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Case Laws
Showing 181 to 200 of 747 Records
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2009 (9) TMI 911
Constitutional validity of Chhattisgarh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 to declare the Entry Tax (Amendment) Act, 2001, whereby maximum limit of tax imposable under section 4A has been enhanced from 10 per cent to 50 per cent, as also notification issued under section 3(2), 4A under section 10 of the Act of 1976 from time to time challenged
Held that:- The constitutional validity of the Act of 1976 has been upheld and fresh challenge to the constitutional validity of the Act of 1976 is not maintainable, in view of the law declared under article 141 of the Constitution in Bhagatram Rajeev Kumar [1994 (11) TMI 337 - SUPREME COURT OF INDIA],
The notifications issued by the State Government from time to time under sections 3(2), 4A and section 10 of the Act of 1976, vide annexure P6, and other notifications impugned by the petitioners in the connected petitions, are valid law and the same are in consonance with the provisions of the Act of 1976. Appeal dismsissed.
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2009 (9) TMI 910
Whether the Tribunal was justified in holding that the work executed by the respondent, viz., supplying and applying hot white thermoplastic road marking paint, marking of pedestrian crossing, zebra crossing, etc., with white and yellow paints on road, constitutes civil works within the meaning of section 7(7) of the Kerala General Sales Tax Act, 1963, entitling the respondent for payment of tax at compounded rate at two per cent?
Held that:- Even though the contention of counsel for the respondent agreed that paint marking on the highway is a requirement for opening the highway for traffic under the instruction issued by the Ministry of Surface Transport, such marking does not constitute part of the construction of the road.
In the first place, marking is done after completion of the construction of the road and it is awarded under separate contract. In fact, the existing roads are also marked with paints and it is invariably done when the road is declared as national highway or State highway. Therefore, paint marking is essentially a regulation introduced for smooth and safe vehicular traffic and it is not a part of road as a structure. In fact, ever so many roads are constructed and maintained in the State without any paint marking, whatsoever. It cannot be said that such roads are maintained without completion of the construction. In our view, marking of the road is not part of the construction of the road and it is a post construction work done for safe vehicular movement and the purpose is to guide the drivers and pedestrians using the road. Revision allowed.
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2009 (9) TMI 908
Issues:
1. Appointment of Sole Independent Arbitrator under Section 8 & 11 of the Arbitration & Conciliation Act, 1996.
2. Dispute regarding theft and recovery of stolen goods in a security services agreement.
3. Validity of arbitration clause naming the Director of the company as the Arbitrator.
Analysis:
1. The petitioner sought the appointment of a Sole Independent Arbitrator under Section 8 & 11 of the Arbitration & Conciliation Act, 1996, to adjudicate disputes arising between the parties related to security services. The petitioner disputed liability for theft and recovery of stolen goods, leading to the termination of the service contract. The petitioner argued that the arbitration clause naming the Director of the company as the Arbitrator was unfair and requested the appointment of an independent Arbitrator instead.
2. The High Court emphasized that parties are bound by the arbitration clause they have agreed upon in a contract. Referring to the arbitration clause in this case, which specified the Director of the Company as the Arbitrator, the Court noted that the petitioner did not raise any objection to this clause initially. The Court highlighted that parties cannot selectively accept parts of an agreement and reject others, especially when entering into contracts with government entities or corporations where arbitration by senior officers is common practice.
3. Citing the Supreme Court's decision in Indian Oil Corporation & Ors. v. Raja Transport (P) Ltd., the High Court reiterated that a party cannot benefit from an arbitration clause in an agreement while disregarding the appointment procedure outlined in the clause. Therefore, the Court concluded that the petitioner's request for the appointment of a Sole Independent Arbitrator different from the one specified in the arbitration clause could not be accepted. The petitioner was directed to raise the dispute before the named Arbitrator as per the agreed arbitration clause.
In light of the above analysis, the High Court disposed of the petition, granting the petitioner the liberty to raise the dispute before the Arbitrator named in the arbitration clause.
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2009 (9) TMI 907
Reassessment notice - condonation of delay - Held that:- The petitioner is entitled to contest the orders passed in revision on the merits by penalizing the petitioner with cost for its conduct bordering on the negligent.
In order to balance the equities, we feel that delay should be condoned only with exemplary cost. In the facts of this case we are of the opinion that cost of ₹ 1 lakh (Rs. 50,000 for each application) be imposed. In these circumstances, the writ petition is allowed. Rule is made absolute. Orders dated December 8, 2005 passed by the Tribunal are set aside.
