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Showing 181 to 200 of 781 Records
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2009 (12) TMI 890
Rejection of the form F declaration - Held that:- In the case on hand, the assessee has produced all the relevant documents sought for by the authorities. Therefore, the finding given by the Joint Commissioner that there was an implied agreement between the assessee and the ultimate purchaser, which is the Kerala State Transport Corporation, is not supported by any material evidence available on record.
Moreover, it is not in dispute that for the assessment years 1989-90 and 1992-93, the Joint Commissioner has accepted the reply filed by the assessee and dropped the proposal to revise the order of the first appellate authority. Form F declaration to be accepted. Appeal allowed
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2009 (12) TMI 889
Whether the transactions involved are consignment sales?
Held that:- A reading of the order passed by the Tribunal would show that the assessee has produced records to show that the goods have been sent to the other State agents and commissions have been paid. The assessee also filed a declaration under form F. It is not the case of the Revenue that the information given under form F is not true. It is also seen that the agents have paid the local tax in the other State and the goods were neither manufactured according to the specifications of a particular goods nor they were meant for a particular customer.
The assessee in the present case has produced all the material evidence to satisfy that the transactions were consignment sales. Non-production of the records as required by the assessing officer cannot be a ground to draw adverse inference against the assessee. Appeal dismissed.
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2009 (12) TMI 888
Demand of deposit a sum of ₹ 19,95,890 as the same was unauthorisedly realised by her from the cinema goers.
Held that:- A person who unjustly enriches himself cannot be permitted to retain the same for its benefit except enrichment. Such licensee/picture hall owners cannot and could not collect any entertainment tax from the cinema goers and if collected, they are liable to deposit the same with the State treasury, otherwise it would amount unjust enrichment.
The petitioner is liable to pay the amount unauthorisedly collected from the cinema goers as entertainment tax as per the impugned demand notice. There is no merit in the writ petition.
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2009 (12) TMI 887
Issues:
1. Penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 read with section 9(2A) of the Central Sales Tax Act, 1956.
2. Applicability of penalty in case of assessment made under section 12(1) of the TNGST Act.
3. Interpretation of statutory provisions and relevant case law.
Analysis:
1. The writ petition challenged the order of the Sales Tax Appellate Tribunal that deleted the penalty imposed under section 12(3)(b) of the TNGST Act along with section 9(2A) of the CST Act. The first respondent was assessed for the year 1995-96 on a total turnover of Rs. 20,60,565, with a penalty of Rs. 38,853. The Appellate Assistant Commissioner modified the order, setting aside a portion of the turnover and penalty, which was further contested by the Department before the Tribunal.
2. The issue revolved around whether the penalty could be imposed under section 12(3)(b) of the TNGST Act in cases of assessments made under section 12(1) of the same Act. The Tribunal's decision was influenced by a previous judgment in the case of Appollo Saline Pharmaceuticals, where it was held that penalties cannot be levied in such scenarios. The court reiterated that penalties are applicable only in best judgment assessments, not when assessments are based solely on the accounts provided by the assessee.
3. The court referred to the legislative intent behind the relevant sections and highlighted the amendments made over time. It emphasized that penalties should only be imposed in cases of best judgment assessments, excluding those solely based on the accounts furnished by the assessee. The court upheld the Tribunal's decision based on the statutory provisions and the legal precedent set by previous judgments, concluding that the penalty deletion was in line with the law.
In conclusion, the High Court dismissed the writ petition, affirming the Tribunal's decision to delete the penalty levied under section 12(3)(b) of the TNGST Act read with section 9(2A) of the CST Act. The judgment emphasized the importance of aligning penalties with the type of assessment conducted and upheld the legal principles established by previous court rulings.
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2009 (12) TMI 886
Issues:
1. Penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 read with section 9(2A) of the Central Sales Tax Act, 1956.
Analysis:
The High Court of Madras, in the case at hand, dealt with a writ petition challenging the order of the Sales Tax Appellate Tribunal that restored a penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959, along with section 9(2A) of the Central Sales Tax Act, 1956. The court noted that the issue had been previously addressed by a Division Bench in the case of Appollo Saline Pharmaceuticals (P) Limited v. Commercial Tax Officer, wherein it was held that the penalty cannot be levied in cases where the assessment is made under section 12(1) of the TNGST Act. The court referred to the legislative intent and statutory provisions to determine that penalties should only be imposed in cases of best judgment assessments and not solely based on accounts furnished by the assessee. The court emphasized that penalties should not be levied for assessments made on the basis of accounts and not estimates, as penalties under section 12(3) are not applicable in such scenarios. Consequently, the court allowed the writ petition, setting aside the penalty imposed by the Tribunal, in line with the legal principles established in previous judgments. No costs were awarded in this matter.
