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Showing 5401 to 5500 of 165334 Records
5401...1968 (6) TMI 5 - MADRAS High Court
Commissioner of Income-Tax, Madras Versus P. NN Bank Limited., Salem.
Reference Application - reference application signed by the ITO for and on behalf of the Commissioner was valid as he was competent to do so by reason of rule 2(ii) of the Tribunal Rules and notification thereunder - therefore, petition filed before ......
5402...1968 (6) TMI 50 - GUJARAT HIGH COURT
State of Gujarat Versus BG. Batwara & Co.
........... s done by the assessees as tyres for bullock-carts, and the sale was also effected by the assessees as tyres for bullock-carts and under these circumstances, it is clear that these particular tyres referred to in the bill would necessarily be spare parts of bullock-carts. It is true that it is not open to any party to convert the goods of one category into goods of another category by giving wrong description to the goods but this is not a case of wrong description but this is a case of legitimate description by the assessees, who were dealers in this particular commodity, and who stocked the goods as such and sold them as such and hence it is clear that in this particular case, the old tyres fell within the description of spare parts of bullock-carts and would be covered by entry 6 of Schedule A to the Act. We, therefore, answer the question in the affirmative. The State of Gujarat will pay the costs of this reference to the assessees. Reference answered in the affirmative.
5403...1968 (6) TMI 51 - GUJARAT HIGH COURT
The State of Gujarat Versus Keshavlal Mangubhai
........... page 3445, which states that it is used for agricultural implements, as building material or timber for beams, door and window frames as it is not corroded by ants or moth and as the wood also does not get spoilt in water. It is also used as firewood. Thus, the Tribunal was right in mentioning all these uses of babul wood. That itself makes it clear that babul wood, which was standing timber when the tree was standing on land and which became fallen timber and was purchased as such, continued to retain its essential character of timber . Thus, it cannot fall under any residuary article as it falls under specific entry 32 of Schedule C. In that view of the matter, our answer in the present reference so far as question No. (1) is concerned is in the negative while so far as question No. (2) is concerned it is in the affirmative. This reference is accordingly disposed of. The assessee shall pay the costs of this reference to the State of Gujarat. Reference answered accordingly.
5404...1968 (6) TMI 52 - ANDHRA PRADESH HIGH COURT
Sri Krishna Coconut Company, Ambajipet Versus Commercial Tax Officer, Amalapuram
........... to the levy under the State Act, so that if under a State Act, the levy has to be made in a particular manner, that will also have to be made in the same manner for the purposes of the Central Sales Tax Act. In this case, it is averred that the petitioner is an exporter, having purchased watery coconuts from registered dealers. If this statement is true and we are not in a position to determine it as there is no material placed before us except a mere averment, then he will not be liable to tax, because he is not the first seller. This is a matter which has got to be decided by the assessing authority. The assessing authority will, therefore, make the final assessment in the light of the above observations. The writ petition is disposed of with the above observations as also a direction that the final assessment will be made within a month from the date of receipt of this order, for which period the taxing authority will refrain from collecting the tax. Ordered accordingly.
5405...1968 (6) TMI 53 - KERALA HIGH COURT
V. Mohammed Ismail Rowther Versus The Sales Tax Officer, Adoor and Another
........... position No. 4. It states When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. 6.. I hold that the writ petition is maintainable. The question whether it is filed within three years from the date when the mistake became known to the petitioner is not of any importance in this case, as admittedly it is filed within 3 years from the date of decision of the Supreme Court in State of Mysore v. Lakshminarasimhiah(1). 7.. I quash exhibits P-1 to P-5 and direct the respondents to refund to the petitioner the amount already paid by him under these orders and restrain the collection of any further amount under the above orders by the respondents. The writ petition is allowed but without any order as to costs. Petition allowed.
5406...1968 (6) TMI 54 - GUJARAT HIGH COURT
State of Gujarat Versus Sant Kabir Cement Moulding Works
........... a job work contract and the construction as per the specified design and it did not involve any element of sale of a prepared jali or of raw materials. It was clearly one and indivisible works contract in which both the tests as evolved by their Lordships in the Gannon Dunkerley s case 1958 9 S.T.C. 353. were fulfilled, viz., that there was no agreement to sell any movable cement jali for a price and that the property therein did not pass as movables, pursuant to any such agreement. Such a contract for a job-work as per the approved design would not amount to any composite contract of sale, but would clearly be one indivisible works contract. The Tribunal was, therefore, right in treating the transaction as such. In the result, our answer is that it is an indivisible works contract and not a composite contract involving sale of cement jali for an estimated value thereof. The State shall pay the costs of this reference to the opponent-assessee. Reference answered accordingly.
5407...1968 (6) TMI 55 - CALCUTTA HIGH COURT
Commissioner of Income-tax, West Bengal I Versus Chowringhee Sales Bureau Private Ltd.
........... s to the purchasers at the auctions, then such refunds would also be allowed as deduction in the year in which they are made. We cannot agree with the Tribunal that whether the amount or any part of it is ultimately payable to the State or to be refunded to the purchasers, it still retains its character as sales tax and nothing else. As pointed out by the Supreme Court in Punjab Distilling Industries case 1959 35 I.T.R. 519., these amounts were an integral part of the commercial transaction of sales by auction carried on by the assessee and when they were received they were the moneys of the assessee and remained thereafter the moneys of the assessee as its trading receipts. The Income-tax Officer was justified in bringing to tax the amount of Rs. 32,986 and the answer to the question referred to this court must be in the negative and against the assessee. The assessee is to pay the costs of this reference. SANKAR PRASAD MITRA, J.-I agree. Reference answered in the negative.
5408...1968 (6) TMI 56 - GUJARAT HIGH COURT
Mukundlal Hiralal Versus The State of Gujarat
........... ommissioner. It is clear that the Assistant Commissioner has not directed the Sales Tax Officer to adopt the ratio proportion mentioned for arriving at the appropriate figure for deduction purposes under section 11(1)(a) and rule 6(1) and he has merely referred to this method in passing as an equitable method. No directions in fact having been given by the Assistant Commissioner to the Sales Tax Officer, it is not necessary for us to express any opinion in the course of this judgment as to whether the Assistant Commissioner was justified in adopting the ratio proportion method for arriving at the correct figure of the turnover. In our opinion, therefore, question No. (4) does not arise for consideration. In the result, we answer the questions referred to us as follows Q. No. Answer. (1) In the affirmative. (2) In the negative. (3) In the affirmative. (4) Does not arise. The assessee will pay the costs of this reference to the State of Gujarat. Reference answered accordingly.
5409...1968 (6) TMI 57 - GUJARAT HIGH COURT
State of Gujarat Versus Hindustan Traders, Rajkot
........... om the list of toilet articles in entry 21A. If we were to accept the argument of the learned Advocate-General that shaving-brushes are the items which would be useful like the shaving-soap, razor and razor-blades for dressing or grooming a man, it would be clear that even razor and razor-blades would fall in toilet articles. In that event, the Legislature ought to have excluded those articles as it had excluded the other items, on which there is a lower incidence of duty, and that itself makes it clear that the Legislature never intended to give such a wide meaning to the expression as is contended for by the learned AdvocateGeneral. Therefore, the Tribunal was right in giving the expression a restricted meaning and in holding that a shaving-brush would not fall in toilet articles . Our answer to the question, therefore, is in the negative. The reference is answered accordingly. The State shall pay the costs of this reference to the assessee. Reference answered accordingly.
5410...1968 (6) TMI 58 - MYSORE HIGH COURT
D. Arasappa Versus Commissioner of Commercial Taxes, Mysore, Bangalore
........... narily comprehended. But, in whatever sense these words are understood, what is clear is that the words pure silk textiles mean textiles for the manufacture of which only pure silk yarn is used. But, if the material used consists of both pure silk yarn and artificial silk yarn, the assertion that that saree is a pure silk saree cannot be true or accepted. The expression pure silk cannot be so understood whether the meaning to be given to it is the popular meaning, or the meaning given to it in trade. A merchant does not in his trading operations describe a saree, which admittedly contains pure and artificial silk yarn, a pure silk saree. Even if he does, the purchaser who wants a pure silk saree does not buy it. These appeals succeed. We, therefore, set aside the orders made by the Commissioner of Commercial Taxes, and restore the orders made by the Deputy Commissioner. The appellant will be entitled to costs in these appeals. Advocate s fee Rs. 100 one set. Appeals allowed.
5411...1968 (6) TMI 59 - GUJARAT HIGH COURT
The State of Gujarat Versus Shri Surat Panjarapole
........... set in. We cannot agree with this contention of the learned AdvocateGeneral for the simple reason that the essential character of this institution is one of maintaining animals to save the lives of these voiceless animals and it does not carry on any business activity with any profitmotive and merely because incidental sales are done of the animal products, it could not be considered as carrying on business of selling these goods. In the result the answer to the questions referred to us are as under As regards question (1) our answer to the first part is in the negative, i.e., the opponent-institution is not a dealer. The second part of the first question, therefore, does not arise for our consideration. As regards the second question our answer is in the negative, i.e., that such sales are not liable to tax under either of the two Acts. We dispose of this reference accordingly. The State shall pay the costs of this reference to the assessee. Reference answered accordingly.
