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2011 (10) TMI 563
Issues: Appeal challenging order of Additional Commissioner of Commercial Taxes, contravention of provisions of section 53(2) of Karnataka Value Added Tax Act, 2003, imposition of penalty on assessee.
Summary:
1. The assessee appealed against the order setting aside the first appellate authority's decision and restoring the check-post officer's order.
2. The incident involved a vehicle carrying 24 carton boxes without proper documents, leading to suspicion of tax evasion.
3. Physical verification revealed a bill hidden in one box, leading to a penalty proposal of Rs. 1,73,880.
4. The check-post officer imposed the penalty after objections were considered.
5. The Joint Commissioner found no tax evasion intent and set aside the penalty order.
6. The Additional Commissioner initiated suo motu proceedings and upheld the penalty due to non-tendering of documents as per section 53(2).
7. Assessee argued against penalty imposition, citing compliance with CST and presence of documents during checking.
8. The Government Advocate supported the penalty imposition.
9. Section 53 mandates carrying prescribed documents with goods during transportation.
10. Revisional authority justified penalty imposition for non-compliance with section 53(2) and evasion attempt.
11. The court partially allowed the appeal, upholding penalty but restricting it to the actual value of goods as per the bill.
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2011 (10) TMI 562
Issues:
1. Writ petitions filed seeking mandamus for refund of disputed tax amounts during pending appeals.
2. Failure of the assessing authority to refund the tax amounts and the entitlement to interest.
3. Interpretation of statutory provisions regarding the obligation to refund tax amounts.
4. Application of principles of delay and laches in filing writ petitions for refund.
Analysis:
1. The writ petitions were filed by the petitioner, a registered dealer, seeking a writ of mandamus for the refund of disputed tax amounts paid during the pendency of appeals for various assessment years. The petitioner contended that the assessing authority failed to pass consequential orders within the stipulated time after remand by the appellate authority, resulting in the non-refund of the tax amounts. The court noted that while the petitioner's claim for refund was justified due to the assessing authority's default, substantial arrears of tax were still due from the petitioner.
2. The petitioner argued that under section 33B of the APGST Act, the assessing authority had a statutory obligation to refund the amount due to the assessee and claimed interest on the refund amount. Citing a previous case, the petitioner sought interest at 12% per annum on the unrecovered tax amounts. However, the court deliberated on whether the petitioner could maintain the writ petitions for refund and interest after a significant lapse of time, ultimately concluding that discretionary relief in the form of mandamus was not warranted in this case.
3. The court analyzed the statutory provisions regarding the obligation to refund tax amounts, emphasizing the phrase "any amount becomes due to the assessee" in section 33B of the APGST Act. Drawing parallels from a Kerala Revenue Recovery Act case, the court highlighted that a claim that is time-barred cannot be considered an amount due for recovery. The court further referenced a case involving the A.P. State Financial Corporation, where recovery proceedings were challenged based on limitation grounds, reinforcing the principle that recovery actions cannot be pursued for amounts barred by limitation.
4. Regarding the delay and laches in filing the writ petitions for refund, the court noted a significant delay in approaching the assessing officer or the court. Citing legal precedent, the court held that the petitioner's cause of action should have arisen promptly after the expiry of the stipulated period for making representations. Ultimately, the court deemed the writ petitions as barred by delay and laches, emphasizing that cases involving refund of tax amounts carry larger public interest implications. Consequently, the court dismissed the writ petitions, highlighting the importance of public interest and the discretion of the court in such matters.
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2011 (10) TMI 561
Issues Involved:
1. Entitlement to purchase coal at a reduced tax rate.
2. Legality of the communication directing the payment of higher tax.
3. Claim for refund of excess tax paid.
4. Application of the principle of unjust enrichment.
Issue-wise Detailed Analysis:
1. Entitlement to Purchase Coal at a Reduced Tax Rate:
The petitioner, a public limited company engaged in the manufacture of various products, was granted a recognition certificate under section 4B(2) of the U.P. Trade Tax Act. This certificate entitled the petitioner to purchase coal at a reduced tax rate of two percent instead of the standard four percent. The petitioner used the coal to generate electricity in a captive power plant, which was entirely consumed in its manufacturing process.