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2009 (12) TMI 885
Issues: Reopening of assessment based on seized documents indicating suppressed sales, determination of evaded turnover, consideration of loose documents for determining turnover, interpretation of dealer's explanation, reliance on judicial pronouncements for similar cases.
The judgment by the Allahabad High Court pertains to the reopening of assessment based on seized documents indicating suppressed sales by a dealer engaged in the business of aerated water and cold drinks. The assessing authority made the original assessment in 1993 but later reopened it upon finding loose documents during a survey suggesting sales suppression. The first appellate authority accepted the dealer's explanation that the seized papers did not reflect actual turnover but were inflated figures for obtaining a higher cash credit limit. Both the Department and the dealer filed cross-appeals before the Tribunal, which upheld the first appellate authority's decision, concluding that the loose documents did not represent actual sales but were inflated for bank purposes.
The Department, dissatisfied with the Tribunal's decision, filed a revision arguing that the seized documents admitted by the dealer should be relied upon for determining turnover. The Department cited Section 8 of the U.P. Trade Tax Act to support its stance. Conversely, the dealer's counsel contended that tax should be levied on actual sales, not on inflated figures for other purposes. The counsel referred to judicial pronouncements where explanations similar to the dealer's were accepted by the court.
The High Court, in its analysis, referred to previous judgments where explanations for inflated turnover figures for obtaining loans or increasing cash credit limits were accepted. The court found no error in the Tribunal's decision, emphasizing that the findings were based on facts and not without a basis. Consequently, the High Court dismissed the revision, stating that it lacked merit. The judgment reaffirmed the principle that tax should be levied on actual sales, not on projected or imaginary figures for other purposes, as long as the explanation provided by the dealer is reasonable and consistent with previous judicial decisions.
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2009 (12) TMI 884
Whether the Tribunal was justified in holding that assessing authority can invoke powers vested under section 18AA of the Karnataka Sales Tax Act, in order to forfeit the excess tax paid under Central Sales Tax Act, pursuant to section 9(2) of the Central Sales Tax Act, 1956?
Held that:- In the instant case the sale attracts the purchase tax. It may affect the price of the seller. But the seller is liable to pay the tax demanded and the same has to be collected from the buyer and the seller is not expected to pay the tax from his pocket when the sale is inclusive of the cost of goods plus tax, the tax collected from the buyer has to be passed on to the Revenue and on same analogy the assessee cannot be permitted to revise the invoices to contend that excess tax collected by him from the customer would be the cost of the value of the material sold by him. In view of the same, we are of the view that it is a fit case to hold that the assessee as a after-thought has devised an idea to enrich himself in an unjust manner by collecting excess tax and seek refund of the same from the revenue. Such a thing cannot be permitted by any court of law. Revision petition is dismissed answering the question of law against the assessee.
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2009 (12) TMI 883
Levy of tax separately - Held that:- Bureau of Indian Standards (BIS) prescribes criteria for adding chemical for colour quoting is mainly for purpose of standardizing so as to avoid any accusation of adulteration. In such cases, the dealers may avoid facing litigation in supplying adulterated kerosene. Similarly, relying upon the notification under the Essential Commodities Act has no place, so long as the commodity is an essential commodity and private marketing system is introduced by the Parliament through a delegated legislation to safeguard the interest of kerosene supply under the public distribution system. Therefore, it cannot be said that the State Legislature lacks power in taxing kerosene different from that of SKO or white kerosene oil. The attack of discrimination thus must fall to ground in the light of the above legal precedents as set out above.
