Blog Archives - Page 365 of 1697

4 Jul

Patna High Court disposed of the instant writ petition on the term that, the Petitioner must be extended the statutory benefit of stay under sub-section (9) of section 112 of the B.G.S.T Act, 2017

Prime Legal

Blog #patnahighcourt

TITLE: M/s Medlife Wellness Retail Pvt. Ltd. v. The Union of India & Ors.

Decided on: 26-06-2023

CWJC No: 8014/2023

Coram: HONOURABLE THE CHIEF JUSTICE and

HONOURABLE MR. JUSTICE PARTHA SARTHY

Facts of the case:

This is a writ petition case filed under Article 226 of the Constitution of India seeking multifarious reliefs. The petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (hereinafter referred to as “Tribunal”) under Section 112 of the Bihar Goods and Services Tax Act (hereinafter referred to as “B.G.S.T. Act”).

However, due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under SubSection (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act.

Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.

The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.

Analysis of the court and decision:

This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:-

(i) Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to the non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022.

(ii) The statutory relief of stay, on deposit of the statutory amount, however in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non constitution of the Tribunal by the respondentAuthorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.

(iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal under Section 112 of the B.G.S.T. Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent- Authorities would be at liberty to proceed further in the matter, in accordance with law.

(iv) If the above order is complied with and a sum equivalent to 20 percent of the remaining amount of the tax in dispute is paid then, if there is any attachment of the bank account of the petitioner pursuant to the demand, the same shall be released.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Meghana D

Click to view judgement

4 Jul

Onus will always be on the department to demonstrate that a certain product falls under a particular tariff: Rajasthan High Court

Prime Legal

Case Title: M/s Compuage Infocom Limited Versus The Assistant Commissioner

Case No.: S.B. Sales Tax Revision / Reference No. 182/2017

Decided on: 30/05/2023

Coram: HON’BLE MR. JUSTICE SAMEER JAIN

Facts of the case:

The petitioners are in the business of selling computers and computer-related products, including networking cables (CAT-5 and CAT-6) whose primary function is data transmission. The petitioner -assessee has classified the networking cables as ‘computer peripherals’ and discharged its VAT liability.

The department classified the networking cables under the residuary head and not the specific head and imposed an additional tax and interest upon the petitioner-assessee. The assessees contended that the department has not discharged its onus to prove that CAT-5 and CAT-6 cables would not be included in the broad and ex pert or technical opinion was sought, nor was any evidence brought on record to prove their point. As per settled law, the onus or burden to show that product falls within a particular tariff item is always on the department.

The assessees submitted that as the CAT-5 and CAT-6 cables are primarily and predominantly used to physically connect the computer system to a network , they would necessarily have to be included in the broad definition of ‘computer peripheral’, as per the common parlance test and end usage test.

The department contended that CAT-5 or CAT-6 cables are essentially networking cables whose use and application are not restricted to computer network and are used in a wide array of services, including telecommunication, cable networks, CCTV cameras, etc. The authorities below have rightly the definition of computer peripherals to those hardware apparatus whose usage is confined to the operation of computers only.

The court noted that Entry Nos. 3 and 24 of Part-A of Schedule IV to the RVAT Act were subsequently amended to specifically include “networking items” ” in Entry 3 and “networking cables of different types such as flat cables, CAT 3 cables, CAT 5 cables, and CAT 6 cables” in Entry 24.

JUDGEMENT

The bench of Justice Sameer Jain has observed that the department has utterly failed to adduce any evidence, technical or otherwise, to substantiate is always on the revenue, more so when the revenue is trying to classify products in the residuary entry as against the specific entry.

The court quashed the order.

Written by: Mahima Saini

click to view judgement

4 Jul

The Rajasthan High Court has stated, VAT is levied on the whole amount of the “entry-coupon” Chokhi Dhani Resort charges.

Prime Legal

blog, Blog #TAX #Tax_Evasion #Choki_Dhani

TITLE: Commercial Taxes Officer v. Chokhi Dhani Resorts Pvt. Ltd.