5412...1968 (6) TMI 6 - MADRAS High Court
Commissioner Of Income-Tax, Madras Versus Janab N. Hyath Batcha Sahib.
Assessee was carrying on business in forest contracts - For s. 10(2)(vii) to apply there must be a sale of goods. When a person hands over his property to a firm of partners consisting of himself and others, there is no transfer of property so as to ......
5413...1968 (6) TMI 60 - GUJARAT HIGH COURT
Commissioner of Sales Tax Versus Godrej Soap Pvt. Ltd.
........... erned and especially of the relevant provisions regarding the authorization, the turnover of sales under section 24 has to be of the goods exported, whether in the course of export out of the territory of India or otherwise. The purpose behind authorization is not to create the tax liability on the excluded sales but rather one to give exemption, and for that limited purpose even if a wider and extended meaning is given by the Legislature, we cannot hold that there is anything repugnant in the context, which would justify our departure from the statutory definition. In the result we must hold that the Tribunal was right in its view that the turnover of sales of the opponent must include the sale of the goods in question, which were exported by it from the State. We, therefore, answer the aforesaid reframed question in the affirmative and this reference is accordingly disposed of. The State shall pay the costs of this reference to the assessee. Reference answered accordingly.
5414...1968 (6) TMI 61 - MADRAS HIGH COURT
K. Mohamed Elias & Co. and Others Versus The State of Madras and Another
........... sequent period, there is nothing in that decision or the decision of the Supreme Court in Civil Appeal No. 763 of 1967Since reported as State of Madras v. N.K. Nataraja Mudaliar 1968 22 S.T.C. 376., which would entitle the assessees to the reliefs they seek. The decision of the Supreme Court is to the effect that by reason of section 9(3) of the Central Act, the entire machinery provided in the State Act, including the Rules, in relation to single point taxation, will apply to Central purposes as well. That means, if the single points of charge do not synchronize, i.e., the one contemplated by the Central Act and the other provided in the State Act are not identical, no charge will be attracted and that this will be the case even after the amendment by Act 31 of 1958. The result is, these writ petitions are allowed but only in respect of the assessment year 1958-59. No costs. C.M.Ps. Nos. 16364, 16366 and 16368 of 1967 and 1175 of 1968 ordered. Writ petitions partly allowed.
5415...1968 (6) TMI 62 - MYSORE HIGH COURT
Harakchand Rugchand Versus State of Mysore
........... the Act. Here again, there was an amendment of the Sales Tax Act by which the higher rate was retrospectively substituted. The High Court of Madras reached the conclusion that since under the modified order of assessment made by the Sales Tax Appellate Tribunal, the tax was payable only at the lower rate, the rectification of that order of assessment was a condition precedent to the demand for the payment of the difference which had by then been refunded to the assessee. But, in the case before us, unlike the assessments in the two cases on which Mr. Katageri depended, the order of assessment made by the Commercial Tax Officer required no rectification, and, as it stood, when the impugned demand was made it made the petitioner liable to pay the tax which was subsequently refunded to him. It would, therefore, be futile to suggest that there was any necessity for the rectification of that order of assessment. So, we dismiss this revision petition. No costs. Petition dismissed.
5416...1968 (6) TMI 63 - ANDHRA PRADESH HIGH COURT
J. Moosa & Sons Versus Commercial Tax Officer, First Circle, Hyderabad and Another
........... nt order after he had knowledge of the stay order, we think it will be sufficient if we sound a note of warning that if the stratagem of ante-dating the orders after the order of stay or injunction was received, is adopted by over-zealous authorities or even of serving the order when all proceedings are stayed, it would expose them to contempt proceedings and involve them in serious consequences. In the result, the Writ Petition No. 1989 of 1965 is allowed and the order of the Commercial Tax Officer is quashed, with a direction that the petitioner be given an opportunity to raise the several pleas raised before us and to adduce material or evidence in support of its several contentions, and when raised, the same be determined in accordance with the principles set out in this judgment. The respondents will pay the costs of the petitioner. Advocate s fee Rs. 100. W.P. No. 1975 of 1966 is dismissed without costs. C.M.P. Nos. 11391 and 11392 of 1967 Ordered. Ordered accordingly.
5417...1968 (6) TMI 64 - GUJARAT HIGH COURT
State of Gujarat Versus Yakubbhai Hajihakumutdin & Co.
........... cuments of title during movement of goods, the only condition required by the proviso to section 6 (2) was that the assessee should produce certificate in Form E-I obtained from the registered dealer from whom the goods were purchased. There was no indication either in section 6(2) or the proviso thereto that C Forms as such should be obtained and produced. It was, therefore, held that even if the rule had provided that the exemption under section 6(2) would be given only if a certificate in Form C was produced, the rule would be ultra vires. All that the revenue could require the dealer to do was to prove that the second sales were to registered dealers and the proof might take any form, not necessarily declarations in Form C. We are in agreement with the said view. In the result, our answer to the reference is in the affirmative. The reference is accordingly disposed of. The State shall pay the costs of this reference to the assessee. Reference answered in the affirmative.
5418...1968 (6) TMI 7 - MADRAS High Court
Commissioner of Income-Tax, Madras Versus G. Murugesan And Brothers.
Whether on the facts and in the circumstances of the case, the department was justified in assessing the assessee in the status of an 'association of person' - Held, yes ......
5419...1968 (6) TMI 8 - MADRAS High Court
Rayalaseema Passengers And Goods Transport Pvt. Limited Versus Commissioner Of Income-Tax, Madras.
Whether it is permissible for the ITO while deciding the applicability of section 23A to take the assessment result of the accounting year in question and view the additions to the returned profits as a result of disallowance of claims for deduction ......
5420...1968 (6) TMI 9 - CALCUTTA High Court
Nanalal M. Varma And Co. Pvt. Limited Versus Commissioner Of Income-Tax, West Bengal II.
Speculative loss - carried forward to be set off - Explanation 2 to section 24(1) ......
........... here was any settlement of the contracts of purchase and sale and therefore one of the vital limbs of Explanation 2 to section 24(1) of the Indian Income-tax Act is not found as a fact in order to bring the transaction within the mischief of a speculative transaction. In our case the Appellate Assistant Commissioner in his second order has found that the assessee undertook to deliver the goods but purchased delivery orders and made over these orders to its own purchasers to perform its obligations under the contract. In other words, instead of actual delivery of the goods, the assessee settled the contracts by delivery of P.D.Os. In these premises, the assessee s transactions were speculative transactions within the meaning of Explanation 2 to section 24(1). The answers to the questions framed in this reference are, therefore, as follows Question No. 1... Yes. Question No. 2... Yes. The assessee will pay to the Commissioner his costs of this reference. CHATTERJEE J. -I agree.
5421...1968 (7) TMI 10 - MADRAS High Court
Tube Mill (India) Pvt. Limited And Another Versus Commissioner Of Wealth-Tax, Madras.
Valuation of the assets - balance-sheet, relevant to the valuation date - assessee adopted the written down value in its return for wealth-tax and claimed, a deduction of the difference between the written value and the book value of the assets - hel ......
5422...1968 (7) TMI 11 - PUNJAB AND HARYANA High Court
SP. Jaiswal Versus Commissioner of Income-Tax, Punjab.
An application for reference was not made to the Tribunal within the time limit specified - In such a case, can a direct reference be made to the High Court - Held, No ......
5423...1968 (7) TMI 12 - KERALA High Court
Commissioner of Income-Tax, Kerala Versus PP. Johny And Another.
Can the AO assess one of the persons for his share income in one of the businesses and again assess the AOP for the income of the same business - Held, no - because Association of Persons and the members of the association are distinct and different ......
5424...1968 (7) TMI 13 - ALLAHABAD High Court
Raghubir Saran Versus OP. Jain, Additional Munsif (I), Bulandshahr, And Others.
Writ petition against the order of the Munsif - production of the statement - neither the repeal of the Income-tax Act of 1922 nor the enactment of the Income-tax Act of 1961 nor indeed the omission of section 137 from the Act of 1961, had obliterate ......
5425...1968 (7) TMI 14 - KERALA High Court
V. Kunhikannan Versus Agricultural Income-Tax Officer, Badagara
Procedure For Recovery, Winding Up ......
........... roceeding for the recovery of any sum payable under this Act shall be commenced after the expiration of three years from the latest day fixed for payment in the notice of demand served under section 30 or where the assessee has been treated as not being in default under the proviso to section 40 pending his appeal, after the expiration of three years from the date on which the appeal is decided. That proceedings for recovery are barred by reason of the above provision is not disputed, and cannot be disputed. But Ex. P-3 also threatens the petitioner with penalty proceedings in case of default in paying the tax. I have not been shown any provision in the statute which places an embargo on imposing penalty beyond a certain time from the date of the assessment. I, therefore, allow this O.P. to the limited extent of quashing Ex. P-2 in so far as it seeks to recover the amount due from the petitioner by revenue recovery proceedings, and dismiss it otherwise. No order as to costs.