The second contention that exemption notification under section 17(1) will continue to be in operation notwithstanding the amendment to the entry in the Schedule because the same term continues to be in use in the amendment notification cannot also be accepted. Though such an argument is attractive, it does not stand to legal scrutiny in the light of the judgment of the Supreme Court in Sales Tax Officer, Sector IX, Kanpur v. Darling Dairy Products [1994 (5) TMI 213 - SUPREME COURT OF INDIA]
What applies to surcharge is also applicable to resale tax. Further, once legal issues are settled regarding the separate tax for SKO/white kerosene under a different entry in the Eleventh Schedule, the dealers are bound to pay the said rate of levy of tax and also surcharge and resale tax, which are also applicable notwithstanding the so-called exemption under section 17(1). Appeal dismissed.
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2009 (12) TMI 882
Whether, the Karnataka Appellate Tribunal was right in law in confirming the order dated May 13, 2005 of the JCCT (Appeals), Bangalore City Division 1, Bangalore holding that the provisional assessment order passed was valid under section 5C of the Karnataka Sales Tax Act, 1957?
Whether the Karnataka Appellate Tribunal was right in law in confirming the order dated May 13, 2005 of the JCCT (Appeals), Bangalore City Division 1, Bangalore, holding the transaction between the petitioner and Mysore Construction Co., is liable for tax?
Held that:- The assessing officer was justified in excluding the turnover by relying upon section 5C of the KST Act. The Joint Commissioner of Commercial Taxes was also justified in dismissing the appeal and similarly the Karnataka Appellate Tribunal is also right in dismissing the second appeal of the assessee.
In the result, the petition is dismissed and the questions of law answered against the assessee.
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2009 (12) TMI 881
Whether the delay in filing of the appeal beyond the period of 60 days prescribed by section 68(2)(a) of the Punjab Value Added Tax Act, 2005, could be condoned by entertaining an application under section 5 of the Limitation Act, 1963?
Held that:- The delay in filing the appeal beyond the period specified under section 62(4) and 63(2) could be condoned in the interest of justice and for the reasons to be recorded in writing by the appellate authority. However, in section 68(2)(a) a period of 60 days for filing the appeal before this court has been provided but there is no provision parallel to section 64 providing for condonation of delay.
The application(s) filed under section 5 of the Limitation Act seeking condonation of delay in filing the appeals are dismissed. Consequently, the appeals also fail and are dismissed being time-barred.
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2009 (12) TMI 880
Levy of penalty under section 22(2) cancelled by Tribunal - Held that:- All that the assessee has done in this case was that they collected tax at the rate of 15 per cent as per the original rate without being aware of the reduction of tax at the rate of 10 per cent. The tax so collected was duly remitted to the Government. No amount was retained by the assessee
In the given set of facts the Tribunal exercised its jurisdiction under section 22(2) of the Act judiciously, properly and bonafidely, which requires no interference at our hands in the revisional jurisdiction of this court under section 38 of the Act.
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2009 (12) TMI 879
Issues involved: Revision filed by Revenue against Sales Tax Appellate Tribunal's order regarding penalty deletion for assessment year 1990-91.
Summary:
The respondent, a dealer in oil-seeds, oil, and oil cakes, underwent a revised assessment for the year 1990-91 due to a reported stock deficiency during an inspection. The assessing officer revised the assessment based on the enforcement officers' report, leading to additional tax and penalty imposition. The assessee appealed and obtained relief on penalty deletion and equal addition. The Revenue filed a revision challenging the deletion of penalty.
The first appellate authority and the Tribunal found that the penalty deletion was justified as there was no evidence of mens rea or blameworthy conduct by the assessee. The authorities correctly applied the provision of section 16(2) of the Tamil Nadu General Sales Tax Act, 1959, which requires mens rea for penalty imposition. Since no wilful non-disclosure of taxable turnover was found, the penalty deletion was upheld. The Tribunal dismissed the Revenue's revision, affirming the deletion of penalty as per the legal requirements under the Act.
In conclusion, the deletion of penalty was deemed appropriate as there was no evidence of wilful non-disclosure of taxable turnover by the assessee, aligning with the provisions of section 16(2) of the Tamil Nadu General Sales Tax Act, 1959. The appeal filed by the Revenue was dismissed based on the lack of grounds for penalty imposition.
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2009 (12) TMI 878
Penalty leviable in terms of section 53(12)(a)(i) on account of the failure to stop the goods vehicle and to produce the documents, and then to proceed after verification of the same.
