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Showing 81 to 100 of 686 Records
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2009 (6) TMI 952
Entertain and register the sale certificate issued in favour of the petitioner-bank in respect of the property - Held that:- In the present case, as the matter is still pending before the first respondent for registration of the sale deed in question, and in the absence of any affidavit, we are not inclined to give any specific finding or direction with regard to the registration of the same.
We are of the view that the first respondent should consider the matter in its proper perspective and decide the question of registration of the sale deed in question within one month from the date of receipt/production of a copy of this order
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2009 (6) TMI 951
Issues involved: Challenge to Tribunal's order regarding taxation on sale of a lorry after building a body over a chassis.
Taxation on sale of lorry: The respondent purchased a chassis which had already suffered tax, built a body over it, and sold the complete unit as a lorry. The assessing authority determined tax on the sale of the lorry. The respondent contended that the chassis, having already been taxed, should not be taxed again after the body was built. The Tribunal accepted the respondent's case, prompting the State to appeal.
Legal precedent: The State relied on Division Bench decisions in South India Automotive Corporation Private Ltd. v. State of Tamil Nadu and Tamil Nadu Mosaic Manufacturers Association v. State of Tamil Nadu. The principle from the latter case stated that when a commercial commodity transforms into another distinct commercial commodity, it becomes separately taxable. The decision in South India Automotive Corporation Private Ltd. v. State of Tamil Nadu rejected the argument that no further tax liability arises on the final product if the body had already been taxed, emphasizing that the sale was of the finished vehicle, not separate components.
Judgment: Applying the legal principles from the referenced cases, the High Court found that even though the respondent paid tax on the chassis and built a body over it, the subsequent sale of the lorry as a whole made the tax on the chassis irrelevant. The Court concluded that the Tribunal erred in interfering with the assessing authority's order and set aside the Tribunal's decision, restoring the assessing authority's order. The revision was allowed with no costs incurred.
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2009 (6) TMI 950
Whether when a Governmental organisation, namely, railway would categorically indicate by virtue of this letter that there was no supply involved and what was the work awarded was only the labour contract, the finding of the suo motu enquiry is not legally sustainable?
Held that:- The reliance placed by the first appellate court and the appellant herein on the letter issued by the railway authorities much belatedly in respect of the contract that it would only denote the works contract cannot be accepted and this has been rightly done by the suo motu authority during the suo motu order.
The letter issued by the authority relied upon by the appellant cannot be accepted as a material fact and it will not have any sanctity as against the original agreement or the tender contract as entered into between the railway authority and the assessee. The Joint Commissioner III (SMR) of Commercial Taxes, had given a specific finding that it is an undisputed fact that jelly was supplied for carrying out various types of works whether it is renewal of track or track sleeper renewal.
Apart from that, he has also given a finding that the extracts taken from Southern Railway had clearly indicated that the dealer had supplied jelly worth ₹ 2,24,518 to the Railway Department during the relevant year and that the assessee sold condemned articles for ₹ 7,000. Such findings of fact have been clearly extracted by the authorities below. We are not able in any way, to assail the factual findings coupled with the clauses found in the agreement. We do not find any valid reason to interfere with the orders of the authority below as the reasonings are well-founded. Hence, the appeal filed by the assessee is dismissed.
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2009 (6) TMI 949
Whether at the time of transfer of title to the goods, the goods have crossed the custom frontier or not?
Held that:- The approach of the Tribunal, having regard to the statutory provision, section 2(ab) of the Central Sales Tax Act, and section 2(13) of the Customs Act and also sections 47 and 68 of the Customs Act, holding that the assessee is entitled to exemption, as in this case the goods cannot be regarded as having crossed the customs frontier, when it was warehoused, is correct and we do not find any merit in the writ petitions. The writ petitions stand dismissed.
