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Showing 21 to 40 of 94 Records
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1967 (3) TMI 103 - SUPREME COURT
Whether the appellants had a fundamental right to do business in liquor?
Held that:- Dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right, in public interests.
We cannot agree with the learned counsel that S. 22 controls s. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence : they deal with two different subject-matters. Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us. Appeal dismissed.
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1967 (3) TMI 102 - MADRAS HIGH COURT
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... ... ..... that the usufruct of the coconut trees is horticultural produce, the sale of which will not attract the levy of sales tax. Even under the income-tax law, income from coconut tope is treated as agricultural income, and even under the Agricultural Income-tax Act, income from the coconut tope is exempt. Further, the petitioner is entitled to protection and exemption granted by the Government in L. Dis. 677/63, dated 24th October, 1963, as seen from the Commercial Taxes Gazette, Volume I, No. II, Quarter ending 31st December, 1963, page 5, item 12. It will be noticed that Khader Batcha Sons, who purchased coconuts from the petitioner s tope, have been treated as a first seller and assessed to pay sales tax, and the same articles cannot be subjected to tax at more than one point. For all the reasons stated above, the petitions succeed and all the orders of assessment and levy of penalty are quashed. There will be no order as to costs in any of these petitions. Petitions allowed.
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1967 (3) TMI 101 - MADRAS HIGH COURT
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... ... ..... enhance turnover in an appeal filed by an assessee, section 9(3) of the Central Sales Tax Act, 1956, will not attract section 31(3) of the Madras General Sales Tax Act, 1959. The argument is clearly right. This is on the principle that where a Legislature makes a law adopting by reference certain provisions contained in a different Act, no intention of the Legislature could be imputed that thereby any amendment should also become a part of the law which adopts by reference. This is on the principle that the Legislature cannot abdicate its function. It is not necessary to elaborate the question as it has been considered by a Division Bench of this Court in Haji J.A. Kareem Sait v. Deputy Commercial Tax Officer(1), the principle of which has been followed in D.H. Shah and Co. v. The State of Madras(2). The petition is allowed in respect of the last three items of the turnover we mentioned. The petitioner is entitled to his costs. Counsel s fee Rs. 100. Petition partly allowed.
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1967 (3) TMI 100 - MADRAS HIGH COURT
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... ... ..... etitioner can file an application for refund without any period of limitation. In the instant case, all the authorities have found that the petitioner had paid the taxes and was entitled to claim the refund but rejected that claim on the ground that such a claim was barred by limitation under section 35(1) of the Madras General Sales Tax Act. Of course, there was a delay of about a year, but in the affidavit in support of this writ petition, the petitioner has given plausible reasons for not making his claim for the refund for so long. Since I am taking the view that there is no time prescribed for claiming the refund and since the petitioner has paid all the taxes due, I hold that the petitioner is entitled to claim refund. In the result, the writ petition is allowed. The refund applications filed by the petitioner will be taken on file after the delay is excused and they will be disposed of afresh. There will be no order as to costs in this writ petition. Petition allowed.
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1967 (3) TMI 99 - MYSORE HIGH COURT
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... ... ..... the officer having done so and provided the petitioner with the argument that he could not under sub-section (2) of section 14 alter or amend the returns, there is no alternative but to set aside the order of the Assessing Authority as also the orders of the Appellate Authorities which confirmed the said order and to direct him to complete the assessment after giving the petitioner opportunity of producing evidence and being heard. 9.. Because the setting aside of the order revives the return and so long as the return is there, no question of limitation arises-vide Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur, and Others 1963 14 S.T.C. 976. 10.. We, therefore, set aside the original assessment order as well as the appellate orders confirming the same and direct the Assessing Officer to re-do the assessment and complete the same after giving the petitioner reasonable opportunity of producing the evidence and hearing him. No costs. Ordered accordingly.
