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Case Laws
Showing 81 to 100 of 520 Records
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2004 (5) TMI 544 - JHARKHAND HIGH COURT
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... ... ..... the Commissioner we are inclined to give the benefit of doubt to the Commissioner and the authorities of the department and put down their failure to implement the interim order of this Court to their ignorance. Thus, we are not inclined to take any action against the Commissioner and other officers of the department, as seriously canvassed for by learned counsel for the petitioner. But we direct the Commissioner and the other authorities under the Act, including the authorities in Sindri and Chaibasa, to issue the necessary forms to the petitioner as demanded. After all, the issuance of the forms does not conclude anything and every thing can be considered at the time of completing the assessment. 10.. The writ petition is allowed in the above manner. But taking note of the conduct of the Commissioner and the officers of the department, we direct the respondents to pay the costs of the petitioner, which we quantify at Rs. 5,000 (rupees five thousand). Writ petition allowed.
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2004 (5) TMI 543 - DELHI HIGH COURT
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... ... ..... this finding, we have to dispose of other writ petitions in the following manner (i) So far as W.P. (C) Nos. 1826 of 2003 and 6235 of 2003 are concerned, they are filed against the notice issued by the assessing officer and, therefore, it would be open for the assessing officer to proceed in accordance with law and in view of this judgment complete the assessment. (ii) So far as W.P. (C) No. 1830 of 2003 is concerned, appeal has already been filed, which is pending before the appellate authority and the appellate authority shall dispose of the appeal in accordance with law. (iii) So far as W.P. (C) Nos. 8274-75 of 2004 are concerned, the dealer has not preferred an appeal and has approached this Court. We direct the dealer to prefer appeal or revision within a period of four weeks from today and the appeal or revision shall be disposed of in accordance with law. Accordingly, all the writ petitions are disposed of. No order as to costs. Writ petitions disposed of accordingly.
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2004 (5) TMI 542 - ALLAHABAD HIGH COURT
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... ... ..... ection 3-AAAA of the Act as old broken glass pieces falls under the category of old discarded unserviceable obsolete machinery stores etc. In the present case the old broken glasses were purchased by the dealer not as a waste product but as raw material to manufacture and made glass phials/bottles. The broken glass may be waste for the seller but so far as the dealer-opposite party is concerned it is a raw material for him. The dictionary meaning of words waste and waste products have been mentioned in the judgment of this Court in the case of Commissioner of Sales Tax v. Tribeni Tissues Ltd. 1991 UPTC 988. The dealer-opposite party cannot be said to be either manufacturer or importer of old broken glasses. The Tribunal has rightly held that old broken glasses is a raw material for the dealer-opposite party and as such no tax under section 3-AAAA on the purchases of this item can be levied. 5.. There is no merit in the revision. The revision is dismissed. Revision dismissed.
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2004 (5) TMI 541 - MADRAS HIGH COURT
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... ... ..... father has not joined in any partnership business, which would only show that he would go to any extent to escape from his liability and also help others. Thirdly, from the records we find that the petitioners as well as the late Viswambaran, who is the father of the first petitioner and husband of the second petitioner had been living in the very same house till the death of Viswambaran and even thereafter these petitioners continue to live in the same house. 12.. To sum up, we do not find any substance in the submission made by the learned counsel for the petitioner that a minor cannot become a member of an association and that on that ground the writ petition has to be allowed at least so far as the first petitioner is concerned. 13.. In the result, there are no merits in the writ petition and consequently the same is dismissed with costs of Rs. 5,000 payable to the first respondent herein. Connected W.P. M.P. No. 54912 of 2002 is also dismissed. Writ petitions dismissed.