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2009 (6) TMI 948
Issues involved: Whether the Tribunal was justified in not considering the petitioner's claim for deduction of discount in the determination of taxable turnover for the assessment years 2001-02 and 2002-03.
Summary:
The Kerala High Court, in the judgment delivered by Justice C.N. Ramachandran Nair, addressed the issue raised by the petitioner regarding the Tribunal's decision on the deduction of discount in the taxable turnover assessment. The Tribunal did not consider the claim, stating that the assessing officer had already allowed the claim while determining the taxable turnover. However, the Tribunal acknowledged that the amount claimed was scheme discount, the eligibility of which was not assessed. The Government Pleader argued that scheme discount is not entitled to deduction under rule 9(a) of the Kerala General Sales Tax Rules, 1963. The petitioner's counsel contended that the assessing officer had allowed the discount but made an error in the computation. The Court noted that none of the authorities had considered the nature of the discount claimed by the petitioner and its eligibility for deduction.
The relevant rule, 9(a) of the Kerala General Sales Tax Rules, specifies that only trade discounts given in the bills are allowable as deductions in the computation of taxable turnover. The rule emphasizes that the purchaser must have paid the price charged less the discount, and tax should be charged only on the net amount after the discount. The petitioner, a manufacturer supplying goods wholesale, should have claimed the deduction in the monthly return if discounts were given in the invoice. The Court differentiated between trade discounts and scheme discounts, stating that scheme discounts, given through credit notes by manufacturers and wholesalers to dealers, are outside the scope of rule 9(a) deductions.
As the assessing officer did not consider the facts related to monthly returns, annual returns, bills, and credit notes, the Court decided to set aside the Tribunal's orders and remand the matter to the assessing officer. The assessing officer was directed to verify the records and allow the discount claim to the extent permissible under the law.
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2009 (6) TMI 947
Whether the petitioner is liable to produce any further proof with respect to payment of input tax, for which refund is claimed?
Held that:- In this case it is evident that the dealer had produced bills with respect to purchases made by him, evidencing payment of input tax. Further he had produced copies of demand drafts evidencing payment of tax to various Forest Depots within the State. These documents will definitely prove the payment of input tax. Production of these documents can definitely be considered as discharge of the burden cast upon the dealer to prove his claim for refund. Therefore, the dealer had successfully discharged the burden of proving his entitlement for refund.
The dealer cannot be burdened with production of any additional evidence. His initial burden of proving entitlement for refund should be presumed as discharged, on his production of materials which will clearly indicate payment of input tax. It is for the assessing authority to do any further cross-verification, for which the dealer could not be insisted for production of any additional proof or certificates. Thus the rejection of the claim for refund ordered through exhibit P4 is hereby quashed.
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2009 (6) TMI 946
Works contract - inter-state sale - The petitioners claimed exemption on the ground that movement of goods from outside the State to Kerala is under contract of sale and so much so it is an inter-State sale assessable outside Kerala - Held that: - transfer of property in goods admittedly took place in Kerala when the goods are appropriated to the contract that is by laying pipe in the location identified by the awarder. Until then the goods were retained by the petitioner at their risk in their godown. A trader making inter-State purchase or bringing goods on stock transfer and selling the same later becomes liable for payment of tax under the Kerala General Sales Tax Act on sale of such goods. The position is not different so far as contractors are concerned, who bring goods from outside the State either as stock transfer or as inter-State purchase, stock them in their godown and later use them in the execution of works contract - the Tribunal rightly held that the transfer of materials in the course of execution of work in Kerala does not amount to inter-State sale of goods from Mumbai to Kerala - petition dismissed - decided against petitioner.
