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Showing 201 to 220 of 781 Records
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2009 (12) TMI 870
Grant of benefit of sales tax exemption under sub-rule (4)(a) of rule 28A - Held that:- As LLSC was obliged to consider the application of the petitioner for grant of exemption from sales tax with effect from the date of issuance of entitlement/exemption certificate when the bar of placing the petitioner's industry on the negative list has been removed. Accordingly it is held that the order passed by the LLSC dated October 28, 1994 (P10) and the order passed by the HLSC August 5, 1995 (P12) are unsustainable in the eyes of law and are liable to be set aside.
As a consequence of the aforesaid discussion the order passed by the LLSC dated October 28, 1994 (P10) and the order passed by the HLSC dated August 5, 1995 (P12) are hereby quashed. The matter is sent back to the LLSC to reconsider the claim of the petitioner by treating its application for grant of benefit of sales tax exemption under sub-rule (4)(a) of rule 28A by not treating the claim from the date of commercial production. The LLSC shall be at liberty to consider the claim of the petitioner from the date of application. The needful shall be done within a period of four months from the date of receipt of copy of this order.
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2009 (12) TMI 869
Whether the Designated Officer at ICC can impose any penalty under section 51(7)(b) of the Punjab Vat Act, 2005, for an offence committed (if any) under the Central Sales Tax Act, 1956?
Whether, after the goods are voluntarily reported at the ICC, before exit of the goods from Punjab State, the ICC authorities are authorised to make an enquiry regarding alleged evasion of tax, which is in the domain of the Assessing Authority where penalty under section 56 can be imposed, if any offence is committed?
Whether it could be said that there was an attempt to evade or avoid payment of tax by mere delayed movement of goods when the sale invoices/bills had been issued on March 26, 2007, goods were earmarked and goods receipts issued to the vehicles for their onward transmission to the consignees on the same date?
Held that:- There is nothing which prevented the assessee-company from maximizing the exhaustion of its exemption limit to pay tax by March 26, 2007 provided there were genuine purchase orders and goods available for sale. The authorities, merely on account of delayed movement of goods, in the face of the explanation put forth by the assessee, and in the absence of any material on record, in our considered opinion, cannot draw the only irresistible inference that there was an attempt to evade payment of tax. The assessing authority has based its finding of attempt to evade tax simply on the basis of its presumption and suspicion.
Therefore, the delayed movement of goods by itself is not sufficient to conclude that there was an attempt to evade payment of tax or the bills/sale invoices were ante-dated. Hence, the findings recorded by the Tribunal/authorities under the VAT Act are based on no evidence and are liable to be set aside. Decided in favour of assessee.
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2009 (12) TMI 868
Whether assessee are liable to pay tax under section 5(3)(ii) of the Kerala General Sales Tax Act, 1963 for the differential tax on purchase of various items used in the manufacture of ice-cream which was stock transferred to outside State for sale in other States?
Held that:- If goods are manufactured or packed for own consumption and not for sale, then still probably the industrial unit purchasing raw material or packing material for manufacture or packing of goods other than for sale will not be entitled to concessional rate. We, therefore, allow the revisions by reversing the orders of the Tribunal and that of the first appellate authority and direct the assessing officer to revise the assessment by cancelling the demand of differential tax under section 5(3)(ii) of the Act for the raw materials or packing materials purchased at concessional rate which are used in the manufacture or packing of goods for stock transfer.
The question to be considered is whether purchase from SSI unit by availing of concessional rate will be sufficient compliance of payment in terms of column 8 of the Fifth Schedule. Since none of the authorities have considered the scope of exemption claimed by the assessee with reference to documents, we set aside the orders of the Tribunal and that of the first appellate authority on this issue and remand the matter to the assessing officer for reconsideration after giving opportunity to the assessee. The sales tax revisions are allowed to the extent indicated above.
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2009 (12) TMI 867
Issues:
Levy of penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act based on figures from books of account, confirmation of penalty for claiming exemption in works contract, sustaining penalty without concrete findings on best judgment assessment.