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2004 (5) TMI 540 - BOMBAY HIGH COURT
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... ... ..... e medicinal formulations used for diagnosis of the diseases in human beings, then the same would be squarely covered under entry C-II-37 and the same cannot be said to be covered under entry C-II-106. The fact that during the period when the entry relating to medicines/ drugs did not include medicinal formulation/preparation used for diagnosis, the assessee had sought classification of the goods under entry C-II-106 will not affect the interpretation which has been holding the field for more than two decades. 34.. For all the aforesaid reasons, we hold that the diagnostic kits which are held to be medicinal formulations/preparations would be classifiable under entry C-II-37 and not classifiable under entry C-II-106. 35.. Accordingly, we answer all the three questions referred to us in the negative, i.e., in favour of assessee and against the Revenue. 36.. The sales tax reference is disposed of in the above terms, with no order as to costs. Reference answered in the negative.
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2004 (5) TMI 539 - ALLAHABAD HIGH COURT
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... ... ..... he ancient time. It is fairly settled that every procedure is permitted, unless expressly prohibited by law. 19.. To err is human and the courts are meant to do justice and are not meant to punish a person for human err committed inadvertently. 20. The learned Standing Counsel in opposition of the writ petition could only reiterate the reasoning given by the authorities below in the impugned orders. He could not show me anything otherwise to take a different view of the matter. 21.. In the result the writ petition is allowed. The impugned orders dated May 5, 2003 annexure 11 to the writ petition and the order dated July 15, 2002 annexures 7 and 8 to the writ petition are quashed. The respondent No. 1 is directed to hear and decide the two applications filed by the petitioner treating them under section 22 of the Act on merits in accordance with law, preferably within a period of two months from the date of production of the certified copy of the order. Writ petition allowed.
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2004 (5) TMI 538 - MADRAS HIGH COURT
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... ... ..... ct is equally applicable in the present context. It has been held in 1999 113 STC 496 (Mad.) (Kirloskar Brothers Ltd. v. State of Tamil Nadu) that the provisions under section 55 of the TNGST Act can also be availed for the purpose of rectification of assessment under the Central Sales Tax Act and the ratio of the said decision would equally apply to the assessment of additional sales tax. 12.. Even assuming that the provisions of section 55 were not attracted, there is no dispute that the provisions contained in section 16 of the Tamil Nadu General Sales Tax Act, being a provision relating to assessment of escaped turnover, could have been applied. Law is well-settled that when power is available to do a particular thing, exercise of such power would not be vitiated merely because reference has been made to a wrong source. 13.. For the aforesaid reasons, we do not find any merit in the present writ petition, which is accordingly dismissed. No costs. Writ petition dismissed.
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2004 (5) TMI 537 - ALLAHABAD HIGH COURT
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... ... ..... ate authority possessing the power to enhance the assessment as this point had not arisen therein. Similar is the position here. In the case in hand application for withdrawal of the appeal was filed by the applicant before the hearing of the appeal. It was not argued by the Standing Counsel before me or by the departmental representative before the appellate authority that notice of enhancement of the assessment has been issued or served on the assessee. 12.. Taking into consideration the principles of law discussed above and the proviso into consideration it is crystal clear that the appellate authority exceeded in its jurisdiction to allow the appeal in spite of the application for its unconditional withdrawal by the appellant. 13.. In the result the order of the appellate authority as confirmed by the Tribunal cannot be sustained. All the revisions are allowed. The appeals filed by the dealer before the appellate authority stand dismissed as withdrawn. Revisions allowed.
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2004 (5) TMI 536 - GAUHATI HIGH COURT
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... ... ..... home. The fact that the rules are no more in the statute book is not disputed. 13.. In view of the aforesaid discussion, we hold that the provisions of rule 19(2) is ultra vires to the constitutional provision of clause (29A)(b) of article 366. It is also beyond the rule-making authority under section 72 of the Act and, as such, the provisions are not enforceable. We, therefore, strike down the same as ultra vires and void. 14.. The petitioner has also challenged the order of reassessment dated April 13, 1999, on the ground that the reassessment was in violation of the provisions of section 18 of the Act and there was no just and proper ground to do so and the same suffers from the mandatory requirement of recording of the reasons. In view of our decision of striking down the rules, we do not propose to enter into the above submissions and accordingly, the impugned order of reassessment stands quashed. The writ petition stands allowed as stated above. Writ petition allowed.