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2009 (6) TMI 945
Issues involved:
1. Whether the Sales Tax Appellate Tribunal was justified in confirming the levy of tax on sales of lottery tickets?
2. Whether the sale of lottery tickets can be considered as goods for the purpose of taxation under the Sales Tax Act?
Analysis:
Issue 1: The first issue pertains to the justification of the Sales Tax Appellate Tribunal in confirming the levy of tax on sales of lottery tickets. The assessee, a dealer in lottery tickets, challenged this levy, citing previous legal precedents. The Supreme Court had previously ruled in the case of H. Anraj v. Government of Tamil Nadu that the sale of lottery tickets constitutes a sale of goods. However, this decision was revisited by a Constitution Bench in the case of Sunrise Associates v. Government of NCT of Delhi. The Constitution Bench concluded that the sale of lottery tickets does not involve the sale of goods but rather a transfer of an actionable claim. Consequently, the tribunal's decision to levy tax on lottery ticket sales was deemed unjustified based on the revised legal interpretation.
Issue 2: The second issue revolves around whether lottery tickets can be classified as goods for taxation purposes under the Sales Tax Act. The Supreme Court's ruling in Sunrise Associates v. Government of NCT of Delhi clarified that lottery tickets do not fall under the definition of goods as per the Sales Tax Acts of different states. The Court explicitly stated that there is no sale of goods in the context of lottery tickets but rather a transfer of an actionable claim. As a result, the assessment related to the sale of lottery tickets for the year 1989-90, which was based on the assumption that lottery tickets are goods, was deemed incorrect in light of the revised legal position. The judgment favored the assessee, confirming that the sale of lottery tickets should not be considered as a sale of goods attracting provisions of the TNGST Act for future years.
In conclusion, the High Court's judgment in this case addressed the issues of taxation on lottery ticket sales and the classification of lottery tickets as goods. The revision was allowed in favor of the assessee based on the Supreme Court's clarification that lottery tickets do not constitute goods but rather involve a transfer of an actionable claim. This decision has significant implications for the taxation of lottery ticket sales under the Sales Tax Act, aligning the legal interpretation with the revised understanding provided by the Supreme Court.
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2009 (6) TMI 944
Whether form 25A is not required to be furnished by a dealer if he is first seller of goods falling under the Fifth Schedule?
Held that:- Even if form 25A was obtained and produced by the respondent, the same would have served the very same purpose of getting details of the purchasers who are registered dealers in the State. In other words, in our view, the sale bills will serve the purpose of form 25A, when the first sale is to a registered dealer in the State. Therefore the later order of the Tribunal allowing the claim in favour of the respondent-assessee is correct and is in accordance with rule 32(13C) of the Rules. The first order of the Tribunal issued for this year was patently wrong as it was against the express provision in the rule. There is nothing wrong in the Tribunal correcting it through review proceedings.
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2009 (6) TMI 943
Penalty orders issued under section 45A of the Kerala General Sales Tax Act challenged - Held that:- Since unaccounted purchase of goods by the appellant from outside State by purchasing D. Ds. in the name of employee is the only irresistible conclusion possible from the facts established by the Department, penalty was rightly levied. Even though the appellant submitted that penalty sustained at one and a half times the tax is high, we do not think any quantum relief is called for because for failure of the Department to file revision against Tribunal's orders, appellant escaped from tax and interest liability which will be more than the penalty. The writ appeal is accordingly dismissed confirming exhibits P15 to P18 orders of penalty on merits.
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2009 (6) TMI 942
Issues: Sales tax penalty under section 29A(4) of the Kerala General Sales Tax Act, 1963 for evasion of tax due on goods under transport.
Analysis:
The judgment pertains to connected sales tax revision cases arising from penalty proceedings under section 29A(4) of the Kerala General Sales Tax Act, 1963. The case involves a five-star hotel running in Kovalam, where a consignment of foreign liquor was seized by the sales tax authorities. The goods were transported with a valid excise permit issued by the State excise authorities. The Department alleged that the quantity transported was more than permitted and that the goods were not transported by rail as claimed by the assessee.