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2009 (9) TMI 906
Non-payment of tax on the sale of old vehicles purchased under exchange mela - Held that:- It is the conceded position that the petitioner treats the sale of the new vehicle under the exchange scheme as full and complete with no debit balance of price in the customer's account. Therefore, purchase of old vehicle from the customer is complete when new vehicle is sold to him by recovering its value reduced by the cost of the old vehicle taken over from the customer.
The purchase and sale of the old vehicle is either by or on behalf of the petitioner. Thus the Intelligence Officer, rightly found that the petitioner evaded payment of tax on purchase and sale of old vehicle by not disclosing the sales turnover in the return filed and therefore, the penalty was rightly levied under section 67(1) of the KVAT Act.
The petitioner is directed to produce certificate from the assessing officer about payment of tax and interest on the sale of old vehicles as above for the above two years and if such certificate is produced, the Intelligence Officer will after rechecking the correctness of the same, reduce the penalty to 25 per cent of the tax liability and excess penalty, if any, paid should be refunded to the petitioner. However, if the petitioner does not produce proof of payment of tax and interest as above, then the penalty fixed by the Tribunal at equal amount of tax will stand confirmed.
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2009 (9) TMI 905
Whether the Tribunal was justified in sustaining the penalty levied under section 30B(4) of the Kerala General Sales Tax Act, 1963 on the petitioner?
Held that:- Incorporation of sub-clause(3) in sub-clause (4) is only to avoid repetition of all the words used in sub-clause (3) for the purpose of assessment and demand of tax and penalty under clause (4). In fact, what is clear from clause (3) is that subject to the ceiling on penalty provided thereto and the mandatory tax on turnover of goods even below the taxable limit, all the provisions of the Act with regard to the assessment and levy of penalty are applicable. Therefore, we uphold the finding of the Tribunal that an order under section 30B(4) read with sub-section (3) should always be passed with penalty, whatever be the quantum which is a matter of discretion depending on the facts and circumstances to be considered by the adjudicating officer.
However, considering the fact that the petitioner fairly conceded the tax liability and since the tax is also paid, we modify the Tribunal’s order by limiting the penalty to an amount equal to the tax levied and confirmed by the Tribunal.
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2009 (9) TMI 904
Issues: Classification of product "roofit mix" for tax purposes under the Kerala General Sales Tax Act, 1963.
Classification under the First Schedule:
The main issue raised in the revision was the classification of the product "roofit mix" for tax purposes under the Kerala General Sales Tax Act, 1963. The petitioner argued that the product should be taxed under the residuary entry at a lower rate, while the Government Pleader contended that it falls under entry 27, attracting a higher tax rate. The court examined the product description and its components, which included sand, cement, special additives, and fillers. It was established that the product was used for binding, filling materials, and repair of concrete slabs, particularly to prevent water leakage. The court concluded that since cement was a component of the product and a key ingredient, it fell under entry 11, which covered "cement products including products in combination with other materials not elsewhere mentioned in this Schedule."
Interpretation of Residuary Entry:
The court rejected the petitioner's argument that the product should be classified under the residuary entry, emphasizing that the residuary entry applied to items not covered by specific entries. In this case, since the product fell under entry 11, which specifically included cement products in combination with other materials, the court deemed the residuary entry inapplicable. Consequently, the court allowed the revision partly, declaring the product as falling under entry 11 and subject to taxation at 12 percent. The assessing officer was directed to modify the assessment accordingly.
Conclusion:
In conclusion, the court's decision clarified the classification of the "roofit mix" product under the Kerala General Sales Tax Act, 1963. By analyzing the components and purpose of the product, the court determined that it fell under entry 11, covering cement products in combination with other materials. The court's interpretation of the residuary entry and its application to items not covered by specific entries played a crucial role in resolving the classification issue and determining the appropriate tax rate for the product.
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2009 (9) TMI 903
Issues:
Interpretation of tax rate on timber and plywood in works contract under Kerala General Sales Tax Act, 1963.
Analysis:
The judgment revolves around the question of the appropriate tax rate applicable to the sale of timber and plywood involved in the execution of works contract under the Kerala General Sales Tax Act, 1963. The respondent, engaged in civil construction work, purchased timber and plywood falling under the Fifth Schedule to the Act, attracting tax at two points of sale. The dispute arose regarding the tax rate applicable on the resale of these items in the execution of works contract by the respondent. The court analyzed the relevant provisions, specifically section 5(1)(iv) of the Act, which outlines the levy of tax on works contract. It was noted that tax on goods is payable at the rate prescribed under specific schedules only when the transfer of goods in the execution of works contract takes place in the same form. The court highlighted that in civil construction work, timber and plywood are not sold in the form in which they are purchased but are appropriated for the work required, indicating no direct sale of these items.
