the Act nor the subordinate legislation prescribed the consequence of the failure of a registered dealer to apply within the time-limits prescribed, the impugned order passed by the respondent is liable to be set aside. The petitioner is hereby directed to file appropriate application before the concerned authorities within a period of two weeks from the date of receipt of a copy of this order.
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2008 (10) TMI 606
True scope of Explanation 5 to section 8(f) of the Kerala Value Added Tax Act, 2003 questioned - Held that:- Explanation 5 will be applicable only if the dealer opens a new branch in the current year. The words "open a new branch" cannot permit the respondent to apply the Explanation to a case where a branch was in existence from the year 2005 and to treat the same as opened in the current year for the only reason that compounding is sought for in respect of the said branch in the year 2008-09 for the first time is not contemplated. I would think that such an interpretation would be opposed to the plain meaning of the words embedded in the provision. Neither is the respondent in my view entitled to draw support from circular No. 42/06 for the reasons which I have already indicated. If that be so, exhibits P7 and P9 are plainly unsustainable. Accordingly, I allow the writ petition and quash exhibits P7 and P9. A decision will be taken on exhibit P6 in accordance with law within one month from the date of receipt of a copy of this judgment. Till such decision is taken, the petitioner is permitted to pay the monthly compounded tax at the rate of ₹ 49,42,211.
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2008 (10) TMI 605
Local sale v/s inter-State sale - Held that:- In the absence of any positive materials evidencing interState sale, the stray sales as found in the assessment order cannot be termed to be a sale in the course of inter-State trade warranting payment of tax under the Central Sales Tax Act. Therefore the assessing authority clearly erred in assessing the transaction as an inter-State sale and as such the said finding is liable to be set aside.
Whether the transaction was a second sale or an inter-State sale was a matter to be decided by the assessing authority and the petitioner has produced the entire documents and on the basis of the said documents only, the assessing authority came to the conclusion that the sale was not a second sale, but a sale in the course of inter-State sale and therefore it cannot be said that the petitioner was liable for penalty. Therefore the levy of penalty is also necessarily to be set aside. W.P. allowed.
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2008 (10) TMI 604
Haryana Tax on Entry of Goods into Local Areas Act, 2008 - whether is unconstitutional and void?
Held that:- Provisions of section 33 validating the levy under the 2000 Act to retain the amount collected for which no specific services were held to have been rendered will also be hit by article 301 of the Constitution. It has not been disputed that out of a sum of ₹ 1,600 crores already collected, only a sum of ₹ 240 crores was available and the remaining had already been spent. In absence of any estimate of services to be provided or projected to be provided, in accordance with the purposes which may make the levy to be compensatory in character under article 301 of the Constitution, the impugned levy has to be held to be unconstitutional.
We allow this petition and declare the provisions of the Haryana Tax on Entry of Goods into Local Areas Act, 2008 to be unconstitutional and void.
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