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Case Laws
Showing 81 to 100 of 701 Records
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2005 (3) TMI 749 - SUPREME COURT
Whether The criminal case shall be transferred from the Court of Judicial Magistrate Tiruchirapally to the Chief Judicial Magistrate at Chennai who may either decide it himself or assign it to one of the Judicial Magistrates in Chennai?
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2005 (3) TMI 748 - GUJARAT HIGH COURT
Addition made on account of "on money" - sale of shops - evidence to prove - Whether, the findings recorded by the Appellate Tribunal are perverse or not ? - HELD THAT:- Tribunal has observed that, in light of the retraction by Shri Pravinbhai Rupawala from the statement, it was the duty of the Assessing Officer to make further inquiry in respect of shop owners. In the Assessment Order, while referring to the explanation tendered by the assessee, the Assessing Officer has referred to one of the loose papers seized during the search and seizure operation u/s 132 of the Act and recorded that the explanation was in contradiction to the notings in the seized document that these relate to Ratan Market Project containing names of shop holders, amount received from them, construction account with shop-wise details.
It is, thus, apparent that when the Tribunal refers to the duty of the Assessing Officer to make further inquiries in respect of the shop owners, it is in this context. The Tribunal has also, as noticed hereinbefore, found that all the seized papers do not relate to Ratan Market Project. Thus, it is not possible to accept the contention raised on behalf of the appellant that the Tribunal had omitted to consider other material.
It is equally well settled that the Court cannot set aside the Tribunal’s finding of fact if there is some evidence to support that finding, even though the Court itself might have come to a different conclusion upon that evidence.
In the circumstances, there being no infirmity in the order of the Tribunal, which has arrived at findings of fact after appreciating the evidence on record, no question of law, much less a substantial question of law, can be said to arise out of the impugned order of the Tribunal. The appeals are accordingly dismissed.
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2005 (3) TMI 747 - ITAT AHMEDABAD
Rejection of books of account - Profit & Loss Account and Balance Sheet with tax audit report u/s 44AB - Marginal decline in the rate of gross profit - HELD THAT:- In the instant case, the Commissioner (Appeals) himself has looked into reconciliation of shortage of one tractor, which was due to sales return of one tractor. He has also sent reconciliation statement to the Assessing Officer for his comment. However, on verification of material placed on record, we find that the difference of one tractor was duly reconciled and other defects pointed by the Assessing Officer did not justify rejection of the books of account so as to attract the provision of section 145(1) of the I.T. Act. Even after the rejection of books of account, the Assessing Officer cannot act vindictively and capriciously because he must exercise judgment in the matter.
In making a best judgment assessment, the Assessing Officer does not possess absolute and unbridled powers to the assessee any figure he likes although he is not bound by strict judicial principle, he should be guided by rules of justice, equity and good conscience. The limited power of the Assessing Officer are implicit in the expression 'best of his judgment' though there is an element of guess work, in best judgment assessment, it shall not be wild one, but shall have reasonable nexus to the available material and circumstances of each case.
The Hon'ble Rajasthan High Court in the case of CIT v. Gotan Lime Khanij Udyog [2001 (7) TMI 19 - RAJASTHAN HIGH COURT] observed that mere rejections of books of account not necessarily lead to additions to the returned income or different figure of income than what has been disclosed by the assessee. Even after invocations of provisions of section 145, ipso facto does not mean that the rejection of books of account, the assessee must yield to a higher rate of gross profit than the declare one and different conclusion to be drawn in the computation of income returned by the assessee. Therefore, notwithstanding the rejections of the books of account, the material disclosed by the assessee along with material that may be collected by the Assessing Officer, forms the basis of computation of income.
So far as marginal decline in the rate of gross profit as compared to last year is concerned, we find that marginal decline of 1.16 per cent in the gross profit rate has been duly taken care of by increase in turnover of ₹ 2.46 crores which has resulted into increase in gross profit by ₹ 5.43 lakhs as compared to immediately preceding assessment year. The department has not brought on record any material to controvert the findings recorded by the Commissioner (Appeals). We, therefore, do not find any valid reason to justify the action of the Assessing Officer with regard to rejection of books of account and making ad hoc addition of ₹ 2 lacs.
Thus, we are inclined to agree with the learned AR that the Assessing Officer was not justified in rejecting the books of account without pin pointing the specific defects, and thereby making an ad hoc additions, when the discrepancy was duly reconciled before the lower authorities.
We, therefore, do not find any infirmity in the order of the Commissioner (Appeals).
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2005 (3) TMI 746 - SC ORDER
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... ... ..... st the Judgment and Order dated 9-6-2004 of Calcutta High Court in W.P. Nos. 137 of 2000 and 983 of 2003 and reported in 2004 (176) E.L.T. 101 (Cal.) (Rasoi Limited v. Union of India). While dismissing the SLP, the Supreme Court passed the following order Delay condoned. We see no reason to interfere. The Special Leave Petitions are dismissed.
