HIGH COURT RULING. Saluja Construction Co Ltd Vs State Of Haryana (Dated: May 13, 2016)

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1 HIGH COURT RULING 2016-TIOL-1243-HC-MAD-VAT Aluminium Combines Vs CTO (Dated: April 29, 2016) Whether if the Revenue has not given an opportunity of personal hearing to the petitioner, which is a mandatory provision of section 22 (4) of the Tamil Nadu Value Added Tax Act, is violative of principles of natu ral justice, the orders passed are liable to be set aside - YES: HC 2016-TIOL-1241-HC-P&H-VAT Saluja Construction Co Ltd Vs State Of Haryana (Dated: May 13, 2016) Whether the writ petition is to be entertained to set aside any notice issued by the lower authority, reply to which has been filed by the petitioner and acknowledgment to same is pending - NO: HC 2016-TIOL-1231-HC-MAD-VAT Indian Oil Corporation Ltd Vs Deputy Commissioner (CT) (Dated: June 3, 2016) Whether an assessee being a public sector undertaking, deserves absolute stay from payment of 25% of disputed tax demand, when the appeal against such demand is pending before the appellate authority - YES: HC 2016-TIOL-1222-HC-ORISSA-VAT Hindalco Industries Ltd Vs DCST (Dated: May 19, 2016) Whether natural justice can be said to have been violated where there is notice to show cause issued to a proposal to withhold the refund but there is no order of withholding refund - No: HC 2016-TIOL-1221-HC-MAD-VAT Kumaran Hardwares Vs CTO (Dated: June 1, 2016) Whether when an assessment order is passed u/s 22(2) of TNVAT Act on the basis of self assessment made by assessee, then can the same be taken as final assessment and work as an embargo to initiate proceedings u/s 27 - No: HC Whether when assessee's contention against reopening & levy of penalty being not justified is rejected, then can a plea that he was not afforded an opportunity of personal hearing serve as basis for allowing of his writ petition - Yes: HC 2016-TIOL-1219-HC-MAD-CT Koutham Blue Metals Vs CTO (Dated: June 6, 2016)

2 Whether in case the excavator moves around only in work sites and it is not suitable or adapted for use in public roads, even then can the same be considered as vehicle and liable to entry tax as per the provisions of Tamil Nadu Tax on Entry of Motor Vehicles Act - NO: HC 2016-TIOL-1218-HC-AHM-CT State of Gujarat Vs Larsen and Tourbo Ltd (Dated: June 21, 2016) Whether the sale of goods that took place at Bombay High, for which the goods moved from Hazira to Bombay High is an export not liable to CST Yes: HC 2016-TIOL-1208-HC-MAD-VAT Pandi Devi Oil Pvt Ltd Vs DCTO (Dated: June 8, 2016) Tamil Nadu VAT Act, Whether as the reasons assigned in the interim order will always hold the effect for the final relief, it is possible for the assessee to challenge the final verdict given by the court of law - NO: HC 2016-TIOL-1198-HC-AHM-VAT Hynoup Food And Oil Industries Ltd Vs State of Gujarat (Dated: June 6, 2016) Whether right of appeal u/s 73(1) of Gujarat VAT Act is conditional upon the assessee either satisfying the requirement of predeposit of tax or having such requirement waived by the appellate authority in terms of proviso to section 73(4) - YES: HC Whether the requirement of predeposit envisaged u/s 73 of Gujarat VAT Act with possibility of partial or total waiver, would not fall within the scope of section 22(1) of SICA - YES: HC Whether where any proceedings are pending before the BIFR or the appellate authority, that by itself would not mean that the predeposit requirement u/s 73(4) of Gujarat VAT Act would be obliterated - YES: HC 2016-TIOL-1197-HC-KAR-CT Gem Sugars Ltd Vs Principal Secretary (Dated: June 10, 2016) Whether in case proceeding has not been held by issuing appropriate notice to the assessee and as such the order passed is an unilateral action denying the benefit, which has been granted to the petitioner, such an order passed can be considered as legal - NO: HC 2016-TIOL-1196-HC-MAD-VAT Manoj Metals Vs Asstt Commissioner (Dated: March 2, 2016) Whether a writ petition is maintainable where the assessee without availing the statutory remedy of appeal has filed writ petition challenging the order which is passed in a detailed manner an after affording an opportunity of being heard to the assessee - No: HC