Held that:- The mere fact that the vehicle did not stop at the check-post which has been established in the instant case is sufficient to hold that there is violation of section 53(2)(c) of the Act. Therefore, the appellant cannot escape from the levy of penalty in terms of section 53(12) read with rule 159(4). Therefore, the explanation given by the appellant that on account of there being a long queue of vehicles, the goods vehicle in question could not be stopped or that there was mistake on the part of the driver in not stopping the vehicle cannot be accepted.
Considering the fact that in the instant case, the goods in question PVC pipes and as per the tax invoice four per cent has been shown to be the rate of taxation, we are of the view that the authorities concerned could not have levied 12.5 per cent of the value of the goods by way of penalty. Appeal is allowed in part
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2009 (12) TMI 877
Issues:
1. Whether the Tribunal was right in confirming the deletion of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act by the Appellate Assistant Commissioner.
Analysis:
1. The case involved the assessment of a dealer in tin containers for the year 1996-97, where the turnover reported was below the minimum taxable turnover. The assessing officer levied a penalty under section 22(2) of the Act for collecting tax and surcharge despite not reaching the taxable turnover threshold.
2. The Appellate Assistant Commissioner held that the dealer had collected tax in anticipation of exceeding the turnover limit, thus not in contravention of the Act. Consequently, the penalty was deleted based on the belief that the tax collection was in accordance with the law.
3. The Revenue challenged this decision, leading to the Tribunal's observation that the Appellate Assistant Commissioner's order was proper based on the records and no further interference was necessary. The Tribunal upheld the decision to delete the penalty.
4. However, the High Court found that the tax amount collected had not been remitted to the Government, indicating a violation of the Act. The Court emphasized that the penalty under section 22(2) was justified as the dealer retained the collected amounts, which were supposed to be paid to the Government.
5. The Court disagreed with the lower authorities' findings and concluded that the penalty imposition was appropriate in this case. Therefore, the Court allowed the appeal, overturning the decisions of the Appellate Assistant Commissioner and the Tribunal, without imposing any costs.
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2009 (12) TMI 876
Exemption claimed under the KST Act on the ground that the entire iron and steel purchased from registered dealers within the State and being second and subsequent dealers in the State was not liable to pay taxes
Held that:- On perusal of the said documents [form 32B now being counter-signed by the sellers], it is seen that the date of issue of the same is July 10, 2001, but have been handed over to the appellant only recently, i.e., subsequent to the order of the revisional authority impugned in this appeal.
The order passed by the revisional authority dated August 30, 2008 is set aside and a direction is issued to the second respondent to consider the said documents and pass an order in accordance with law. Since we are remanding the matter to the assessing authority, the said authority is also directed to consider the case of the appellant with regard to the exemption sought by the appellant in accordance with law. In view of this order, the order passed by the appellate authority (third respondent herein) would also have no effect.
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2009 (12) TMI 875
Whether the Karnataka Appellate Tribunal was justified in setting aside the order passed by the assessing authority and the appellate authority holding that there was no suppression established by the authorities to reassess the dealer under section 12A of the KST Act and to levy tax and penalty?
Held that:- The Tribunal without considering the observations made by the Deputy Commissioner of Commercial Taxes has wrongly stated that the Department did not have any information from the Income-tax Department, which according to us, prima facie is an irregularity committed by the Tribunal. Thus without considering the order of assessment, the Tribunal has observed as if the Department did not secure any information from the Department of Income-tax. Therefore, only on this short ground, the order passed by the Karnataka Appellate Tribunal has to be set aside, as the same is arbitrary and perverse. Answering the substantial question of law in favour of the Revenue
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2009 (12) TMI 874
Refund of the amount of penalty collected by the check-post authority directed - Held that:- It is for the authorities to ascertain as to whether there was just or sufficient reason or cause as explained by the assessee or person as the case may be to levy the penalty and after considering the said sufficient cause, penalty can be levied. In view of the same, we find that the appellate authority has accepted the cause shown by the appellant herein as "sufficient cause" for annulling the levy of penalty and the said order being revised by the revisional authority only on the premise of the violation of section 28A(2)(d) of the Act would be contrary to the spirit and intention behind sub-section (4) of section 22A of the Act and hence, we answer questions of law in favour of the appellant herein and against the Revenue in the facts and circumstances of case only.