Decided on: 02/06/2023

Case No.: S.B. Sales Tax Revision / Reference No. 63/2020

Coram: HON’BLE MR. JUSTICE SAMEER JAIN

Facts of the case:

The present Sales Tax Revisions/References (for short “STRs”) have been filed by the revenue, under Section 84 of the Rajasthan Value Added Tax Act, 2003 (for short “RVAT Act”) read with Section 86 of the Rajasthan Sales Tax Act, 1994 (for short “RST Act”), assailing the impugned order dated 23.18.2019 passed by the Rajasthan Tax Board, Ajmer and involves the following question of law:

i) Whether in the facts and circumstances of the case, the Rajasthan Tax Board was justified in law in holding that the expenses charged are separate from the food charges despite only one coupon of the composite amount issued at the entry by the respondent.
ii) Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in deleting the tax and interest without appreciating the provisions pertaining to “Sale” as contemplated u/s 2(35) of the Act and “Sale Price” as contemplated u/s 2(36) of the Act.

The revenue submits that a survey was conducted of the premises of the assessee on 14.07.2010 wherein it was discovered that the assessee, which is engaged in the business of restaurants and resorts, was issuing ‘entry coupon’ at the entry gate of the premises to its customers and charging Rs. 350/- per adult and Rs. 175 per minor. The said charge, as per the entry coupon, is only adjustable against food. However, the assessee was only paying VAT on Rs. 250 (in case of adults) or Rs. 125 (in case of children) and the remaining amount, i.e. Rs. 100 (in case of adults) and Rs. 50 (in case of children) was reflected separately in the assessee’s books of accounts under the head Charges for generation of Cultural Receipts, Staff, Maintenance, Adm. Expenses’ and no VAT was being paid on the same, which amounts to an evasion of tax.

Accordingly, the Assessment Order dated 25.02.2011 was passed and tax along with interest and penalty was imposed upon the assessee. Upon appeal, the Deputy Commissioner (Appeal), vide order dated 23.03.2012, maintained the levy of tax and interest, but deleted the penalty imposed under Section 61 of the RVAT Act. Thereafter, the Tax Board allowed the appeal filed by the assessee and set aside the levy of tax and interest also.

The assassin was separately charged for other services, like animal riding, astrology services and other recreational activities, inside the premises and the entry coupon specifically contained the words “adjustments in food only”. The assessee cannot split up the amount charged for sale of food, even if the assessee provides certain services in addition to food as VAT has to be paid on the total amount charged.

Judgement

The questions of law framed hereinabove have to be answered in favor of the revenue and against the assessee. Accordingly, the impugned order of the Tax Board is quashed and set aside and the levy of penalty is maintained. Consequently, all these STRs are allowed. Pending application(s), if any, shall stand disposed of.

Written by: Mahima Saini

4 Jul

Delhi High Court Dismissed the petition seeking to quash government order giving the categories of Priority within the reservations provided in the Army quota of 5% for admission to various Colleges.

Prime Legal

Blog #defencepersonnel, #delhihighcourt, #ex-servicemen, #fivepercentquota, #highcourtdelhi, #JEE, #law, #primelegal, #priorityreservation, #services, #wards, #writpetition

Title: Viney Chaudhary vs UOI & Secretary of Higher Education

Reserved: 25.05.23

Pronounced: 03.07.23

W.P.(C) 3285/2023 & CM APPL. 12796/2023

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court Dismissed the petition seeking to quash government order giving the categories of Priority within the reservations provided in the Army quota of 5% for admission to various Colleges, and directs the government to treat Priority No. VIII above the Priority No. VI or in alternative to consider both the Priority Nos. VI and VIII at the same podium for the admissions in the forthcoming Academic Year 2023-24.

Facts of the Case

The petitioner’s wife is a Lieutenant Colonel in the Indian Army and is stationed in New Delhi at the moment. The petitioner’s son, Master Divyansh Chaudhary, a Class XII student at Delhi Public School in R.K. Puram, is interested in pursuing a Bachelor of Technology (hereinafter referred to as “B.Tech” Course), for which the Joint Entrance Examination (Main) (JEE) serves as the qualifying examination. The said examination was scheduled to be held from April 6 to April 12, 2023.