Analysis:
The case involves a tax case revision against the Sales Tax Appellate Tribunal's order, addressing the levy of penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act. The petitioner, engaged in works contract business, reported the turnover for the assessment year 1993-94 and claimed exemption on works contract turnover due to the absence of a charging section at the time. The petitioner used materials purchased interstate and locally for works contract without remitting tax. The charging provision for works contract tax was retroactively included in the Act. The assessing officer taxed a portion of the turnover and levied a penalty under section 12(3)(b) of the Act.
The key issue is whether the penalty under section 12(3)(b) can be imposed in this case. Referring to a previous judgment, the court highlighted that if assessments are based on filed returns and maintained accounts, not estimates, they fall under section 12(1) of the Act, excluding the applicability of penal provisions under section 12(3). The Division Bench's ruling in a similar case emphasized that penalties for the relevant assessment years were not justified if assessments were not based on estimates but on actual figures provided by the assessee.
In line with the Division Bench's decision, the court set aside the penalty imposed by the assessing officer and upheld by the Tribunal. The judgment concluded by setting aside the tax case revision without imposing any costs. This case serves as a precedent for similar situations where penalties under section 12(3)(b) are challenged based on assessments made from filed returns and maintained accounts rather than estimates.
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2009 (12) TMI 866
Whether the levy of additional sales tax at one per cent so as to bring the rate of tax to four per cent in respect of inter-State sale of cotton during the assessment year 1996-97 is correct when the rate of tax under the local Act is only three per cent?
Held that:- The section 8(2A) categorically provides that if the goods are exempted under the local Act, generally the tax under the Central Sales Tax Act is nil. If the local tax is less than four per cent, then the tax under the Central Sales Tax Act is also at a lower rate, as provided under the local Act. Incidentally, the Division Bench of this court in the case of Sree Ayyanar Spinning and Weaving Mills Limited v. State of Tamil Nadu [1998 (2) TMI 558 - MADRAS HIGH COURT] has also stated that moreover, it was impermissible to add additional sales tax to the lower rate of levy made in the public interest, in respect of the goods, to which a notification had been framed under sub-section (5) of section 8 of the Act. When it is the law laid down in respect of the goods for which the notification has been issued under section 8(5) of the Act, there cannot be any levy of additional sales tax, as the section clearly states that the Central sales tax would be at a lower rate as that of the rate fixed in the local Sales Tax Act. W.P. dismissed.
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2009 (12) TMI 865
Installed production capacity of the petitioner's unit been fixed at 30,000 M.T. of vanaspati ghee per year
Held that:- Learned senior counsel for the petitioner submits that the composition amount should have been calculated treating the installed production capacity as 18,750 M.T. per year and not by 30,000 M.T. We find that the said argument was raised in reply to the show-cause notice but has not been addressed by respondent No. 2 while passing the impugned order, therefore, the impugned order is vitiated.
The Commissioner has not considered the capacity of other parts of the unit nor there appears to be any indication thereof in the survey report done by the Deputy Commissioner. As against this, the petitioner has filed various documents which cannot be said to be wholly irrelevant or manufactured. The plant was got installed through Alfa Lavel India Limited and Mech Process Engineers P. Ltd. They supplied the plant and machineries on turnkey basis. The agreements dated July 4, 1991 and July 2, 1991, with these suppliers are on the record and they prima facie do support the case of the petitioner. Thus the matter requires reconsideration by respondent No. 2, in the light of the observations made. W.P. allowed by way of remand.
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2009 (12) TMI 864
Whether short payment of tax by the dealers along with monthly returns either on account of non-inclusion of turnover or failure to return turnover at the full rate of tax attracts interest under section 23(3A) of the Act?
Held that:- We overrule the judgment in P.K. Damodaran's case [2003 (2) TMI 452 - KERALA HIGH COURT] above referred to and allow the revision cases by reversing the orders of the Tribunal and by restoring the interest levied under section 23(3A). However, counsel appearing for the respondents submitted that but for the favourable orders issued by the Tribunal, though now found to be wrong by this court, the respondents should have settled the liability towards interest under the Amnesty Scheme, that was prevalent up to March 31, 2009. We find force in this contention because had the Tribunal dismissed the appeals probably the respondents would have settled the liability under the Amnesty Scheme.