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1967 (3) TMI 98 - ANDHRA PRADESH HIGH COURT
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... ... ..... ment it was made but becomes final only after the period for filing appeal or revision or for making additional assessment has expired. We are in respectful agreement with both these propositions as enunciated by the learned Judges. It is clear, therefore, that when the additional assessment has been made within four years as contemplated by section 14(4-A) of the Andhra Pradesh Act, no question of limitation would arise. The additional assessment was perfectly within time. It is also clear that the penalty imposed was well within the competence of the assessing authority and did not exceed the limit fixed by the statute. It may further be noted that if any question of limitation could arise at all in these cases it could have been only in relation to the assessment year 1955-56 but even that being made within four years no such objection can validly arise. The result is that these petitions fail and they are dismissed with costs. Advocate s fee Rs. 250. Petitions dismissed.
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1967 (3) TMI 97 - MADRAS HIGH COURT
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... ... ..... in token thereof the agent has initialled or signed the invoices. This aspect will have to be examined with reference to the evidence on record or to be adduced. What the Tribunal should constantly keep in view is to find out whether the contract occasioned the movement of the goods in the sense that there was a stipulation in the contract that the seller should despatch the goods from Madras State to another State. The orders of the Tribunal are set aside and the appeals are remitted to the file of the Tribunal with a direction that it will dispose them of afresh. If it considers necessary, it will be at liberty to remit the assessments to the assessing authority for fresh consideration after recording further evidence, both oral and documentary and giving a proper and reasonable opportunity to the petitioner of being heard, which will include also the opportunity of producing evidence. The petitions are allowed with costs, one set. Counsel s fee Rs. 100. Petitions allowed.
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1967 (3) TMI 96 - MADRAS HIGH COURT
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... ... ..... ny penalty payable under the Act shall be deemed to be tax thereunder for that purpose. Section 15 therefore provides both for levy of penalty under section 12(3) and also recovery thereof, the only limitation being that the recovery should be confined to the assets of the deceased in the hands of the legal representative. This construction we have placed upon sections 15 and 25 of the Madras General Sales Tax Act, 1959, is supported by the fact that section 159(3) of the Income-tax Act, 1961, clearly provides, unlike section 24B of the Income-tax Act, 1922, that the legal representative of the deceased shall for the purposes of the Act be deemed to be an assessee. The deeming is complete and the legal representative is regarded as the dealer for the entire range and purpose of the Act. On that view, the order of the Tribunal is set aside and that of the Appellate Assistant Commissioner is restored. The petition is allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1967 (3) TMI 95 - ALLAHABAD HIGH COURT
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... ... ..... question No. 4 to be the crucial question in the case. We answer it in the affirmative and hold that the term fertilizer , as used in the relevant notification, includes a chemical fertilizer. Inasmuch as we have held that Chilean nitrate should be classified as a fertilizer, even though it may be a chemical fertilizer, it is covered by the first notification exempting it from sales tax. As our answers to the questions are in favour of the assessee and against the department, we order that the department shall pay assessee s costs which we assess at Rs. 100. Counsel s fee is assessed at the same figure. We hereby direct that copies of our judgment shall be sent, under the seal of this Court and the signature of the Registrar, to the Revising Authority and the Commissioner of Sales Tax, as required by section 11(6) of the U.P. Sales Tax Act, so that the Revising Authority may reconsider and dispose of the case in conformity with this judgment. Reference answered accordingly.
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1967 (3) TMI 94 - CALCUTTA HIGH COURT
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... ... ..... th that, this Rule must be made absolute. The preliminary objection raised by Mr. Dutt that the petitioner should not be entitled to any remedy inasmuch as he did not pursue the further statutory remedies available against the order in revision cannot be of any avail in a case where the impugned order is vitiated by an error apparent on the face of the record relating to the interpretation of a statute (Bhopal Sugar Industries v. Dube 1963 14 S.T.C. 410, 415.). In the result, the Rule is made absolute but without any order as to costs. The impugned order at annexure H passed by respondent No. 2 is quashed in so far as it is founded on the claim of paper and ink to be considered as packing materials within the meaning of section 5(2)(a)(ii) of the Act and he is directed to make a fresh disposal of the revision petition before him in accordance with the law, after arriving at a finding on the point aforesaid and in the light of the observations made herein. Rule made absolute.