The court rejected the argument that tax on works contract should be based on the value of goods rather than intermediary products, emphasizing that this issue was not relevant to the determination of the tax rate applicable. The judgment clarified that the rate of tax for works contract involving the supply of timber, plywood, etc., is as provided under entries 18 and 19 of the Fourth Schedule to the Act, depending on the nature of the work. Consequently, the orders of the Tribunal and the first appellate authority were reversed, and the assessment was restored based on the appropriate tax rate for works contract involving timber and plywood.
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2009 (9) TMI 902
Grant of exemption under the Sales Tax Exemption Scheme, 1998 in the category of new industrial unit
Held that:- In full agreement with the orders passed by the District Level Screening Committee and the learned Tax Board that the petitioner-firm is not entitled for tax incentive under the category of expansion as per the Scheme of 1998. Further, upon perusal of the order passed by the learned Tax Board, it is not established that any subsequent application was filed under the category of new industrial unit under which now the petitioner-firm is claiming for benefits of tax incentive under the Scheme of 1998. Appeal dismissed.
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2009 (9) TMI 901
Whether CST assessment could be completed by the fast track team under the provisions of section 17D of the Kerala General Sales Tax Act?
Held that:- The applicability of section 17D of the KGST Act for completion of pending assessments under the CST Act does not bar regular assessing officers to complete CST assessments if the fast track team does not take up such assessments. We therefore uphold the judgment of the learned single judge and dismiss the writ appeal.
The appellant will deposit ₹ 50,000 towards assessed tax for 2003-04 and ₹ 1 lakh towards assessed tax for 2004-05 before the assessing officer within two weeks from the date of receipt of a copy of this judgment.
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2009 (9) TMI 900
Issues:
Challenge to orders by Tax Board and Deputy Commissioner regarding penalty imposition for violation of tax rules.
Analysis:
The Commercial Taxation Department challenged orders by the Rajasthan Tax Board and Deputy Commissioner regarding the imposition of a penalty for violating tax rules. The penalty of Rs. 26,900 was imposed for the alleged violation of rule 53 of the Rajasthan Sales Tax Rules, 1995, and section 78(2) of the Rajasthan Sales Tax Act, 1994. The firm did not have the complete form ST-18A during the goods' movement, and the form was also time-barred. The Deputy Commissioner (Appeals) set aside the assessment order and penalty, stating there was no mens rea to evade tax, as required by section 78(5) of the Act. The Tax Board upheld this decision, rejecting the Department's appeal. The case was compared to a Supreme Court judgment involving similar violations.
The revising judge referred to a Supreme Court judgment in Assistant Commercial Taxes Officer v. Bajaj Electricals Ltd., highlighting the issue of evasion due to incomplete declaration forms. The judgment emphasized instances where forms were signed but essential columns were left blank, only to be filled later during scrutiny. The judge noted a clear violation of section 78(2) by the respondent in the present case, aligning it with the principles outlined in the Bajaj Electricals Ltd. case. Consequently, the revision petition was allowed, setting aside the orders by the Deputy Commissioner and Tax Board, and restoring the assessing authority's order from October 10, 1997. No costs were awarded in this matter.
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2009 (9) TMI 899
Whether the assessee had failed to prove that the goods have suffered tax in the hands of the dealers and accordingly demand was raised on the petitioner?
Held that:- The assessee, viz., the petitioner having submitted himself before the authorities and contended on merits with regard to the submission of form No. 32, now cannot, at the revisional stage contend that by non-submitting of the intelligence report the right of the revision petitioner is prejudiced, more particularly, when the opportunity was available at all points of times and not made use of. In fact even on merits with regard to form No. 32, the assessing authority has found that he himself has visited and has investigated the genuineness of the dealers who is said to have issued form No. 32 filed by the revision petitioner and after making cross-verification has come to the conclusion that they are bogus in nature and no such dealers are available at the addresses mentioned in the invoices. In fact the discussion made by the Tribunal at paragraph Nos. 6 to 9 is a complete answer by itself to the grounds now urged by the revision petitioner. Revision dismissed.
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2009 (9) TMI 898
Whether the total amount of ₹ 5,79,06,193 was a turnover, which in fact had escaped assessment in terms of the original assessment order and if so, was required to be brought to tax and the assessee/dealer called upon to pay the commensurate tax liability, as it arises under the provisions of the Act?