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2004 (5) TMI 535 - SUPREME COURT
Whether the marks are word marks or label marks or composite marks, i.e. both words and label works?
Held that:- In the present case, the marks are the same. They are in respect of pharmaceutical products. The mere fact that the Respondents have not been using the mark in India would be irrelevant if they were first in the world market. The Division Bench had relied upon material which prima-facie shows that the Respondents product was advertised before the Appellants entered the field. On the basis of that material the Division Bench has concluded that the Respondents were first to adopt the mark. If that be so then no fault can be found with the conclusion drawn by the Division Bench. However, it was submitted on behalf of the Appellants that the Respondents were not the first to use the mark. It was submitted that there was no proof that the Respondents had adopted the mark and used the mark before the Appellants started using the mark in India. In our view, these are matters which would require examination on evidence. Considering the fact that for all these years, because of the injunction Order, the Appellants have sold their product under some other name, the balance of convenience is that the injunction order be continued and the hearing of the Suit be expedited. If on evidence it is proved that the Respondents had adopted the mark prior to the Appellants doing so, on the settled law, then the Respondents would become entitled to an injunction. However, if on evidence it is shown that the Respondents had not adopted the mark prior to its use in India by the Appellants then, undoubtedly, the trial Court would vacate the injunction. The trial Court would undoubtedly then assess the damage which Appellants have suffered for having wrongly not been allowed to use the mark for all these years.
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2004 (5) TMI 534 - MADRAS HIGH COURT
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... ... ..... leading to the effect that his father has not joined in any partnership business, which would only show that he would go to any extent to escape from his liability and also help others. Thirdly, from the records we find that the petitioners as well as the late Viswambaran, who is the father of the first petitioner and husband of the second petitioner had been living in the very same house till the death of Viswambaran and even thereafter these petitioners continue to live in the same house. 12. To sum up, we do not find any substance in the submission made by the learned counsel for the petitioner that a minor cannot become a member of an association and that on that ground the writ petition has to be allowed at least so far as the first petitioner is concerned. 13. In the result, there are no merits in the writ petition and consequently the same is dismissed with costs of Rs.5,000/- payable to the first respondent herein. Connected W.P.M.P.No.54912 of 2002 is also dismissed.
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2004 (5) TMI 533 - SUPREME COURT
What is the legal status and binding nature of 'State advised cane price'?
What are the power of the State Government to fix sugarcane price under the provisions of U.P. Sugarcane (Regulation and Purchase) Act 1953 (hereinafter referred to as U.P. Act)?
Whether the State law fixing the price becomes repugnant to the provisions of the Central Law, namely the Sugarcane Control Order of 1966 framed under E.C.Act?
Held that:- The State Advised Price has no statutory flavour. It is not fixed or purportedly fixed in exercise of any statutory power. It is only persuasive or recommendatory in nature. The sugar factories cannot be compelled or coerced to pay that price by taking any steps not sanctioned by law
The U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 does not confer the power on the state government to fix the price of sugarcane. Such power cannot be spelt out from section 16.
In view of conclusions (1) and (2) it is not necessary to express any opinion on the constitutional issue of repugnancy between the central and the state law. The finding recorded on this aspect by the Allahabad High Court in writ petition No. 36889 of 1996 is set aside. That question of law is left open.
Although the State Advised Price has no sanction of law, the action of the State government in notifying the State Advised Price and advising the sugar factories to comply with the same is not per se illegal. The State Advised Price can serve as the framework within which the agreement as to price can be reached between the cane growers and the sugar producers. Therefore, the orders issued by the state government / Cane Commissioner communicating the fixation of State Advised Price need not be set aside.There is no legal taboo against the State government machinery playing a role in evolving an agreement between the cane growers and the sugar producers as to the price, without adopting any coercive methods.