We therefore direct the assessing officer to grant amnesty benefit to the respondents reducing the interest in terms of the scheme and allow settlement of liability by demanding further interest at one per cent per month for the amnesty amount payable from the last date for payment under the amnesty scheme till date of payment.
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2009 (12) TMI 863
Whether the commodity in question, which is in the nature of by-product of "maize" is subjected to payment of sales tax under the Sales Tax Acts and if so, under which entry and if they are exempt from payment of sales tax then under which entry?
Held that:- When there is a specific entry dealing with exemption then in such event, the general entry dealing with the commodity would not be attracted. Its application gets excluded.
The petition succeeds and is allowed. Impugned orders (annexures P17A to 17E) passed by the Upper Commissioner are quashed by issuance of writ of certiorari. As a result thereof, the assessing officer is directed to pass fresh assessment orders for the period in question treating the two commodities to be exempt from payment of sales tax under Central/State sales tax laws during the period under consideration.
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2009 (12) TMI 862
Tribunal granting the relief in favour of the assessee in respect of the turnover of ₹ 4,41,68,207 as consignment sale and deleting the penalty in a sum of ₹ 4,41,682 in respect of the assessment year 1992-93 challenged
Held that:- It is on record that the assessee filed a register in form 16 showing the particulars of goods consigned on each occasion agent-wise.
The fact that on the strength of the bills the consignor's bankers are willing to trust the consignor and extend to him credit on the strength of the bills produced by him to the bank will have no bearing on the question as to whether the sale effected is a consignment sale or local sale. For the purpose of determining the character of the sale, the ability of the consignor to obtain credit from its bankers on the strength of the bills can have no impact. The documents produced before the appellate authority were examined and accepted as genuine and cover all the transactions for the year claimed as consignment sale. They cannot cease to be consignment sales merely because the authorisation letter has not been produced or merely because the agreement does not contain the clause with regard to sales return. Therefore, grounds taken by the Revenue to contend that the order of the Tribunal is erroneous cannot be accepted as valid grounds nor can be accepted as grounds based on the statutory requirements. W.P. dismissed.
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2009 (12) TMI 861
Whether the members of the club are jointly owner of the property and all the goods of the club belong to them as trustee?
Held that:- After the enactment of corresponding amendment to the State Sales Tax Act, it is no longer open to any club, whether incorporated or unincorporated, whether proprietary or non-proprietary, to contend that the delivery or supply of food articles, etc., to its members is not a sale and that tax is not leviable on such sales.
In the light of the above discussion and by considering the totality of the facts and circumstances of the case, we are of the view that the petitioner during the assessment years under consideration was subject to Trade Tax Act and impugned notices were rightly issued to the petitioner by the Department. Appeal dismissed.
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2009 (12) TMI 860
Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to reject the book version and make best judgment assessment on the basis of the unnumbered bills furnished by the complainant to the Trade Tax Officer (S.I.B) alleging them to relate to the revisionist without supplying the copies of such bills to the revisionist whereas the revisionist had categorically denied issuing any such bills and had specifically requested to supply copies of these bills or to show these bills to him?
Whether, on the facts and circumstances of the case, the lower authorities were legally justified to deny the revisionist an opportunity of cross-examining the complainant who had furnished the unnumbered bills to the Trade Tax Officer (S.I.B) in gross violation of the principles of natural justice?
Held that:- It is established principle of law that the assessment is not a question of law but is a question of fact and as per established proposition of law this court while exercising of power of judicial review under section 11 of the Trade Tax Act, 1948 can interfere in the order passed by the Tribunal only if the question of law is involved as in the present case no question of law is involved rather order passed by the Tribunal is concluded by findings of fact. So there is not need to interfere in the matter in question while exercising the revisional power.
In these circumstances, the assessee cannot take a plea that no opportunity has been given to him to establish his case. In view of the abovesaid fact, the order of the Tribunal which is under challenge in the present revision cannot be assailed on the ground that no opportunity of hearing was given to the revisionist and the order which is passed by the Tribunal is in violation of principles of natural justice. Revision dismissed.
