VAT AND SERVICE TAX CASES (VST)

ONLINE EDITION

VOL. 7 : ISSUE DATED 29-7-2016

HIGH COURTS


Assessment--See Writs under Constitution (Mad) . . . 66

Authority for Advance Ruling--See Revision (Karn) . . . 52

Commissioner--Value added tax--Revision--Jurisdiction--Jurisdiction to revise order of Authority for Advance Ruling--Not affected by fact that Commissioner himself constitutes Authority and Authority comprised of three Commissioners--Constitution of Authority in exercise of administrative power distinct from exercise of quasi-judicial power of revision--Karnataka Value Added Tax Act, 2003 (32 of 2004), ss. 60, 64.--Rasna Private Limited v. Commissioner of Commercial Taxes (Karn) . . . 52

Entries in Schedule--Value added tax--"All processed fruit and vegetables" in form of liquid, semi-liquid paste or squash--Does not include concentrate in powder form--Karnataka Value Added Tax Act, 2003 (32 of 2004), Sch. III, entry 3.--Rasna Private Limited v. Commissioner of Commercial Taxes (Karn) . . . 52

Jurisdiction--See Revision (Karn) . . . 52

Natural justice--Writs under Constitution--Existence of alternative remedy--Petition against order of assessment passed after giving dealer opportunity of being heard and considering its objections--Not maintainable--Constitution of India, art. 226.--V. V. V and Sons Edible Oils Limited v. Commercial Tax Officer (FAC) (Mad) . . . 66

Revision--Value added tax--Commissioner--Jurisdiction--Jurisdiction to revise order of Authority for Advance Ruling--Not affected by fact that Commissioner himself constitutes Authority and Authority comprised of three Commissioners--Constitution of Authority in exercise of administrative power distinct from exercise of quasi-judicial power of revision--Karnataka Value Added Tax Act, 2003 (32 of 2004), ss. 60, 64.--Rasna Private Limited v. Commissioner of Commercial Taxes (Karn) . . . 52

Value added tax--See Entries in Schedule (Karn) . . . 52

Writs under Constitution--Existence of alternative remedy--Petition against order of assessment passed after giving dealer opportunity of being heard and considering its objections--Not maintainable--Constitution of India, art. 226.--V. V. V and Sons Edible Oils Limited v. Commercial Tax Officer (FAC) (Mad) . . . 66


PRINT EDITION

VOLUME 92 : PART 4 : ISSUE DATED 29-7-2016


HIGH COURTS


Appeal--See Transfer of right to use goods (Delhi) . . . 414

Assessment--Value added tax--Deemed assessment--Dealer seeking personal hearing--Failure to provide opportunity--Assessment set aside and matter remanded--Tamil Nadu Value Added Tax Act (32 of 2006), s. 22(4).--Chandra Stores v. Assistant Commissioner (CT) (Mad) . . . 489

----Value added tax--Undervaluation--Finding that conclusion as to evasion of tax based on comparison of market price of first quality pepper with price paid by dealer--Finding that there was no material to show dealer received consideration over that shown in invoices--Findings not shown to be perverse--Kerala Value Added Tax Act, 2003 (30 of 2004).--State of Kerala v. Arakka Ammed (Ker) . . . 389

Burden of proof--See Input-tax credit (Mad). . . 464

Cenvat credit--See Excise duty (Mad). . . 491

Check-post--See Penalty (Raj). . . 397

Circulars and clarifications--See Service tax (Mad) . . . 458

Commissioner--Value added tax--Power to call for production of documents by dealer or any other person--Can be exercised in absence of rules--Delhi Value Added Tax Act, 2004 (3 of 2005), ss. 59(2), 102(2)(z).--Vayam Technologies Ltd. v. Commissioner of Trade & Taxes (Delhi) . . . 401

Evasion of tax--Sales tax--Penalty--Check-post--Transport of goods--Interception of vehicle carrying goods from Indore to Delhi at Ghatoli Check-post--Person in charge producing, builty, bill and other vouchers but Central sales tax number of consignee with reference to gutka not mentioned--Authority empowered under Rajasthan Act lacks jurisdiction to impose penalty under section 78(5)--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5).--Assistant Commercial Tax Officer v. Delhi Indore Transport Carrier (Raj) . . . 397

Excise duty--Cenvat credit--Wrongful availment of credit--Writ--Maintainability--Existence of alternative remedy--Whether assessee entitled to avail of Modvat or Cenvat credit on duty paid and not payable is mixed question of law and fact--Adjudicating order not passed without jurisdiction--No violation of principles of natural justice--Appeal lies before Appellate Tribunal and writ petition not maintainable--Constitution of India, art. 226.--Sesa Sterlite Ltd. v. Union of India (Mad) . . . 491

