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Case Laws
Showing 141 to 160 of 9344 Records
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2008 (12) TMI 695 - KERALA HIGH COURT
Whether conversion of plastic sheets/tubings into plastic covers would amount to manufacture?
Held that:- With the available facts before us, the only conclusion that can be reached is, that, while processing plastic sheets/tubings into plastic covers/ bags, no new commercially different commodity would emerge and therefore, there is no manufacture as such and since purchase of plastic sheets has already suffered tax, the sales turnover of plastic covers/bags is a second sale and therefore, not liable for payment of tax under the Act.
Thus the questions of law framed by the Revenue requires to be answered against the Revenue and in favour of the assessee
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2008 (12) TMI 694 - MADRAS HIGH COURT
Whether the Tribunal was correct in holding that the commodity sold by the petitioners are cosmetics which are coming under Part F entry 10(i)(a), (b) and (c) of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959?
Held that:- There was no attempt made by the Tribunal to assess the merits or otherwise of the contentions raised by the parties in support of their respective case. The Tribunal being the final forum of facts should consider the rival contentions and render a factual finding with regard to the lis. In the case on hand, the legality and correctness of the order passed by the Appellate Assistant Commissioner was at large before the Tribunal. Therefore the order must indicate the reasons which weighed with the Tribunal to set aside the order of the Appellate Commissioner. Except reproducing the views of the assessing authority, there is nothing in the order suggesting independent consideration of the matter by the Tribunal. Since we are remitting the matter to the Tribunal for fresh consideration, we refrain from expressing anything on merits.
In the result, the impugned order of the Tribunal is set aside and the matter is remitted to the Tribunal. It is open to the parties to produce materials in support of their contention before the Tribunal and the Tribunal has to give a factual finding with respect to the issues involved in the matter.
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2008 (12) TMI 693 - KERALA HIGH COURT
Whether the finding that firm order had not been placed for necessary plant and machinery is correct, and whether what is the interpretation to be placed on the said words in a notification of this nature?
Held that:- Going by the principle of purposeful interpretation, we may not be justified in accepting the extreme positions canvassed by the appellant on the one hand and the respondents on the other hand. We would think that the purport of the clause would be that if the party had acquired a substantial portion of the necessary plant and machinery or placed firm orders in this regard before January 1, 2000 alone, it could be held entitled to the benefit of exemption. As far as the facts of this case are concerned, as already noted, in our view, the appellant has succeeded in proving that it has placed firm orders in respect of plant and machinery worth only ₹ 1,05,00,000, when the total value of the plant and machinery is in the region of ₹ 32 crores. Even if we were to include installation and commissioning of the blow-moulding machine stated to be worth ₹ 15,00,000 as plant and machinery, the total amount would still be only ₹ 1,20,00,000. In such circumstances, there is absolutely no merit in the contention of the appellant and the writ appeal deserves to be dismissed, and we do so.
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2008 (12) TMI 692 - GUJARAT HIGH COURT
Writ of mandamus issued directing the respondents to make the earlier exemption granted to the petitioners by the certificates issued by respondent No. 2 under the provisions of the Gujarat Sales Tax Act, 1969 - also prayed to quash and set aside Notification No. (GHN-27) GST2006 (section 49)(404)TH dated March 31, 2006 and Notification No. (GHN-27) GST-2006 (section 49)(405) dated March 31, 2006 - Writ of mandamus directing the respondents to grant exemption or to make available to the petitioners the exemption under the newly substituted VAT Act -
Held that:- The petitioner may make a representation directly or through the Commission under the KVIC Act or the Board for issuance of such exemption under the VAT Act inasmuch as there is already a provision for exercise of such discretion for grant of exemption under the newly substituted VAT Act. Therefore, in light of the discussion made hereinabove, the present petitions are hereby allowed partly. Prayer in terms of para 7(c) in Special Civil Application No. 23720 of 2006 is granted. The impugned notifications dated March 31, 2006, by which the earlier notifications dated April 29, 1970 and April 1, 1992 have been rescinded, are hereby quashed and set aside in all these petitions and the original certificate at annexure G granting exemption for the period from December 1, 2005 to November 30, 2008 would remain in force till it expires.
As the issue regarding grant of benefit of exemption under the newly substituted VAT Act would be either a legislative function by issuance of notification in exercise of power conferred under the statute, or it would be a matter of policy to be decided by the respondent-Government as to how the benefit of exemption should be extended, for which, while substituting the VAT Act, the entries have been deleted and some of the entries are specified, it may not be proper for this court to issue directions granting the reliefs as prayed for regarding the exemption under the newly substituted VAT Act. However, it will be open for the petitioners to apply to the respondent-Government by making a representation highlighting the fact that the industries are established under the KVIC Act and also the new scheme also has the same object of development and therefore the core idea remains the same for which the benefit of exemption granted earlier should also continue and it will be for the respondent-Government to decide it afresh in accordance with law.