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2005 (3) TMI 745 - RAJASTHAN HIGH COURT
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... ... ..... les under notification dated March 6, 1978 (S. No. 384) will continue. Thus no doubt could be entertained by the Commercial Taxes Officer (Anti Evasion) in this respect about non-availability of benefit of notification dated March 6, 1978 in respect of inter-State sales of processed cereals notwithstanding issue of notification dated March 27, 1995 modifying the scheme of exemption under the RST Act. Consequently, he wrongfully assumed jurisdiction to issue the impugned notice under section 30 of the RST Act read with section 9 of the CST Act and issuance of such notice was wholly without jurisdiction. Consequently, assessments founded on such notices, also cannot be sustained as the same are invalid. In view thereof, the special appeal succeeds. Judgment under appeal is set aside. The writ petition is allowed. Notices annexures 11 and 12 as well as assessment orders under the CST Act passed in pursuance thereof and demand notices (annexures 15 and 16) are quashed. No costs.
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2005 (3) TMI 744 - ALLAHABAD HIGH COURT
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... ... ..... the Act has been held to be wholly illegal and without jurisdiction, there is no legal hurdle for the Deputy Commissioner (Executive), Trade Tax or any other concerned officer to refund the excess amount to the petitioner. For the reasons given above, we are of the opinion that the impugned notice is totally without jurisdiction. The assessing officer has no jurisdiction to initiate reassessment proceedings under section 21 of the Act for the assessment year in respect of which an order for compounding tax has been passed and is in operation. In view of the above discussion, the impugned notice dated November 4, 1999 for the assessment year 1990-91 issued under section 21(2) of the Act, filed as annexure 3 to the writ petition is quashed. The writ petition is allowed with costs. The respondents are directed to refund the excess amount realised by them over and above the lumpsum amount payable by the petitioner under section 7D of the Act with interest in accordance with law.
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2005 (3) TMI 743 - ALLAHABAD HIGH COURT
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... ... ..... s it stood at the relevant time is not applicable. Section 15A(1)(qq) of the Act came up for consideration before this court in the case of Commissioner of Sales Tax v. Mool Chand Shyam Lal, Belanganj, Agra reported in 1988 71 STC 226 (SC) 1988 UPTC 1144. This court held that section 15A(1)(qq) of the Act is applicable only if the amount is charged as sales tax or purchase tax and not in any other name. Against the said order, special leave petition has been dismissed by the decision of the apex court in the case of Commissioner of Sales Tax v. Mool Chand Shyam Lal, Belanganj, Agra reported in 1988 71 STC 226 (SC) 1988 UPTC 1144. In view of the decision of the apex court, penalty is not leviable because six per cent amount was not charged as sales tax but has been charged as contingent liability. For the reasons stated above, I do not find any error in the order of the Tribunal which is hereby upheld. In the result, all the five revisions fail and are accordingly, dismissed.
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2005 (3) TMI 742 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... more than three years to grant the eligibility certificate. However, it was given effect from April 30, 1998 by an order dated June 3, 2003. Therefore, the petitioner is not under law liable to pay tax since he was holding eligibility certificate for the relevant period though granted on the subsequent date of order. The impugned period of assessment relates to the four quarters ending March, 1999 and the deposit made by the petitioner towards tax becomes refundable. The matter, therefore, should be reopened by the learned Commercial Tax Officer to hold the assessment in accordance with law, accepting the eligibility certificate for the relevant period and dispose of the matter as early as possible. We, therefore, direct that the assessment held under section 46A for the four quarters ending March, 1999 shall be reopened and be heard taking into consideration the eligibility certificate granted to the petitioner. The application is, therefore, disposed of without any costs.
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2005 (3) TMI 741 - SUPREME COURT
Whether the arbitral award is adverse to Department's interest?
Whether the arbitral award deserves challenge, without proper assistance of the Departmental Head?
Held that:- The service of arbitral award on the General Manager by way of receipt in his inwards office cannot be taken to be sufficient notice so as to activate the Department to take appropriate steps in respect of and in regard to the award passed by the arbitrators to constitute starting point of limitation for the purposes of Section 34(3) of the Act. The service of notice on the Chief Engineer on 19.3.2001 would be the starting point of limitation to challenge the award in the Court.
The learned Single Judge of the High Court as also the Division Bench have erred in holding the application under Section 34 filed on behalf of the appellant as having been filed beyond a period of 3 months and 30 days within the meaning of sub-Section (3) of Section 34. There was a delay of 27 days only and not of 34 days as held by the High Court. In the facts and circumstances of the case, the delay in filing the application deserves to be condoned and the application under sub-Section (1) of Section 34 of the Act filed on behalf of the appellant deserves to be heard and decided on merits. The appeal is allowed. The application under Section 34(1) filed on behalf of the appellant shall stand restored in the High Court, to be heard and decided in accordance with law by the learned Single Judge.