The respondent No. 1 created nine categories with corresponding Priorities in its Order dated May 21, 2018, and eligible candidates under each category would be entitled to admission based on their respective Priority regardless of their ranks or mark totals.

The son of the petitioner discovered that the majority of reservation benefits are only being taken away by Priority-VI, leaving no seat available for the remaining Priorities, especially Priority-VIII, in order to obtain admission to various professional courses, after reviewing the cutoff charts of various engineering colleges run by the Government of National Capital Territory of Delhi (hereinafter referred to as “GNCTD”).

Thus, the petitioner has contested the Letter/Order of May 21, 2018, claiming that the distinction between Priority VI and Priority VIII violates his fundamental legal rights and deprives him of his right to equality.

Analysis and Decision of the court

In the present petition the petitioner has challenged only the list of priorities for reservation issued by the government and defence ministry for the wards of defence personnel to various medical/professional/non-professional courses. It is important to note that the petitioner has not contested the 5% reservation given to dependents of members of the armed forces, but rather feels wronged by the revised list of priorities placement of dependents of serving personnel in Priority VIII while those of ex-servicemen in Priority VI. The petitioner claims that there is no discernible distinction to put the children of serving soldiers in a group lower.

The court also highlighted that Priority VIII and Priority VI should be combined since the division of the priority between military members and ex-servicemen’s wards is not based on any discernible differences.

In the case of Union of India v. M. Selvakumar (2017) 3 SCC 504, the Apex Court ruled that horizontal reservations in the context of governmental policy are outside the purview of the courts and that they are not the appropriate forum to consider whether a given public policy is sensible and acceptable or whether a better one can be developed. However, the Courts are not prohibited from intervening in those situations when a policy choice might be criticised on the grounds of mala fide, unreasonableness, arbitrariness, or unfairness. The Supreme Court shared a similar opinion in its rulings in the cases of State of Madhya Pradesh vs. Mala Banerjee (2015) 7 SCC 698 and Ugar Sugar Works Ltd. vs. Delhi Administration (2001) 3 SCC 635.

The advantage of reservations for wards of ex-servicemen had not, in this instance, been denied to the children of current soldiers. The Government of India’s Ministry of Defence has made a policy directive defining how children of Army officers may use their reservations in certain categories. The classification of the wards in Priority VI and Priority VIII does not involve any arbitrary decision-making, irrational behaviour, or intentional wrongdoing.

The case of The Chief Secretary vs. D. Kuralarasan MANU/TN/6162/2021, in which the children of serving personnel were totally omitted from the admissions advertisement, illustrates instances in which a policy choice may be interfered with by the court. The Court intervened to request that they be included to the Priority list for admission to the professional course after it was noted that the exclusion of the wards of the serving personnel without any basis or justification was inappropriate in that situation.

The petitioner questions why the wards of serving personnel should be placed in the last but one category, Priority VIII, while the wards of ex-servicemen receive priority VI, when wards and wives of ex-servicemen as well as serving personnel who are receiving Gallantry Awards, can be placed together in one category, be it Priority V or Priority VII.

The respondent No. 1 in the counter affidavit has explained that although the Government of India had initially decided to grant the benefit to the wives and wards of former service members or recipients of the Gallantry Award, it was ultimately discovered that some positions remained unfilled even after the benefit had been granted to the wards of all the categories. The inclusion of the category of wards of serving people as Priority VIII is solely intended to guarantee that the advantage of reservation is completely utilised, exhausted, and not left unutilized.

The Government Order F.No.6(1)/2017/D (Res.II) dated 21.05.2018 mostly governs how the reserve quota is utilised horizontally. The aforementioned policy hasn’t been accused of being arbitrary or malicious. We don’t see any reason to challenge the Government Order from May 21, 2018, or to rearrange the Priority categories as specified therein.