Held that:- The assessing officer as well as the Additional Commissioner are very correct, in concluding that the assessee had in fact not come up with any supporting, clinching material to demonstrate that the assessee had actually utilized the turnover of iron and steel of the value of ₹ 5,79,06,193 and inspite of several opportunities, the assessee had not produced the books of accounts and evidences, before the assessing authority and in terms of the material subsequently placed before the Joint Commissioner (Appeals), the position did not improve in any manner.
On the failure of the assessee to discharge the burden cast under section 6A, the value of the iron and steel acquired by it, has to be presumed to have been sold within the State and more so, the assessee itself being a dealer dealing with such products, the assessing authority and the Commissioner have rightly arrived at the proper conclusion. The Joint Commissioner was wrong in varying the order of the assessing authority. We do not find any question of law which is erroneously decided by the Additional Commissioner, as is sought to be made out in the questions of law raised in the memorandum of appeal. Appeal dismissed.
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2009 (9) TMI 897
Exemption from payment of purchase tax under section 13AA and consequent penalties and interest under section 36 as levied by respondent No 3. claimed - Held that:- We are really not concerned with the import of goods which is taxable separately. We are only concerned with SIL licences which was purchased by the petitioners and it was used for import of the goods whether at Mumbai or Delhi. There is no dispute that the petitioners purchased the licence in Mumbai. These licences have not been sold by the petitioners. As such the purchase tax under section 13AA becomes due and payable.
After the judgment in Devi Dass [1994 (4) TMI 312 - SUPREME COURT OF INDIA] and knowing what the position in law would be, it will be difficult to hold that imposition of penalty and interest was without jurisdiction. That contention must be rejected
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2009 (9) TMI 896
Issues: Interpretation of tax exemption under Uttaranchal Value Added Tax Act, 2005 for seeds of all kinds, including rejected seeds.
Analysis:
The judgment delivered by the High Court of Uttarakhand revolved around the interpretation of tax exemption under the Uttaranchal Value Added Tax Act, 2005 for seeds of all kinds, including rejected seeds. The Commercial Taxes Tribunal had previously ruled that all kinds of seeds, including rejected seeds, are non-taxable. This decision was challenged by the Commissioner, Commercial Tax, Uttarakhand through a revision under section 55 of the 2005 Act.
Before the enactment of the 2005 Act, the Uttar Pradesh Trade Tax Act, 1948 was applicable, where exemption from tax payment was granted to various goods through notifications issued by the State Government. In 1985, seeds certified under the Seeds Act, 1956 were exempted from tax under the 1948 Act, subject to certain conditions.
Upon the repeal of the 1948 Act by the 2005 Act, the charging and exemption sections were similar in both statutes. However, under the 2005 Act, no tax was to be paid on goods specified in Schedule I, which included "Seeds of all kinds other than oil-seeds." The petitioner argued that the term "seeds of all kinds" in the 2005 Act should be interpreted in conjunction with provisions of the Seeds Act, 1966. The court disagreed, emphasizing that the 2005 Act was a fiscal statute independent of the Seeds Act, and the expression "seeds of all kinds" in Schedule I clearly exempted all types of seeds from tax liability.
The court concurred with the Tribunal's view that rejected seeds, inferior seeds, or superior seeds were not liable to pay tax under the 2005 Act. The judgment dismissed the petition without costs, upholding the Tribunal's decision regarding the tax exemption for seeds of all kinds, including rejected seeds.
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2009 (9) TMI 895
Whether the impugned order has been passed beyond the period of limitation prescribed under section 11(3) of the Punjab General Sales Tax Act, 1948?
Held that:- No doubt is left that the order dated April 16, 2004 purported to have been passed under section 11(10) of the Act and rule 39C of the Rules flagrantly violates the principles of natural justice. Such an order cannot be regarded an order in the absence of its communication to the petitioner. Therefore, the respondent cannot take any support from such an order and the impugned order dated March 31, 2005 (P9) is set aside as it is beyond the period of three years prescribed by section 11(3) of the PGST Act. Petition allowed.
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2009 (9) TMI 894
No valid service of order of assessment - Held that:- In view of the finding to the effect that there is no endorsement by the person from the respondent Department, it has to be noted that there is no proper service of the order of assessment on the petitionerCompany in terms of rule 52(1) of the TNGST Rules. In that view, it has to be taken that the order of assessment was served on the petitionercompany only on November 18, 2004. In such circumstances, the impugned order has to be held as bad in law and is accordingly set aside.
As it is a fit case where the delay has to be condoned and the matter should be directed to be heard on merits. In view of the above finding, the impugned order is set aside, the delay in filing the appeal before the first respondent stands condoned and the first respondent is directed to issue notice to the petitioner and hear the appeal and decide the same on merits and in accordance with law.
