HIGH COURT RULING. Manisha Enterprises Vs State Of Orissa (Dated: February 20, 2015)

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1 HIGH COURT RULING 2015-TIOL-2687-HC-ORISSA-CT-LB Manisha Enterprises Vs State Of Orissa (Dated: February 20, 2015) Whether there exists a difference in opinion between two judgments of the High Court, when both the cases deal with different subject matter and provisions of the Orissa Sales Tax Act - NO: HC Whether the assessee can seek relief relying on such decision which is clearly distinguishable from the subject matter in question - NO: HC Also see analysis of the order 2015-TIOL-2686-HC-KERALA-VAT AI - Mahamood Vs CTO (Dated: November 4, 2015) Whether when the transportation of goods was not within the scope of the obligations expected of the assesees in the sale agreement, the entitlement of assessee to the concessional rate of tax envisaged under the 1st proviso to Section 6(1), can be denied solely for the reason that they had not produced a copy of the shipping bill attested by the Port authorities to evidence the fact of shipping of the goods - NO: HC 2015-TIOL-2679-HC-MAD-VAT Cholan Paper And Board Mills Ltd Vs CTO (Dated: November 3, 2015) Whether when without affording any opportunity to the assessee as contemplated u/s 84, an order of assessment has been passed, that would be considered as passed in violation of the principles of natural justice - YES: HC 2015-TIOL-2678-HC-MAD-VAT G S Battery Point Vs DCTO (Dated: November 5, 2015) Whether when no opportunity of personal hearing was granted to the assessee, there is no such reference with regard to the purchase bills produced by the assessee, the assessee complied Section 19(1) as well as Rule 10(2) of the TNVAT Act & Rules for claiming Input tax credit, the denial of same for the lapses on the part of the sellers, can be justified - NO: HC 2015-TIOL-2668-HC-AHM-VAT Shree Somanath Agency Vs State Of Gujarat (Dated: November 5, 2015) Whether in absence of any State Government notification specifying the places where check-post is to be set up or barrier is to be erected, the officer at the check post has the jurisdiction to take any action in exercise of powers u/s 68(4) or (5) and issue seizure memo or show cause notice - NO: HC

2 2015-TIOL-2665-HC-DEL-VAT Ansal Properties & Infrstructure Ltd Vs Commissioner Of Trade & Taxes (Dated: November 17, 2015) Whether reopening of assessment is justified when original assessment has been made after persuing balance sheet and other documents and option of invoking the revisional powers is available - NO : HC 2015-TIOL-2664-HC-MAD-VAT Gemini Edibles & Fats India Pvt Ltd Vs DCTO (Dated: October 30, 2015) Whether goods be released when assessee has agreed to pay one time tax - YES : HC 2015-TIOL-2663-HC-MAD-VAT Sree Durga Metal & Alloys Vs Assistant Commissioner (CT) (Dated: October 15, 2015) Whether when the objection letter of the assessee was not at all taken into consideration by the AO before passing an order, no reason has been assigned in the order for the refusal to furnish the copies of the documents sought for in the objection letter, the order so passed would be considered valid - NO: HC 2015-TIOL-2660-HC-MUM-VAT Addl.CST Vs M/s Hightechswitch Gear Pvt Ltd (Dated: November 17, 2015) Whether claim made by assessee based on form A can be disallowed on the ground that the Notification Entry A-88 was applicable to the goods covered by the Schedule Entry C -II NO: HC 2015-TIOL-2658-HC-P&H-VAT M/s J K Associates Vs Excise And Taxation Commissioner, Patiala and Others (Dated: November 16, 2015) Whether case be remanded without expressing any opinion on the merits when the order in question is not a speaking order - YES : HC 2015-TIOL-2647-HC-MAD-CT Hindustan Unilever Ltd Vs Deputy Commissioner (CT) (Dated: October 27, 2015) Whether recovery proceedings be stoped till the disposal of appeal on merit, when interest of Revenue is safeguarded by remitting 50% of the disputed tax for all the assessment years as well as furnishing bank guarantee for the remaining 50% of the disputed tax and penalty - YES : HC 2015-TIOL-2646-HC-P&H-VAT