5426...1968 (7) TMI 15 - HIGH COURT OF JUDICATURE AT ALLAHABAD
COLLECTOR OF C. EX., KANPUR Versus MODI SPINNING & WEAVING MILLS CO. LTD.
........... e did not accept this suggested interpretation. We agree with him. The expression without spinning plants being an attribute should relate to the nearest noun factories and not to the remote noun manufacturer The interpretation suggested by counsel for the appellant necessitates the transference of the expression without spinning plants to the beginning part of the rule or the addition of certain words in order to give the rule more grammatical form. But that is not the proper method of interpretation. Nor does it appear to us to be necessary to overstration the language of the rule in that way. The natural construction should be accepted. According to the natural constructions the expression without spinning plants should qualify the nearest noun factories Accordingly the company rightly applied to the Collector for availaing of the Artificial Silk Fabrices in the factory which has got no spinning plants. There is no force in this appeal. Accordingly is dismissed with costs.
5427...1968 (7) TMI 2 - SUPREME Court
Jeewanlal (1929) Limited Versus Commissioner of Income-Tax, West Bengal II
Claim for allowance - appellant-company started negotiations with a bank for securing overdraft facilities for the purpose of its business and in that connection had to incur an expenditure of Rs. 35,800 - Tribunal was not justified in holding that t ......
5428...1968 (7) TMI 3 - MADRAS High Court
Commissioner of Income-Tax, Madras Versus Sundaram Industries Private Limited.
Amendment made to s. 23A - applicabilty to assessee company for the A.Y. 1955-56 ......
........... tax Act, 1922, is susceptible to the test of reasonableness envisaged in the section. Whether, in the facts and circumstances of this case, it was unreasonable on the part of the assessee-company in not having declared the 100 per cent. of its profits as dividends, which scale was prescribed later by the Finance Acts but with retrospective effect and whether there are other circumstances which prompt one to justify the action of the company as reasonable are matters which have to be considered but not animadverted to by the revenue at any time. Even the Tribunal failed to consider this. Whilst, therefore, answering the second question against the assessee and in favour of the department, we direct that when the appeal is considered by the Tribunal it would bear in mind the third ingredient of section 23A and find whether the company acted unreasonably in declaring 60 per cent. of its distributable profits as dividends. In the circumstances, there will be no order as to costs.
5429...1968 (7) TMI 33 - HIGH COURT OF ALLAHABAD
Aluminium Corpn. of India Ltd. Versus Lakshmi Ratan Cotton Mills Co. Ltd.
Circumstances in which a company may be wound up, Company when deemed unable to pay its debts, Cost and expenses payable out of assets in a winding-up by Court ......
5430...1968 (7) TMI 34 - HIGH COURT OF CALCUTTA
Gopal Khaitan Versus State
Power of court trying offences under the act to direct filing of documents with registrar ......
........... nce, the quantum of sentence, in any event, appears to be severe. The learned advocates appearing on behalf of the respondents have in their fairness left the matter of sentence entirely to the court. Law is good but justice is better and it is expedient in the interests of justice that the sentence as passed in this case should reasonably be reduced, in the exigencies of the case. In the result, I uphold the order of conviction dated the 23rd November, 1966, passed by Sri A. Sengupta, Presidency Magistrate, 5th Court, Calcutta, in Case No. C/1453 of 1966, on the three accused-appellants under section 614A(2) of the Companies Act, 1956 but I reduce the sentence of fine as passed thereunder to a fine of Rs. 100 each, in default to suffer simple imprisonment for two weeks each and I further direct under section 626 of the said Act that one-third of the fine, if realised, shall be applied towards the payment of the costs of the proceedings. The appeal is disposed of accordingly.
5431...1968 (7) TMI 36 - IN THE COURT OF APPEAL
Swaledale Cleaners Ltd., In re
Transfer of Shares – Power to refuse registration and appeal against refusal ......
........... me considerable trouble, as indeed it appears to have troubled Penny-cuick J. when he said that he was not concerned with exceptional cases. Section 78 of the Act of 1948 makes it a criminal offence if a transferee is not sent notice of a refusal to register within two months after the date when the transfer was lodged with the company. There is in that section no escape proviso such as unless some reasonable cause be shown. The point which gives me difficulty is how it can be said that there are exceptional cases when it would be reasonable for the time for the exercising of powers such as those under article 8 to exceed those two months, when it would yet be a criminal offence if the notice has not been given in less than those two months. That, however, is a problem which I am glad to say does not arise in the present case. Solicitors Wright, Bull and Laytons, for Emsley, Collins and Co., Leeds and Wetherby Denis Hayes and Co., for Stanley N. Walton and Hardy, Darlington.
5432...1968 (7) TMI 37 - HIGH COURT OF CALCUTTA
Jagannath Gupta & Company (P.) Ltd Versus Mulchand Gupta
Circumstances in which a company may be wound up, Company when deemed unable to pay its debts, Winding up - Appeals from orders, General ......
........... ibuted to the state of affairs of which he complains or in which he has persistently acquiesced over a long period of time. He cannot be permitted to do so on the principle in pari delicto potior est conditio defendantis mdash where both parties are equally at fault the condition of the defendant is the stronger mdash which is an application of the wider principle ex turpi causa non oritur actio mdash an action does not arise from a base cause. In the present case, the action, in my opinion, is not motivated by the desire to do justice to the company or to see that justice is done to shareholders but by private reasons, that is to say, to injure the directors for acts of omission and commission in which the respondent has himself participated or acquiesced. In the view that I have taken, I agree that the winding up proceedings which have been initiated on the application of the respondent ought to be stayed and I, therefore, concur in the order which has been made by my Lord.
5433...1968 (7) TMI 4 - MADRAS High Court
Commissioner of Income-Tax/Wealth-Tax/Gift-Tax, Madras Versus M. PR Periakaruppan Chettiar Versus Commissioner Of Wealth-Tax, Madras Versus M. RM. Ramaswami Chettiar
Gift-tax Act, 1958 - sum transferred to the account of sons in the previous year - gift - assesment ......
........... f the assessee) in the previous year ending on April 13, 1958, is a gift pure and simple and is liable to assessment under the Gift-tax Act. The second question is, therefore, answered in the affirmative and against the assessee. The tax case is allowed with costs. Counsel s fee Rs. 250. Tax Case No. 326 of 1964. In the view expressed by us in Tax Case No. 325 of 1964 that one of the brothers, Muthukaruppan Chettiar, cannot claim the status of a Hindu undivided family, it follows that Ramaswami Chettiar, the assessee in this reference, cannot, under similar circumstances, claim such a status. The only question that has been referred for our answer is Whether, on the facts and circumstances of the case, the assessee s status is that of a Hindu undivided family for the assessment years 1959-60 and 1960-61 ? Adopting the reason and ratio of our judgment in T.C. No. 325 of 1964, this question is answered in the negative and against the assessee. The tax case is allowed. No costs.
5434...1968 (7) TMI 45 - HIGH COURT OF ANDHRA PRADESH
Marturi Umamaheshwara Rao Versus Pendyala Venkatrayudu
Court – Jurisdiction of and Payments of certain debts out of assets subject to floating charge in priority to claims under the charge ......
........... d as relating to debentures. But, as already stated, we are unable to accept that contention especially in view of clause V that the additional securities are created in addition to the specific mortgage premises which means that the premises mentioned in schedules 1 to 3 were specifically mortgaged. For all these reasons, this contention has to be rejected. Before we conclude we must advert to the submission of Sri Krishnamurthi, that clause 5 of the decree of the trial court is not correctly worded. What all was meant by that clause was that the first plaintiff was at liberty to take such further proceedings as are open to him against the 1st defendant if any part of the plaint schedule property purchased by him was not existing. We are making it clear that there can be no question of any such steps being taken by the plaintiff in respect of the property not purchased by the 1st defendant. In the result all the contentions fail and the appeal is hereby dismissed with costs.
5435...1968 (7) TMI 46 - SUPREME Court
Commissioner of Income-Tax, Mysore Versus Gurunath V. Dhakappa
Karta of HUF was partner in a firm representing his family, was appointed manager of firm - salary paid to Karta could not be treated as income of HUF - Revenue's appeal dismissed ......
5436...1968 (7) TMI 47 - PATNA High Court
Commissioner of Income-Tax Versus RN. Bagchi And Brothers.
Additional super-tax on the undistributed income - liability to pay super-tax under section 23A of the IT Act, 1922 ......
........... duction could legitimately be made even from the commercial point of view (condition) the tax demand is deducted from the income assessed(?). No discussion is to be found in the light of the considerations which, if I may say so with respect, are quite relevant, in my opinion, for coming to the decision as to whether the tax demand for the earlier years, if paid during the year in question, can be taken into account by the Income-tax Officer for satisfying himself about the unreasonableness or reasonableness of the declaration of the dividend. For the reasons stated above, I would answer the question of law in favour of the Commissioner of Income-tax and against the assessee company and hold that, on the facts and in the circumstances of this case, the company is liable to pay super-tax under section 23A of the Income-tax Act, 1922, for the assessment year 1958-59. The Commissioner will get his costs of reference hearing fee is fixed at Rs. 100 only. S. WASIUDDIN J.-I agree.
