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Judgments

Anand International vs Commissioner of Sales Tax, Mumbai  [BOMBAY HIGH COURT, 14 Oct 2014]

Selvam Broilers Private Limited vs Assistant Commissioner (Assmt.)-II, Department of Commercial Taxes, Special Circle-III Ernakulam and others  [KERALA HIGH COURT, 01 Oct 2014]

Godavari Fertilizers and Chemicals Limited, Lucknow vs Commissioner, Commercial Taxes, Uttar Pradesh, Lucknow  [ALLAHABAD HIGH COURT, 25 Sep 2014]
Sales Tax - Indirect Tax - Uttar Pradesh Trade Tax Act, 1948, s. 41(8) - Uttar Pradesh Value Added Tax Act, 2008, s. 57 - Sale of NPK 10:26:26 - Sales tax exemption - Petitioner (assessee/company) was engaged in business of manufacture and sale of chemical fertilizers - Assessing Authority initiated reassessment proceedings u/s. 41(8) of 1948 for levying tax on entire price of NPK 10:26:26 and held that although there was a tax liability on Nitrogen component but since there was no exemption in respect of Phosphate and Potassium contents of fertilizer, those items would also be liable for tax - Aggrieved petitioner filed an appeal before Commissioner, which was dismissed - Second appeal was filed u/s. 10 of 1948 Act r/w s. 57 of 2008 Act before Tribunal, which was dismissed by impugned order - Hence, instant revisions - Petitioner contended that Phosphate and Potassium contents of the NPK 10:26:26 were exempted from trade tax.

Held, in the light of judgment of Super Fine Processors Private Limited v. State of Uttar Pradesh and others, 2013 Indlaw ALL 25 as well as SC in State of U.P and others v. Deepak Fertilizer passed in Appeal (civil) No.3511 of 2001 passed on 14-5-2007, law is very clear that in view of the Circular dt.11-3-2013 issued by the Director of Agriculture, petitioner is entitled to grant of exemption on the phosphate and potassium of NPK 10-26-26 in the light of the said circular and in the circumstances it is not necessary to relegate the petitioner to the Tribunal. Impugned orders are accordingly set aside. Revisions allowed.


Indian Farmers Fertilser Corporation Limited Through State Marketing vs Commissioner Commercial Taxes, Uttar Pradesh, Lucknow  [ALLAHABAD HIGH COURT, 25 Sep 2014]
Sales Tax - Indirect Tax - Uttar Pradesh Trade Tax Act, 1948, ss. 10, 21 - Uttar Pradesh Value Added Tax Act, 2008, s. 57 - Sale of NPK 10:26:26 - Sales tax exemption - Petitioner (assessee/Corporation) was engaged in business of manufacture and sale of chemical fertilizers - Assessing Authority initiated reassessment proceedings u/s. 21 of 1948 for levying tax on entire price of NPK 10:26:26 and held that although there was a tax liability on Nitrogen component but since there was no exemption in respect of Phosphate and Potassium contents of fertilizer, those items would also be liable for tax - Aggrieved petitioner filed an appeal before Commissioner, which was dismissed - Second appeal was filed u/s. 10 of 1948 Act r/w s. 57 of 2008 Act before Tribunal, which was dismissed by impugned order - Hence, instant revisions - Petitioner contended that Phosphate and Potassium contents of the NPK 10:26:26 were exempted from trade tax.

Held, in the light of judgment of Super Fine Processors Private Limited v. State of Uttar Pradesh and others, 2013 Indlaw ALL 25 as well as SC in State of U.P and others v. Deepak Fertilizer passed in Appeal (civil) No.3511 of 2001 passed on 14-5-2007, law is very clear that in view of the Circular dt.11-3-2013 issued by the Director of Agriculture, petitioner is entitled to grant of exemption on the phosphate and potassium of NPK 10-26-26 in the light of the said circular and in the circumstances it is not necessary to relegate the petitioner to the Tribunal. Impugned orders are accordingly set aside. Revisions allowed.