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2008 (12) TMI 691 - GAUHATI HIGH COURT
Annulment of the seizure and the imposition of penalty - Held that:- The records produced before this court do not contain either the documents/records seized from the petitioner on July 10, 2003 or the railway receipts or the form B in question. In fact, the learned Standing Counsel for the Revenue in course of the arguments conceded that the form B involved is presently untraceable. The observation of the revisional authority that the seized exhibits included the RRs is not borne out by the records produced before this court. As it is, it has been contended on behalf of the petitioner that the RRs could not have been seized as the same along with the copy of form B duly countersigned by the concerned Revenue authority have been produced before the railway authority for release of the consignment. Be that as it may, the records do not contain any material to support the findings recorded by the revisional authority.
Thus Remand the issue to the Commissioner of Taxes, Assam, for a fresh disposal thereof on the merits after affording due opportunity of hearing to the parties. Ordered accordingly. The recovery proceeding initiated against the petitioner would remain stayed till the disposal of the matter as directed.
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2008 (12) TMI 690 - ORISSA HIGH COURT
Whether, in the facts and in the circumstances of the case, the Sales Tax Tribunal is justified to hold that the respondent is engaged in the distribution of electricity so as to be entitled to purchase goods at concessional rate of tax on the strength of "C" forms?
Whether the respondentdealer (works contractor) was entitled to the use of form IV for concessional purchase of goods?
Whether a series of sales can be postulated to apply to the provisions under section 8 of the OST Act, even after the tax is paid while purchasing the goods?
Held that:- The issue as to whether the respondent-Sidhartha Engineering (P) Ltd. (works contractor) was entitled to purchase goods at concessional rate of tax on the strength of "C" forms, is no longer res integra in view of the judgment rendered by the Full Bench of this court in the case of Kalinga Builders (P) Ltd. v. Commissioner of Commercial Taxes, Orissa [1999 (1) TMI 501 - ORISSA HIGH COURT] been answered in favour of the dealer and against the State.
In so far as isuue to whether the respondentdealer (works contractor) was entitled to the use of form IV for concessional purchase of goods also no longer subsists in view of the judgment of Kalinga Builders (P) Ltd. [supra]. Apart from this, the respondent while using form IV has deposited tax at four per cent and at the relevant point of time, a works contract dealer was liable to pay works contract tax at the same rate, i.e., four per cent. Therefore, since the respondent has admittedly deposited tax at four per cent, no difference in his tax liability would arise and, therefore, this question remains purely academic and is, therefore, also answered in favour of the dealer and against the Revenue.
So far as to whether a series of sales can be postulated to apply to the provisions under section 8 of the OST Act, even after the tax is paid while purchasing the goods, this issue is also no longer res integra and has already been answered by this court in the case of Bharat Heavy Electricals Ltd. v. Union of India [1988 (5) TMI 355 - ORISSA HIGH COURT] wherein it has been held that section 5(2)(AA)(i) of the OST Act was also subject to section 8 of the OST Act and if the goods involved in a works contract, had already been subjected to tax in a series of sales, this would have to be excluded from the taxable turnover, thus answered in favour of the dealer and against the Revenue
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2008 (12) TMI 689 - ALLAHABAD HIGH COURT
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... ... ..... here the movement of goods was in pursuance of a contract, which was concluded outside the State for use in execution of works contract in the State, such a transaction would be covered under section 3 of the Central Sales Tax Act, 1956 and would not be subjectmatter of tax within the State of U.P. Having heard learned counsel for the State and learned counsel for the assessee, I am of the opinion that in the present case the contract had already been concluded between the parties before the movement of the goods and it was clearly a case of inter-State trade and, therefore, no tax was liable to be paid in U.P. on these transactions. I am in agreement with the decisions cited by learned counsel for the assessee and, therefore, I see no reason to interfere with the order passed by the Tribunal, which has clearly recorded findings of fact that the contract was an inter-State contract on which Central sales tax had already been paid. This revision has no merit and is dismissed.