5437...1968 (7) TMI 48 - MADRAS HIGH COURT
Mottur Hajee Abdul Rahman and Company Versus The Deputy Commercial Tax Officer, Vaniyambadi and Another
........... ndered by the respondents and drop any further proceedings in this behalf. I emphasise and it is worth emphasising that no officer of the Government, however high or exalted he may be, can take upon himself the responsibility of judging the correctness or validity of an order of any Court and, if he honestly and bona fide, in the discharge of his functions, feels that the order is erroneous or requires any modification, the only remedy open to him is to approach that Court by way of review or modification or a higher Court by way of appeal or otherwise. Apart from that, it is not open to him to take upon himself the responsibility of judging the order and take any action contrary to or inconsistent with the same on the basis of his own judgment. If once an officer is permitted or allowed to do any such thing, that will mean the end of the very principle of rule of law on the basis of which the entire fabric of our democratic society has been constructed. Ordered accordingly.
5438...1968 (7) TMI 49 - MADRAS HIGH COURT
The National Insulated Cable Co. of India Ltd. Versus The State of Madras
........... nt made on that basis without invoking best judgment, section 12 does not authorise the revenue to levy penalty. This principle has been laid down by this Court in Bata Shoe Company (P.) Ltd. v. Joint Commercial Tax Officer 1968 21 S.T.C. 135. which applies squarely to this case. The tax case is allowed. No costs. Petition allowed.
5439...1968 (7) TMI 5 - KERALA High Court
United Mercantile Company Limited Versus Commissioner Of Income-Tax, Kerala.
Amount transferred by the assessee to the Provident Fund Commissioner under the provisions of the Employees` Provident Funds Act - held that it is not a capital expenditure within the meaning of rule 14(1) of Part A of Schedule IV of the IT Act, 1961 ......
5440...1968 (7) TMI 50 - GUJARAT HIGH COURT
Kalaria Oil Mills Versus The State of Gujarat and Others
........... as a succession in the business, is satisfied in the instant case and even the fact that the business is carried on in the same premises as before, is explained by the fact that the landlord has recognised the first petitioner-firm as his tenants and it is not by virtue of any transfer of tenancy rights by Kailas Oil Mills to the first petitioner-firm that the business is carried on in the same premises as before. It is, therefore, clear that the respondent had no jurisdiction to proceed to recover the sales tax dues of M/s. Kailas Oil Mills from the first petitioner-firm. In the result, we allow this special civil application and issue a writ of certiorari quashing the notice and the assessment orders, annexure C to the petition, and also issue a writ of mandamus permanently restraining the respondent, his servants and agents, from enforcing or executing the said notice and the assessment orders as against the petitioners. Rule made absolute with costs. Application allowed.
5441...1968 (7) TMI 51 - GUJARAT HIGH COURT
Patel Laxmidas Karman Versus State of Gujarat and Others
........... in this case, it is clear that the action of the Sales Tax Authorities in entering upon the enquiry and determining the liability of the petitioner to pay the sales tax dues of Bhagwanji Tulsidas was without jurisdiction, and since that determination was without jurisdiction, all consequential orders flowing therefrom, viz., the order of attachment, proclamation of sales, etc., must all be set aside. We, therefore, issue a writ of mandamus against the respondents directing them not to take any further steps for recovering the amount of sales tax dues of Bhagwanji Tulsidas from the petitioner in continuation of the notices and orders already issued by them in that behalf and we further hold that the notices and orders issued in that behalf by the second respondent are invalid and of no legal effect, as having been issued without jurisdiction. We make the rule absolute. The respondents must pay the costs of this special civil application to the petitioner. Rule made absolute.
5442...1968 (7) TMI 52 - MADHYA PRADESH HIGH COURT
Mansingh-ka Oil Mills Ltd. Versus Commissioner of Sales Tax, Madhya Pradesh, Indore
........... Khandwa and of payment against railway receipts, it cannot be held that the turnover of the two periods specified in the question is assessable to sales tax . It is unnecessary to add that in view of our answer to the question, the Board of Revenue must rehear the revision petitions preferred by the assessee and, after examining all the terms of the contracts of sale and after considering the effect of those terms and giving clear findings, determine the question whether the turnover of Rs. 7,70,446-5-6 in the first period and Rs. 3,39,076-10-6 in the second period is assessable to sales tax. 7.. For these reasons, our answer to the question is that on the basis of the price stipulated F.O.R. Khandwa and of payment against railway receipts it cannot be held that the turnover of the two periods specified in the question is assessable to sales tax. In the circumstances of the case, we leave the parties to bear their own costs of the references. References answered accordingly.
5443...1968 (7) TMI 53 - GUJARAT HIGH COURT
Champaklal Sohanlal Versus JH. Shah, Sales Tax Officer, Enforcement Branch. Ahmedabad
........... eased was a dealer who became liable to tax from 1st April, 1954, when his turnover of sales exceeded the prescribed limit and that liability devolved on the petitioner as heir. The order is not on the footing that the present assessee-firm is a dealer in its own right and there has been no assessment on that basis when it became assessable qua only its sales. Such a composite order cannot be severed and, therefore, the entire order will have to be quashed. In the result, this petition is allowed and a writ of certiorari is issued quashing the order of assessment, dated 31st October, 1965, at annexure C, along with the notice of demand dated 2nd November, 1965, and a writ of mandamus is issued restraining the respondent from recovering or taking steps for the recovery of the amount mentioned in the said notice of demand dated 2nd November, 1965. The respondent shall pay the costs of this petition to the petitioner. Rule accordingly made absolute with costs. Petition allowed.
5444...1968 (7) TMI 54 - MYSORE HIGH COURT
KM Muniswamappa Versus State of Mysore
........... produced his returns before the Commercial Tax Officer has no materiality. The power under that rule was exercised by the Deputy Commissioner after it became available to him, and the enunciation made by the Supreme Court in Garikapati v. Subbiah Choudhry(1), in which it was elucidated that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto, during the rest of the career of the suit, does not assist the argument now placed before us by Mr. Katageri. The right to prefer an appeal was not to any extent impaired by rule 30-B, and even under the proviso to section 20(5) of the Act the Deputy Commissioner has the discretion to select the form of the security to be furnished by the petitioner. We are, therefore, of the opinion that the direction made by the Deputy Commissioner under rule 30-B was fully within his competence and so, we dismiss these revision petitions. No costs. Petitions dismissed.
5445...1968 (7) TMI 55 - GUJARAT HIGH COURT
New Saurashtra Vanaspati Co. Morvi Versus BA Maharaja, Sales Tax Officer, Division I, Rajkot
........... predecessor-dealer, viz. C.S.A. This order of the taxing authority was, therefore, clearly without jurisdiction and ultra vires section 19(4) and in plain violation thereof. This is not a case where the taxing authority could be said to be exercising jurisdiction under the Act so that the taxpayer must be left to his ordinary remedy under the taxing statute. The case is clearly one of total lack of jurisdiction and also of a patent error of law and this Court would have the power and duty to interfere in such cases and grant relief to the citizen. In the result this petition must be allowed. We, therefore, issue a writ of certiorari quashing the order of the respondent at annexure B dated 5/6th April, 1968, and the consequent notice of demand dated 10th April, 1968, issued by him and we issue a writ of mandamus restraining the respondent from enforcing the said order and the said notice against the petitioner-firm. Rule accordingly made absolute with costs. Petition allowed.
5446...1968 (7) TMI 56 - ANDHRA PRADESH HIGH COURT
PK. Rama Krishna Versus Special Additional Commercial Tax Officer (Evasions), Vijayawada
........... y enough he is running a business under an agreement in the compound which he has taken on lease. His transactions may be confined to the staff of the hospital and the students. They cannot on that account change the nature of his business or his status. He is a dealer. The law in this behalf is clear and well settled. It is sufficient if we refer to the latest decision of the Supreme Court in Deputy Commercial Tax Officer v. Enfield India Ltd.(1). We do not think it necessary to discuss that case elaborately here. In the light of the said ruling we should hold that the petitioner comes within the definition of a dealer and not an agent or trustee as he claims. The assessing officer, Special Additional Commercial Tax Officer (Evasions), Vijayawada, could, therefore, assess his transactions to sales tax. In the view we have taken that there was no want of jurisdiction, this petition must fail. It is, therefore, dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
5447...1968 (7) TMI 57 - KERALA HIGH COURT
Cochin Company Private Ltd. Versus State of Kerala
........... reason stated by the Tribunal for adding the above amount is that it would compare well with the turnover assessed from 1962-63 up to 1965-66. The Tribunal s order does not show what were the turnovers as per the assessments for the above years. The assessments for these years were done by accepting the petitioner s accounts. If there was any fall in the turnover for 1964-65, the year with which we are concerned in this case, it should have been put to the petitioner, before it was adopted as a basis for determining the turnover to the best of judgment. Neither the order of the Tribunal nor the records of the case show that it was done. In these circumstances, we are constrained to hold that there was no material to support the addition made by the Appellate Tribunal, and to decide the second question raised in this revision also in favour of the petitioner. 10.. In the result, this revision petition is allowed with costs. Counsel s fee is fixed-at Rs. 200. Petition allowed.