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2009 (12) TMI 859
Issues involved:
Challenge to the assessment order on grounds of being void and backdated, Allegation of non-service of notice, Overwriting of the date of the order, Delay in sending demand notice, Assessment order exceeding the period of limitation, Allegation of fraud by the assessing officer.
Analysis:
1. Challenge to the assessment order:
The petitioner challenged the assessment order dated May 12, 2008, and the demand notice for the fourth quarter ending March 31, 2006, on the basis that the assessment was void and backdated. The petitioner argued that the order was backdated as no notices were given for the hearing on May 12, 2008, and there were anomalies in the process, indicating that the assessment was not conducted within the prescribed period of limitation.
2. Allegation of non-service of notice:
The petitioner contended that no notices were served for the hearing dated May 12, 2008, and that the assessment order was ex parte, indicating a lack of opportunity for the petitioner to be heard. The respondent failed to produce any evidence to prove that an order was passed on the adjourned date of April 23, 2008, further supporting the petitioner's claim.
3. Overwriting of the date of the order:
The petitioner highlighted discrepancies in the date of the order, suggesting that the date was overwritten, leading to confusion regarding the actual date of the assessment order. The analysis of the date and the circumstances surrounding it raised doubts about the authenticity and timeliness of the assessment process.
4. Delay in sending demand notice:
The delay in sending the demand notice, taking more than six months for processing and over 60 days for posting, was a crucial point of contention. The abnormal delays in sending the notice were not adequately explained, leading to suspicions regarding the timeliness and validity of the assessment order.
5. Assessment order exceeding the period of limitation:
The petitioner argued that the assessment order was made beyond the period of limitation, as evidenced by the delays in sending the demand notice and the anomalies in the process. Citing relevant legal precedents, the petitioner contended that the assessment order should be set aside due to being barred by limitation.
6. Allegation of fraud by the assessing officer:
The petitioner accused the assessing officer of practicing fraud by fabricating the date of the order. However, as fraud was not specifically asserted in the initial application, the tribunal could not examine this claim. The issue of fraud raised concerns about the integrity of the assessment process.
In conclusion, the tribunal allowed the application, setting aside the impugned assessment order and demand notice. The detailed analysis of each issue, including discrepancies in dates, delays in processing, and concerns regarding the period of limitation, supported the decision to invalidate the assessment order. The judgment emphasized the importance of procedural fairness and adherence to legal timelines in conducting assessments.
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2009 (12) TMI 858
Non consideration of documents - Held that:- The revisional authority, as the impugned order dated September 12, 2008 would reveal, though had acknowledged the presence of the documents furnished by the petitioner in support of its plea, did not at all apply its mind thereto to ascertain the relevance or the probative value thereof, vis-a-vis the legal presumption envisioned in section 46(15)(d) of the Act. Its decision to sustain the impugned assessment is clearly based on the comprehension that the said legal presumption is absolute in terms and does not admit of any evidence to the contrary to rebut the same. In the opinion of this court, this approach being apparently erroneous and illegal has vitiated the impugned order, the same being extinctive of the petitioner's right recognised by section 46(15)(d) of the Act.
In the above view of the matter, the impugned order dated September 12, 2008 is hereby interfered with and is thus set aside. The matter stands remitted to the Commissioner of Taxes, Assam, the revisional authority for a fresh decision in accordance with law and with particular reference to section 46(15)(d) of the Act. As the impugned order is determined to be transgressive of section 46(15)(d) of the Act, the plea against maintainability of the proceeding is not entertained. The petition is thus partly allowed.
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2009 (12) TMI 857
Whether the transactions effected by assessee are covered within section 6(2)(b) of the Central Sales Tax Act and not a local transaction, which is exigible to tax under the Tamil Nadu General Sales Tax Act?
Held that:- There is absolutely no material to take a different view than that of the Tribunal, so as to come to a conclusion that the movement of the goods has been broken at the end of the assessee and the assessee has subsequently sold the goods to the ultimate dealers in Tamil Nadu and as such the assessee is not entitled to the benefit of section 6(2) of the Act. This revisions are dismissed.
