VAT AND SERVICE TAX CASES (VST)

PRINT EDITION

VOLUME 74 : PART 5 : ISSUE DATED 17-10-2014


HIGH COURTS


Change of law--Value added tax--Deferment of tax--Repeal and saving--Units enjoying benefit of exemption and deferment of tax under 1973 Act--Benefits continued under 2003 Act but with modification--Benefit restrict to deferment alone--Option to dealer to pay 50 per cent. of tax upfront upon which full tax deemed paid--50 per cent. to be calculated without taking into account input tax--Haryana Value Added Tax Act (6 of 2003), ss. 2(1)(w), (zk), (zn), 14(6), 56(3), 61(2)(d)(iii)--Haryana General Sales Tax Act (20 of 1973), ss. 13B, 25A--Haryana Value Added Tax Rules, 2003, r. 69--Haryana General Sales Tax Rules, 1975, rr. 28A, 28B, 28C.--Sonex Auto Industries P. Limited v. State of Haryana (P&H) . . . 518

Circulars and clarifications--Clarification issued by Commissioner--Binding on Department--Haryana Value Added Tax Act (6 of 2003), s. 56(3).--Sonex Auto Industries P. Limited v. State of Haryana (P&H) . . . 518

Commissioner--Clarification issued by Commissioner--Binding on Department--Haryana Value Added Tax Act (6 of 2003), s. 56(3).--Sonex Auto Industries P. Limited v. State of Haryana (P&H) . . . 518

Construction of taxing statutes--Entries in Schedule--Classification--If item covered by two entries special entry to prevail over general.--Agarwal Food Industries v. Commissioner of Commercial Tax (All) . . . 550

----Entries in Schedule--Classification--Nature and substance of commodity to be considered vis-a-vis appropriate entry--Assessee's individual understanding not material.--Agarwal Food Industries v. Commissioner of Commercial Tax (All) . . . 550

Declaration form--See Exemption (Bom) . . . 556

Deferment of tax--See Value added tax (P&H) . . . 518

Entries in Schedule--Construction of taxing statutes--Classification--If item covered by two entries special entry to prevail over general.--Agarwal Food Industries v. Commissioner of Commercial Tax (All) . . . 550

----Construction of taxing statutes--Classification--Nature and substance of commodity to be considered vis-a-vis appropriate entry--Assessee's individual understanding not material.--Agarwal Food Industries v. Commissioner of Commercial Tax (All) . . . 550

----Value added tax--Vegetable oil--A cooking medium manufactured using various fats, vegetable in nature whether hydrogenated or unhydrogenated--Is taxable under entry pertaining to "vegetable oil including gingili oil and bran oil"--Uttar Pradesh Value Added Tax Act (5 of 2008), Sch. II, Part A, entry 131.--Agarwal Food Industries v. Commissioner of Commercial Tax (All) . . . 550

----See Precedent (All) . . . 545

Exemption--Sales tax--Reference--High Court--Question of law--Claim of exemption of sale of goods against form A by dealer--Rejection by assessing authority on ground goods not falling under relevant entry in Notification and appeal thereagainst partly allowed by Commissioner--Tribunal relying on decision in Commissioner of Sales Tax v. M. R. F. Limited [2010] 29 VST 566 (Bom), holding that purchaser would be liable to pay tax if not entitled to issue declaration and refusing to make reference on application by Department--No interference warranted--Bombay Sales Tax Act (51 of 1959), ss. 41(2), 61.--Additional Commissioner of Sales Tax v. Dancal Indian Pvt. Ltd. (Bom) . . . 556

----Sales tax--Surcharge--Taxable turnover--Dealer holding exemption certificate--Surcharge to be calculated on taxable turnover and tax and surcharge payable every year on taxable turnover to form part of its exemption entitlement--Punjab General Sales Tax Act (46 of 1948), ss. 5(1C), (2), 23, 30A, 30AA--Punjab General Sales Tax Rules, 1949, r. 29--Punjab General Sales Tax (Deferment and Exemption) Rules, 1991, r. 4A.--International Tractors Limited v. State of Punjab (P & H) . . . 507

----Surcharge--Exemption on three-wheelers--Failure by dealer to file list to show sale of three-wheelers--Surcharge leviable--Punjab General Sales Tax Act (46 of 1948), s. 5(1C), second proviso.--International Tractors Limited v. State of Punjab (P & H) . . . 507

----See Value added tax (P&H) . . . 518

High Court--See Exemption (Bom) . . . 556

Hotels and restaurants--Luxury tax--Hotel--Luxury--Luxury provided in hotel--Definitions--Building constructed under agreement between company and assessee for accommodation of trainees or recruits of company--Building run as transit house for trainees or recruits for company--Assessee running hotel and providing luxury therein--Liable to luxury tax--Provision for payment of rent on monthly basis would not take establishment out of purview of Act--Two separate agreements between assessee and company, one for lease and other for provision of amenities in building providing for monthly payments--Combined charges to be apportioned to each room per day to decide levy--Kerala Tax on Luxuries Act (32 of 1976), ss. 2(e), (ee), (f), 4, 17.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