5448...1968 (7) TMI 58 - GUJARAT HIGH COURT
Prakash Trading Co. Versus State of Gujarat
........... wrong even on this point as it held that shampoo was a toilet article in entry 21A and that it was not a soap. In the result our answer to the first and the third part of question No. (1) is in the negative and to the second part is in the affirmative, that is to say, Palmolive shampoo is not a toilet article within the meaning of entry 21A of Schedule E but is a soap within the meaning of entry 28 of Schedule C and is not covered by the residuary entry 22 of Schedule E and it is liable to be taxed accordingly. As regards question No. (2) our answer to the first part is in the negative and to the second part is in the affirmative, that is to say, Colgate tooth-brush and Colgate toothpaste are not toilet articles falling in entry 21A of Schedule E, but are covered by the residuary entry 22 of Schedule E and are liable to be taxed accordingly. The reference is accordingly answered. The State shall pay the costs of this reference to the assessee. Reference answered accordingly.
5449...1968 (7) TMI 59 - CALCUTTA HIGH COURT
Shivram Badri Gadre and Others Versus The Commercial Tax Officer of Collotola Charge and Others
........... em. The petitioners will be at liberty to press all such objections or any other objection available to him under the law before the Commercial Tax Officer in the impugned proceeding for review. The result is the petitions in C.R. Nos. 875(W) and 876(W) succeed. Entire decision or action of the respondents not to refund the excess amounts of tax to the petitioner on the ground of pendency of review is quashed and I direct respondent No. 2 to record appropriate orders in writing upon the applications of the petitioners for refund of the said amounts in accordance with law and in the light of the observations made above. These rules are made absolute to the extent indicated above. Let a writ in the nature of certiorari and mandamus in both these rules issue accordingly. The other petitions in C.R. Nos. 1082(W) and 1083(W) fail. Subject to the observations made above these two rules are discharged. There will be no order as to costs in all these four rules. Ordered accordingly.
5450...1968 (7) TMI 6 - CALCUTTA High Court
Smt. Ganeshi Devi Rami Devi Charity Trust Versus Commissioner Of Income-Tax, West Bengal.
Trust - public religious and charitable trust - exempt u/s 4(3)(I) of the IT Act, 1922 ......
........... income of the trust property, except for a sum of Rs. 900 per year, may be exempt under section 4(3)(i) of the Act. And we answer the reference in that manner but we make it quite clear that we express no opinion as to whether the funds were in fact applied and accumulated for the aforesaid purposes or not, in any year or in the particular year of assessment. That matter is not covered by the reference and, therefore, we propose not to answer that question and we answer the reference that has been made in the following manner Except for clause (d) the trust is for public religious and charitable purposes and except for a sum of Rs. 900 per year the said income, if properly applied or accumulated, would be exempt under section 4(3)(i) of the Act. The assessee will get the costs. The first question thus being answered in the aforesaid manner, the second question does not arise and we decline to answer the second question as this is unnecessary. SANKAR PRASAD MITRA J.- I agree.
5451...1968 (7) TMI 60 - ANDHRA PRADESH HIGH COURT
Udipi Vasanta Vihar Versus Deputy Commercial Tax Officer, Guntur-1
........... ometax Act, which was enacted by the Income-tax (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested rights which had accrued to the assessee, must be deemed to have come into force from 1st April, 1952. It had no greater retrospective effect than was expressly granted to it. We, therefore, see no substance in the contention of the learned Government Pleader that it affects only procedure and therefore can be given retrospective effect. Therefore the case is governed by section 14(4) as it stood before the amendment. As the notice proceeds upon the footing that the turnover will be assessed on the basis of best judgment computing the turnover by an inference based upon the sales on four days referred to in the notice, the notice is illegal by reason of the decision in The State of Andhra Pradesh v. Ravuri Narasimloo 1965 16 S.T.C. 54. In the result, the writ petition is allowed with costs. Advocate s fee Rs. 100. Petition allowed.
5452...1968 (7) TMI 61 - MYSORE HIGH COURT
Tejanasa Tuljansa Bhandage Versus First Commercial Tax Officer, II Circle, Gadag and Another
........... ny other provision of the Act to pay it, section 13(3) would have said so, but it does not. On the contrary what it empowers is the recovery of the tax or penalty due from a dealer, although it does not say so in so many words, and also any other amount which is due from him. Whether the amount sought to be recovered is of the one kind or the other, it is plain that such recovery could be made only from the dealer and from no one else. The decision of this Court in Diwakar v. State of Mysore 1963 14 S.T.C. 625. reinforces the view that we have taken in this case. The elucidation made in that decision precludes any appeal to section 32 of the Act, and Mr. Shantharaju very rightly made no such appeal. So we allow these revision petitions and set aside the orders made by the Magistrate and dismiss the applications presented to him by the concerned sales tax authority. The petitioner will be entitled to his costs. Advocate s fee Rs. 100 (one hundred), one set. Petitions allowed.
5453...1968 (7) TMI 62 - ALLAHABAD HIGH COURT
Rameshwar Oil Mills Versus Additional Revising Authority, Sales Tax, Varanasi Range, Varanasi and Another
........... rrying on the business of buying or selling goods in Uttar Pradesh and includes a firm. Section 3-C(1) also makes it clear that a firm is a dealer. So for purposes of the assessment of sales tax a firm is a unit independently of its partners (see J.B. Tandon v. Sales Tax Officer, Etawah 1957 8 S.T.C. 459. ). And it should necessarily follow that where a firm manufactures oil for sale, it is the dealer-manufacturer. None of its partners can be called a dealermanufacturer. Had the dissolved firm sold the mustard oil in question, it would have been liable to assessment under the notification. But it did not sell the oil. The oil, on its dissolution, fell to the share of Radha Krishna Maheshwari. And he sold it. He is not the dealer-manufacturer. Accordingly, he cannot be liable to tax on the sale of the oil. We allow this petition and quash the order of the revising authority, dated 3rd December, 1966. The petitioner shall get costs from the second respondent. Petition allowed.
5454...1968 (7) TMI 63 - KERALA HIGH COURT
Deputy Commissioner of Agricultural Income-tax and Sales Tax, South Zone, Quilon Versus Aluminium Industries Ltd. Kundara
........... Act can be levied, in spite of any exemption provided under the State law. With the greatest respect, we are unable to see the distinction pointed out by the Madras High Court. In our view, the amendment of section 15 does not affect the meaning of section 9 of the Central Act as interpreted by the Supreme Court. It is unnecessary to consider this matter in detail, as it is clear from a very recent decision of the Supreme Court dated 18th April, 1968, in C.A. No. 763 of 1967 (The State of Madras v. N.K. Nataraja Mudaliar) 1968 22 S.T.C. 376. that the reasoning of the Madras High Court in its above decision cannot be sustained. We, therefore, hold that all deductions allowed under the State law to be made from the gross turnover in determining the net turnover shall be liable to deduction in determining the taxable turnover under the Central Sales Tax Act, 1956. 7.. In the result, these revision petitions are dismissed. There will be no order as to costs. Petitions dismissed.
5455...1968 (7) TMI 64 - GUJARAT HIGH COURT
State of Gujarat Versus Mukhi Stores
........... ed a refund of it. But if the assessee chose to take the risk and did not pay up the amount of tax and ultimately the appeal or revision failed and the amount of tax originally assessed was held payable by him, it could not be a valid answer to the claim for penalty that the assessee had obtained orders for staying the recovery proceedings. The assessee was of course given relief to the limited extent possible under the first proviso to sub-section (4) and if he had any justifying reason for not making payment of the amount of tax, he could always apply to the Collector for remitting the whole or part of the amount of penalty. But that is very much different from saying that the assessee was not liable to pay penalty under the main part of the sub-section. I would therefore prefer the view expressed by Divan, J., and answer the question as reframed by Divan, J., in the affirmative. The assessee will pay the costs of the reference to the State. Reference answered accordingly.
5456...1968 (7) TMI 65 - ALLAHABAD HIGH COURT
RB. Narain Singh Sugar Mills Ltd. Versus The Commissioner of Sales Tax, UP.
........... at the provisions of section 8(2), to the extent that they enable the application of a higher rate in respect of transactions effected by a dealer in the State of Uttar Pradesh with a dealer in the State of Jammu and Kashmir, are ultra vires. It is well settled now that it is not open to an authority created under the statute to pronounce upon the vires of a provision of that statute see K.S. Venkataraman v. The State of Madras 1966 17 S.T.C. 418. If the Additional Judge (Revisions) Sales Tax was not entitled to entertain that question, we are also not competent to do so in the instant proceeding which is merely a reference arising out of an order of that authority. We must, therefore, decline to entertain this contention of the petitioner. We answer the question referred to this Court in the affirmative. The Commissioner of Sales Tax is entitled to his costs which we assess at Rs. 200. Counsel s fee is also assessed at the same figure. Reference answered in the affirmative.