3 2016-TIOL-1191-HC-MAD-VAT Balaji Rubber Industries Pvt Ltd Vs CTO (Dated: June 9, 2016) Whether if the mistakes committed by assessee are not only clerical or calculation mistakes, which could be rectified in exercise of power u/s 84, but the power granted to Revenue is akin to the power of review, in such a case an opportunity of personal hearing to the assessee has to be given before passing any judgment in that regard - YES: HC 2016-TIOL-1185-HC-MAD-VAT Computer Consultants Vs Assistant Commissioner (CT) (Dated: June 2, 2016) Whether as long as the purchasing dealer has complied with the requirements as given under Rule 10(2), the claim of the purchasing dealer cannot be denied by the Revenue, the mere fact that the Revenue had not made an assessment on the assessees vendor, the same cannot stand in the way of AO considering the claim of the assessee u/s 19 - YES: HC 2016-TIOL-1184-HC-MAD-VAT Jaya Granits Vs Assistant Commissioner (CT) (Dated: June 3, 2016) Whether when there is no dispute with regard to the genuineness of the business that is going to be carried on at the place of business, is it for the Revenue to suggest the extent of the land that is necessary to carry on the business and it is for the businessman to decide the same - NO: HC 2016-TIOL-1181-HC-MAD-VAT DR Enterprise Automotive Pvt Ltd Vs ACCT (Dated: June 7, 2016) Whether penalty could be levied only in the case of concealment of sales or purchase transactions, it cannot be initiated when all transactions of deletion are available in the books of accounts and they have reflected in the annual financial transactions - YES: HC 2016-TIOL-1169-HC-MAD-CT Mahalakshmi Iron Traders Vs DCTO (Dated: June 3, 2016) Whether when the AO abdicated his powers and passed the orders solely based upon D3 proposal, even assuming that the assessee did not file their objections, will that become a ground to pass the orders without assigning any reason - NO: HC Whether in case the orders so passed, do not state that the procedure contemplated under Rule 52(1) of the said Rules had been followed in the manner of service of notice, it would be proper for the court to direct the assessee to treat the impugned proceedings as show cause notices - YES: HC

4 2016-TIOL-1168-HC-AHM-MISC Daudayal Hotels Pvt Ltd Vs State of Gujarat (Dated: June 7, 2016) Whether the term 'occupancy' and 'actual occupancy' under different clauses of Section 3(1) of Gujarat Luxuries tax Act, 1977, can be said to have same interpretation or connotations - NO: HC 2016-TIOL-1167-HC-MAD-VAT A V Thomas Leather And Allied Products Pvt Ltd Vs Assistant Commissioner (CT) (Dated: June 6, 2016) Whether when the averment that proof for movement of goods has not been produced, was never the stand of the department in the show cause notice, an order cannot be passed by the Department giving reasons which were not the basis on which show cause notice was issued as this amounts to clear violation of principles of natural justice - YES: HC 2016-TIOL-1165-HC-GUW-VAT Patel Brothers Vs State of Assam (Dated: April 7, 2016) Whether the application of section 5 of the Limitations Act, 1963 to a proceeding u/s 81(1) of the Assam VAT Act, 2003 stands excluded by necessary implication by virtue of the language employed u/s 84 of Assam VAT, YES: HC Whether the statutory period for preferring appeal and/or revision under a special Act cannot be enlarged by taking recourse to section 29(2) of the Limitation Act, when there is an express or implied exclusion of the applicability of the provision of section 5 of Limitation Act, YES: HC Whether or not there is an express or implied exclusion of the operation of any of the provisions of the Limitations Act, 1963 is to be considered not on the basis of the language used in section 29(2) of the Limitations Act but by giving a purposive interpretation to the relevant provisions of the Assam VAT Act, YES: HC 2016-TIOL-1150-HC-DEL-VAT Saurabh International Vs CTT (Dated: May 24, 2016) Whether an ex-parte order for default assessment of tax, interest & penalty, passed without affording the assessee an opportunity of being heard, is liable to be quashed - YES: HC 2016-TIOL-1149-HC-KAR-VAT Ajanta Digital Lab Vs CTO (Dated: May 31, 2016) Whether when the levy of output tax is sustainable on a particular activity, has been decided to be a works contract' subsequently by the Apex Court order, the computation of net tax liability under the provisions of the VAT Act, 2003 has to be done afresh by AO - YES: HC