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2009 (12) TMI 856
Correction of application for registration for obtaining registration with retrospective effect - Held that:- In view of the registration obtained with effect from the date of making application, the respondent would be entitled to be treated as registered dealer from the date of commencement of business that is April 1, 2007 for the limited purposes of payment of presumptive taxes under section 6(5) or tax payable under compounded rate under section 8 because of the operation of clauses (a) and (b) to the proviso to section 16(2) of the Act. We also declare that dealers claiming benefit under the new provision will also be subject to the limitation contained in the second proviso to section 16(2) of Act.
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2009 (12) TMI 855
Issues:
1. Inclusion of commission received by the seller in the "sale price" under the West Bengal Sales Tax Act.
2. Exclusion of goods returned in the assessment years 2000-01 and 2001-02 for computation of gross turnover under rule 159 of the West Bengal Sales Tax Rules.
Analysis:
Issue 1: Inclusion of Commission in Sale Price
- The assessing officer added back the commission received by the dealer to the gross turnover, considering it as part of the sale price due to incentives given by the manufacturer. The appellate authority upheld this decision, stating that special discounts should be included in the sale price for taxation purposes.
- The petitioner contended that the commission was not treated in the profit and loss account and hence should not be considered part of the sale price. Citing various legal precedents, it was argued that compensatory discounts should not be included in the sale price.
- The Tribunal agreed with the petitioner, stating that commission on the purchase cannot be added to the sale price for determining taxable turnover. The sale price should only include the amount directly or indirectly payable to the dealer, as per the provisions of the West Bengal Sales Tax Act.
Issue 2: Exclusion of Returned Goods
- The assessing authority disallowed the deduction for goods returned by way of credit notes, stating they were not relevant to the stock-in-trade for the assessment year 2002-03 as they had been imported and sold in earlier years.
- The petitioner argued that under rule 159 of the West Bengal Sales Tax Rules, deduction should be allowed for goods returned during subsequent return periods, provided due tax was paid earlier. The assessing authority erred in not allowing the entire deduction as per the rule.
- The Tribunal agreed with the petitioner, stating that the assessing authority should reconsider the issue of goods returned in accordance with rule 159. The correctness of the computation of taxable turnover was also to be examined by the revisional authority.
Conclusion:
- The Tribunal partially allowed the application, reversing the decision to add back commission to the gross turnover and setting aside the disallowance of credit notes for returned goods. The revisional proceeding was remanded for further consideration following the provisions of rule 159 of the West Bengal Sales Tax Rules and ensuring the correctness of the taxable turnover computation.
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2009 (12) TMI 854
Whether the purchase of the cement by the petitioner-assessee for construction of resorts attracts the payment of Central sales tax?
Held that:- In the instant case we not only find that the show-cause notice has been issued on September 5, 2001 for which admittedly the assessee has not replied nor objected to at the first appellate stage. On the other hand the assessee has taken up the contention that penalty cannot be levied under section 10(d) of the CST Act which in fact is to be understood that the assessee was well aware as to under which provision of the Act the penalty is being levied. Hence, the assessee now cannot contend contrary to the grounds urged before the first appellate authority for assailing the order of the learned Tribunal.
In view of the above facts, the question of law raised in the petition memorandum has to be answered against the assessee and in favour of the Revenue. Accordingly the petition is dismissed.
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2009 (12) TMI 853
Whether the High court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court?
Held that:- The High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. Thus we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement. Appeal allowed.