2. Legality of the Communication Directing the Payment of Higher Tax:
In June 2003, the Deputy Commissioner, Commercial Tax, issued a letter directing the seller to realize trade tax at the rate of four percent due to amendments in the Trade Tax Act. The petitioner challenged this directive through a writ petition, seeking a writ of certiorari to quash the communication and prohibit the respondent from charging tax in excess of two percent.
3. Claim for Refund of Excess Tax Paid:
The petitioner also sought a refund for the excess tax paid (two percent over the entitled rate) on coal purchases up to December 31, 2007. The enforcement of the U.P. Value Added Tax Act, 2008, confined the relief sought to the period before this date. The respondents did not deny the petitioner's entitlement to the reduced tax rate under the recognition certificate but argued that the certificate was for manufacturing aluminum, not electricity.
4. Application of the Principle of Unjust Enrichment:
The respondents contended that the petitioner should have claimed the refund during assessments or under section 29A(3) of the U.P. Trade Tax Act. They argued that the petitioner had passed the burden of the four percent trade tax onto consumers, invoking the principle of unjust enrichment. The petitioner failed to provide evidence that the trade tax was not included in the price of finished products.
The respondents relied on the Supreme Court's decision in Mafatlal Industries Ltd. v. Union of India, which established that claims for refunds cannot be entertained if the tax burden has been passed onto consumers, except where the tax is unconstitutional. The petitioner argued that taxes on captive consumption for manufacturing are exceptions to this principle, citing Bhadrachalam Paperboards Ltd. v. Government of Andhra Pradesh and Dhampur Sugar Mills v. State of U.P., where refunds were allowed for taxes on raw materials used in manufacturing.
However, the respondents countered with the Supreme Court's decision in Union of India v. Solar Pesticides Pvt. Ltd., which extended the principle of unjust enrichment to captive consumption. This was further supported by Commissioner of Customs, Chennai v. Borax India Ltd. and State of Maharashtra v. Swanstone Multiplex Cinema (P) Ltd., which upheld the application of unjust enrichment in similar contexts.
The court concluded that the petitioner did not provide sufficient pleadings or evidence to rebut the presumption that the tax burden was passed onto consumers. Consequently, the court dismissed the writ petition, denying the refund on the grounds of unjust enrichment.
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2011 (10) TMI 560
Issues:
1. Legality of remand order by Deputy Commissioner (Appeals)
2. Compliance with directions in remand orders
3. Authority of Tax Board to quash remand orders
4. Powers of assessing authority in conducting enquiries
5. Justifiability of repeated remands in assessment proceedings
Analysis:
Issue 1: Legality of remand order by Deputy Commissioner (Appeals)
The Revenue filed revision petitions against the Tax Board's order quashing the remand order by the Deputy Commissioner (Appeals). The case involved assessments and remands related to a partnership firm for the assessment year 1994-95. The Deputy Commissioner (Appeals) remanded the case back to the assessing authority twice, citing non-compliance with directions in the earlier remand order. The court held that the second remand was not illegal under Section 84(7) of the Act, empowering the appellate authority to remand assessment proceedings for further enquiry.
Issue 2: Compliance with directions in remand orders
The court noted that the assessing authority failed to conduct a proper enquiry against the real partners of the firm as directed in the remand orders. The Deputy Commissioner (Appeals) found the earlier remand order was not followed in letter and spirit, leading to the second remand. The court emphasized the importance of complying with remand directions to ensure a thorough assessment process.
Issue 3: Authority of Tax Board to quash remand orders
The Tax Board quashed the remand order by the Deputy Commissioner (Appeals), stating that repeated remands were not justified. However, the court held that the Tax Board erred in quashing the remand order, as there was no legal prohibition against a second remand under the Act. The court emphasized the powers of the Deputy Commissioner (Appeals) to direct remands for further enquiry.