Delhi Foot Wear, Cuttack vs Sales Tax Officer, Vigilance, Cuttack and others  [ORISSA HIGH COURT, 25 Sep 2014]

Commissioner of Sales Tax, Mumbai vs Page Point Service Private Limited, Pune  [BOMBAY HIGH COURT, 24 Sep 2014]

(1) Pankaj Bhargava; (2) Prem Printing Press Lucknow Through Its Authorised Signatory vs Commissioner of Commercial Tax Uttar Pradesh  [ALLAHABAD HIGH COURT, 23 Sep 2014]
Sales Tax - Indirect Tax - U.P. VAT Act, 2008, s.59 - Tax exemption - Denied - Sustainability - Dispute in the instant case arose when an opinion was sought from the Commissioner of Commercial Tax u/s. 59 of Act as to whether the title covers published under the directions of the Pathya Pustak Adhikari, U.P. Lucknow, which was printed for Nationalized Text Books, would fall under the category of Pathya Pustak and would be exempted from tax or not - Commissioner opined that title covers were not exempted from tax - Tribunal also endorsed the view taken by the Commissioner - Hence instant revision - Revisionist submitted that no book is complete without its cover and one cannot conceive of a book as existing which does not have cover and therefore, the cover is a part of the book and its identity cannot be treated as disparate from that of the rest part of the book. Revisionist further submitted that the revisionist is a printer, who prints the title cover of the Pathya Pustak under a contract executed between him and the Pathya Pustak Adhikari, Department of Education, U.P. Lucknow and under the terms and conditions of the contract between the parties he has to print the title cover in the manner and according to specification as provided in the contract - Moreover the printer, under the terms of the contract is restrained from selling the title covers to anyone except the Govt. and therefore, the title cover must be held to form part of the books of the Nationalized Text Books to be used for Class I to VIII - Since books are exempted from tax under Entry 7 of Schedule-1 of Act, the title covers must be treated as exempted from tax -

Held, decision of the Punjab & Haryana High Court in the case of Thomson Press (India) Ltd. vs. State of Haryana 1995 Indlaw PNH 133 has held that when stationary is printed and sold as such, the transaction would amount to sale of goods. However, where the end-product is not a commercial commodity and cannot be sold as such to anyone or everyone in the market by the printer, the transaction would not normally amount to sale of goods but would be execution of a works contract. In State of Maharashtra vs. Sarvodaya Printing Press Fine Art Printer 1998 Indlaw SC 411 the SC held that where printing press entered into an agreement with the Madhya Pradesh Electricity Board for the supply of 'revenue money receipt books' at the rate of Rs.8.88 per receipt book, the charge for the supply of the receipt book was of a composite nature and that only job work was done in the respondent's Printing Press and that the paper and ink used were the property of the respondent before printing but thereafter they became the property of the Board. SC, therefore, held that it was not a case of sale but a works contract having regard to the job. Revision allowed.


Sharon Insul India Limited vs Assistant Commissioner (Assessment) Special Circle-I, Ernakulam and others  [KERALA HIGH COURT, 20 Sep 2014]

Hindustan Unilever Limited vs Deputy Commissioner, Commercial Taxes, Corporate Division and others  [CALCUTTA HIGH COURT, 19 Sep 2014]
Sales Tax - West Bengal Sales Tax Act, 1994 - Central Sales Tax Act, 1956 - Adjustments - There was an excess payment of Sales Tax and an equal under payment of Central Sales Tax - For short payment of Central Sales Tax the petitioner was liable to pay interest u/s. 31 of the 1994 Act which was made applicable to Central Sales Tax - Petitioner wanted a set off or an adjustment of the excess payment of state Sales Tax against the deficit of Central Sales Tax - Respondent authorities did not approved it - Hence, instant petition.

Held, If two taxes are credited into the same fund it creates a gross credit in the fund. Similarly, short payment of Central Sales Tax in instant case into a fund against a corresponding increased payment of State Sales Tax into it does not reduce the gross credit. Therefore, if a dealer wants adjustment or set off, it is to be readily granted without insisting on any formalities. There is no question of charging any interest, penalty etc. provided the deposits were made concurrently. This kind of an adjustment can be made only when taxes paid in excess or short paid are credited into a known account or fund and can be easily adjusted. This ratio would not apply in case of inter- departmental adjustment or completely different types of taxes. Application allowed.