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2009 (12) TMI 852
Issues Involved:
1. Disallowance of expenses for want of details.
2. Applicability of Rule 6D(i) and Rule 6D(ii) of Income-tax Rules.
3. Allowability of expenditure incurred by way of rent for housing provided to expatriate employees.
4. Addition of Rs.63,86,848/- for want of requisite invoices.
5. Inclusion of Rs.12,58,181/- as income representing tax paid by MRPL.
6. Taxability of profit in respect of offshore supply contract to MRPL.
7. Rejection of books of account and estimation of profit under Rule 10 of the I.T. Rules.
8. Tax rate applicable for computing the appellant's tax liability.
9. Levy of interest under Section 234B.
Detailed Analysis:
1. Disallowance of Expenses for Want of Details:
The Revenue's appeal included disallowances of Rs.9,53,664/- (20% of foreign currency spent), Rs.8,53,316/- (domestic traveling expenses), and Rs.24,75,847/- (traveling expenses outside India). The Tribunal dismissed the grounds related to domestic traveling expenses and Rule 6D as misconceived. For the foreign currency and traveling expenses outside India, the Tribunal followed its previous decision in ITA No. 4053/Mum/99, noting that the assessee had furnished reasonable particulars certified by Japanese and Indian auditors. Consequently, these grounds were dismissed.
2. Applicability of Rule 6D(i) and Rule 6D(ii):
The Tribunal confirmed that Rule 6D does not apply to expenses incurred outside India, even if they are for traveling expenses. This was consistent with the Tribunal's earlier view, leading to the dismissal of this ground.
3. Allowability of Expenditure Incurred by Way of Rent for Housing Provided to Expatriate Employees:
The Tribunal examined whether the accommodation provided was in the nature of a guest house under Section 37(4) and (5). The Tribunal agreed with the CIT(A)'s view that the accommodation was for employees on deputation, not guests, and thus Section 37(4) was not applicable. The Tribunal also rejected the argument that the Double Taxation Agreement with Japan would preclude disallowance under Section 37(5), affirming that domestic law governs such allowances.
4. Addition of Rs.63,86,848/- for Want of Requisite Invoices:
The Tribunal upheld the CIT(A)'s decision to allow the deduction based on circumstantial evidence, noting that the assessee had provided substantial documentation and that the payments were audited and made by cheque with TDS deducted. This ground was dismissed.
5. Inclusion of Rs.12,58,181/- as Income Representing Tax Paid by MRPL:
The Tribunal found that Section 10(6A) exempts tax paid by an Indian concern on behalf of a foreign company under specific agreements. The Tribunal dismissed the Revenue's argument that this exemption does not apply in cases of loss returns, affirming that such tax payments cannot be treated as income.
6. Taxability of Profit in Respect of Offshore Supply Contract to MRPL:
The Tribunal held that income from offshore supply contracts, executed and paid for outside India, does not accrue in India and thus cannot be taxed in India. This conclusion was based on the Supreme Court's decision in Ishikawajima-Harima Heavy Industries Co. Ltd. and other relevant case law. The Tribunal dismissed the Revenue's ground on this issue.
7. Rejection of Books of Account and Estimation of Profit Under Rule 10:
The Tribunal found that the AO's rejection of the books of account was arbitrary and uncalled for, as the assessee had consistently maintained and audited its accounts. The Tribunal also noted that the AO had no basis for estimating the profit at 20% and had not properly applied Rule 10. This ground was dismissed.
8. Tax Rate Applicable for Computing the Appellant's Tax Liability:
The Tribunal upheld the application of a 48% tax rate as per the Act, instead of the 35% claimed by the assessee under Article 24 of the India-Japan treaty, following the decision in Chohung Bank vs. DCIT. The assessee's appeal on this ground was dismissed.
9. Levy of Interest Under Section 234B:
The Tribunal found that no interest under Section 234B was chargeable, as the assessee's entire income was subject to TDS and the assessee had obtained a certificate for deduction at a lower rate. The Tribunal upheld the CIT(A)'s decision to delete the interest.
Conclusion:
The Tribunal dismissed the Revenue's appeals and upheld the CIT(A)'s decisions on all grounds. The assessee's appeal regarding the tax rate was also dismissed. The Tribunal's detailed analysis relied heavily on existing case law and the consistent application of legal principles, particularly concerning the treatment of offshore supply contracts and the applicability of domestic tax provisions in the context of international agreements.
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2009 (12) TMI 851
Supreme Court of India dismissed the special leave petition in the case. Justices S.H. Kapadia and H.L. Dattu heard the case.
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