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2005 (3) TMI 740 - KERALA HIGH COURT
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... ... ..... oviso to section 5(1)(v) on the ground of discrimination is not sustainable and I reject it. Accordingly, the revised assessments completed under section 19(1) and the order in appeal are upheld. Having regard to the fact that the petitioner has not collected tax and initially petitioner was granted exemption and since stay was in force till now, the petitioner is granted six equal monthly instalments to clear the arrears of tax without any interest, first of which will be paid on or before 31st March and the balance on or before the last day of five succeeding months. If the petitioner makes payment as above, no collection charges also should be recovered from the petitioner. However, if the petitioner commits default in payment of any instalment, the instalment facility will stand vacated and the respondents will be free to proceed for recovery of the entire arrears with applicable interest and collection charges if any payable. The writ petitions are disposed of as above.
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2005 (3) TMI 739 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... the challan and the relevant documents, i.e., a bill or cash memo and the documents showing quantity of weight and value are also there, we do not agree that there was violation of the provision of section 73 of the Act, 1994 read with rule 214C of Rules, 1995. Moreover, there must be a clear finding that the petitioner had an intention to evade tax in omitting the date in the challan and invoice, or that such omission could have helped the petitioner to evade tax. Nothing was urged on the point of taxability of the goods by either of the parties though it is the case of the petitioner that the waste exercise book is non-taxable goods. In view of the findings made above, we declare that the seizure is invalid and set aside. The orders dated December 29, 2004 and December 30, 2004 passed under section 71 by respondent Nos. 1 and 2, respectively are set aside. The amount of penalty deposited shall be returned forthwith. The application, therefore is, allowed without any costs.
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2005 (3) TMI 738 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ars and it was done on August 19, 1991 just one day before the period of limitation. But neither a copy of assessment order nor demand notice could be served even after three years and that too at the request of the petitioner. The delay in service of notice of demand and copy of order without explanation obviously would give rise to the presumption that the ex parte order of reassessment alleged to have been passed on August 19, 1991 was actually not in existence. No order of the Assistant Commissioner of Commercial Taxes, as submitted, was found. In view of the principles laid down by the honourable Supreme Court, we thus hold that the ex parte order of reassessment dated August 19, 1991 was not passed within the period of four years as provided under the Act, 1994. The order, therefore is, liable to be set aside. Accordingly, it is quashed. Hence, all the revisional orders passed by the revisional authorities fail. The application, therefore is, allowed without any costs.
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2005 (3) TMI 737 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... under the provisions of the Act, 1994. However, we categorically hold that since there was violation of the provisions of section 68 read with rule 211 of the West Bengal Sales Tax Rules, 1995, the seizure is declared to be legal and valid. The learned lawyer for the petitioner prays for release of the goods after giving undertaking by any responsible officer of the department since the goods are perishable in nature and the construction is going to be hampered. Let the seizing officer release the goods on taking an undertaking from the Executive Engineer, CPWD, Coochbehar Division-II to the effect that he shall abide by the result of the revision. The revisional application against the order of the learned ACCT, if at all, is filed before the second revisional authority shall be disposed of in the light of the finding made above. Such application is to be filed within a period of 15 days from the date of this order. The application is thus finally disposed of without costs.
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2005 (3) TMI 736 - KARNATAKA HIGH COURT
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... ... ..... ot under an existing obligation to pay the amounts to the assessee. There is no subsisting relationship of debtor and creditor between the corporation and the third respondent. Therefore, section 14 of the KST Act is not applicable for attachment of the security deposit. 18.. However, such a notice is sustainable only when the said amount becomes payable to the assessee, i.e., after the expiry of the period of licence or upon termination of agreement because the State acquires precedence over other creditors. The Revenue can attach the amount which has become payable before deducting any liability of the assessee to the corporation. See Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. reported in 2000 120 STC 610 (SC). 19.. For the reasons stated above, these writ petitions succeed and are allowed accordingly. The notices at annexures C and D dated August 7, 2003 and the endorsement of annexure F dated December 8, 2003 are quashed. Rule made absolute. Writ petitions allowed.
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2005 (3) TMI 735 - GAUHATI HIGH COURT
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... ... ..... e conclusion that has to follow is that the power of seizure and the power to impose penalty was not available to the respondent-authority and therefore this Court must declare the seizure as well as the penalty imposed to be unsustainable in law. 6.. In so far as the tax levied is concerned, little argument is required to persuade the court that the stage for levy of tax cannot be the stage of seizure of the goods. For the same reason the levy of tax imposed by order dated March 20, 2003 shall, accordingly, stand set aside. 7.. As the petitioner admittedly has paid the amount of Rs. 1,35,168 on account of tax and assessment of tax for the relevant period is yet to be completed, the payment of tax by the petitioner, under orders of this Court, shall be subject to such adjustment as may be found due at the time of completion of the petitioner 39 s assessment to tax by the competent authority. 8.. The writ petition shall stand allowed as indicated above. Writ petition allowed.