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1967 (3) TMI 93 - MADRAS HIGH COURT
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... ... ..... Authorities did not in the preceding years insist upon the inclusion of such turnovers. In these circumstances, we have no doubt at all in our minds that the action under section 12(3) of the Act is wholly unjustified. In any event since we have held that no sales turnover is involved, no scope for levy of penalty at all exists. It follows that the petitioner is entitled to succeed in so far as the turnovers relating to these lease transactions are concerned, as also the imposition of the penalty. To that extent, the rule will be made absolute in W.P. No. 782 of 1966. There will be a writ of prohibition in W.P. No. 783 of 1966 quashing the proceedings in so far as the assessing authority has set on foot proceedings proposing to include similar turnovers, and a similar prohibition in respect of the notice proposing to levy penalty. For like reasons, the provisional assessment will also be quashed. The petitioner will be entitled to his costs. Counsel s fee Rs. 250 (one set).
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1967 (3) TMI 92 - MADRAS HIGH COURT
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... ... ..... Act, 1959. The argument for the petitioner is that the Parliament cannot with propriety make a law adopting by reference, the provisions of the State law, as they stand amended by the local Legislature from time to time. The principle of the contention is certainly unexceptionable, for while it is competent for the Parliament to adopt the existing provisions of a local law as part of the Central legislation without repeating those provisions in the Central Act, it cannot make a law adopting the provisions of a local law which did not exist at the time. It follows, therefore, that unless the 1939 Act contained power to levy a penalty, such a power given to the department for the first time under section 12(3) of the 1959 Act, which repealed the 1939 Act, cannot be regarded under section 9(3) to be adopted for the purpose of the Central Act. On this ground also, the penalty must be set aside. The tax revision case is allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1967 (3) TMI 91 - MADRAS HIGH COURT
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... ... ..... he State that the petitioner or his driver having dodged and failed to give any assistance to the department to find the dealer or the owner of the goods and as the driver himself paid the money in lieu of confiscation, the Tribunal s order should be upheld. We do not think that this is a correct appreciation of the statutory rules. The revenue is not at liberty to accept money from anyone. It can do so only from the owner or dealer of the goods in lieu of confiscation. Nor can the revenue saddle on the owner of the lorry without his being a dealer or the owner of the goods, with the liability to penalty in lieu of confiscation on the ground that he failed to assist the department to find the real dealer or the owner of the goods. To do so will be entirely without authority. The petition is allowed with costs and the order of the Tribunal is set aside. The appeal will stand remitted to it for fresh disposal in the light of this order. Counsel s fee Rs. 100. Petition allowed.
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1967 (3) TMI 90 - ANDHRA PRADESH HIGH COURT
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... ... ..... registration of the appeal before the Appellate Tribunal. We, therefore, hold that the provisions of section 21(6) are attracted even in the case of an appeal from an appellate order which merely rejects the appeal as time-barred. Rejection of the appeal on the ground of limitation virtually amounts to confirmation of the tax determined by the original order and hence there is a determination of the tax as contemplated by sub-section (6) of section 21 of the Act. We, therefore, dismiss this writ petition with costs. Advocate s fee Rs. 100. When the petition came on for final hearing on 6th April, 1967, the Court made the following order S. Dasaratharama Reddy, for the petitioner. The Government Pleader, for the respondents. Order In view of the fact that the amount has not been paid under some misapprehension, one month s time from the date of receipt of this order for the payment of the amount Is granted. On the payment of this amount, the Tribunal will register the appeal.
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1967 (3) TMI 89 - MADRAS HIGH COURT
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... ... ..... n. Whether the assessee was entitled to the adjustment that he asked for, is a different matter. But if he was bona fide prosecuting his request for adjustment, which if granted, would result in no further liability, we do not see why the circumstance will not constitute a sufficient cause. The Tribunal has not stated that the assessee was not bona fide in making the request for adjustment and waiting for a final reply in the matter. The Tribunal itself notes the fact that the original order of assessment was not signed by the assessing authority. That being the case, we are satisfied that the Tribunal should have condoned the delay. The appeal filed before the Tribunal will, therefore, be treated as having been filed in time after the condonation of delay. The petition is allowed and the order of the Tribunal is set aside. The appeal is remitted to the Tribunal for fresh disposal on its merits. The petitioner is entitled to his costs Counsel s fee Rs. 100. Petition allowed.