Ratio - If two taxes are credited into the same fund it creates a gross credit in the fund, in that case if a dealer wants adjustment or set off, it is to be readily granted.


K. K. Builders, Represnted by K. K. Mohandas Managing Partner vs Commecial Tax Officer-I (Works Contract), Kannur and others  [KERALA HIGH COURT, 16 Sep 2014]

Marico Limited vs Commissioner, Commercial Taxes Uttar Pradesh Lucknow  [ALLAHABAD HIGH COURT, 12 Sep 2014]

Mark Infrastructure Private Limited vs Commercial Tax Officer, Vengalrao Nagar Circle, Abids, Hyderabad  [ANDHRA PRADESH HIGH COURT, 09 Sep 2014]
VAT - Practice & Procedure - Andhra Pradesh Value Added Tax, Act, 2005, ss. 4(7)(a) to (d) - Andhra Pradesh Value Added Tax Rules, r. 17(4), 17(1)(g) - Executing works contract - Exempt from payment of tax - Legality - Petitioner was a works contractor related to construction of buildings, had entered into an agreement with a Corporation (owner of land/main contractor) - Assessment order in question was passed by respondent no. 1, against which petitioner filed instant petition claiming to be arbitrary, illegal, in violation of principles of natural justice, arts. 14, 19(1)(g) of Constitution and s. 4(7)(d) of the Act - Petitioner sought a declaration that they were not liable to pay tax in the light of exemption under the proviso to s. 4(7)(d) of the Act - Whether assessment of petitioner u/s. 4(7)(b) or (c) of the Act and not u/s. 4(7)(d) or (a) of the Act thereof, illegal and void ab-initio and whether writ petition filed was an abuse of process of Court -

Held, assessment order passed is in accordance with the provisions of the Act and the Rules and not in contravention of art. 265 of Constitution - Form VAT 250 is common to all cases of composition u/ss. 4(7)(b) to (d) of the Act. While the petitioner claims to have ticked column 3 of Form VAT 250 which relates to composition u/s. 4(7)(d) of the Act, the fact remains that the contractees name is shown therein as Corporation, and the nature of contract as construction of residential apartments. S. 4(7)(d) of the Act is applicable only to a dealer engaged both in construction and selling of residential houses/buildings/commercial complexes, and not merely to those engaged only in construction, and not in the sale, of residential apartments. It is not even the petitioner's case that they are engaged in selling residential apartments. It is evident, therefore, that they are not entitled for composition u/s. 4(7)(d) of the Act. Consequently the Form VAT-250 filed by them, exercising the option of composition, could only have been u/s. 4(7)(b), (c) of the Act. Their contention that Corporation is a contractor, and they are the sub-contractor, is also not tenable as Form VAT-250 submitted by them refers to Corporation as the contractee and not as a contractor. The benefit of the proviso to s. 4(7)(d) of the Act is available to a sub-contractor only on production of evidence that the main contractor had exercised option u/s. 4(7)(d) of the Act in respect of the specific work, and subject to other conditions specified in the Rules. It is only if Corporation was engaged both in the construction, and in the sale, of residential apartments, they had exercised the option of composition u/s. 4(7)(d) of the Act, and they had sub-contracted execution of works contract to the petitioner, can the petitioner claim the benefit of exemption under the proviso to s. 4(7)(d) of the Act. No documentary evidence has been placed by the petitioner before Court to show that Corporation is a dealer engaged both in the construction, and in the sale of, residential apartments; or that Corporation has exercised the option of composition u/s. 4(7)(d) of the Act. As it is evident from the agreement that Corporation is not constructing the subject residential apartments, and the contract for construction of residential apartments between Corporation and the petitioner is between a contractee and the contractor and not between a contractor and his sub-contractor, the petitioners claim, to be entitled for exemption under the proviso to s. 4(7)(d) of the Act, is not tenable. It is evident from the monthly returns filed by them is on the basis of their claim for composition and not u/s. 4(7)(a) of the Act. U/r. 17(1)(a) of the Rules the dealer is required to pay tax on the value of the goods, at the time of its incorporation in the work, at the rate applicable to the goods. Even if the dealer does not maintain books of accounts, r. 17(1)(g) of the Rules requires him to pay tax at 14.5% on the total consideration received or receivable subject to deduction of 30%. The monthly returns filed by the petitioners do not show their having paid tax at 14.5% of 70% of the total consideration received or receivable on the execution of works contracts relating to construction of residential apartments. Having given their no objection to the demand, and having sought permission for payment of tax and penalty in installments, these contentions are being raised by the petitioner, for the first time in the present writ proceedings before Court, only to avoid payment of tax which they are liable to pay under the Act. Nowhere in the earlier correspondence, after the assessment order was passed till they filed the writ petition, was any plea of estoppel was taken. It is only after the writ petition was filed and petitioner had obtained interim stay, is this contention raised in reply affidavit, evidently to drag on proceedings and avoid payment of the admitted liability, and the interest and penalty thereon. Deceiving the Court by deliberately suppressing a fact, or giving false facts, may be a punishable contempt. Both on merits and for abuse of process of Court, petition is liable to be dismissed. Petition dismissed.