Industrial unit--See Value added tax (P&H) . . . 518

Input-tax credit--See Value added tax (P&H) . . . 518

Luxury tax--Hotel--Luxury--Luxury provided in hotel--Definitions--Building constructed under agreement between company and assessee for accommodation of trainees or recruits of company--Building run as transit house for trainees or recruits for company--Assessee running hotel and providing luxury therein--Liable to luxury tax--Provision for payment of rent on monthly basis would not take establishment out of purview of Act--Two separate agreements between assessee and company, one for lease and other for provision of amenities in building providing for monthly payments--Combined charges to be apportioned to each room per day to decide levy--Kerala Tax on Luxuries Act (32 of 1976), ss. 2(e), (ee), (f), 4, 17.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

----Penalty--Failure by assessee to obtain registration despite transaction being clearly covered under Act--Contumacious conduct attracting penalty--Penalty to be confined to extent of tax liability--Kerala Tax on Luxuries Act (32 of 1976), s. 17.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

----Value added tax--Precedent--Importance of recording reasons--Entries in Schedule--Thermoplastic road marking material--Tribunal in case of another dealer holding goods taxable as chemical compound at four per cent.--Stating no reasons for dissenting from that view and affirming assessment at twelve per cent.--Order liable to be set aside--Matter remanded for decision afresh--Uttar Pradesh Value Added Tax Act (5 of 2008), Sch. II, Part C.--Automark Industries (India) Ltd. v. Commissioner of Commercial Taxes (All) . . . 545

Penalty--Contravention of or failure to comply with provisions of Act--Dealer furnishing incomplete lists of sales to registered dealers--Dealer asked to explain why action for penalty should not be taken but failing to respond--Levy of penalty justified--Punjab General Sales Tax Act (46 of 1948), s. 23.--International Tractors Limited v. State of Punjab (P & H) . . . 507

----Luxury tax--Failure by assessee to obtain registration despite transaction being clearly covered under Act--Contumacious conduct attracting penalty--Penalty to be confined to extent of tax liability--Kerala Tax on Luxuries Act (32 of 1976), s. 17.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

Precedent--Value added tax--Natural justice--Importance of recording reasons--Entries in Schedule--Thermoplastic road marking material--Tribunal in case of another dealer holding goods taxable as chemical compound at four per cent.--Stating no reasons for dissenting from that view and affirming assessment at twelve per cent.--Order liable to be set aside--Matter remanded for decision afresh--Uttar Pradesh Value Added Tax Act (5 of 2008), Sch. II, Part C.--Automark Industries (India) Ltd. v. Commissioner of Commercial Taxes (All) . . . 545

Reference--Sales tax--High Court--Question of law--Exemption--Claim of exemption of sale of goods against form A by dealer--Rejection by assessing authority on ground goods not falling under relevant entry in Notification and appeal thereagainst partly allowed by Commissioner--Tribunal relying on decision in Commissioner of Sales Tax v. M. R. F. Limited [2010] 29 VST 566 (Bom), holding that purchaser would be liable to pay tax if not entitled to issue declaration and refusing to make reference on application by Department--No interference warranted--Bombay Sales Tax Act (51 of 1959), ss. 41(2), 61.--Additional Commissioner of Sales Tax v. Dancal Indian Pvt. Ltd. (Bom) . . . 556

Repeal and savings--See Value added tax (P&H) . . . 518

Surcharge--Exemption on three-wheelers--Failure by dealer to file list to show sale of three-wheelers--Surcharge leviable --Punjab General Sales Tax Act (46 of 1948), s. 5(1C), second proviso.--International Tractors Limited v. State of Punjab (P & H) . . . 507

----Sales tax--Exemption--Taxable turnover--Dealer holding exemption certificate--Surcharge to be calculated on taxable turnover and tax and surcharge payable every year on taxable turnover to form part of its exemption entitlement--Punjab General Sales Tax Act (46 of 1948), ss. 5(1C), (2), 23, 30A, 30AA--Punjab General Sales Tax Rules, 1949, r. 29--Punjab General Sales Tax (Deferment and Exemption) Rules, 1991, r. 4A.--International Tractors Limited v. State of Punjab (P & H) . . . 507

Turnover--See Exemption (P & H) . . . 507

Value added tax--Deferment of tax--Change of law--Repeal and saving--Units enjoying benefit of exemption and deferment of tax under 1973 Act--Benefits continued under 2003 Act but with modification--Benefit restrict to deferment alone--Option to dealer to pay 50 per cent. of tax upfront upon which full tax deemed paid--50 per cent. to be calculated without taking into account input tax--Haryana Value Added Tax Act (6 of 2003), ss. 2(1)(w), (zk), (zn), 14(6), 56(3), 61(2)(d)(iii)--Haryana General Sales Tax Act (20 of 1973), ss. 13B, 25A--Haryana Value Added Tax Rules, 2003, r. 69--Haryana General Sales Tax Rules, 1975, rr. 28A, 28B, 28C.--Sonex Auto Industries P. Limited v. State of Haryana (P&H) . . . 518

----See Entries in Schedule (All) . . . 550

----See Precedent (All) . . . 545

Words and phrases--"Hotel"--Definition.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

---"Luxury"--Definition.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

---"Luxury provided in hotel"--Definition.--Kenton Leisure Services Executive Hostel v. Sales Tax Officer (Luxury Tax) (Ker) . . . 497

_____________
1

COMMERCIAL LAWS OF INDIA (P) LTD.
No. 2 (Old No. 36), Vaithyaram Street,
T.Nagar, Chennai - 600017.
Phone: (044) 4217 8564, 2435 0752 - 755
Telefax: (044) 2815 1144
info@clipl.com
To Unsubscribe : Reply back with "Unsubscribe" in subject and Also send your feedback or comments to info@clipl.com