High Court--Writs under Constitution--Powers of court--Cannot direct executive to frame rules--Constitution of India, art. 226.--Vayam Technologies Ltd. v. Commissioner of Trade & Taxes (Delhi) . . . 401

----See also Precedent (P&H) . . . 434

Input-tax credit--Value added tax--Burden of proof--Writs under Constitution--Alternative remedy--Finding by department unlawful availement of input-tax credit based on bogus bills obtained from dealers not in existence--Writ petition against order reversing input-tax credit--Burden of proof that dealers from whom purchases made in existence and that goods moved from place of purchase to place of assessee not discharged by assessee--Not a case of violation of principles of natural justice, order under challenge without jurisdiction or vires of statute under challenge--Department claiming huge evasion of tax to tune of several crores of rupees--Disputed questions of facts cannot be gone into by court exercising writ jurisdiction--Writ petition dismissed--With liberty to approach appellate authority--Constitution of India, art. 226--Tamil Nadu Value Added Tax Act (32 of 2006), ss. 17(2), 19(1), (5), (6), (13), (15), 27(2).--Manoj Metals v. Assistant Commissioner, Chennai (Mad) . . . 464

Jurisdiction--See Penalty (Raj) . . . 397

Modvat--See Excise duty (Mad) . . . 491

Natural justice--Value added tax--Deemed assessment--Dealer seeking personal hearing--Failure to provide opportunity--Assessment set aside and matter remanded--Tamil Nadu Value Added Tax Act (32 of 2006), s. 22(4).--Chandra Stores v. Assistant Commissioner (CT) (Mad) . . . 489

----Value added tax--Writs under Constitution--Opportunity to be heard--Dealer failing to file objections after receipt of notice--Cannot complain that it was not granted opportunity to be heard--Writ petition not maintainable--Constitution of India, art. 226. --Rajapalayam Traders v. Commercial Tax Officer-I (Mad) . . . 495

----See also Excise duty (Mad) . . . 491

Penalty--Sales tax--Evasion of tax--Check-post--Transport of goods--Interception of vehicle carrying goods from Indore to Delhi at Ghatoli Check-post--Person in charge producing, builty, bill and other vouchers but Central sales tax number of consignee with reference to gutka not mentioned--Authority empowered under Rajasthan Act lacks jurisdiction to impose penalty under section 78(5)--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(5).--Assistant Commercial Tax Officer v. Delhi Indore Transport Carrier (Raj) . . . 397

----Value added tax--Transport of goods without proper documents--Goods receipt and invoices carried with goods--Finding that essential requirement that bill and goods receipt should accompany goods at time of transport fulfilled and that goods covered by proper and genuine documents--Deletion of penalty justified--Punjab Value Added Tax Act (8 of 2005), s. 51(7)(b).--State of Punjab v. Om Shanti Steel Industries (P&H) . . . 430

Pre-deposit--See Transfer of right to use goods (Delhi) . . . 414

Precedent--Supreme Court--High Court not entitled to ignore decision of Supreme Court where same provisions as in question before High Court considered--That certain arguments not put forth before Supreme Court not ground to ignore it--High Court not entitled to follow another decision where different enactment fell for consideration.--AB Sugars Ltd. v. State of Punjab (P&H) . . . 434

Property development--Service tax--Agreement between petitioner and builder for developing land owned by petitioner into complex of residential houses--Builder obliged to construct certain super built up area, hand over 65 per cent. thereof to petitioner and entitled to remaining built up area along with 35 per cent. of undivided share of land--Not a transfer of immovable property by way of sale or exchange--Is a service rendered by builder--Writ petition challenging, inter alia, circular of Central Board dated February 10, 2012 pursuant to demand of service tax and value added tax by builder--Petitioner agreeing to pay taxes to extent of liability under agreement--Cannot challenge circular dated February 10, 2012--Recipient of service has no locus standi to file petition--Writ petition, inter alia, challenging circular--Dismissed.--N. Bala Baskar v. Union of India (Mad) . . . 458

Purchase price--Value added tax--Purchase tax--Manufacturer of sugar--Purchase of sugarcane from growers--Levy of purchase tax on price comprised of statutory minimum price fixed by Government of India and sum paid by dealer on directions of State of Punjab--Proper--Punjab Value Added Tax Act (8 of 2005).--Batala Co-operative Sugar Mill Ltd. v. State of Punjab (P&H) . . . 453

Purchase tax--Sales tax--Dealer liable to pay purchase tax on purchase of sugarcane from growers--Punjab General Sales Tax Act (46 of 1948).--AB Sugars Ltd. v. State of Punjab (P&H) . . . 434