Shakeel Ahmad Proprietor Esmaily Trading Company vs Commissioner Commercial Taxes Uttar Pradesh, Lucknow  [ALLAHABAD HIGH COURT, 05 Sep 2014]

Sarna Transport Corporation Private Limited, Represented by its Authorised Signatory C. Isakkimuthu vs Commercial Tax Officer, Roving Squad IV, Enforcement (North), Chennai  [MADRAS HIGH COURT, 02 Sep 2014]

State of Tamil Nadu Represented by the Joint Commissioner (CT) Chennai (East) Division, Chennai vs TVL. CMC Limited, Chennai  [MADRAS HIGH COURT, 01 Sep 2014]

Good Year India Limited Lucknow Through Its Manager Sales Tax vs Commissioner, Commercial Taxes Uttar Pradesh Lucknow and another  [ALLAHABAD HIGH COURT, 28 Aug 2014]
VAT - Sales Tax - Uttar Pradesh Value Added Tax Act, 2008, ss. 3-A, 3-A(2), 4 - Central Sales Tax Act, 1956, s. 14 - Declared goods - Additional tax leviable - Quantum - Legality - Petitioner (revisionist/company) was carrying on the business of tyres and tubes of tractor, car etc - S. 4 of the Act prescribed the rate of tax to be levied on the turnover of goods - Entry no. 125 of Sch. II part A of the Act specifically mentions tractors, tractors trolley, harvesters and attachment and parts thereof and provides the tax shall be payable at the rate of 4% - Though under the head 'Description of goods' in Entry no. 5 tyres and tubes excluding tyres and tubes of cycles, cycle-rickshaw and animal driven vehicle the rate of tax was prescribed at 3%, however, in Entry no. 1 for the goods described in Sch. II to the Act 'other than declared goods' the rate of additional tax was fixed at 1% and petitioner submitted that tyres and tubes of Tractor etc. would be liable to additional tax at 1% being goods 'other than declared goods and not at 3% as erroneously determined by Tribunal - Hence, instant revision petition - Petitioner contended that u/s. 3-A of the Act, an additional tax was payable on the taxable turnover of sale or purchase of goods or both at a rate not exceeding 5% as may be specified by State Govt. by notification and that u/s. 3-A(2) of the Act, no additional tax should be levied and paid on the turnover of sale or purchase or both as the case might be, of goods specified in Column 2 of sch. I and III and the turnover of sale or purchase or both as the case might be, of goods declared to be of special importance in the inter-State trade or commerce u/s. 14 of 1956 Act - Whether tractor tyres and tubes could be held to be excluded from goods mentioned in Entry no. 5 of the GO dt.31-3-2011 -

Held, cl. (a) of s. 3-A(2) of the Act, sch. II was specifically omitted there from which means that goods mentioned in Entry 125 of sch. II would also be subject to levy of additional tax as goods 'other than declared goods in view of Entry I to Notification dt.31-3-2011 - The subsequent notification dt.7-9-2012 which brought an amendment into the earlier notification dt.31-3-2011 to specifically exclude 'Tractor tyres and tubes from Entry 5 of the notification dt.31-3-2011 was also an indicator that respondent authorities never intended 'Tractor tyres and tubes' to be read into Entry 5 of Notification dt.31-3-2011 - From a composite analysis of various statutory provisions as well as the Notification dt.31-3-2011 and Notification dt.7-9-2012 it was seen that the only Entry under which Tractor tyres and tubes could be subjected to additional tax was Entry 1 of Notification dt.31-3-2011 and such additional tax would be paid at 1% and not 3% under Entry 5 - Impugned order of Tribunal was illegal and was accordingly set aside - Revision allowed.