The court examined the provisions of section 29A(4) and emphasized that the penalty is for the attempt of tax evasion on goods under transport. It noted that the goods were covered by a valid excise permit and were seized from the railway station, indicating rail transport. The court highlighted the necessity of transit permits for road transport through other states, reinforcing the validity of rail transport in this case. The invoices showed concessional central sales tax rates, further supporting the inter-State purchase nature of the goods. The court also considered the payment of advance tax by the assessee, indicating compliance with tax obligations.
The judgment underscored that penalty can only be imposed for evasion of tax, which was not the case here as the goods were purchased from outside the State and transported to the assessee's business premises. The court emphasized the need for coordination between excise and sales tax authorities for effective tax collection on such transactions. Consequently, the court canceled the penalty confirmed by the Tribunal, allowing the revision filed by the assessee and dismissing that of the Revenue. Any penalty collected was directed to be adjusted towards tax liability or refunded to the assessee, concluding the judgment.
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2009 (6) TMI 941
Whether the Appellate Tribunal was correct in holding that the concessional levy was rightly disallowed since no goods were manufactured inside the State for sale by him of any goods liable to tax when the statute permits the petitioner to make use of form XVII in the works contract?
Whether the Appellate Tribunal was correct in not considering the correct provision exists during the year 1990-91, even though the same was raised in the grounds and also argued at the time of hearing?
Held that:- Admittedly, the assessment year in question is 1991 pertaining to the period from April 1, 1990 to March 31, 1991, viz., during the relevant assessment period, the sub-clause (iii) of section 3(3) which specifically provides that involved in the execution of works contract shall be at only three per cent on the turnover relating to such sale would mean that if a product was purchased utilising form XVII and that particular product is utilised in works contract of that person, who has availed form XVII even in that case the tax payable would be only at the concessional rates was very much available under the Act, under which the assessee, under law, is entitled to claim concession and the same was rightly claimed by the assessee.
In view of the fact that the assessee is entitled to seek necessary concession of rate of interest as per section 3(3)(iii) as it then was, which has been rightly claimed by him, we set aside the order passed by the Tribunal and allow the tax case revision, answering the questions of law as stated above in favour of the assessee and against the Revenue.
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2009 (6) TMI 940
Sale of goods within the customs frontiers in India - whether exempted from the sales tax in view of section 5(2) of the CST Act? - whether the learned single judge was right in dismissing the writ petition directing the appellant to avail of the alternative remedy?
Held that:- After careful examination of the facts of the case the learned single judge is perfectly justified in holding that the order passed by the assessing officer is not required to be interfered with and giving liberty to avail of the alternative remedy of filing an appeal against the order of assessment before the appellate authority. The said conclusion arrived at by the learned single judge is legal and valid. Therefore, the order passed by the learned single judge does not call for interference in this appeal.
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2009 (6) TMI 939
Issues:
1. Challenge to revisionary order imposing penalty under Madhya Pradesh Commercial Tax Act, 1994.
Analysis:
The writ filed under Article 227 of the Constitution of India challenges the revisionary order affirming a penalty imposed by the assessing officer under the Madhya Pradesh Commercial Tax Act, 1994. The High Court, despite the absence of the petitioner, decided to review the case and hear the State counsel. The central issue was whether the penalty imposed on the petitioner was justified under the Act and whether the revisionary authority was correct in upholding it. The Court found that no case for the imposition of the penalty was established based on the facts presented, leading to the decision to quash the impugned orders.
The taxing authority penalized the petitioner for submitting form No. 86 instead of form No. 75 at the check-post, resulting in a penalty of Rs. 72,560. The Court referenced the principle established by the Supreme Court in Hindustan Steel Ltd. v. State of Orissa, emphasizing that not every breach of a penal provision in a taxing statute warrants a penalty. The Court highlighted that more than a technical or venial breach is required to justify imposing a penalty, such as evidence of the assessee's intent to evade tax through illegal means like false declarations or forged documents. In this case, the Court found that the breach committed by the petitioner did not meet the threshold for penalty imposition as there was no evidence of intent to avoid tax or explanation for the submission of the wrong form.