Issue 4: Powers of assessing authority in conducting enquiries
The court highlighted the assessing authority's powers, including compelling witness attendance under the Code of Civil Procedure. It emphasized the authority's responsibility to conduct a thorough and timely enquiry, ensuring the assessment process is fair and comprehensive.
Issue 5: Justifiability of repeated remands in assessment proceedings
While acknowledging the complex nature of enquiries involving real owners/partners of a benami concern, the court emphasized that enquiries should not be endless or half-hearted. The court directed the assessing authority to conduct a proper enquiry in compliance with the remand order within a specified timeframe, ensuring a fair and efficient assessment process.
In conclusion, the court allowed the Revenue's revision petitions, setting aside the Tax Board's order and directing the assessing authority to conduct a fresh assessment in compliance with the remand order.
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2011 (10) TMI 559
Issues:
1. Interpretation of registration certificate under Central Sales Tax Act regarding shrink wrapping film.
2. Imposition of penalty under section 10A of the Central Sales Tax Act.
Interpretation of Registration Certificate:
The case involved a dispute regarding the interpretation of a registration certificate under the Central Sales Tax Act, specifically concerning the inclusion of shrink wrapping film as a permissible item for concessional tax rates. The court noted that the registration certificate listed various packing materials that could be purchased at concessional rates, including plastic packing and wrapper. The assessee, engaged in manufacturing glass bottles, used shrink wrapping film as a form of plastic packing for their products. The court determined that shrink wrapping film fell under the broad definition of "wrapper," as it served the purpose of protective packaging for merchandise, as per the Concise Oxford English Dictionary. The Tribunal also considered a sample provided by the assessee, confirming that shrink wrapping film was indeed used as a wrapper for the glass bottles.
Imposition of Penalty under Section 10A:
The assessing authority had initiated penalty proceedings under section 10A of the Central Sales Tax Act, alleging that the assessee had wrongly used form C to purchase shrink wrapping film at concessional tax rates. However, the court found that there was no misrepresentation or fraud on the part of the assessee. It highlighted that the assessee had declared its intention to purchase shrink wrapping film under form C, which was accepted by the Department through the issuance of the form. The court emphasized that the absence of mens rea and any misrepresentation precluded the imposition of a penalty under section 10A. Consequently, the Tribunal's decision to set aside the penalty imposed by the assessing authority and affirmed by the appellate authority was deemed justified.
Conclusion:
In conclusion, the High Court dismissed the revisions, upholding the Tribunal's decision. It found that the Tribunal correctly interpreted the registration certificate to include shrink wrapping film as a permissible item under form C. Additionally, the court ruled that the imposition of a penalty under section 10A was unwarranted due to the absence of mens rea and any misrepresentation by the assessee. Therefore, the Tribunal's decision to quash the penalty and uphold the assessee's position was upheld based on the legal principles governing the case.
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2011 (10) TMI 558
Issues:
Challenging reassessment order dated March 31, 2011; Consideration of objections raised by the petitioner before passing the impugned order.
Analysis:
The petitioner, a private limited company engaged in real estate development, promotion, and construction, challenged a reassessment order for the assessment year 2000-01, reporting a total and taxable turnover. The petitioner contended that despite filing objections, the impugned order was passed solely based on the report of the enforcement wing, without considering their objections. The petitioner highlighted previous court directions emphasizing the need for the authority to pass orders uninfluenced by enforcement observations.
The Government Advocate argued that the objections raised by the petitioner were indeed considered before passing the impugned order. However, the court noted that the impugned order merely mentioned that the objections were considered without providing reasons for rejecting them. The court emphasized that merely stating that objections were considered does not equate to actually considering them, as it would render the process a mere formality. Consequently, the court accepted the petitioner's argument regarding the non-consideration of objections.