Farida Leatherware Private Limited, Represenetd by its Corporate Manager, Accounts and Finance S. Sridhar vs Assistant Commissioner (CT), Vellore District  [MADRAS HIGH COURT, 28 Aug 2014]

Otis Elevators Company (India) Limited, Lucknow vs Commissioner of Commercial Taxes Uttar Pradesh Lucknow  [ALLAHABAD HIGH COURT, 26 Aug 2014]
VAT - Indirect Tax - Uttar Pradesh Value Added Act, 2008, s. 9 - A/y 2010-11 - Work contract - Sale contract - Legality - Petitioner (company) registered under 2008 Act and was engaged in the business of manufacturing of parts and components of lifts and elevators - Petitioner executed work contracts for supply of parts and components of lifts/elevators and to provide services for erection, commissioning and installation of the same - Assessment proceedings were initiated in respect of company for A/y 2010-11 - However, Assessing Authority held the works contract to be a sale contract on ground that all the material utilized in material and parts of a lift were assembled and kept in the godown and were transported to the site after the parties enter into a contract and it was not that the lift or its parts were manufactured after the execution of contract - Assessing Authority imposed a total demand of Rs.5,64,76,626/- - Aggrieved petitioner filed an appeal before Commissioner (Appeals), who stayed the demand to the extent of 50% but directed the petitioner to deposit remaining 50% amount within 30 days - Aggrieved petitioner filed an appeal before Tribunal and Tribunal modified the order of Commissioner (Appeals) and granted stay to the extent of 80% of the total demand on the furnishing of security and remaining 20% was required to be deposited within 30 days - Hence, instant revision petition - Whether works contract entered into between the petitioner and a customer was a sale contract or a works contract -

Held, since assessing authority made the assessment relying exclusively on earlier judgment of SC in State of Andhra Pradesh v. M/S Kone Elevator, 2005 Indlaw SC 113 which was overruled by Constitution Bench of SC in Kone Elevator India Pvt. Ltd. v. State of Tamil Nadu 2014 Indlaw SC 344, petitioner was entitled to complete stay of demand amount - Impugned order passed by Tribunal was modified and a direction was issued to the Appellate Authority to decide the appeal of petitioner expeditiously in accordance with law within a period of 2 months - Till then no recovery shall be made from the revisionist of the remaining amount of 20% of tax for A/y 2010-11 in pursuance of the order of Tribunal - Revision allowed.


P. K. Joseph vs Commercial Tax Officer, Office of Commercial Tax Officer and others  [KERALA HIGH COURT, 25 Aug 2014]

(1) Sadbhav Engineering Limited; (2) Sushee Hi- Tech Constructions Private Limited; (3) Mahalaxmi Engineering Company and others vs State of Uttar Pradesh and others  [ALLAHABAD HIGH COURT, 25 Aug 2014]

Bharath Rock Products, Represented By Its Managing Partner, V. V. Devassykutty vs Commercial Tax Officer, Angamaly and others  [KERALA HIGH COURT, 22 Aug 2014]

Anand Enterprises, Represented by its Managing Partner, R. Anand vs Additional Sales Tax Officer and others  [KERALA HIGH COURT, 21 Aug 2014]

Hughes Communications India Limited vs Commissioner Commercial Tax  [ALLAHABAD HIGH COURT, 21 Aug 2014]

Eureka Forbes Limited vs Assistant Commissioner Special Circle-II, Cochin and others  [KERALA HIGH COURT, 21 Aug 2014]

Satyanarain Keshavram Private Limited, Lucknow vs Commissioner Commercial Tax Uttar Pradesh  [ALLAHABAD HIGH COURT, 20 Aug 2014]



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