Thus, the High court dismissed the petition along with pending applications.

Written By – Shreyanshu Gupta

Click to review the Judgement

3 Jul

Madras HC Directs Medical College To Transfer Rs 2.76 Crore Collected As Capitation Fee To Authorities For Special Scholarship.

Prime Legal

blog, Blog # Illegal Admissions, # JUSTICE R. SURESH KUMAR, # Medical College, MADRAS HIGH COURT

Case Title: Pooja Chakravarthy … Petitioner
Versus

TN MGR Medical College … Respondents

Date of Decision: Reserved on 23.11.2022.

Pronounced On 28.06.2023.

Coram: THE HONOURABLE MR. JUSTICE R. SURESH KUMAR.

Citation: W.P.Nos.28148 and 31524 of 2022.

Introduction:

This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari Mandamus, calling for the records of the 1st Respondent Medical University relating to its proceedings in Lr. No. Ex.I(6)/59516 / 2019, dated 08.08.2022, quash the same and consequently direct the respondents to ascertain the comparative merit and ranking of the
Petitioners by the 2nd Respondent Selection Committee for the vacancy to be filled-up in accordance with law and on that basis allow the Petitioners to continuously pursue the study of MBBS Degree Course in the 3rd Respondent Medical College till they successfully completing the course.

Facts:

The third respondent is a Medical College run by a private management. For the academic year 2019-2020, the petitioners were admitted at the third respondent College in first year M.B.B.S. Degree course in stray vacancies on the last date of admission i.e., 30.08.2018. However, at the time of first year M.B.B.S. Examination, which was scheduled to be conducted on 15.02.2021 by the first respondent University, the petitioners were denied Hall
Tickets, therefore, the third respondent College filed a Writ Petition before this Court in W.P.No.3224 of 2021, seeking for a Writ of Mandamus to the University to issue Hall Tickets to the students i.e., the petitioners herein and two more students, totalling 9 students. It is to be noted that, the petitioners were not made parties in the said Writ Petition.

The said Writ Petition was dismissed on 11.02.2021 with a finding that the petitioners’ admission to the vacancies in the M.B.B.S. Course were without recourse to the second respondent Selection Committee and hence, those admissions were against regulations. Accordingly, the said Writ Appeal was taken up for hearing and by order dated 22.06.2022, the said Writ Appeal was also dismissed. Aggrieved over the judgement made by the Division Bench, dismissing the Writ Appeal No.604 of 2021, the third respondent Medical College preferred S.L.P. (C) No.12735 of 2002.

Issues:

Whether the students were admitted in the third respondent College only based on merits or any methods, which are not approved under law, was adopted by the third respondent College?
Whether the amount claimed by the third respondent College alone is collected from the students or their parents or excess amount also has been collected?

Legal Analysis:

The method adopted by the third respondent College in admitting the 9 candidates in the 9 stray vacancies that arose on 28.08.2019 at 5.00 p.m. for admission in the first year M.B.B.S. Degree Course in the academic year 2019 – 2020 is not in consonance with the law declared by the Hon’ble Supreme Court as well as the regulations made by the fourth respondent in this regard. Since the issue has already been concluded by the judgment of the Writ Court as well as the Writ Appellate Court, which has already been confirmed by the Hon’ble Supreme Court by dismissing the S.L.P. filed by the College as unconditionally withdrawn, that issue need not once again be opened or traversed. However, insofar as the claim made by the petitioners / students is concerned, since they were never parties to any of the lis and first time when they filed the S.L.P. such an opening was given permitting them to pursue such
remedies available in law before this Court, for the first time since they have come and placed their plea before this Court and also revealed the fact as to how much fee as One Time Payment that they have made to the College, taking note of their genuine approach and by also taking note of the fact that these petitioners have secured slightly higher marks than some of the candidates, who are admitted in the first year M.B.B.S. degree course in various Private Colleges selected through the second respondent Selection Committee for the academic year 2019 – 2020, this Court feels that, by giving admissions to these petitioners, merit has not been given a complete go by.
It is also to be noted that these students have completed their two years course and at this juncture if they are sent out, that would certainly affect the very career of these students and they have comparatively secured slightly higher marks than considerable number of students, who were able to secure admission in the relevant academic year, hence, this Court feels that these petitioners / students can continue their course in the third respondent College. Insofar as the shocking revelation that has been made by the parents of these students that, they have paid huge amount by way of One Time Payment to the third respondent College, it is a very serious issue which should be taken note of by this Court.