----Sales tax--Dealer liable to pay purchase tax on purchase of sugarcane from growers--Punjab General Sales Tax Act (46 of 1948).--Gurdaspur Co-operative Sugar Mill Ltd. v. State of Punjab (P&H) . . . 448

----Sales tax--Purchase of sugarcane liable to purchase tax in spite of Punjab Sugarcane (Regulation of Purchase and Supply) Act, 1953--Punjab Sugarcane (Regulation of Purchase and Supply) Act (40 of 1953)--Punjab General Sales Tax Act (46 of 1948).--A. B. Sugars Ltd. v. State of Punjab (P&H) . . . 444

----Value added tax--Purchase price--Manufacturer of sugar--Purchase of sugarcane from growers--Levy of purchase tax on price comprised of statutory minimum price fixed by Government of India and sum paid by dealer on directions of State of Punjab--Proper--Punjab Value Added Tax Act (8 of 2005).--Batala Co-operative Sugar Mill Ltd. v. State of Punjab (P&H) . . . 453

Recipient of service--See Service tax (Mad) . . . 458

Refund--See Service tax (Mad) . . . 391

Sale--Deemed sale--Transfer of right to use goods--Constituents stated.--TIM Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner-II, Department of Trade & Taxes (Delhi) . . . 414

----See also Service tax (Mad) . . . 458

----See also Transfer of right to use goods (Delhi) . . . 414

Sale of space or time for advertisement--See Transfer of right to use goods (Delhi) . . . 414

Service tax--Agreement between petitioner and builder for developing land owned by petitioner into complex of residential houses--Builder obliged to construct certain super built up area, hand over 65 per cent. thereof to petitioner and entitled to remaining built up area along with 35 per cent. of undivided share of land--Not a transfer of immovable property by way of sale or exchange--Is a service rendered by builder--Writ petition challenging, inter alia, circular of Central Board dated February 10, 2012 pursuant to demand of service tax and value added tax by builder--Petitioner agreeing to pay taxes to extent of liability under agreement--Cannot challenge circular dated February 10, 2012--Recipient of service has no locus standi to file petition--Writ petition, inter alia, challenging circular--Dismissed.--N. Bala Baskar v. Union of India (Mad) . . . 458

----Sale of space or time for advertisement--Sale--Transfer of right to use goods--Licence agreement to set up, operate, and manage sites for display of advertisement, in airport entered into between Delhi International Airport Ltd. and petitioner--Notices of default assessment in respect of years 2010-11 and 2011-12 imposing value added tax along with interest and penalty issued to petitioner paying service tax--Objections against notices and an application seeking complete waiver of pre-deposit for hearing filed--Direction to petitioner to deposit certain amount as pre-condition for hearing objection for 2011-12 by order dated February 7, 2014 (as rectified by order dated February 13, 2014)--Another notice under section 59 calling upon petitioner to submit details for financial year 2012-13--Petitioner filing response and matter pending--Writ petition--Necessary for authorities to examine transactions to determine whether there was transfer of right to use goods--Prima facie petitioner not acquired any right to transfer any right to use sites under agreement with Delhi International Airport Ltd.--Order dated February 7, 2014 (as rectified by order dated February 13, 2014) modified with direction to consider objections without insisting on pre-deposit and to complete assessment for period of 2012-13 in light of observations made by court--Delhi Value Added Tax Act, 2004 (3 of 2005), ss. 2(1)(zc), 59--Finance Act (32 of 1994), s. 65(105)(zzzm).--TIM Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner-II, Department of Trade & Taxes (Delhi) . . . 414

----Writs under Constitution--Contract for works for BSNL sub-contracted to assessee--Agreement between contractor and assessee not providing for payment of service tax by contractor--Contractor-company becoming sick and proceedings before Board for Industrial and Financial Reconstruction--No leave of Board obtained--Writ petition seeking reimbursement of service tax paid by assessee not maintainable--Constitution of India, art. 226.--Sri Sudha Constructions v. I. T. I. Limited (Mad) . . . 391

Sick industrial unit--See Service tax (Mad) . . . 391

Supreme Court--Precedent--High Court not entitled to ignore decision of Supreme Court where same provisions as in question before High Court considered--That certain arguments not put forth before Supreme Court not ground to ignore it--High Court not entitled to follow another decision where different enactment fell for consideration.--AB Sugars Ltd. v. State of Punjab (P&H) . . . 434

Transfer of right to use goods--Sale--Deemed sale--Constituents stated.--TIM Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner-II, Department of Trade & Taxes (Delhi) . . . 414

