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Contents iii However, in gate pass of Mandi Samiti, quantity of goods was mentioned - Assessee also maintained builty and dispatch numbers evidencing transport, wherein address of recipient was also available - Whether, in age of electronic era, no formal contract is required and a telephonic contract is sufficient and, therefore, on facts of instant case, it was to be held that assessee was a commission agent making purchases for ex-U.P. principals - Held, yes [Section 3 of the Uttar Pradesh Trade Tax Act, 1948] - Commissioner, Trade Tax, Lucknow v. K.S. Trading Co. (All.) 193 MANUFACTURE - Assessment year 1989-90 - Assessee was engaged in business of manufacture and sale of hard coke - It claimed that manufactured hard coke was not liable to tax because it was manufactured out of tax paid coal and both coal and hard coke were same commodities - Hard coke was manufactured by assessee after processing of coal breeze and it was commercially known as a different commodity than coal/coal breeze - Whether since process involved in converting coal into hard coke was process of ‘manufacturing’ within ambit of section 2(ee), assessee was liable to pay tax on sale of hard coke being manufacturer of same - Held, yes [Section 2(e-1) read with section 2(ee) of U.P. Trade Tax Act, 1948] - Commissioner, Trade Tax, U.P. v. Ramco Coke Industries (All.) 196 - Assessment year 1981-82 - Assessee carried on business of purchasing and selling of scooters, their parts, etc. - It had purchased chassis of scooters against Form 3A and later put body fabricated over it and sold same as tempo to customers - Assessing Officer opined that tempo was a different commodity liable to purchase tax under section 3AAAA - Whether mounting of body over chassis did not amount to manufacturing activity but it facilitated chassis for purpose of usable item and, thus, no different commercial item had emerged - Held, yes - Whether, consequently, impugned order passed by Assessing Officer was to be set aside - Held, yes [Section 3AAAA of the U.P. Sales Tax Act, 1948] - Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Ashish Automobiles (All.) 240 PENALTY - IN CASE OF NON-DISCLOSURE OF SALES TURNOVER OF OLD VEHICLES - Assessment years 2005-06 and 2006-07 - Assessee, a registered dealer, was engaged in sale of twowheelers - It conducted exchange mela wherein owners of old two-wheelers were provided with facility to exchange their old vehicles with new ones - As per terms of agreement, if value of old vehicle fixed by assessee’s broker was accepted by customer then he could purchase new vehicle from assessee by remitting balance sale price - Subsequently, broker sold old vehicles delivered by customers and remitted value earlier fixed to assessee with which entire price of new vehicles sold to customers, got paid - Even though old two wheelers were purchased from customers and resold later by assessee and broker, neither assessee nor broker conceded any purchase and sale of old vehicles - In view of non-payment of tax on sale of old vehicles, Intelligence Officer levied penalty under section 67 - Whether having regard to fact that purchase and sale of old vehicles were either by or on behalf of assessee, impugned penalty order passed by Intelligence Officer was to be confirmed - Held, yes [Section 67 of the Kerala Value Added Tax Act, 2003] - Cheerans Auto Agencies v. State of Kerala (Ker.) 217 - Assessee was engaged in manufacturing and sale of iron and steel goods - It was entitled to tax exemption under Act for a period of seven years with effect from 27-3-2000 to 26-3-2007 - Assessee sold certain goods to consignee ‘M’ vide invoice dated 26-3-2007 and earmarked for loading in truck which was reported at ICC center on 30-3-2007 - Required documents as envisaged under sub-section (2) of GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 5
iv Contents section 51 were presented at ICC center, however, goods were detained by officerin-charge under sub-section (6)(a) of section 51 by doubting genuineness of transaction/documents as arrival and reporting of vehicles at ICC center had been after four days of date of invoice - It was, therefore, found that invoices were ante dated to evade tax - Matter was, thereafter, reported to designated officer, who after conducting an enquiry, held that there was an attempt to evade tax and, accordingly, exercising power under clause (b) of sub-section (7) of section 51 imposed penalty vide order dated 13-4-2007 - Whether since sale invoice/bills had been issued on 26- 3-2007 and goods were earmarked and goods receipts were issued to vehicles for their onward transmission to consignee on same date, mere delayed movement of goods would not be sufficient to conclude that there was an attempt to evade payment of tax - Held, yes - Whether therefore, penalty levied on assessee was to be deleted - Held, yes [Section 51(7)(b) of the Punjab Value Added Tax Act, 2005] - Vardhman Industries Ltd. v. State of Punjab (Punj. & Har.) 227 - FOR AN ATTEMPT OF EVASION OF TAX - Lower authorities levied penalty under section 47(6) upon assessee on ground that at time of transport of goods, which were machinery for road work, from Kerala to outside State, assessee did not have registration under Act - Whether since transaction did not involve any sale, no penalty could be levied upon assessee for attempted evasion of tax under section 47(6) - Held, yes [Section 47(6) of the Kerala Value Added Tax Act, 2003] - Sasi Road Finishers & Engineering Contractors v. State of Kerala (Ker.) 242 - IMPOSITION OF PENALTY IN CERTAIN CIRCUMSTANCES - Assessing Officer held that tax on sale of starters and switches was payable at rate of 12 per cent and not at rate of 3 per cent as paid by assessee - He, accordingly, held return filed by assessee to be a false return and directed recovery of tax at rate of 12 per cent and also imposed penalty upon assessee - Board held that tax on impugned sale was payable at rate of 3 per cent - Whether once tax rate was held by Board to be 3 per cent, then return filed by assessee could not be held to be false, wrong or bad - Held, yes - Whether, therefore, penalty imposed upon assessee was liable to be set aside - Held, yes [Section 69 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994] - Rajesh Electricals v. Registrar (MP) 244 - IN CASE OF SUBMISSION OF FABRICATED ‘C’ FORMS - Assessee was engaged in business of importing and selling of toiletries and fancy items - It imported some goods through Cochin port and sold same with help of a consignee situated at Mangalore - In course of assessment, assessee was directed to produce ‘C’ forms in support of aforesaid sale - Assessee produced original ‘C’ forms as required by departmental authorities - It was seen from records that consignee from whom assessee had allegedly obtained ‘C’ forms was not a registered dealer at all and that department had not issued any ‘C’ forms to said party - Whether since assessee produced bogus and fabricated ‘C’ forms with intent to avail concessional rate of tax, it was liable to pay penalty - Held, yes [Section 45A of the Kerala General Sales Tax Act, 1963] - Krilax Impex Private Ltd. v. Commissioner of Commercial Taxes (Ker.) 247 - FOR FAILURE TO FURNISH RETURN OR TO DEPOSIT TAX DUE - Assessment year 2000- 01 - Assessee had not disclosed amount of rent arising on leasehold plant and machinery in return of fourth quarter ending on 31-3-2001 on ground that rent was not received by it and, accordingly, did not pay due tax also - Assessing authority, for such default, levied penalty under section 15A(1)(a) upon assessee and appellate authorities confirmed penalty order - Whether merely because rent had not been received, assessee could not be absolved from liability to disclose such rent in return - Held, yes - Whether, therefore, levy of penalty upon assessee was justified - Held, yes GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 6
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