Another contention by the Government Advocate was that the petitioner did not appear before the officer concerned despite opportunities given. However, the court found this argument flawed as there was no indication that the petitioner was directed to appear. The court emphasized that when reassessment notices are issued, objections must be considered, and the lack of a directive for the petitioner to appear weakens the Government Advocate's argument. Therefore, the court accepted the petitioner's argument and set aside the impugned order, remitting the matter back to the authority to pass an order after duly considering the objections and providing an opportunity for a personal hearing if necessary. The writ petition was disposed of with no costs incurred.
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2011 (10) TMI 557
Issues:
1. Validity of order passed by Commercial Tax Tribunal for the assessment year 2008-09 under U.P. Trade Tax Act and Central Sales Tax Act.
2. Acceptance of forms C and F beyond the stipulated time under rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957.
3. Imposition of tax liability due to non-acceptance of forms C and F and proof of export.
4. Grant of stay on the disputed tax amount by Additional Commissioner (Appeals) and Tribunal.
Analysis:
1. The revisionist challenged the Commercial Tax Tribunal's order dated October 12, 2011. The revisionist is a public limited company engaged in manufacturing motor vehicles. During the assessment year 2008-09, certain stock transfers were made to branch offices and consignment agents outside U.P., requiring forms F under the Central Sales Tax Act. The revisionist faced difficulties obtaining forms C and F within the stipulated time. The Commissioner of Trade Tax had issued circulars allowing time extensions for filing forms with reasonable grounds. The assessing authority treated the stock transfer as Central sales and imposed a substantial tax liability due to non-filing of forms within time.
2. The revisionist contended that the forms were not filed within time, but an application for extension was submitted. The assessing authority did not consider this application and imposed a significant tax demand. The revisionist emphasized that the Act and Rules allow for filing forms beyond the prescribed time with valid reasons. Citing precedents, the revisionist argued for acceptance of forms beyond the deadline. The standing counsel defended the order, stating the revisionist failed to submit the required forms within the specified period.
3. The Tribunal partially allowed the revisionist's appeal by granting further stay on the disputed tax amount. The revisionist sought more relief, citing provisions allowing for filing forms beyond the deadline with sufficient cause. The Tribunal modified its order, directing the revisionist to deposit a portion of the demanded tax by a specified date to keep the majority of the tax demand in abeyance pending appeal. The revisionist was also required to provide security for the stayed amount within a set timeframe.
4. Ultimately, the trade tax revision was partly allowed, instructing the first appellate authority to decide on the appeal by a specified date. The judgment balanced the interests of the revisionist and the tax authorities, providing a framework for addressing the tax liability issue while ensuring due process and compliance with legal provisions.
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2011 (10) TMI 556
Issues:
Detention of vehicle at unified check gate on grounds of illegal and arbitrary detention, compliance with Orissa Value Added Tax Act, justification for detaining the vehicle, involvement of interest in the case, false declaration of goods, collusion between transporter and consignee, interpretation of taxation norms, imposition of penalty and tax under OVAT Act.
Detailed Analysis:
1. Detention of Vehicle:
The writ petition was filed to direct the release of a detained vehicle on the basis that the detention was deemed illegal and arbitrary. The petitioner, a transporter, had carried goods for a consignee, but discrepancies arose during verification at a check post regarding the nature of the goods being transported. The petitioner contended that all necessary documents were provided as required by the Orissa Value Added Tax Act, and no offense had been committed under the Act.
2. Compliance with OVAT Act:
The transporter argued that he had fulfilled all obligations under the OVAT Act by providing the requisite documents and information during verification. It was highlighted that no notice alleging an offense had been issued to the transporter under the relevant provisions of the Act. The petitioner faced financial losses due to the vehicle's detention without any fault on his part.
3. Justification for Detention:
The Revenue, represented by learned standing counsel, supported the detention of the vehicle, asserting that the documents provided were found to be false and forged. The opposing parties contended that the goods declared as scrap spring patti leaf were actually auto parts, leading to the imposition of tax and penalty under the OVAT Act and the Orissa Entry Tax Act.
4. Involvement of Interest in the Case:
The court examined whether the transporter had taken steps to be impleaded as a party in the case under section 74(6) of the OVAT Act to safeguard his interest. The petitioner's failure to follow this procedure was noted, indicating a lack of proactive involvement in the legal proceedings concerning the detained vehicle.