Judgement:

The Court is inclined to dispose of these Writ Petitions with the following orders:-

(i) That the petitioners herein are permitted to continue in their M.B.B.S. course, wherein they joined in the year 2019 – 2020 at the third respondent College, and complete the course successfully.

(ii) A sum of Rs.2,76,00,000/- (Rupees Two Crores and Seventy Six Lakhs only) had been paid to the 3rd Respondent College as One Time Payment atleast on behalf of the six petitioners herein as per the respective affidavits filed by the respective parents as detailed hereinabove. The said sum Rs.2,76,00,000/- with interest at the rate of 6% p.a. from the date of the admission of these students in the year 2019 be paid by the 3rd Respondent College in a separate account to be opened in this regard jointly in the name of the Secretary, Selection Committee i.e., the 2nd respondent as well as the Registrar of the first respondent University.

(iii) The said amount can be spent towards paying the tuition fee for more meritorious candidates who would be admitted in the I year M.B.B.S. degree course from the academic year 2023-2024 in any Government or Private Colleges in the State of Tamil Nadu till the entire amount is exhausted as a special scholarship.

(iv) To whom such a benefit shall be extended can be decided jointly by the 1st and 2nd respondents and accordingly the said amount can be spent.

(v) Though merit has not been given a go by in making the admission of these petitioners as held hereinabove, since the method adopted by the third respondent College is in violation of the declared law and for securing admissions on behalf of these petitioners huge amount has been spent or paid as an One Time Payment, which is otherwise called as donation or capitation fee and for such a narrative the petitioners or their parents also had agreed upon, these petitioners and their parents lost their right to get back the said amount i.e., Rs.2,76,00,000/- mentioned hereinabove. That is why, the aforesaid arrangement has been made.

(vi) If at all the third respondent College, pursuant to this order, decides to agitate this issue stating that they have not received any One Time Payment to the extent of Rs.2,76,00,000/- as claimed by the parents of six of the petitioners herein and on that ground if the College refused to deposit the said amount with interest as indicated above, that issue shall be referred by the first, second and fourth respondents herein for investigation by CB CID Police force in the State of Tamil Nadu and in that case, such an investigation shall take to its logical
conclusion in the manner known to law.

(vii) Apart from the aforestated, it is open to the 4th respondent to take any action against the 3rd respondent College for such violation in admitting 9 students in the year 2019 – 2020 in accordance with the regulations of the 4^th respondent, which are in vogue.

(viii) Since the petitioners are permitted to pursue the course in the 3^rd respondent College, the order impugned of the first respondent need not be given effect to.

(ix) That apart, the 3rd respondent College, since has filled 9 seats, out of which, 5 are Government quota and 4 are Management quota, 5 seats in the permitted intake of the 3rd respondent College in first year M.B.B.S. degree course in Management quota shall be surrendered for the academic year 2023 – 2024, where it is open to the second respondent Selection Committee to select candidates and send for admission to the 3rd respondent College as additional seats in the Government quota as a compensatory mechanism.

Conclusion:

Since the college had filled the nine seats without following the procedure, the court directed the college to surrender five seats in its management quota for the academic year 2023-24 which, it said, shall be used as additional seats in the Government quota as a compensatory mechanism. The court added that National Medical Commission is free to take any action against the college for violating its regulations. “Since the petitioners are permitted to pursue the course in the 3rd respondent College, the order impugned of the first respondent need not be given effect to”.

JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

Click here to view Judgement

1 … 363 364 365 366 367 … 1,697