5457...1968 (7) TMI 66 - GUJARAT HIGH COURT
Chandan Metal Products Pvt. Ltd. Versus The State of Gujarat
........... mmissioner of Sales Tax 1963 14 S.T.C. 184. , if the assessee-company stocked its goods, viz., shelving racks and binstaks, as furniture and sold them as furniture, it would be a sale of furniture and more so, if it was bought by the vendee as such. Our conclusion derived independently from the brochure issued by the assessee-company is that shelving racks and binstaks manufactured and sold by the assessee-company are items of steel furniture and that conclusion is fortified by the fact that the assessee-company manufactures, stocks and sells the shelving racks and binstaks as steel furniture. Under these circumstances, we hold that both shelving racks and binstaks are steel furniture within the meaning of entry 44H of Schedule C to the Act. We, therefore, answer the questions referred to us as follows Question No. Answer. (1) In the affirmative. (2) In the affirmative. The assessee will pay the costs of this reference to the State of Gujarat. Reference answered accordingly.
5458...1968 (7) TMI 67 - GUJARAT HIGH COURT
State of Gujarat Versus Shah Veljibhai Motichand, Lunawada
........... qually, one may say, it makes no difference whether it is in the form of flat sheets or corrugated sheets. When the assessee in the present case sold corrugated iron sheets, he sold iron in the shape of corrugated sheets and the purchasers purchased iron in that shape. I am, therefore, of the view that corrugated iron sheets are merely iron in another shape and form and they cannot be regarded as articles or products manufactured or fabricated out of iron. They must, therefore, be held to fall within entry 15 which reads iron and steel and they cannot be taxed under the residuary entry 80. The question referred to this Court must therefore be answered by saying that the sale of corrugated iron sheets by the assessee was covered by entry 15 of Schedule B to the Bombay Sales Tax Act, 1953, prior to its amendment by Bombay Act 16 of 1957 and not by the residuary entry 80 of that Schedule. The State will pay costs of the reference to the assessee. Reference answered accordingly.
5459...1968 (7) TMI 68 - RAJASTHAN HIGH COURT
Ghasiram Mangilal of Sambhar Versus The State of Rajashthan and Another
........... le to exercise our discretion in favour of the petitioner by ordering repayment of money which may have been realised by the Government in lieu of the impugned tax and would leave it to the petitioner to pursue an appropriate remedy either under the Rajasthan Sales Tax Act or under the ordinary civil law for repayment of the amount. The result is that we allow this writ petition in part and hold that the assessment of sales tax on the imported bardana on the first point at the hands of the assessee-petitioner, an importer, in the series of sales in the State of Rajasthan under the notification dated 11th August, 1959, is invalid in law. The imposition of penalty by the assessing authority on the petitioner for the assessment years 1963-64 and 1964-65 is also bad. Consequently, the assessment orders dated 18th February, 1965, for the years 1963-64 and 1964-65 are set aside. In the circumstances of the case we leave the parties to bear their own costs. Petition partly allowed.
5460...1968 (7) TMI 69 - ANDHRA PRADESH HIGH COURT
SL. Ramanatham Versus Commissioner of Commercial Taxes, Andhra Pradesh
........... titioner had already submitted his monthly returns. The order of assessment was, however, made subsequently. He was assessed to the same tax as was due under the terms of the Hyderabad General Sales Tax Act. Under the terms of the same Act, a competent authority could suo motu in exercise of powers of revision reassess him at any time subject to the conditions prescribed. The petitioner cannot successfully set up the provisions of the repealing Act to evade his liability which in point of fact was in terms saved by the said Act. That being the position, this writ petition seeking for a writ of prohibition is liable to be dismissed. Of course, some other points also have been raised in this petition but they cannot come up for our consideration as the appeal in relation to them is pending. The petitioner has unnecessarily come to this Court after filing the appeal and got the appeal stayed. The writ petition is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
5461...1968 (7) TMI 7 - ANDHRA PRADESH High Court
Kishanlal Haricharan Versus Income-Tax Officer, A-Ward, Nizamabad.
Rectification order made u/s 35 - limitation ......
........... directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact, the Commissioner of Income-tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that, in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier, such a view is destructive of one of the basic principles of the administration of justice. It follows that there are no merits in this writ petition and it is accordingly dismissed with costs. Advocate s fee Rs. 250.
5462...1968 (7) TMI 70 - MADRAS HIGH COURT
State of Madras Versus Baliga Lighting Equipment (P) Ltd.
........... tion or deductions covers only cases where but for the deduction the relative amount would be part of the price. The rule does not cover a case in which the amount in question is not part of the price, for in that case no exemption is at all required. Our attention has been invited to the Explanation to the definition of turnover in the Act. But as we said, the insurance charges are incurred to cover the risk in transit of the goods and we cannot view the expenditure as for something done in respect of the goods. The tax case is dismissed. Petition dismissed.
5463...1968 (7) TMI 71 - MADRAS HIGH COURT
Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai Versus Arasan Match Industries, Sivakasi
........... er in the other State and the purchaser was advised about it with the stipulation that the latter should pay the lorry freight and clear the goods, it is obvious that the movement is under the contract for transport of the goods from one State to the other. The fact that orders are collected outside the State, invoices are prepared there and collection also is made there, can make no difference to the position that under the contract of sale, though entered into with the Mysore depot, the goods moved from one State to the other and in this case directly to the buyer at least in one instance. We are of the view that the transaction in such a case is clearly inter-State in character. On that view the tax case is allowed and the appeal is remitted to the file of the Tribunal with a direction that it will examine whether all the transactions are like what we have stated and dispose of the appeal in the light of this judgment. There will be no order as to costs. Petition allowed.
5464...1968 (7) TMI 72 - PATNA HIGH COURT
Basta Colla Colliery Co. (P.) Ltd. Versus The State of Bihar
........... bed forms after the passing of the assessment order in question. 17.. Lastly, it was submitted by Mr. Tarkeshwar Prasad, learned counsel for the assessee, that in any view of the matter in regard to the sales of rupees ten lacs, in respect of which the declarations and the certificates had been filed before the Deputy Commissioner, the Board ought to have directed him to accept them, or the assessing authority to accept them, and make a fresh assessment. We are not prepared to accept this argument because according to the order of the Board, as we read it, no case in its opinion was made for acceptance of any declaration or certificate filed after the order of assessment was made by the assessing authority. 18.. For the reasons stated above, we answer the question of law reframed by us partly in favour of the assessee but finally and effectually against it in the manner indicated above. In the circumstances, there will be no order as to costs. Reference answered accordingly.
5465...1968 (7) TMI 73 - GUJARAT HIGH COURT
Jayantilal Thakordas Versus State of Gujarat
........... of Mr. Mody. In each case, the Tribunal has added a certain percentage of the detected sales in order to arrive at its estimate of total suppressed sales in each year of assessment and it cannot be said that there is no reasonable nexus whatsoever between the estimated suppressed sales and the detected suppressed sales. Under these circumstances, this decision of the Supreme Court in C. Velukutty s case(2) cannot help the assessee. In the light of the above discussion, we hold that the Tribunal was right in the view that it took, viz., that the principles of natural justice were not violated by the Sales Tax Officer in not recording statements of A. Alibhai and Co. and the Angadia and not giving opportunity to the applicant-firm of cross-examining them. In the result, we answer the questions as follows Question No. Answer. (1) In the affirmative. (2) In the affirmative. The assessee will pay the costs of this reference to the State of Gujarat. Reference answered accordingly.
5466...1968 (7) TMI 74 - ALLAHABAD HIGH COURT
Sahaj Ram Rehandmal Versus Commissioner of Sales Tax
........... en the property of the Railway there would have been no occasion for providing for payment to the petitioner in respect of the surplus taken over by the Railway. There would also have been no necessity for adding the further condition that if the material was not removed by the petitioner within two months from the date of service of a requisition by the Railway the petitioner would forfeit all right, claim and interest in the same. We are not satisfied that the finding of the Judge (Revisions) Sales Tax is erroneous in law and accordingly, we hold that this is not a case of a works contract but of a sale of the ballast and boulders by the petitioner to the Railway. We answer the questions of law in all the references accordingly. The Commissioner of Sales Tax shall be entitled to his costs in the instant reference which we assess at Rs. 200. Counsel s fee is also assessed at Rs. 200. There is no order as to costs in the connected references. References answered accordingly.
5467...1968 (7) TMI 75 - ALLAHABAD HIGH COURT
Masitullah Khan and Others Versus The Collector, Shahjahanpur and Others
........... es Tax Act in the year 1964 and it provides that interest at the rate of 18 per cent. shall be charged from a defaulter if the tax remains unpaid after the expiry of the time mentioned in the notice of assessment and demand or the commencement of the U.P. Bikri-Kar (Dwitiya Sanshodhan) Adhiniyam whichever is later. Obviously it is only a defaulter who is liable to pay interest and a person cannot be held to be a defaulter unless a notice of demand for the payment of the sales tax is first served upon him and he commits a default thereof. Admittedly no notice of demand as required by section 8(1) of the Act had been served upon the petitioners. As such the recovery proceedings launched against them are unauthorised. The result is that this writ petition must succeed. A writ of certiorari shall issue quashing the recovery proceedings pending against the petitioners for the recovery of interest. The petitioners are entitled to their costs from the respondents. Petition allowed.