Once the occupier of sugar factory reaches an agreement with the cane grower may be on the persuasion of the state authorities, to pay the price equivalent to State Advised Price either by executing a formal agreement in this behalf or otherwise, the occupier of the factory is bound to pay such price and in case of default it can be recovered by the State authorities by coercive process laid down in the statute.
In the absence of express agreement, it is not impermissible to look into other evidence, if there is a dispute on the question of the price agreed to be paid. The writ petitions and transferred cases shall be disposed of by the respective High Courts de novo in the light of the declaration of law and the observations made above.
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2004 (5) TMI 532 - ITAT MUMBAI
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... ... ..... the objects of the society. The educational programmes were conducted in conformity with the objectives. There is absolutely nothing to indicate that such programmes were conducted not with the desire to do good but to earn profit. We are satisfied that the profit element is missing. Fees were charged to meet the cost. As such, it cannot be construed to be the business of the assessee-society. Once this finding is arrived, the conclusion is irresistible that the case of the assessee is not coming within the ambit of sub-section (4A) of section 11 of the Act. Accordingly, the benefit of section 11(1) of the Act cannot be denied to the assessee. We direct the Assessing Officer to allow exemption under section 11 of the Act to the assessee-society. In the result, the appeal of the assessee stands allowed. I. T. A. No. 697/Mum/2001 -In view of our decision in I. T. A. No. 833/Mum/2000, we allow the appeal of the assessee. In the result, the appeal of the assessee stands allowed.
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2004 (5) TMI 531 - ITAT MUMBAI
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... ... ..... pertaining to a very old assessment year 1989-90, we do not want to send back the file to the lower authorities and again prolong the disposal of the issue involved in this case. We cannot perpetuate the inordinate delay anymore. Therefore in the peculiar circumstances, we are not sending back the file to the lower authorities. We are adjudicating the matter ourselves. We hold that the delay caused in filing the appeal before the Commissioner of Income-tax (Appeals) is explained and therefore it is to be condoned. So the lacuna of delay is dispensed with. The next is the merit of the case. The law has been declared by the hon rsquo ble Supreme Court in the case of CIT v. Shaan Finance P. Ltd. 1998 231 ITR 308, therefore, the Assessing Officer is directed to revise the assessment in the impugned assessment year 1989-90 by restoring the investment allowance portion pertaining to the machineries leased out by the assessee. In the result, the appeal is allowed. Order accordingly.
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2004 (5) TMI 530 - ITAT MUMBAI
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... ... ..... be deployed while working out the deduction in the context of remuneration. We therefore accept the contention of the assessee and allow the ground raised by the assessee. We direct the Assessing Officer not to deduct any expenditure from the remuneration included in the course of total income of the assessee and give the deduction on the whole of the remuneration as such. Learned counsel has raised an alternate ground that if at all expenses are to be deducted from the gross remuneration, the deduction may be confined to such direct expenditure attributable to earning of remuneration. If deduction of expenses is called for, then this contention of the assessee is accepted. Every kind of expenditure cannot be deducted from the remuneration received by the assessee. Only those expenditure which have direct nexus with earning of remuneration alone can be deducted. But in this case as we have already allowed the main ground raised by the assessee, this finding becomes academic.
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2004 (5) TMI 529 - SUPREME COURT
Whether internet domain names are subject to the legal norms applicable to other intellectual properties such as trade marks?