5. False Declaration of Goods and Collusion:
The documents attached to the petition indicated that the goods were declared as scrap spring patti leaf, but subsequent investigations revealed discrepancies in the description of the goods. The revisional authority's order pointed out false declarations across various documents, suggesting collusion between the transporter and the consignee, leading to the imposition of tax and penalty for the vehicle's release.
6. Interpretation of Taxation Norms:
Citing the Supreme Court's decision in A.B.C. (India) Ltd. v. State of Assam, the court emphasized the preventive measures against tax evasion, highlighting the transporter's direct involvement in transactions and the importance of interpreting tax statutes broadly to prevent tax evasion schemes.
7. Imposition of Penalty and Tax under OVAT Act:
Considering the findings and legal provisions, the court declined to issue a writ for the immediate release of the vehicle without the realization of the imposed penalty and tax under the OVAT Act. The court directed the release of the vehicle upon payment of the demanded amount, emphasizing compliance with the statutory requirements.
In conclusion, the writ petition was dismissed with the direction for the release of the vehicle upon the payment of the tax and penalty demanded under the OVAT Act, highlighting the importance of adherence to legal procedures and tax obligations in commercial transactions.
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2011 (10) TMI 555
Issues involved: Interpretation of provisions u/s 2(1)(a) and 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, 1970 before and after the amendment by Act 31 of 1996.
Summary:
The High Court of Madras addressed the issue of bifurcation and application of unamended provisions u/s 2(1)(a) and amended provisions u/s 2(1)(aa) of the Sales Tax Act. The Division Bench's judgment clarified that for the period up to July 31, 1996, the additional tax liability should be calculated based on the taxable turnover. The court emphasized that the calculation of additional sales tax should consider the turnover up to July 31, 1996, and not beyond, as per the statutory provisions applicable at that time. The assessing authority's calculation of additional sales tax at two percent for the entire year was deemed incorrect since the turnover did not exceed one hundred crores during that financial year.
The court set aside the orders of the Tribunal and the appellate authority, directing the assessing officer to recalculate the tax based on the turnover up to July 31, 1996, at a rate of 1.5 percent. Additionally, the court instructed the assessing authority to ensure revised assessment orders are passed before the deadline of August 10, 2010, considering the Samadhan Scheme in force until August 15, 2010.
In conclusion, the matter was remitted back to the assessing officer for fresh assessment in accordance with the Division Bench judgment, and the tax case (revision) was disposed of without any costs being awarded.
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2011 (10) TMI 554
Demand and penalty - part of the duty during the course of investigation and paid the balance amount of duty and 25% of total duty amount of proposed demand as penalty within the time limit specified under proviso to Section 11A(2) - Held that:- During the adjudication proceedings, the firm deposited the amount claimed and that the Additional Commissioner returned a finding that the proceedings against the firm stands concluded under proviso to sub-section (2) of Section 11A of the Central Excise Act, 1944 but imposed a penalty of ₹ 2 lacs each individually and separately on the partners of the firm. The said order was set aside by the Commissioner (Appeals) on 20-3-2009. It was held that the Rule 26 of the Rules is a penal provision and not the one under which show cause notice can be issued. Since the show cause notice under Section 11A(1) of the Act had been issued and proceedings stand concluded against firm, therefore, penalty proceedings under Rule 26 of the Rules cannot be continued against partners. The said order was affirmed in appeal by the Tribunal as well vide order dated 5-1-2011.
Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an independent provision but has to be read with Section 11A of the Act. The firm has satisfied the due of the Revenue, therefore, the imposition of penalty under Rule 26 of the Rules are not justified. - Decided against Revenue.
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2011 (10) TMI 553
Denial of refund claim - Whether the refund of excess debit of credit equal to excise duty paid on spares and components are relevant for the purpose of Section 11B of the Central Excise Act, 1944 - Held that:- Claim for refund of duty can be made in terms of Section 11B of the Central Excise Act, 1944. By that provision, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed. The application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person.