The High Court concluded that the authorities below failed to establish any factual findings against the petitioner regarding tax evasion intent or the reasons behind the submission of incorrect forms. Therefore, the Court disagreed with the reasoning and conclusions of the lower authorities. Consequently, the petition was allowed, the impugned orders were set aside, and the penalty imposed on the petitioner was quashed. The judgment did not impose any costs on either party, bringing the matter to a close.
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2009 (6) TMI 938
Whether, on the facts and in the circumstances of the appellant's case, was the revisional authority right in holding that the appellant was liable to resale tax under section 6B of the Act, in so far as the payments made to the sub-contractor?
Held that:- There is a registered sub-contractor to whom the work is entrusted by the appellant-contractors. It is not the case of Revenue that the sub-contractor is not a registered dealer under section 10 of the KST Act and not paid the tax on taxable turnover in respect of transfer of goods for the execution of work in favour of contractor. Thus we answer the substantial question of law in favour of the appellant-assessee.
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2009 (6) TMI 937
Penalty order challenged - Held that:- As according to the third respondent, there is mens rea embedded in this case which attracted levy of penalty. So the revisional authority, namely, the third respondent considered the question raised by the petitioner with respect to the mens rea and came into a specific finding against the assessee and in favour of the Revenue. W.P. dismissed.
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2009 (6) TMI 936
Whether, in the facts and circumstances of the case, the Tribunal is legally correct in having deleted the penalty levied under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 based upon the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [2001 (10) TMI 1100 - MADRAS HIGH COURT] while for the assessment year 1980-81 penalty is leviable under section 12(5)(iii) of the Act for filing of incorrect and incomplete returns and therefore the said decision cannot be applied to this case?
Held that:- The conduct of the respondent-assessee in not including the freight charges and packing charges in the taxable turnover cannot be held to be a deliberate or intentional act on its part with a view to defeat its tax liability. On the other hand, the submission of the return of the respondent-assessee during the relevant year was fully supported by the Division Bench decision of this court which held the field till the year 1992 when it came to be reversed in the decision of the honourable Supreme Court in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1992 (10) TMI 228 - SUPREME COURT OF INDIA]. As held in the decision of this court reported in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [supra], under section 12(4) specific expression used is "may " for the purpose of levying of penalty.
We are convinced that the order of the Tribunal in having set aside that part of the order of the Assistant Commercial Tax Officer in having imposed penalty was justified and the same was perfectly in order. We therefore answer the question of law against the appellant and in favour of the assessee
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2009 (6) TMI 935
Whether, on the facts and in the circumstances of the case and on a true and correct interpretation of section 2(10) of the Maharashtra Sales Tax on the Transfer of the Right to use any Goods for any Purpose Act, 1985, the Tribunal was justified in holding that the impugned transaction does not amount to a sale under the provisions of the Lease Act?
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that even after consideration that the constructive possession of the computer being given to the contractee mentioned in the impugned invoice the computer continues to be under effective control of the respondents-contractor and, therefore, transfer of right to use the computer by the contractee could not be held to have taken place as covered by the term 'sale' occurring in the Lease Act?
Held that:- In the present case, from the facts noted earlier, it is clear that the goods, i.e., computers and terminals were always in possession of the respondents. They were never delivered or handed over to the ONGC. It may be that as per the requirement of ONGC, fixed time was assigned to them and during that fixed time of the day, staff members of ONGC would come to the office of the respondents to get their work done but during all that period, computers would be operated by the employees of the respondents and not by the employees of the ONGC.
In view of the language of sections 3 and 4 tax shall be leviable on the turnover of sales in respect of transfer of right to use any goods. Unless there is transfer of right to use any goods, the provisions of the said Act will not be attracted and sales tax cannot be levied on such transactions. Taking into consideration the nature of the contract between the respondents and the ONGC and the legal position, it must be held that the Tribunal correctly interpreted the provisions of section 2(10) of the Act while holding that the transaction is not taxable. Decided in favour of the respondents and against the Revenue.
