1. Appeal – Non-payment of pre-deposit
The issue before the Gujarat HC was that appellate authority dismissed the appeal due to non-payment of pre-deposit. Against the appeal filed, Tribunal decided the appeal on merits. Being aggrieved revenue filed appeal before the HC. The HC held that in appeal against the said order of the appellate authority, the Tribunal could consider only the question whether the First Appellate Authority was justified in rejecting the appeal on the ground of non-payment of pre-deposit, and the Tribunal was not justified to decide the said appeal on merits. Therefore, following its earlier judgment and order delivered by the Division Bench of the Court in the case of State of Gujarat v. Tudor India Ltd. (2014) 2 VST 288 (Guj.) in Tax Appeal No. 711 / 2013, without further entering into merits of the case, the order of the Tribunal was quashed and the matter was remitted to the Tribunal to consider the legality and validity of the First Appellate Authority on pre-deposit and / or dismissing the appeal on the ground of non-deposit of pre-deposit only.
State of Gujarat v. Dolphin Metals (I) Ltd. (2015) 27 STJ 287 (Guj.)
2. Attempt to evade tax u/s. 51(7)(c) of the pvat Act, 2005
In this case, the appellant presented ingenuine documents before the Checkpost Officer which were 1 year old indicative of attempt to evade tax and clear cut case of mens rea and attempt to evade tax. In the facts and circumstances of the case, the penalty so levied was confirmed and appeal dismissed.
Godrej Agrovet Ltd., Focal Point, Khanna v. State of Punjab (2015) 51 PHT 456 (PVT)
3. ‘C’ forms under the cst Act
In this case, revision was filed by the State for the A.Y. 2007-08 (Central) against the Order of the Tribunal dt. 8-3-2013 in which following question of law was referred to the HC.
“Whether on the facts and in the circumstances of the case, the Commercial Tax Tribunal was legally justified in providing an opportunity to the dealer to collect and submit Form ‘C’ instead of directing to levy tax in accordance with law ?”
Earlier, the Tribunal by the impugned Order has allowed the assessee to file Form ‘C’ in respect of inter-State sales. The legal issue involved in this case has been already answered by the Apex Court in the case of Sahney Steel and Press Works Ltd. and Anr. v. CTO And Ors. (1986) UPTC 105 wherein the Apex Court in an identical case has allowed the assessee to collect the Form ‘C’ and furnish them to the Assessing Authority before making an assessment. The Paragraph No. 12 of afore cited judgment is not repeated here, but following the same Allahabad HC has held that there is no merit in the Revision filed by the Dept.
Commissioner, Commercial Tax U.P. Lucknow v. Lighton Contractor (India) Pvt. Ltd. 2015 NTN (Vol. 58) 427 (All)
4. Delayed grant of Registration Certificate
In this case, Registration Certificate was granted within 90 days instead of within 30 days. The question was whether this action of the officer was justified? The petitioner furnished information and particulars as sought on 12-2-2013. The certificate was issued with its validity from 10-5-2013 instead of 14-3-2013. The Tribunal held the action of the officer was not justified and gave direction that the certificate of registration is to be given within 15 days of the Order.
Rasha Ind. Pvt. Ltd. v. JCCT (2015) 66 S.T.A. 98 (WBTT)
5. Enhancement of Gross Turnover
The facts of the case were that estimate of gross turnover on the ground of allowance of discount by the sellers of the petitioner and lower sale prices than the corresponding purchases and valuation of closing stock made in a haphazard manner. The question was whether enhancement of gross turnover was justified? The Tribunal held that yes, but it was a bit on the higher side which should have been reduced from ` 14 crore to ` 13.85 crore. Accordingly, the case was remitted for proper assessment.
Harlalka Tyre Agencies Pvt. Ltd. v. J.C.C.C.T. And Ors. (2015) 66 S.T.A. 94 (WBTT)
6. High Sea Sales – Section 5(2)(3) of the Cst Act
In the absence of bill of lading / bill of entry and agreement between the parties and without communication of the said sale to the Customs Authorities in India, the alleged transfer of cement which was landed in Punjab from Pakistan could not be treated as High Sea Sale and was liable to be taxed. In this case, the Punjab Tribunal has held that the onus is on the appellant to establish that the sale of such goods had taken place as per Customs Act and Section 3 and 5 of the CST Act. High Sea Sale was considered as a sale carried out outside the territorial jurisdiction of India and no sales tax was leviable in respect of High Sea Sale. The customs document i.e. bill of entry was either filed in the name of High Sea Buyer or such bill of entry should have an endorsement indicating High Sea Buyer’s name. The title of goods gets transferred to High Sea Buyer
prior to entry of goods in territorial jurisdiction of India. Hence, the appeal was rejected.