The claim for refund would arise only if the incidence of duty had not been passed on. As the onus is on the assessee to prove that the incidence of duty had not been passed on to the customers, the question of claim of refund could not be entertained. For that reason, both the Commissioner of Central Excise (Appeals) and the CESTAT came to the conclusion that the application under Section 11B is to be rejected and they rightly rejected the application. The finding of the Commissioner of Central Excise (Appeals) that in view of the fact that the assessee was unable to prove that the duty incidence had not been passed on, he ordered the sanction of the claim and consequently credited the same to the Consumer Welfare Fund. This finding of the Appellate Authority was confirmed by the CESTAT. As the assessee has not established the right to refund of claim in terms of Section 11B, the substantial questions of law raised by the assessee require no consideration and for that reason, the appeal must fail. Decided against assessee.
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2011 (10) TMI 552
Classification of goods - Availment of CENVAT Credit - violation of Rules 57A, 57AA and 57AB of Central Excise Rules, 1944 - Held that:- commissioner has rightly found that the classification of the manufacturing goods cannot be gone into by the adjudicating authority as such classification falls within the exclusive domain of the authority with whose jurisdiction, the supplier is situated. There is no dispute that the supplier has paid the duty at the rate of 16% in terms of classification under Chapter Heading 5801.31, though, another supplier supplied the goods under Chapter Heading 5801.32. Since the excise duty was paid by the supplier in bona fide understanding of the classification and thus it is a duty paid under Clause (1) of Rule 57AB of the Rules and the assessee has rightly availed Cenvat credit. No substantial question of law arises - Decided against Revenue.
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2011 (10) TMI 551
Whether the Deputy Excise and Taxation Commissioner exercising the powers of appeal under section 20(1)(a) is an authority subordinate to Commissioner for the purposes of section 21(1) of the Act - Held that:- Present references are academic in nature as admittedly the State is in appeal against the order passed by the Deputy Excise and Taxation Commissioner on August 25, 2003. Since the appeal is pending at the instance of the State, the question whether the Additional Excise and Taxation Commissioner could exercise suo motu revisional power under section 21 of the Act to interfere with the order passed by the Deputy Excise and Taxation Commissioner is academic in nature as all question at the instance of the State can be decided on the merits by the Tribunal. The scope of the revisional jurisdiction need not be gone into the present set of cases when the order passed by the Deputy Excise and Taxation Commissioner has been challenged in appeal as well. Matter remanded back - Decided in favour of Revenue.
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2011 (10) TMI 550
Imposition of tax - failure to establish that opening stock of goods shown in the trading account was of sales tax paid goods - Held that:- Cursory manner in which the learned Tax Board has accepted the trading account along with tax-paid bills produced by the assessee, does not appear to be justified since the Revenue lost its opportunity to cross-examine such evidence before the higher appellate forum of Tax Board. Particularly, when the Tax Board was aware of the matter that proceedings for 1998-99 on the issue of ₹ 1,79,812 demand was already remanded to the assessing authority who was seized of the said matter, the learned Tax Board in all fairness ought to have remanded the entire proceedings to the assessing authority for verification of documents and evidence produced before the Tax Board. Even though such documents and evidence might have been produced before the assessing authority at the time of original assessment order and, so also, before the Deputy Commissioner (Appeals), nonetheless, since the lower authorities did not accept this version of the assessee, without allowing an opportunity to cross examine to the Revenue such evidence the same on the face of it could not straightway be accepted by the learned Tax Board as it was a final fact finding body under the Act. matter remanded back - Decided in favour of assessee.
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2011 (10) TMI 549
Whether the Tribunal has legally erred in having applied Explanation to section 12(3) of the Tamil Nadu General Sales Tax Act, 1959, which provision came into force only from April 1, 1996 whereas the assessment year is 1995-96 - Held that:- Tribunal considered the Explanation clause inserted to section 12(3)(b) of the TNGST Act, 1959 which excludes certain kinds of turnover - Thus, the Tribunal directed the assessing authority to levy penalty on the actually suppressed turnover of ₹ 1,09,956 and deleted the penalty levied on the turnover estimated by the assessing authority on further additions - no reason to interfere with the order of the Sales Tax Appellate Tribunal - Decided against Revenue.