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2005 (3) TMI 734 - MADRAS HIGH COURT
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... ... ..... the petitioner as the initial attachment itself is one which cannot be sustained in law. The petitioner, however, shall remove the goods from the Port under the supervision of the officers of the enforcement wing who shall ensure that the goods are moved out of the State. Petitioner shall also give an undertaking that no part of the goods shall be sold in Tamil Nadu or by way of inter-State sale from Tamil Nadu. Petitioner shall also furnish bank guarantee for a sum of Rs. 2,00,000 (rupees two lakhs only) to ensure compliance with the terms of this order. The reasonable expenses incurred by the State in deputing its officers to ensure movement of the goods from the place of storage See page 45 supra. to the border of the State and beyond shall also be borne by the petitioner. The movement of goods can commence immediately after the bank guarantee and undertaking are furnished by the petitioner. The writ petition is allowed on the above terms. No costs. Writ petition allowed.
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2005 (3) TMI 733 - KARNATAKA HIGH COURT
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... ... ..... uise of rectifying errors apparent on the face of the certificate on account of the change of policy of the Government is impermissible and without jurisdiction. 16.. From the discussion made above, it is clear that modification of certificate of exemption after expiry of the period of exemption, retrospectively is not permissible in law. The petitioner had carried on his business on the basis of the said certificate of exemption and did not charge any tax on the sales effected by it during the period of eligibility. The period of exemption had expired on May 3, 2000. The modification made to the certificate of exemption is long after its expiry. In my view, the respondents are not justified in restricting the sales tax exemption to the investment made on fixed assets at this belated stage. 17. In the result, the writ petition succeeds and it is accordingly allowed. The order dated October 29, 2003 (annexure G) is quashed. Rule made absolute. No costs. Writ petition allowed.
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2005 (3) TMI 732 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ely be released. 14.. Regarding the attachment of the bank accounts, the respondent in his affidavit-in-opposition stated that the attachment order have been withdrawn since the petitioner undertook to co-operate with the respondents to complete the hearing of the proceedings. Therefore, no further order is required to be passed at this stage. But it may clearly be noted that attachment of any bank account from a dealer cannot be made until and unless, there is a valid demand notice and this principle has been laid down in several cases decided by the High Court and by this Tribunal. Therefore, the order of attachment of bank account is illegal and unwarranted. 15.. In view of the findings made above, we allow this application without order of costs. The books of accounts and other documents retained by the respondents shall be released at once. The attachment orders, if not withdrawn by this time, stand vacated. B.K. MAJUMDAR (Technical Member). - I agree. Petition allowed.
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2005 (3) TMI 731 - MADHYA PRADESH HIGH COURT
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... ... ..... tion by which a concessional rate of tax is prescribed for sewing machine, i.e., 5 per cent. If the submission of learned counsel for State is accepted then, it will defeat the very purpose of granting concessional rate of tax to sewing machine. In other words, it can never be the intention of Legislature to tax main item, i.e., sewing machine at the concessional rate of tax at 5 per cent whereas impose a tax on its one part, i.e., stand at 10 per cent. This defeats the very purpose of granting concessional rate of tax. 8.. In our opinion, since there is no specific entry prescribed for taxing stand in the Schedule and secondly, it being a part and parcel of sewing machine, has to be taxed at the same rate of tax at which sewing machine is being taxed. 9.. Accordingly and in view of aforesaid discussion, we answer the question referred to us against the Commissioner of Commercial Tax/Sales Tax and in favour of assessee/dealer. No costs. Reference answered in the affirmative.
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2005 (3) TMI 730 - PATNA HIGH COURT
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... ... ..... the apex Court, the petitioner has no case. This apart, if the claim of the petitioner is allowed then he will be rewarded for his own wrong act, which has no sanction in law. Admittedly, the petitioner filed an application and a stay order was granted and later on that order was vacated and thereafter he withdrew the case. Had it been a case that his claim would have been allowed by this Court, as has done in the aforesaid two cases which were relied upon by the counsel for the petitioner, then the matter would have been different. Here is the case that the petitioner filed a case and obtained a stay order, which was later on vacated and thereafter he withdrew the case. In such a situation, he cannot take the benefit of his own wrong. This apart the similar question has been considered in a batch of cases (CWJC No. 4696 of 1999) by a division bench of this Court and the same were also dismissed. In the result, there is no merit in this application and the same is dismissed.
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