5468...1968 (7) TMI 76 - ANDHRA PRADESH HIGH COURT
Challa Appa Rao & Co. Versus Commercial Tax Officer, Narasapur
........... knowledge of the mistake of law only after the decision of this court in State of Andhra Pradesh v. Oruganti Venkateswarlu and Bros.(1) on 31st March, 1967. The question whether paddy had been subjected to tax or not and rice was shelled out of such paddy will be a matter in controversy between the department and the assessee, and until that is decided, which can only be done by the hierarchy of tribunals under the Act, it cannot be said that the tax levied was levied under a mistake of law, entitling the petitioners to a refund in these petitions. This principle will be applicable to the other non-declared goods also. Both for this reason, as also for the reason, in respect of all the petitions including the three petitions dealing with assessments of 1957-58 as there has been a long and unreasonable delay without there being any exceptional circumstances, to condone it, we dismiss these writ petitions with costs. Advocate s fee Rs. 25 in each petition. Petitions dismissed.
5469...1968 (7) TMI 77 - PATNA HIGH COURT
Gurumukh Rai Radha Krishna Versus The State of Bihar
........... ion, we do not think that the facts stated in the order of the Board justify the assumption that the assessee is a del credere agent vis-a-vis the transactions in question. We would, therefore, reframe the question in the following manner Whether, on the facts and in the circumstances of the case, the assessee is liable for sales tax on sales of sugar despatched from Lohat and Sakri factories outside the State of Bihar during the period in question, even though in respect of those despatches the sugar company itself had shown them as taxable sales in its return and had paid tax thereon? 7.. For the reasons stated above, we answer the question, as framed by us, against the assessee and in favour of the department and hold that the assessee is liable to sales tax for the sales aforesaid. The State of Bihar will get the cost of these references. The consolidated hearing fee for all the references is fixed at Rs. 150 (one hundred and fifty only). References answered accordingly.
5470...1968 (7) TMI 78 - SUPREME COURT OF INDIA
AMALGAMATED ELECTRICITY CO. Versus MUNICIPAL COMMITTEE, AJMER
........... defendant had pleaded that the plaintiff failed to prove the quantum of surcharge payable by the defendant. It also contended that the notification under which the surcharge is levied cannot have retrospective operation and that no surcharge was leviable under that notification on the charges in respect of maintaining street lighting equipments. According to the learned Counsel for the plaintiff there is no merit in any one of these contentions. As mentioned earlier the High Court has not gone into these contentions. It is for that court to examine those contentions. This court does not ordinarily examine contentions which have not been examined by the appellate court. It is best that these questions should be gone into by the High Court. In the result we allow this appeal, set aside the judgment of the High Court and remand the case back to the High Court for deciding the issues that remain to be decided. The costs of this appeal shall be costs in the cause. Appeal allowed.
5471...1968 (7) TMI 8 - MADRAS High Court
PR. Easwaran Versus Sixth Income-Tax Officer, Circle II, Coimbatore.
Re-opening of assessment - jurisdiction to issue the notice u/s 148 ......
........... be decided is whether the impugned order or notice is passed by the officer concerned in exercise of his lawful jurisdiction under any statute, then such incidental matters as has been referred to by the revenue cannot prevent the court from issuing a rule if the facts and circumstances justify it. It is thus seen that the impugned notice was sought to be issued by the respondent without jurisdiction and, in the ultimate analysis, he could not forward such a notice to the petitioner in the light of the election made in the earlier proceedings by the revenue. On these two grounds it is clear that there is a patent lack of jurisdiction which is apparent on the face of the record and the petitioner is, therefore, entitled to a writ of prohibition restraining the respondent from making any assessment as proposed by him in the impugned notice as against the petitioner. The rule nisi is, therefore, made absolute and this writ petition is allowed with costs. Advocate s fee Rs. 250.
5472...1968 (7) TMI 9 - RAJASTHAN High Court
Dholpur Glass Works Limited Versus Commissioner of Income-Tax, Delhi And Rajasthan.
In view of loss incurred by assessee company its managing agent relinquished their right to remuneration - Assessee company subsequently made profits and paid to its managing agent Rs. 60,000 over and above their usual remuneration - held that Tribu ......
5473...1968 (8) TMI 1 - SUPREME Court
Commissioner of Income-Tax, Uttar Pradesh. Versus Gauri Dutt Bhagwan Dass And Co.
Whether speculative losses can be set off against profits from any other business activity under s. 10 - Held, No - Revenue's appeal allowed ......
........... no other view is possible, it is futile to go into the question whether the proviso to section 24(1) operates as a substantive provision or only by way of an exception to section 24(1). The proviso says in unmistakable and unequivocal terms that any losses sustained in speculative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits or gains in any other business consisting of speculative transactions. This has to be read with Explanation (1) according to which where the speculative transactions carried on are of such a nature as to constitute a business the business shall be deemed to be distinct and separate from any other business. In the above view of the matter the answer to the questions referred in both the appeals will be in the negative, namely, against the assessee and in favour of the department. The appeals are accordingly allowed with costs. There will be one hearing fee. Appeals allowed
5474...1968 (8) TMI 10 - SUPREME Court
JB Advani And Co. Pvt. Limited Versus RD Shah, Commissioner of Income-Tax, Bombay
Company filed an application before the CIT under s. 33A for revision of the assessment - application which was filed under s. 33A of the Act was completely barren of an explanation for this delay which had to be properly and satisfactorily explained ......
5475...1968 (8) TMI 11 - SUPREME Court
Ishwar Lal Versus Commissioner of Income-Tax, Delhi, Rajasthan And Madhya Pradesh
Notification No. 878-F - purpose of the Notification was to avoid double taxation by providing that if the amount has been assessed in the hands of the company the same should not be assessed over again in the hands of the assessee. There was nothing ......
5476...1968 (8) TMI 111 - SUPREME COURT OF INDIA
The State of Madras Versus KCP. Ltd.
Whether the respondent-company was liable to pay sales tax on an amount of Rs. 4,20,000 being the sale price of two arc furnaces which had been purchased in 1952 and sold in 1958?
Held that:- Appeal dismissed. The High Court rightly came t ......
5477...1968 (8) TMI 114 - SUPREME COURT OF INDIA
The State of Rajasthan and Another Versus Karam Chand Thappar and Brothers (Coal Sales) Ltd. Jaipur
Whether the supply of coal by the petitioner to the State amounted to a sale?
Held that:- Appeal partly allowed. A writ of mandamus will issue directing the State of Rajasthan not to realize sales tax except with regard to the transactions ......
5478...1968 (8) TMI 115 - SUPREME COURT OF INDIA
Commissioner of Sales Tax, Indore Versus Mohammad Hussain Rahim Bux
Applicability of Article 286 of the Constitution of India read with Article 264 before the amendments made by the Constitution (Seventh Amendment) Act, 1956, to the erstwhile State of Vindhya Pradesh during the relevant assessment period for the purp ......
5479...1968 (8) TMI 116 - SUPREME COURT OF INDIA
Commissioner of Sales Tax, UP. Versus Dr. Sukh Deo
Whether the preparation of medicines on prescriptions of the applicant amounted to a manufacture of 'medicines and pharmaceutical preparations' within the meaning of Notification No. ST-3504/X dated 10th May, 1956, and whether the applicant was asses ......
5480...1968 (8) TMI 117 - SUPREME COURT OF INDIA
The State of Rajasthan Versus The Mewar Sugar Mills Ltd., Bhopalsagar
Section 22 of the General Clauses Act (corresponding to section 37 of the English Act) is a section dealing not merely with construction but with interpretation and it follows that the provisions of that section are applicable for the interpretation ......
5481...1968 (8) TMI 12 - SUPREME Court
Estate of the Late A. MKM Karuppan Chettiar Versus Commissioner of Income-Tax, Madras
KC in respect of his individual income had never been assessed to tax before he filed the returns and, unless the returns filed by him were disposed of, no notice under s. 34 was competent - assessments made by the ITO pursuant to the notice under s. ......
5482...1968 (8) TMI 120 - SUPREME COURT OF INDIA
Commissioner of Sales Tax, UP. Versus DC. Dhimani & Brothers Ltd.
Whether, in the circumstances and on the facts of the case, the assessee came within the meaning of the term 'dealer' under section 2(c) of the U.P. Sales Tax Act?
Held that:- Appeal dismissed. Under the contract under which the parcel van ......
5483...1968 (8) TMI 121 - SUPREME COURT OF INDIA
The State of Kerala Versus Pothan Joseph & Sons
As we are bound to follow the majority judgment we find no escape from the conclusion, after applying the ratio therein, that the general sales tax law of the State which would include the rules framed thereunder governed the levy and assessment of t ......