5 2016-TIOL-1145-HC-DEL-VAT Bajrang Fabrics Pvt Ltd Vs Commissioner of VAT (Dated: June 2, 2016) Whether an order validly passed by the Commissioner in exercise of his powers under Rule 62 (1) (vi) of the DVAT Rules is binding on the registered dealers Yes: HC Whether service of notice is deemed to be proper where an order was validly passed by the Commissioner in exercise of his powers under Rule 62 (1) (vi) of the DVAT Rules but the Assessee failed to go to the website to view the impugned notices, notwithstanding the order of the Commissioner YES: HC Whether notices of default assessment of tax, interest and penalty issued by the VATO under Sections 32 and 33 of the DVAT Act are valid where there are glaring errors in each of the impugned orders and the notices were issued without application of mind by the VATO NO: HC 2016-TIOL-1130-HC-DEL-VAT Jbn Impex Pvt Ltd Vs CTT (Dated: June 1, 2016) Whether when the notices issued regarding assessment of tax, interest and penalty are system generated and signed mechanically by the VAT Officer without application of mind, the court can set aside such default notices, can remand the matter back for further enquiry - YES: HC 2016-TIOL-1129-HC-KOL-MISC Ashok Kumar Singh Vs State of West Bengal (Dated: May 19, 2016) Criminal Proceeding - The petitioner as an Examining Officer of the Customs omitted to perform duty in order to assist the principal accused Shri Kishorepuria in his attempt to export goods improperly from India - the action or omission on the part of the petitioner will come within the ambit of "anything purporting to be done in pursuance of this Act" appearing in section 155(2) of the Customs Act, as a result, the criminal prosecution against the petitioner will be barred after expiry of three months from the date of accrual of cause of action and without giving notice in writing of one month as laid down in section 155(2) of the Customs Act - the present criminal proceeding initiated against the petitioner after about 14 months from the date of accrual of cause of action is, thus, barred under section 155(2) of the Customs Act - since the criminal proceeding against the petitioner is barred by limitation, the continuation of the said criminal proceeding against the petitioner will be an abuse of the process of the court - so power under Section 482 of the Code of Criminal Procedure invoked for quashing the said criminal proceeding against the petitioner - the Special Case No.1 of 2004 arising out of Crime No.RC-7/E/96-Calcutta dated pending before the Court of Learned Judge, Special Court (CBI), Alipore is quashed so far as the present petitioner is concerned : HIGH COURT [para 14, 15] 2016-TIOL-1122-HC-KAR-VAT Photo Emporium Vs DCCT (Dated: May 31, 2016) Whether when the levy of output tax is sustainable on an activity held to be a works contract' subsequently, by the Apex Court, computation of net tax liability under the provisions of the VAT Act, 2003 has to be done afresh by the AO in accordance with the provisions of the VAT Act, YES: HC 2016-TIOL-1113-HC-DEL-VAT

6 Jain Manufacturing (India) Pvt Ltd Vs Commissioner Value Added Tax (Dated: June 1, 2016) Whether in case a valid registration of purchasing dealer on the date of transaction and the C-Form having been validly issued as on the date, can there could be a retrospective cancellation of such C-Form, even if it is apparent that there is no statutory power that permits cancellation of a C -Form that has been validly issued - NO: HC Whether if a selling dealer fails to make diligent enquiries and proceeds to sell goods to a purchasing dealer who does not, on the date of such sale, hold a valid CST registration then such selling dealer cannot later be seen to protest against the cancellation of the C-Form, he have to pay for his "recklessness - YES: HC Whether in case the cancellation of registration and, consequently of C -Form is sought to be done retrospectively, it would adversely affect the rights of bonafide sellers in other states who proceeded on the basis of the existence of valid CST registration of the purchasing dealer on the date of the inter-se sale - YES: HC 2016-TIOL-1107-HC-DEL-MISC Pfizer Products India Pvt Ltd Vs UoI (Dated: May 18, 2016) Drugs & Cosmetics Act - WP - The petition (i) impugns the notice-cum-order dated of respondent Drugs Controller General (India) [DGCI] rejecting the representation dated of the petitioner with respect to the drug "Medrol" and reserving the right for initiating legal proceedings against the petitioner (ii) seeks a mandamus to the respondent DCGI to re-consider the representation of the petitioner and (iii) seeks to restrain DCGI from enforcing the impugned notice -cumorder dated with respect to drug "Medrol" or from taking any other coercive measure under the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder : HELD - As far as the second grievance is concerned, the same stands addressed by this Court having, by interim order in this petition, directed the respondent DCGI to consider on merits the request of the petitioner for extension of period of expiry and by rejection thereof by the respondent DCGI,the writ petition to the said extent thus does not survive - as regards the first grievance, the same is already subject matter of adjudication before the High Courts of Madras and Karnataka& it is, therefore, not deemed appropriate to entertain the same in this petition - as regards the third prayer, this Court cannot pass any peremptory order to the said effect as at this juncture it is not known whether DGCI would take any step for which rights have been reserved in the impugned order - no further orders deemed necessary in this petition : HIGH COURT [para 12, 13, 15, 16] 2016-TIOL-1097-HC-DEL-MISC UoI Vs Nishith Goyal (Dated: May 9, 2016) Promotion - Central Administrative Tribunal has rightly directed that the Review DPC should be held for consideration of the first respondent's case for the vacancies arising in the year upgradation of the grading in the ACR for the period to necessitates and mandates the said direction - the first respondent would have possibly lost his seniority as his juniors would have been promoted ahead of him - order of Tribunal is just and fair and requires no interference - UOI's petition dismissed: High Court [para 6, 7, 8] 2016-TIOL-1084-HC-MAD-VAT