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2009 (9) TMI 893
Issues:
Violation of natural and legal justice in tax assessment under West Bengal Value Added Tax Act, 2003.
Detailed Analysis:
The petitioner claimed a violation of natural and legal justice in the tax assessment for the period ending in 2006 under the West Bengal Value Added Tax Act, 2003. The assessment proceedings were conducted by various authorities, including the Sales Tax Officer, Central Section, and the Sales Tax Officer, Jorabagan, along with an investigation by the Bureau of Investigation. The petitioner challenged these proceedings, leading to a stay order by the Tribunal until the investigation report was submitted. However, the petitioner was later directed to appear for assessment without being provided a copy of the investigation report, which was relied upon in the assessment. The Sales Tax Officer passed the assessment order without giving the petitioner a chance to rebut the evidence, including observations about canceled registration certificates of some dealers. The petitioner objected to the assessment under the Central Sales Tax Act and the lack of opportunity to defend against the evidence used in the assessment.
In response, the Sales Tax Officer contested the petitioner's claims, stating that the assessment proceedings were initiated within the statutory timeline and that the petitioner was aware of the investigation report as they were heard during the Bureau of Investigation's process. The Officer defended the denial of certain claims by the dealer based on the lack of substantiating evidence regarding goods movement and payments to transporters. The assessment order was based on the investigation report and documents from the Bureau of Investigation, which were not communicated to the petitioner, leading to a challenge on the grounds of denial of the right to be heard and natural justice principles.
The Tribunal analyzed the legal provisions under the West Bengal Value Added Tax Act, 2003, and the related rules, emphasizing the right of the dealer to rebut adverse findings and evidence used in the assessment process. It was noted that while the investigation report is privileged, if relied upon in an assessment, its contents must be disclosed to the concerned party for rebuttal. The Tribunal found that the assessing authority failed to provide an opportunity for the petitioner to challenge the evidence used in the assessment, leading to a violation of fundamental rules of justice. Consequently, the Tribunal set aside the assessment order, directing a fresh assessment with proper communication of investigation report contents and documents for the dealer to rebut any evidence used against them. The denial of opportunity to rebut evidence does not render the assessment void ab initio, as argued by the petitioner's advocate. The application was allowed, and the assessing authority was instructed to conduct a new assessment while ensuring the dealer's right to be heard and defend against the evidence presented.
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2009 (9) TMI 892
Dispute between a Government undertaking and a Government Department of U.P. - Held that:- Without going into the merits of the present litigation, it may be mentioned that it is neither appropriate nor permissible for two Departments of a State or the Union of India to fight litigation in a court of law.
Thus direct that the revisionist and the Trade Tax Department should sort out the dispute involved in the present revisions through Secretary Level Committee at the earliest in view of abovementioned G. O. dated January 16, 1991. Until final decision taken by the Committee, the recovery proceedings shall remain stayed pertaining to the present revision
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2009 (9) TMI 891
Issues: Appeal against order of Sales Tax Tribunal dismissed as barred by limitation.
Analysis:
The petitioners approached the High Court against an order of the Sales Tax Tribunal dismissing their appeal as time-barred. The petitioners argued that they were served with best judgment orders on April 7, 2003, but due to unforeseen circumstances of being admitted to the hospital and kept in the ICU ward on April 12, 2003, they lost sight of the orders. The business had been closed down in 2000, and the other partner, the son of the petitioner residing in England, had not taken any steps for filing an appeal. The petitioner only became aware of the non-filing of the appeal when informed of an order of attachment by the sales tax authority during a no objection certificate application process. The High Court, after considering the facts and circumstances, found that remanding the matter to the appellate Tribunals would not serve any purpose. The Court held that the petitioner had shown sufficient cause for the delay and decided to set aside the orders of the appellate authorities and assessing officer, restoring the matter to the file of the assessing officer for further proceedings.
The High Court set aside various orders, including those of the Tribunal, rectification orders, first appellate authority, and ex parte assessment orders for certain assessment years. The matter was restored to the assessing officer's file, with the petitioner required to pay costs to the respondent within a specified time frame. The petitioner was directed to appear before the assessing authority on a designated date to proceed with the matter, with a strict timeline for completing the proceedings. The Court clarified that the order of attachment would continue until the final order by the assessing officer and recovery of any dues, if applicable. Additionally, the assessing officer was instructed to proceed with the proceedings without considering any time-limit under the relevant sales tax Acts, as agreed upon by both parties due to the peculiar circumstances of the case. The judgment made the rule absolute accordingly, providing a detailed roadmap for the further handling of the case.
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