Held that:- Appeal allowed. Decision of the High Court is set aside. The High Courts' finding that no prejudice would be caused to the appellant because it had another domain name was a consideration which might have been relevant if there was a case of bonafide concurrent use and where the right to use was co- equal. The doubtful explanation given by the respondent for the choice of the word "Siffy" coupled with the reputation of the appellant can rationally lead us to the conclusion that the respondent was seeking to cash in on the appellant's reputation as a provider of service on the internet. In view of our findings albeit prima facie on the dishonest adoption of the appellant's tradename by the respondent, the investments made by the appellant in connection with the trade name, and the public association of the tradename Sify with the appellant, the appellant is entitled to the relief it claims
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2004 (5) TMI 528 - SUPREME COURT
Whether on bifurcation of the existing State of Bihar, and creation of the State of Jharkhand comprising territories which before the appointed day comprised the territories of the State of Bihar, the benefits flowing from the Industrial Policy 1995 of the then State of Bihar crystallized in the Notification of the Government of Bihar issued under section 7(3)(b) of the Bihar Finance Act 1981 published in the Official Gazette on 22.12.1995, enures to the benefit of the beneficiaries under the Policy and under the Notification after the appointed day?
Held that:- Appeal dismissed. The benefit of exemption from payment of sales tax on purchase of raw materials in respect of new units or the benefit envisaged for units which have undertaken diversification or expansion are available to those units, if eligible under S.O. 478 dated 22.12.1995 notwithstanding the fact that the erstwhile State of Bihar has been divided into two States by creation of the new State of Jharkhand. We are also satisfied that the said S.O. 478 has not been either modified, amended or altered by the State of Jharkhand and, therefore, it must continue to operate in the State of Jharkhand till such time as it is modified, repealed or altered in the manner prescribed by Section 85 of the Act.
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2004 (5) TMI 527 - CESTAT, CHENNAI
Rectification of mistake - Error apparent on face of records - Additional grounds ... ... ... ... ..... ld that any ldquo additional ground rdquo was not part of the record when the final order was passed and that non-consideration of such ldquo ground rdquo did not render the order erroneous. Moreover, the ldquo grounds rdquo raised in the miscellaneous application had no bearing on the issues considered by the Bench in the final order. Those were, at best, relevant only to the consequential relief (refund) arising out of the final order. The documents produced along with miscellaneous application were also relatable only to the consequential relief of refund. Such ldquo grounds rdquo and documents can hardly be part of the record of the appeals as rightly submitted by learned counsel. They are but part of the record of the refund claims and have got to be considered in accordance with law by the authority concerned. 6. emsp We have found no error in the final Order, let alone one apparent from the record. The applications are dismissed. (Dictated and pronounced in open Court)
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2004 (5) TMI 526 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs received in one plant and used ... ... ... ... ..... e the factory when received in the factory would meet the requirement of provisions of Rule 57A requiring the inputs to be used in the manufacture of final products as contained in Rule 57A. 5. emsp Therefore, following the ratio of the judgments in the case of Jaypee Rewa Cement (supra) I hold that, the inputs are eligible for Modvat credit, despite partial use of the inputs outside the factory premises of the main unit at Ghatkoper. Similarly, the indication of the name of Andheri Unit on the duty paying documents would not come in way of allowing credit since this is a minor technical deficiency in the duty-paying document and there is no allegation that the inputs are duty paid or these have not been utilised in the manufacture of final goods. 6. emsp Accordingly, the appeal succeeds and the same is allowed with consequential relief, if any, in accordance with the law. The orders of the lower authorities are consequentially set aside. (Operative part pronounced in Court.)
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2004 (5) TMI 525 - ITAT CHENNAI
Collection and recovery of tax ... ... ... ... ..... t on interest levied under sections 217 and 234B. Therefore, this judgment of the Supreme Court is also not helpful to the assessee. 12. In view of the above discussion, in our considered opinion, when the interest levied under sections 217 and 234B is included in the amount specified in the notice of demand issued under section 156 and the assessee fails to comply with the demand notice, the Assessing Officer can levy interest under section 220(2) of the Income-tax Act. Merely because interest levied under sections 217 and 234B is included in the amount specified in the notice of demand issued under section 156, it does not mean that there cannot be any levy of interest under section 220(2) on the interest levied under sections 217 and 234B. In our view, there is no merit in the contention of the assessee. Accordingly, we have no hesitation to confirm the order of the lower authority. 13. In the result, both the appeals filed by the assessee are dismissed as devoid of merit.
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