Keshav Impex, Jagraon, Dist. Ludhiana v. State of Punjab (2015) 51 PHT 462 (PVT)
7. Reference – Conflicting views
In this case, under the U.P. Trade Tax Act, 1948 u/ss. 29(1) and 29(2) two decisions, each of a Division Bench of the Allahabad High Court were rendered. Noticing this as a conflict of views, a reference was made to the full Bench in the case terms: “In case, where the case is remanded back by the Appellate Authority to the Assessing Officer either u/s. 9 or 10 of the Act after setting aside the Assessment Order without any specific direction to refund the amount, whether it is obligatory on the part of the Assessing Officer to refund the amount and pay the interest in case, if the amount is not refunded within the specific period.” High Court held in the negative, in terms of the decisions of the Apex Court in CST, U.P. v. Hind Lamps Ltd. (2008) 37 NTN DX-262 and the decision rendered in the case of assessee itself on
4-3-2014 in Commissioner of Trade Tax, U.P. Anr. v. Lucent Technologies Pvt. Ltd. The judgment in Hind Lamps Ltd. was approved by a Division Bench Ellora Mechanical Products which was settled by the decision by the Supreme Court in Hind Lamps Ltd. (supra). Hence, reference is answered accordingly the revisions be placed before the appropriate Bench for disposal. The SC vide its Order dt. 4-3-2014 by following Hind Lamps Ltd. (2008) 37 NTN DX (262); (2008) 17 SCC 222 held – “refund found to be refundable and the judgments of the High Courts given earlier in tax revisions were set-aside”
Lucent Technologies Pvt. Ltd. v. Commissioner Trade Tax U.P. (2015) NTN Vol. 58 410 and also 2015 NTN 58 409 (SC)
8. Sale price u/s 2(m) of the Delhi vat Act, 2004
The issue involved in this case was what is deductible from the sale price for levy of sales tax. Appellant-company was a Registered dealer under the DST Act and was engaged in the business of manufacture and sale of tyres and tubes and marketed its products through various dealers. For the purpose of business promotion, it allowed discount under head “Turnover discount” which was equal to 1% of the product value stated in the invoice. Sale invoices issued clearly indicated an endorsement “entitled for 1% discount”. Such discount, however, was given to the dealers, once in a quarter, through “credit notes”. The company’s claim for deduction of “turnover discount” from the sale price was rejected by the authorities below. Assessee appealed to the High Court. In the facts and circumstances of the case, the HC held that the assessee correctly computed the sale price on which tax was payable and therefore the assessing authorities had unjustly denied the benefit of deduction on such account. Accordingly, the appeal was decided in favour the appellant.
MRF Ltd. v. Commissioner of Trade & Taxes (2015) 51 PHT 490 (Del.)
9. Schedule Entry: Churan and Churan Powder and Jal Zeera
Before the Allahabad HC the question of law which was formulated in a memo of revision was as under:
“Whether under the facts and circumstances of the case, the Trade Tax Tribunal and First Appellate Authority were legally justified in accepting the claim of the dealer that Churan and Churan Powder and Jal Zeera manufactured and sale by the dealer was Ayurvedic medicine and not classified
The Tribunal by the impugned order held questioned goods to as Ayurvedic medicinal items used for helping digestion disorder. In revision filed by the revenue, nothing has been placed before the Court to show that findings recorded by the Tribunal were perverse or contrary to record or otherwise not in accordance with law. In view of this position, revision was dismissed.
Commissioner, Commercial Tax U.P. v. Bal Sanjiwan Karyalaya 2015 NTN (Vol. 58) 424 (All)
10. Service of Notice to ‘Kitchen Boy’, a daily wager employee
In this interesting case, the assessee was a dealer registered under the Act and it claimed exemption from tax declared under the notification issued by the Government which came to be disallowed by the Assessing Authority and an Order levying tax came to be passed after a period of 8 months. The impugned Order was served to a ‘Kitchen Boy’ who was not a regular employee of the assessee but was employed on daily wages. The assessee came to know about the assessment order only when the recovery proceedings were started against the assessee.
The assessee filed an appeal before the Tribunal against the assessment order. The tribunal took the view that the order was properly served to the assessee and, therefore, the appeal being time-barred could not be entertained. The assessee challenged the order of the Tribunal before the High Court of Uttarakhand, but the HC upheld the Order of the Tribunal. The HC also held that they had no powers to condone the delay occurred in filing of an appeal. Being aggrieved, the assessee filed civil appeal before the SC.
The assessee, through its counsel, submitted before the Apex Court that the Notice served to the ‘kitchen boy’ was not proper service as provided u/r 37 of the Rules. It was contended that as provided, the Notice was required to be served either to a dealer by Registered Post or to authorize agent of the dealer. In the present case, since the notice was served to a ‘kitchen boy’ who was not authorized to receive any communication. Thus, it was contended that the Tribunal and the High Court failed to appreciate this legal aspect and the appeals were dismissed treating them as time-barred.
The Hon’ble SC held that it is an anathema in law to decide a matter without give notice to the concerned party. Every effort must be taken to a meaningfully and realistically serve the affected party so as not merely to ensure that he had knowledge thereof but also to enable him to initiate any permissible action. The assessee therefore justifiably submitted that it was statutorily impermissible for the assessing authority to serve the order on a ‘kitchen boy’, who is not even a middle level officer and certainly not an authorized agent of the assessee. Accordingly, the appeal filed before the Commissioner (Appeals) was entertained and he was directed to hear the appellant on a particular date and decide the appeal on merit.
Saral Wirecraft Pvt. Ltd. v. Commissioner, Customs, Central Excise & Service Tax And Ors. (Civil Appeal No. 5631-32 of 2015)(SC) STJ Vol. 54 Part-V P-652 (Guj)
11. Time barred assessment
U/s 29(4) of the PVT Act, 2005 provisions relating to time barred assessment were amended retrospectively from 3 years to 6 years. Assessee filed returns for A.Y. 2008-09 on 20-11-2009. Assessment framed on 27-2-2013 was held within the amended limitation period. Hence, appellant was directed to fulfil the conditions of pre deposit u/s. 62(5) within one month’s
time so as to be eligible to be heard on merits.
Larsen & Toubro Ltd., Mohali v. State of Punjab (2015) 51 PHT 459 (PVT)
Article composed with the online WYSIWYG editor. You can subscribe for a membership to remove promotional messages like this one.