7 Texsyard International Vs Assessment Commissioner CT) (Dated: April 26, 2016) Whether in case the Tax Authorities has passed an order on the basis of the recommendation or the finding of a superior officer, the order is to be considered as passed without application of mind independently, the same is therefore vitiated - YES: HC 2016-TIOL-1068-HC-DEL-VAT Kapur Gems Pvt Ltd Vs CTT (Dated: May 24, 2016) Whether the order passed by the appellate tribunal can be modified by the court by reducing the percentage of pre deposit required to be submitted by the assessee - YES: HC 2016-TIOL-1067-HC-DEL-VAT Pioneer Publicity Corporation Pvt Ltd Vs CVAT (Dated: May 25, 2016) Whether there can be any doubt in the proposition that levy of Service Tax and Value Added Tax are mutually exclusive, which implies that on a particular transaction either Service Tax or Value Added Tax could apply - NO: HC 2016-TIOL-1056-HC-MAD-VAT Red Giant Movies Vs State of Tamil Nadu (Dated: April 25, 2016) Whether the Commissioner (CT) can consider an application for grant of exemption from entertainment tax for a Tamil movie, without obtaining concurrence from the Election Commission, when he was specifically directed to defer the exemption till completion of election - NO: HC 2016-TIOL-1052-HC-MAD-VAT M Amurtham Petroleum Agency Vs Additional Deputy Commercial Tax Officer-IW (Dated: April 7, 2016) Whether oil corporations can be non-suited on the ground that they are not the registered dealers under the Puducherry VAT Act, 2007 where the refusal of the Puducherry Authorities to issue 'C' Form Declarations has a direct financial impact only upon the oil Corporations NO: HC Whether liability imposed under Section 8(2) of the Act upon every dealer to pay tax at the rate stipulated by the local Sales Tax Law of the appropriate State, on his turnover, which relates to sale of goods in the course of Inter-State trade or commerce is a concession NO: HC Whether for a default committed under a State Enactment, the Prescribed Authority can refuse to issue a declaration under the Central Enactment Yes: HC Whether the Oil Corporations can seek the issue of a Writ of Mandamus to compel the issue of C -Declaration Forms where though they are not, by themselves, the defaulters but their own authorised dealers have committed default, which is also not recoverable from these oil corporations NO: HC Whether the assessee or the person to whom the assessee owes an obligation, can dictate to the State, the mode of recovery to be chosen by them No: HC