3 Pawan Kumar Vs State of Punjab (Dated: October 19, 2015) Whether order which is neither speaking nor has been passed after affording an opportunity of hearing to opposite party be quashed - YES : HC 2015-TIOL-2643-HC-MAD-VAT Aaliyah Textiles Vs Assistant Commissioner (CT) (Dated: October 29, 2015) Whether mere failure to file Form WW can be a ground to disallow the exemptions claimed under the provisions of TN VAT Act, where the said assessee has already deposited the penalty as imposed upon him for belated filing - NO: HC 2015-TIOL-2639-HC-MAD-CT K S B Pumps Ltd Vs State Of Tamil Nadu (Dated: September 30, 2015) TNGST Act, Section 38 - CST Act, Whether the fact that the assessee could have filed an application for rectification along with necessary forms would not preclude the assessee from producing them either before the first Appellate Authority or before the second Appellate Authority, provided the forms of declaration are genuine - YES: HC Whether the Tribunal was not right in non suiting the assessee on the short ground that they ought to have produced the forms before the Assessing Officer within five years, as per the circular of the Commissioner - YES: HC 2015-TIOL-2638-HC-MAD-CT Philips India Ltd Vs Deputy Commissioner (CT) (Dated: October 16, 2015) Whether recovery proceedings shall be kept in abeyance till the disposal of the appeal on merit when Revenue is safeguarded by remitting 50% of the disputed tax as well as furnishing bank guarantee for the remaining 50% - YES: HC 2015-TIOL-2635-HC-RAJ-VAT Kalra Steel Traders Vs ACTO (Dated: April 30, 2015) Whether any question of law can be said to arise warranting interference in the decision taken by the Tax Board, where such decision is based on proper finding of fact - NO: HC 2015-TIOL-2632-HC-MAD-VAT Base Automation Technologies Pvt Ltd Vs Assistant Commissioner (Ct) (Dated: November 3, 2015) Whether a registered dealer is required to be provided with the necessary invoice wise details before proposing to reverse the input tax credit, which are the basis for passing the orders of said assessment - YES: HC

4 2015-TIOL-2620-HC-DEL-VAT Shruti Fasteners Ltd Vs Commissioner of Value Added Tax (Dated: October 15, 2015) Whether when no 'reasons to believe' were formally recorded by the VATO on the file prior to initiating the proceedings, the assessment was being reopened merely "as per direction of higher authorities", such order of assessment is valid as per law - NO: HC Whether recording of reasons to believe is a mere procedural irregularity that can be condoned by remanding the matter to the VATO for a fresh reassessment proceeding - NO: HC 2015-TIOL-2603-HC-MUM-VAT Siddhi Diamonds Tools And Abrasives Vs ACST (Dated: September 15, 2015) Maharashtra Value Added Tax Act, Whether the assessee cannot seek stay of recovery, when he has not disclosed the imports and VAT paid - YES: HC 2015-TIOL-2602-HC-AHM-VAT Automark Industries (I) Ltd Vs State Of Gujarat (Dated: October 5, 2015) Whether when drastic powers are conferred on the executive, it is imperative that those powers be exercised with due sense of responsibility and with circumspection by an officer or authority - YES: HC Whether the Revenue authority is justified in resorting to the drastic measure of attaching the bank accounts of assessee without even waiting for the period assigned to the assessee under the demand notice - NO: HC 2015-TIOL-2596-HC-AHM-VAT Fenesta Building Systems Vs State Of Gujarat (Dated: November 3, 2015) Whether in case no condition of penalty has been imposed upon the assessee for release of the goods, the Revenue only wants to verify the actual facts of the case to examine the tax liability of assessee, is it necessary to detain the truck along with the goods - NO: HC 2015-TIOL-2594-HC-MAD-VAT M/s Ajk Safety Engineering Vs CTO (Dated: October 29, 2015) Whether ex-parte assessment made by the CTO is liable to be set aside and remitted back to him for consideration afresh, in case the assessee was not granted opportunity of hearing although he has paid the mandatory pre -deposit - YES: HC 2015-TIOL-2579-HC-P&H-VAT