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2009 (12) TMI 873
Issues involved:
1. Interpretation of liability under section 5B and 6B of the Karnataka Sales Tax Act.
2. Validity of the order of the Advance Ruling Authority and the Commissioner's interference under section 22A.
3. Consideration of proviso (x) to section 6B of the Act in determining resale tax liability.
Analysis:
1. The case involves the interpretation of liability under sections 5B and 6B of the Karnataka Sales Tax Act. The appellant, a works contractor, sought clarification on resale tax liability under section 22A(2) from the Advance Ruling Authority. The Authority initially held the appellant liable for resale tax, but a subsequent appeal allowed by the court led to a reconsideration. The Commissioner, finding the Advance Ruling prejudicial to state revenue, initiated proceedings under section 22A(2) and held the appellant liable for resale tax under section 6B. The appellant challenged this decision, arguing that the Commissioner's order was contrary to proviso (x) to section 6B. The court, after hearing both parties, directed the Commissioner to reconsider the matter in light of proviso (x) and the objective behind introducing resale tax.
2. The validity of the order of the Advance Ruling Authority and the Commissioner's interference under section 22A was also at issue. The Advance Ruling Authority initially ruled in favor of the appellant, but the Commissioner disagreed, leading to the current appeal. The appellant contended that the Commissioner erred in not considering the purpose of introducing resale tax under section 6B, as highlighted in the Finance Minister's speech. The court agreed that the Commissioner needed to reassess the matter in line with proviso (x) to section 6B and the legislative intent behind the introduction of resale tax.
3. The consideration of proviso (x) to section 6B of the Act was crucial in determining the resale tax liability. The appellant argued that the Commissioner failed to properly consider this proviso, while the Government advocate maintained that it was indeed taken into account. However, upon further examination, the Government advocate conceded that a reevaluation in light of proviso (x) was necessary. Consequently, the court set aside the Commissioner's order and remanded the matter for fresh consideration, emphasizing the importance of reconsidering the issue in alignment with proviso (x) and the legislative intent behind the resale tax provision.
In conclusion, the court allowed the appeal, setting aside the Commissioner's order and directing a fresh consideration within three months, emphasizing the need to reevaluate the matter in light of proviso (x) to section 6B and the underlying purpose of the resale tax provision.
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2009 (12) TMI 872
Levy of penalty under section 16(2) of the Tamil Nadu General Sales Tax Act, 1959
Held that:- There is no error or any perversity in the approach of either the original authority or the appellate authority or the Tribunal and we are convinced that the finding of fact recorded by the original authority as confirmed on further appeals establishes wilful nondisclosure of the assessable turnover by the petitioner. The law relating to as to whether the REP licence and exim scrips are "goods" within the definition of section 2(j) of the Act, having been settled by the judgment of the honourable Division Bench of this court on April 4, 1994 in the case of P. S. Apparels [1994 (4) TMI 366 - MADRAS HIGH COURT], cannot be stated to have created any confusion in the minds of the petitioner/dealer, when on the facts also such was not the case of the petitioner. Hence, the writ petition fails and accordingly the same is dismissed. Consequently, connected miscellaneous petition is also dismissed.
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2009 (12) TMI 871
Whether driving of bore-well is civil construction work entitling the petitioner to pay tax at compounded rate at two per cent under section 7(7) of the Kerala General Sales Tax Act, 1963?
Held that:- The provisions of tax on works contract cannot be applied to bore-wells in the same way it applies to other wells. A well is normally constructed by digging and removing earth to sufficient depth for collection of water. Digging and removing of earth does not involve supply of any materials and so much so, the digging of well as such does not involve any tax on works contract. If the materials supplied are not civil construction materials such as PVC pipes, GI pipes and installation of motor, etc., then rate of tax at compounded rate under section 7(7) is not applicable. On the other hand, if the construction of bore-well involves construction of any room above it or a motor house or the like, the same should be treated as civil construction work on which tax liability could be settled at the compounded rate under section 7(7) of the Act.
Since none of the authorities below has considered the above aspects of the matter, which will be clear from the copies of contract, work bills issued by the petitioner and payments approved by the water authority and awarders we allow the revisions by setting aside the order of the Tribunal and remand the matter to the assessing officer for recomputation of liability after verifying the contract.
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