----Service tax--Sale of space or time for advertisement--Sale--Licence agreement to set up, operate, and manage sites for display of advertisement, in airport entered into between Delhi International Airport Ltd. and petitioner--Notices of default assessment in respect of years 2010-11 and 2011-12 imposing value added tax along with interest and penalty issued to petitioner paying service tax--Objections against notices and an application seeking complete waiver of pre-deposit for hearing filed--Direction to petitioner to deposit certain amount as pre-condition for hearing objection for 2011-12 by order dated February 7, 2014 (as rectified by order dated February 13, 2014)--Another notice under section 59 calling upon petitioner to submit details for financial year 2012-13--Petitioner filing response and matter pending--Writ petition--Necessary for authorities to examine transactions to determine whether there was transfer of right to use goods--Prima facie petitioner not acquired any right to transfer any right to use sites under agreement with Delhi International Airport Ltd.--Order dated February 7, 2014 (as rectified by order dated February 13, 2014) modified with direction to consider objections without insisting on pre-deposit and to complete assessment for period of 2012-13 in light of observations made by court--Delhi Value Added Tax Act, 2004 (3 of 2005), ss. 2(1)(zc), 59--Finance Act (32 of 1994), s. 65(105)(zzzm).--TIM Delhi Airport Advertising Pvt. Ltd. v. Special Commissioner-II, Department of Trade & Taxes (Delhi) . . . 414

Transport of goods--Value added tax--Penalty--Transport of goods without proper documents--Goods receipt and invoices carried with goods--Finding that essential requirement that bill and goods receipt should accompany goods at time of transport fulfilled and that goods covered by proper and genuine documents--Deletion of penalty justified--Punjab Value Added Tax Act (8 of 2005), s. 51(7)(b).--State of Punjab v. Om Shanti Steel Industries (P&H) . . . 430

Undervaluation--Value added tax--Assessment--Finding that conclusion as to evasion of tax based on comparison of market price of first quality pepper with price paid by dealer--Finding that there was no material to show dealer received consideration over that shown in invoices--Findings not shown to be perverse--Kerala Value Added Tax Act, 2003 (30 of 2004).--State of Kerala v. Arakka Ammed (Ker) . . . 389

Value added tax--See Assessment (Ker) . . . 389

----See also Commissioner (Delhi). . . 401

----See also Natural justice (Mad) . . . 489

----See also Penalty (P&H) . . . 430

----See also Purchase tax (P&H). . . 453

----See also Writs under Constitution (Mad). . . 495

Writs under Constitution--Excise duty--Cenvat credit--Wrongful availment of credit--Writ--Maintainability--Existence of alternative remedy--Whether assessee entitled to avail of Modvat or Cenvat credit on duty paid and not payable is mixed question of law and fact--Adjudicating order not passed without jurisdiction--No violation of principles of natural justice--Appeal lies before appellate Tribunal and writ petition not maintainable--Constitution of India, art. 226.--Sesa Sterlite Ltd. v. Union of India (Mad) . . . 491

----Powers of court--Cannot direct executive to frame rules--Constitution of India, art. 226.--Vayam Technologies Ltd. v. Commissioner of Trade & Taxes (Delhi) . . . 401

----Service tax--Contract for works for BSNL sub-contracted to assessee--Agreement between contractor and assessee not providing for payment of service tax by contractor--Contractor-company becoming sick and proceedings before Board for Industrial and Financial Reconstruction--No leave of Board obtained--Writ petition seeking re-imbursement of service tax paid by assessee not maintainable--Constitution of India, art. 226.--Sri Sudha Constructions v. I. T. I. Limited (Mad) . . . 391

----Value added tax--Input-tax credit--Burden of proof--Alternative remedy--Finding by department unlawful availement of input-tax credit based on bogus bills obtained from dealers not in existence--Writ petition against order reversing input-tax credit--Burden of proof that dealers from whom purchases made in existence and that goods moved from place of purchase to place of assessee not discharged by assessee--Not a case of violation of principles of natural justice, order under challenge without jurisdiction or vires of statute under challenge--Department claiming huge evasion of tax to tune of several crores of rupees--Disputed questions of facts cannot be gone into by court exercising writ jurisdiction--Writ petition dismissed--With liberty to approach appellate authority--Constitution of India, art. 226--Tamil Nadu Value Added Tax Act (32 of 2006), ss. 17(2), 19(1), (5), (6), (13), (15), 27(2).--Manoj Metals v. Assistant Commissioner, Chennai (Mad) . . . 464

----Value added tax--Opportunity to be heard--Dealer failing to file objections after receipt of notice--Cannot complain that it was not granted opportunity to be heard--Writ petition not maintainable--Constitution of India, art. 226.--Rajapalayam Traders v. Commercial Tax Officer-I (Mad) . . . 495

----See also Service tax (Mad) . . . 458

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