5 Relaxo Footwear Ltd Vs State Of Haryana (Dated: September 29, 2015) Whether a person is entitled to produce the STDIV declaration and ST -14B Forms, even before the appellate authority - YES : HC Whether the amount of purchase tax can be demanded under Rule 28B(3)(j) of the Rules especially when it has been granted exemption from payment of tax - YES : HC 2015-TIOL-2575-HC-AHM-VAT M/s Asian Logistic Vs Assitant Commissioner Of Commercial Tax Officer (Dated: October 29, 2015) Whether when the assessee has deposited a sum with the Department authorities in terms of the directions issued by this court, then nothing survives in the present petition and that the same has become infructuous - YES:HC 2015-TIOL-2571-HC-MUM-MISC Amit Hemendra Jhaveri Vs UoI (Dated: October 13, 2015) Whether Section 95 of Kar Vivad Scheme, 1998 which excludes certain class of persons to whom the provisions of the Scheme shall not apply, is violative of Section 14 of the Constitution of India TIOL-2567-HC-RAJ-VAT ACTO Vs Swastik Agencies (Dated: October 16, 2015) Whether even if some parts of Battery or Battery-parts can be said to be sold for other purposes but primarily it is meant for motorcars, in that case general rate would not be applicable as Battery and its parts in common parlance is said to be fitted in motorcars - YES: HC 2015-TIOL-2566-HC-MAD-VAT Sri Kathaya Amman Agencies Vs CTO (Dated: September 11, 2015) TNVAT Act, Section 63A - Input Tax Credit. Whether the Department needs to consider the representation of the assessee, before passing the final orders on merit - YES:HC 2015-TIOL-2554-HC-MAD-VAT Abl Traders Vs CTO (Dated: September 25, 2015) Whether when admittedly the assessee firm has paid the tax, he cannot be made liable for the failure on the part of the seller to report the same to the CTO - YES: HC

6 2015-TIOL-2548-HC-AHM-VAT State Of Gujarat Vs Pepsico India Holdings Pvt Ltd (Dated: October 16, 2015) Whether for purpose of invoking the extended period of limitation, the Department is required to make out a case that the reassessment proceedings had been initiated on account of the Commissioner having reason to believe that the dealer had concealed sales or knowingly furnished incorrect declaration - YES: HC Whether when the reassessment under section 44 is itself barred by limitation, it is not necessary to enter into the merits of the other issues adjudicated by the Tribunal - YES: HC 2015-TIOL-2546-HC-PATNA-MISC Dabur India Ltd Vs State of Bihar (Dated: September 17, 2015) Whether appeal be heared on substantial question of law which is not arising from revisional order - NO : HC 2015-TIOL-2544-HC-MAD-VAT Sree Rajalakshmi Finance Vs Assistant Commissioner (CT) (Dated: September 30, 2015) Whether when it is submitted that yet another opportunity may be given to the assessee with respect to the claim of production of declaration forms alone, the High Court is inclined to grant sufficient time to the assessee - YES: HC 2015-TIOL-2533-HC-MUM-CT CST Vs Jai Hind Industries Ltd (Dated: October 30, 2015) Whether raw & unfinished aluminum castings manufactured by an assessee fall within the residual Entry C-II-102 and not within Entry C-I-29 of Bombay Sales Tax Act, merely because the word 'castings' is not found in Entry C-I-29 - NO: HC 2015-TIOL-2533-HC-MUM-CT CST Vs Jai Hind Industries Ltd (Dated: October 30, 2015) Whether raw & unfinished aluminum castings manufactured by an assessee fall within the residual Entry C-II-102 and not within Entry C-I-29 of Bombay Sales Tax Act, merely because the word 'castings' is not found in Entry C-I-29 - NO: HC 2015-TIOL-2532-HC-MAD-VAT Shan Holiday Inn Pvt Ltd Vs Assistant Commissioner (CT) (Dated: September 21, 2015) Whether when the assessee is facing financial crunch in order to make payments relating to tax because of the attachment of its bank accounts, is it reasonable for the department to lift that ban - YES: HC

7 2015-TIOL-2513-HC-MAD-VAT A V S Constructions Vs Appellate Deputy Commissioner (CT) (Dated: September 30, 2015) Whether even in case the assessee has not filed the appeals belatedly for certain malafide reason with a deliberate intention to delay the matters, the appellate authority has not disputed the veracity of the statement filed by assessee, condonation of delay can be denied to him - NO: HC

Lotus Impex. Commissioner, Department of Trade & Taxes, New Delhi and another

Lotus Impex. Commissioner, Department of Trade & Taxes, New Delhi and another [2016] 89 VST 450 (Del) [IN THE DELHI HIGH COURT] Lotus Impex V. Commissioner, Department of Trade & Taxes, New Delhi and another DR. MURALIDHAR AND VIBHU BAKHRU S. JJ. February 19,2016 HF Assessee, including