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1967 (3) TMI 88 - KERALA HIGH COURT
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... ... ..... of assessment, are Rs. 42,446.71 and Rs. 47,989.59 respectively. In view of my finding that these amounts do not constitute turnover , they have to be excluded from assessment. Accordingly, I set aside the orders of assessment for the years 1963-64 and 1964-65, and remand these cases to the respondent to pass fresh orders of assessment, after excluding the above amounts from the taxable turnover of the petitioner. Regarding the year 1965-66, what is sought to be quashed is the notice of provisional annual assessment and demand. The notice shows that the amounts received on account of job-works have also been included in the assessment. The year for which this provisional assessment has been made has expired. The provisional assessment is, therefore, set aside. The respondent may proceed to make final assessment for this year in the light of this judgment. 5.. In the result, these original petitions are allowed. The parties will bear their respective costs. Petitions allowed.
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1967 (3) TMI 87 - ANDHRA PRADESH HIGH COURT
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... ... ..... on 8(1)(a) before its amendment which is similar to section 8(2-A) in its application to coffee and coffee powder which was ground from coffee seeds, which has already been subjected to sales tax under item 43. It was held that coffee powder was not liable to tax under the Act. Their Lordships of the Supreme Court on appeal against this decision in State of Mysore v. Karnatak Coffee Co. 1966 17 S.T.C. 311. confirmed it, following a similar decision in State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons 1965 16 S.T.C. 231.This decision further lends support to the view we have taken. The learned Government Pleader further states that the question whether the costs of the containers are to be included in the turnover or not should also be left open to the taxing authorities on remand. We do not think that the Tribunal has restricted the scope of the remand. In this view, the revision petitions are dismissed with costs. Advocate s fee Rs. 50 each. Petitions dismissed.
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1967 (3) TMI 86 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... titioner had signed, if he had signed at all, and the circumstances in which he had appended his signatures to that return. The learned counsel showed his inability to produce the original return as it had not been given to him by the respondent. I would go to the length of holding that even if the petitioner had appended his signatures to the return in question otherwise than as a partner, it would not in any manner improve the case of the respondent. No other point has been argued before me in this case. For the foregoing reasons this writ petition is allowed with costs and the impugned order of the Assistant Collector directing the arrest of the petitioner passed on 25th March, 1965, is set aside and quashed. The respondent is hereby restrained and prohibited from arresting the petitioner in the recovery proceedings relating to any amount due from the firm of which he was not a partner during the period to which the demand relates. Counsel s fee Rs. 400. Petition allowed.
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1967 (3) TMI 85 - MYSORE HIGH COURT
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... ... ..... ct of the sale was that the firewood or charcoal sold will be put to domestic use, that is to say, the sale was for domestic purposes. Use is not an act of consuming the article. The purpose or object of the use is what is indicated by the word domestic , namely, the supplying of such services or comforts as, according to ordinary habits of civilised life, are commonly supplied in people s homes. 10.. We are therefore of the opinion that the view taken by the Tribunal as well as the departmental authorities in this case is unduly restrictive of the nature of the exemption and not reasonably possible on the language employed in entry No. 29 of the Fifth Schedule to the Act. 11.. The revision petition is allowed and the orders of the Tribunal as well as of the departmental authorities to the extent they tax the petitioner s turnover relating to charcoal and firewood are set aside. The tax collected in respect of said turnover shall be refunded, 12.. No costs. Petition allowed.
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1967 (3) TMI 84 - MADRAS HIGH COURT
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... ... ..... of the cases are cases of reopening of original assessments. Hardly will section 12(3) be applicable to cases of reopening assessments. Returns were filed in those cases but claiming that the transactions did not amount to sale of goods and, therefore, no tax would be payable. The department apparently accepted that view in the first instance. That being the case, the reassessment orders in those petitions should be regarded as having been made under section 16. Unless the assessing officer finds that there was wilful default in not making a return or in making an incorrect return there will be no liability to penalty under section 16(2). We are, therefore, of the view that the penalty levied in all these cases is unsustainable. The petitions are allowed with costs (one set). The assessing officer will be entitled to re-examine the first category of transactions in the light of the evidence placed before him, and this judgment. Court-fee fixed at Rs. 250. Petitions allowed.
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