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2009 (6) TMI 934
What is the date for an application for registration as dealer under rule 7(1)(ai) of the Bombay Sales Tax Rules, 1959, where a company court passes an order of amalgamation?
Held that:- No order of a court should visit a party with liabilities and/or undesirable consequences in the matter of tax. The rule must be so read as to give effect to the legislative mandate. The date for applying for registration under section 19(6) for a company, can only be the date of the company court's order. If within sixty days of such order an application is made, then the expression "succession to business" in rule 7(1)(ai) will also be so read. Under rule 8(3)(a)(iii) then it will be the date the company court has ordered or the date provided in the scheme which will be the date of succession to business. This would obviate any difficulty to a party till such time the delegate makes a specific provision in rule 8.
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2009 (6) TMI 933
Issues Involved:
1. Validity of reassessment proceedings under the CST Act.
2. Correctness of the rejection of F forms by the assessing authority.
3. Legitimacy of the penalty imposed under section 12(3)(b) of the TNGST Act.
Issue-wise Detailed Analysis:
1. Validity of Reassessment Proceedings:
The reassessment proceedings were initiated based on an inspection report by enforcement officials, which suggested that the stock transfers to the Palakkad branch were actually inter-State sales. The initial assessment did not consider this report, and the reassessment was carried out without discussing the appellant's elaborate explanation. The reassessment order was passed mechanically, adopting the observations of the inspecting officials, leading to a demand of Rs. 31,60,393 in tax and a penalty of 150% of the assessed tax. The Tribunal upheld the reassessment, stating that the dealer failed to prove the exemption claim with proper documents. However, the reassessment was found to be based on a wrong assumption that the F forms were not filed, which was incorrect as the forms were available in the TNGST file.
2. Correctness of the Rejection of F Forms:
The Tribunal and the assessing officer wrongly assumed that the appellant did not file F forms. The F forms for the relevant months were found in the TNGST file, and the appellant had pointed out their availability in response to the show-cause notice. The first appellate authority noted that the appellant had filed the F forms, thereby discharging the burden of proof. Under section 6A of the CST Act, the dealer, by filing the prescribed F forms, discharges the burden of proving that the inter-State movement of goods was due to stock transfers and not sales. However, the reassessment did not address the correctness of these forms. The Supreme Court in Ashok Leyland Ltd. v. State of Tamil Nadu held that once F forms are accepted as correct, they conclusively prove the transaction as stock transfers. The reassessment could be reopened only on grounds of fraud or misrepresentation, which was not the case here. The Tribunal failed to verify the facts and wrongly assumed the non-filing of F forms.
3. Legitimacy of the Penalty:
The assessing authority levied a penalty of 150% of the differential tax under section 12(3)(b) of the TNGST Act, which was treated as merely consequential to the assessment. The Tribunal upheld the penalty, stating it was a clear case of suppression. However, section 12(3)(b) applies to original assessments, not reassessments. For reassessments, section 16(2) is relevant, which requires wilful nondisclosure of turnover. In this case, the entire turnover was disclosed, and the dispute was only about the nature of transactions (stock transfer vs. inter-State sale). The Authority's decision in Atlantic Foods v. State of Tamil Nadu clarified that penalty under section 16(2) is not applicable when the entire turnover is disclosed. Therefore, the penalty was set aside.
Conclusion:
The appeal was partly allowed. The reassessment was deemed valid, but the rejection of F forms was incorrect. The reassessment should have considered the F forms and other documents filed by the appellant. The penalty imposed was also set aside as it was not justified under the applicable legal provisions. The turnover attributable to direct inter-State sales was fixed at 25% of the disputed turnover, and the appeal was allowed for the remaining turnover.
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