8 2016-TIOL-1045-HC-MAD-VAT Ravindran Vs Principal Secretary (Dated: April 20, 2016) Whether the Principal Secretary, CCT can consider an application for grant of exemption from entertainment tax for a Tamil movie, without obtaining concurrence from the Election Commission, when he was specifically directed to defer the exemption till completion of election - NO: HC 2016-TIOL-1044-HC-DEL-VAT Vayam Technologies Ltd Vs CTT (Dated: May 26, 2016) Whether in the absence of any rules being framed u/s 102 (2) (z) read with Section 59 (2), the power of the Commissioner under Section 59 (2) to call upon a person to produce the books of accounts and other documents can be exercised - YES: HC 2016-TIOL-1043-HC-KAR-VAT Hindusthan Calcined Metals Pvt Ltd Vs State of Karnataka (Dated: April 11, 2016) Whether an assessee is entitled to claim benefit of input tax prescribed by the amended provision of Section 10(3) of KVAT Act, 2015, irrespective of the month in which the selling dealer raises invoices - YES: HC 2016-TIOL-1042-HC-DEL-VAT Roshan Lal Lalit Mohan Vs Govt of NCT of Delhi (Dated: May 23, 2016) Whether in case the Revenue department does not have the records, is it possible for them to verify the correctness of the records to be produced by the assessees - NO: HC 2016-TIOL-1032-HC-KAR-VAT Univercell Telecommunications (India) Pvt Ltd Vs State of Karnataka (Dated: April 28, 2016) Whether an appeal against the jurisdiction u/s 39 as well as reopening of the concluded assessment which was based on the subsequent decision of the Supreme Court, lies before the Division bench of High Court, in case the matter is pending before the Single bench - NO: HC 2016-TIOL-1031-HC-MAD-VAT Tulsyan Nec Ltd Vs Assistant Commissioner (CT) (Dated: January 9, 2015) TNVAT Act, SEZ Transactions - Petitioner is a public limited company, engaged in the manufacture of High Tensile Fasteners, Gear Shifters etc., and its factory located in Special Economic Zones (SEZ) - They were awarded contracts for construction of their factory building and related infrastructure in the SEZ - in terms of Section 18 (1)(ii) of the TNVAT Act, any sale effected to a unit includes a deemed sale

9 in line with the definition of sale contained under Section 2(33) of the TNVAT Act, in terms of Article 366(29A)(b) of the Constitution of India - the Commissioner issued the impugned circular stating that works contracts executed for SEZ units cannot have the benefit of zero rating, since goods transferred by a contractor are neither exported as such or used in the manufacture of other goods which are exported; that sale of goods involved in the execution of works contract, to any other registered dealer located in SEZ in the State is not zero rate sale; that the goods are not exported as such or consumed or used in the manufa cture of other goods that are exported, as required under Section 18(2) of the TNVAT Act - Based on the circular, the Assessing Officer viewed that no zero rating is permissible and issued notices/orders to reverse the input tax credit availed - the petitioner has challenged the circular dated , and the consequential action of the Assessing Officer TIOL-1030-HC-PATNA-VAT Dell India Pvt Ltd Vs State of Bihar (Dated: April 1, 2016) Whether penalty u/s 31 of Bihar VAT Act can be levied upon a dealer, if it has paid the entry tax on the entire value of the goods which have been brought in by it - NO: HC 2016-TIOL-1019-HC-AHM-VAT Samay Enterprise Vs State of Gujarat (Dated: May 6, 2016) Whether in case attachment of movable and immovable properties of assessee is sufficient to secure assessed liability, an ad-interim relief can be granted to him, they can be directed to lift the provisional attachment made on the bank accounts as well as to delete the condition for maintaining stock, to permit disposal of perishable goods - YES: HC 2016-TIOL-1008-HC-KAR-VAT M/s Heaven Inn (Bar Attached) Vs State of Karnataka (Dated: April 25, 2016) Whether the classification of dealers based on value addition criteria for the purpose of tax and exempting the dealers based on area criteria are to be held discriminatory - No: HC 2016-TIOL-1000-HC-KOL-VAT Indian Oil Corporation Ltd Vs Senior Joint Commissioner Of Commercial Taxes (Dated: May 20, 2016) Whether bitumen emulsion should be regarded as bitumen and covered by Entry 14 of the list of goods taxable at five per cent in Part-I of Schedule C to the West Bengal Valued Added Tax Act, 2003 YES: HC 2016-TIOL-997-HC-MAD-VAT Schwing Stetter (India) Pvt Ltd Vs CCT (Dated: April 5, 2016) Whether the expression "in the State" appearing in Section 2(11) of the TNVAT Act is

10 unconstitutional No: HC Whether law validly enacted by a State Legislature, can be challenged on the ground that it defies logic and common sense No: HC Whether vires of a statutory provision can be tested on the basis of a circular or clarification issued by the Department No: HC Whether the adoption of a classification under Section 2(11) of the State Act can be assailed as discriminatory, offending Article 14 of the Constitution where Section 8 of the Central Sales Tax Act, 1956, itself creates a classification based upon the registration of the dealers No: HC Whether there is an attempt to tax the sale or purchase of goods that take place outside the State so as to offend Article 286(1)(a) where the goods that fall outside the definition of Section 2(11), would attract tax at 14.5% by virtue of Entry 69 in Part-C of the first schedule No: HC Whether there is infringement of Article 301 where those who sell the very same goods in the course of inter-state trade or commerce to unregistered dealers are made to pay higher rate of tax No: HC