5484...1968 (8) TMI 13 - SUPREME Court
JP Jani, Income-Tax Officer, Circle IV, Ward G, Ahmedabad, And Another Versus Induprasad Devshanker Bhatt
On a proper construction of s. 297(2)(d)(ii) of the new Act, the ITO cannot issue a notice under s. 148 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the old Act at the date when ......
5485...1968 (8) TMI 14 - SUPREME Court
Commissioner of Income-Tax, Gujarat II Versus BM Kharwar
Section 10(2)(vii), proviso (ii) is attracted if there be a sale of the building, machinery or plant and the amount for which the sale takes place exceeds the written down value of the assets transferred. If there be no sale, the proviso has no appli ......
5486...1968 (8) TMI 15 - SUPREME Court
JK Woollen Manufacturers Versus Commissioner of Income-Tax, Uttar Pradesh
Commission paid by the assess to general manager was amount laid out wholly or exclusively for the purpose of business - deduction allowed - Assessee's appeal allowed ......
5487...1968 (8) TMI 158 - SUPREME COURT OF INDIA
EJ. Mathew Versus State of Kerala
Liability of the appellant to payment of additional sales tax under section 3(2) of the General Sales Tax Act as amended in 1951 in respect of sales of tobacco made by the appellant in the erstwhile State or Travancore-Cochin out of purchases from de ......
5488...1968 (8) TMI 159 - SUPREME COURT OF INDIA
Commissioner of Sales Tax, UP. Versus Indian Herbs Research and Supply Co.
Whether 'dhoop' or 'dhoop-batti' does not come under the category of 'perfume' and is not liable to tax under item No. 37 of the Notification No. 905/X dated March 31, 1956, under section 3-A of the U.P. Sales Tax Act?
Held that:- Appeal a ......
5489...1968 (8) TMI 16 - SUPREME Court
Kapurchand Shrimal Versus Tax Recovery Officer, Hyderabad, And Others
Manager of the family (HUF) was arrested and detained in civil prison - held that on failure to pay tax by the HUF, manager could not be arrested and detained in civil prision under Sch. II, O. 76 - Assessee's appeal allowed ......
5490...1968 (8) TMI 160 - SUPREME COURT OF INDIA
William Jacks & Co. Ltd. Versus State of Orissa
Whether the second press note issued by the Orissa Government on November 2, 1955, must be deemed to be an order of the State Government exempting non-resident dealers from liability to tax on inter-State trans- actions for the period from April 1, 1 ......
5491...1968 (8) TMI 162 - SUPREME COURT OF INDIA
Commissioner of Sales Tax, MP, Indore Versus Allwyn Cooper
Whether, in the facts and circumstances of the case, the disputed sales of manganese amounting to Rs. 2,77,976.45 were sales in the course of inter-State trade and commerce or were intrastate sales?
Held that:- Appeal dismissed. The moveme ......
5492...1968 (8) TMI 165 - SUPREME COURT OF INDIA
Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon Versus Midland Rubber and Product Co. Ltd.
Whether the turnover of inter-State sales of rubber is taxable under the Central Sales Tax Act, 1956?
Held that:- Appeal dismissed. The only facts found are that the assessee was a public limited company which was engaged in the business o ......
5493...1968 (8) TMI 166 - SUPREME COURT OF INDIA
Addl. Assistant Commissioner of Sales Tax, Indore Region, Indore Versus Firm Jagmohandas Vijay Kumar
Proceedings for assessment to sales tax initiated by the respondent for the year 1955-56 quashed - Held that:- Appeal allowed. As in the present case the proceedings for assessment to sales tax taken against the respondent for the year 1955-56 by the ......
5494...1968 (8) TMI 167 - SUPREME COURT OF INDIA
Agricultural Implements Dealers Syndicate Versus Commissioner of Sales Tax, MP
Whether the chaff-cutter (kutti-ki-machine) comes under item (12) 'mowers' of Notification No. 736-3694-V-SR dated April 1, 1959, issued by the State Government as laid down in item 1 of Schedule I appended to the Madhya Pradesh General Sales Tax Act ......
5495...1968 (8) TMI 168 - ALLAHABAD HIGH COURT
Commissioner of Sales Tax, Uttar Pradesh, Lucknow Versus Pritam Singh
........... ales Tax Act and has pointed out that the notifications refer variously to the parts of an article, the spare parts of an article and the component parts of an article and urges that in the context a component part must be understood as an integral part of the article. We have already pointed out that, in our opinion, the body mounted on the chassis of a motor vehicle is an integral part of the motor vehicle. Therefore, the submission on behalf of the respondent does not carry his case any further. In our judgment, the truck bodies manufactured and sold by the respondent must be considered as component parts of motor vehicles and, therefore, liable to charge by reference to Notification No. S.T.-905/X dated 31st March, 1956, issued under section 3-A of the U.P. Sales Tax Act. We answer the question accordingly. The Commissioner of Sales Tax is entitled to his costs, which we assess at Rs. 200. Counsel s fee is also assessed in the same figure. Reference answered accordingly.
5496...1968 (8) TMI 169 - PUNJAB HIGH COURT
Dr. Baldev Raj Versus The State of Punjab and Another
........... n for general public use is the essence of manufacture for the purposes of this Act. A goldsmith or a tailor or a shoemaker who only makes things to the order of particular customers is not any the less a manufacturer or producer than a goldsmith or a tailor or a shoemaker who makes and keeps ready-made things for all and sundry. On the basis of the above discussion and the judgments referred to, I hold that the petitioner in this case is a dealer within the meaning of section 2(d) of the Act and he himself manufactures or produces goods for sale as contemplated in section 4(5)(b) of the Act. There is, in my opinion, no difference between the case of a chemist who prepares medicines on the prescriptions of any doctor and the doctor who has his own dispensary to dispense his own prescriptions for his patients. In the result, there is no merit in the petition which is hereby dismissed but in the circumstances of the case, there will be no order as to costs. Petition dismissed.
5497...1968 (8) TMI 17 - SUPREME Court
Commissioner of Income-Tax, West Bengal Versus Durga Prasad More
Income From Undisclosed Sources - If the amount of Rs.2,20,000 represented income of the assessee of the previous year, it was liable to be included in the total income of the assessee, and an enquiry whether for the purpose of bringing the amount to ......
5498...1968 (8) TMI 170 - ALLAHABAD HIGH COURT
Commissioner, Sales Tax, Uttar Pradesh Versus Badri Prasad Vishwanath, Kanpur
........... e refundable amount against an outstanding liability of the dealer. We are unable to equate the refund of an amount payable to a dealer with the adjustment of such an amount towards a liability outstanding against him. In the one case the dealer applies for the repayment of the money into his hands. In the other, he applies that the amount instead of being repaid to him be credited towards the liability outstanding against him. We are of opinion that the subject-matter of the first proviso cannot be confused with what is contemplated within the second proviso. The two matters are distinct and separate and, therefore, the period of limitation prescribed under the first proviso cannot govern the matter of adjustment contemplated by the second proviso. We, therefore, answer the question referred to this court in the negative. The respondent is entitled to his costs which we assess at Rs. 200. Counsel s fee is also assessed in the same figure. Reference answered in the negative.
5499...1968 (8) TMI 171 - ANDHRA PRADESH HIGH COURT
Kishanlal Oil Mills Versus State of Andhra Pradesh and Another
........... er rule 51-A of the Andhra Pradesh General Sales Tax Rules, a direction might be given that the tax due may be recovered in the first instance from the properties of the firm, before the sales tax authorities proceed against the petitioner. Rule 51-A is in these terms In case of default of payment of the tax, penalty or any fee leviable under the Act, the properties of the firm may be proceeded against in the first instance for the recovery of the amount due from the firm. The terms of this rule are clear enough, and it gives the authority a discretion to proceed against the properties of the firm in the first instance. The authorities may be expected to act fairly and justly, keeping in view the provisions of this rule. We do not think it necessary to issue a direction in this regard. In the result, these writ petitions fail and are dismissed-Writ Petition No. 718 of 1966 with costs Advocate s fee Rs. 250-and Writ Petition No. 719 of 1966 without costs. Petitions dismissed.
5500...1968 (8) TMI 172 - GUJARAT HIGH COURT
Commissioner of Sales Tax, Gujarat, Ahnedabad Versus Anil Co-operative Credit Society
........... certificate was operative. No such situation obtains in the present case. No authority has found that the assessee ought not to have been registered or that his registration should be cancelled. Here the question is entirely different. The assessee is admittedly a dealer in respect of other transactions carried on by it and it is properly registered as a dealer in respect of those transactions. The only question is in regard to sales effected by the assessee to its members in the canteen and so far as this activity is concerned, the assessee contends that it is not carrying on business and therefore those sales are not liable to tax. That contention is not met by anything in section 22, sub-section (5-A) and, for reasons which I have given above, it must be accepted as correct. The answer to the second question must also therefore be in the negative as proposed by Mehta, J. The Commissioner will pay the costs of the reference to the assessee. Reference answered accordingly.
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