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2011 (10) TMI 548
Penalty under section 12(3)(b) - Whether, in the facts and circumstances of the case, the Tribunal is right in deleting the penalty imposed under section 12(3)(b) as additional sales tax components - Held that:- The power to impose penalty in the light of the said provision has been admittedly given only from the year 1997. On the facts of the present case, the assessment relates to 1995-96. The said issue has been covered by the judgment of this court in Eastern Electrics v. State of Tamil Nadu and Chakrapani Oil & Rice Mills v. State of Tamil Nadu [2008 (12) TMI 679 - MADRAS HIGH COURT] in favour of the assessee holding that in respect of the period before 1997, there is no power to impose penalty - Decided against Revenue.
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2011 (10) TMI 547
Penalty under section 12(3)(b) - Whether, on the facts and circumstances of the case, the Appellate Tribunal is right in law in deleting the penalty under section 12(3)(b) especially, when the Tribunal itself had held that there is stock variation - Held that:- This is a case, where, the Tribunal applied its mind to set aside the penalty and it is not as if the Tribunal has entirely ignored the entire transaction. Further, we are of the view that the Sales Tax Appellate Tribunal has adopted correct method to arrive at the conclusion to set aside the penalty. Therefore, no substantial question of law arise for consideration for admitting the tax case revision. Accordingly, we have no hesitation in rejecting the tax case revision - Decided against Revenue.
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2011 (10) TMI 546
Waiver of pre deposit - petitioner was directed to make part payment of the tax liability - Held that:- Tribunal has duly taken note of the fact that for the assessment year 2007-08 there is a refund to the extent of ₹ 27.74 lacs. The Tribunal, however, had due regard to the total tax liability for the assessment years 2005-06, 2006-07 and 2007-08 which is about ₹ 1.43 crores. Hence, even after taking into account a refund of ₹ 27.74 lacs for the assessment year 2007-08, the direction for deposit of an amount of ₹ 9 lacs for the remaining two years cannot be regarded as arbitrary or contrary to law. The submission which the petitioner has on merits is that the petitioner is entitled to a set-off and that the provisions contained in section 48(2) read with section 48(5) would not be attracted - However, time period to make deposit is extended - Decided partly in favour of assessee.
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2011 (10) TMI 545
The Madras High Court granted interim stay in M.P. No. 1 of 2011 in CMA No. 3139 of 2011 filed by Universal Abrasives & Minerals (P) Ltd. against the CESTAT Final Order 772/2010, dated 16-6-2010. The interim stay was specifically for the penalty.
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2011 (10) TMI 544
Issues involved: Appeal by Revenue against CIT(A) order for assessment year 2001-02 regarding deduction u/s 35(1)(iv) of the Income Tax Act.
Summary:
The Revenue contended that the CIT(A) erred in allowing the deduction under S.35(1)(iv) based on the Chairman's statement withdrawing the claim. They argued that the assessee was not engaged in genuine R&D work but only quality control. The assessee, on the other hand, maintained that the withdrawal statement did not apply to them as a separate legal entity and that they conducted R&D activities at their own factory premises. They provided evidence of expenditure on scientific research to support their claim. The Tribunal examined the sworn statement of the Chairman and found that the claim withdrawal was specific to certain group companies and not the assessee. The Tribunal also noted that the assessing officer did not refute the assessee's claim of conducting R&D at their factory premises. The Tribunal held that the nature of the assessee's business required continuous research and development, and previous assessments had accepted similar claims. Therefore, the Tribunal confirmed the CIT(A)'s decision in favor of the assessee, rejecting the Revenue's grounds of appeal.
In conclusion, the appeal by the Revenue was dismissed, and the order was pronounced on 14.10.2011.
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