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2008 (12) TMI 688 - MADRAS HIGH COURT
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... ... ..... the first respondent ought not to have issued the impugned order cancelling the registration even if the petitioner had not filed an application on January 18, 2007. Under such circumstances, this writ petition deserves to be allowed. Therefore, it is allowed, the impugned order is set aside and the petitioner is directed to submit an application within a period of one week from the date of receipt of a copy of this order. Upon the petitioner submitting such an application, the first respondent shall apply the provisions of section 88(2) of the Act and pass appropriate orders... Hence, adhering to the said judgment, the impugned order of the respondent in cancelling the registration is quashed and the petitioner is directed to file application within a period of one week from the date of receipt of a copy of this order and get it processed as per law. With the above direction, this writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
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2008 (12) TMI 687 - ORISSA HIGH COURT
Whether a dealer is entitled to be supplied with the materials intended to be used against him in the assessment proceeding for his rebuttal?
Whether, on the facts and in the circumstances of the case, the assessing officer is justified in insisting upon production of books of account for verification before issuing certified copies of the seized documents, i.e., three written slips and thirty-six written pages of the diary seized from the business premises of the petitioner during surprise inspection?
Held that:- A dealer is entitled to be supplied with the materials intended to be used against him in assessment proceeding for rebuttal and the dealer's explanation with regard to those materials is bound to be considered by the assessing officer in the assessment order either accepting or rejecting the same.
We make it clear that where in the course of inspection the inspecting officer seizes incriminating materials as well as regular books of account from the business premises of a dealer, the assessing officer or the inspecting officer shall supply copies of the seized regular books of account and incriminating material(s) to the dealer if he asks for the same before asking the dealer for furnishing his explanation in connection with any proceeding under the OVAT Act.Since the learned counsel for the petitioner submits that he has already appeared before the assessing officer with books of account, we direct the assessing officer to verify the books of account of the relevant years with reference to the seized materials and the report. While doing so he will confront the report and the seized materials to the petitioner and record a preliminary statement with regard to such verification.
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2008 (12) TMI 686 - MADRAS HIGH COURT
Difference in the goods exported by Chettinad Granites and the goods exported by Apex Exports - Held that:- The Joint Commissioner has erred under the misconception that the exporters sold granite slabs. We find from the bills of lading that Apex Exports exported dressed granite blocks. A random comparison of the assessee's invoices and the bills of lading showed that even the number of blocks is the same. We are informed that dressing only means that the blocks are cleaned and the rough edges are smoothened. Therefore, the finding of the Joint Commissioner with regard to the sale to Apex Exports is not correct, and hence, that this sale to Apex Exports is covered by section 5(3) of the CST Act deserves to be accepted.
In view of the factual finding that what was exported to Chettinad Granites was a different commodity, viz., granite slabs and not rough granite blocks, the order of the Tribunal deserves to be set aside and Writ Petition No. 22939 of 2004 filed challenging the order passed by the Tamil Nadu Sales Tax Appellate Tribunal must be allowed and it is accordingly allowed
Also as found on facts that what was exported to Apex Exports were only granite blocks though dressed, and the nature and identity of the rough granite sold by the assessee to Apex Exports did not undergo a change, the order of the Joint Commissioner dated September 8, 1998 is hereby set aside and Writ Petition No. 10390 of 1999 is allowed.
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2008 (12) TMI 685 - BOMBAY HIGH COURT]
Liability to pay entertainment duty in respect of the cable television network in the premises of the hospital - Held that:- The provision of television exhibition by means of cable television network in the hospital constitutes "entertainment" as defined under section 2(a).
Having observed that the activity of exhibition on television by means of a cable network amounts to entertainment, we see no reason why petitioner No. 1 ought not be treated as a proprietor in relation to it. It is obvious that the petitioners are responsible for management of the entertainment and, in any case, are connected to some degree with the organisation of entertainment and are charged with and are responsible for or for the time being are in-charge of the management of entertainment as contemplated by clauses (i) to (iv) of sub-section (c) of section 2. We, therefore, reject this contention. Appeal dismissed.
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2008 (12) TMI 684 - CESTAT CHENNAI
Stay of pre-deposit - Cement cleared in 50 Kgs. packs to Govt. companies, construction companies and other industrial/institutional consumers during the relevant period - N/N. 4/2006-CE dated 1.3.2006 - holding that the benefit of notification is available to the appellants.
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2008 (12) TMI 683 - CESTAT CHENNAI
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... ... ..... and as this aspect was overlooked by the Legal Metrology expert also by the learned Commissioner, the impugned order is liable to be set aside. The Board 39 s clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee 39 s case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to 39 industrial/institutional consumers 39 as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl.No.1B and 1C of Notification No.4/2006-CE by virtue of the Second proviso to the Explanation to Sl.No.1C of the Notification as amended. The Board 39 s clarification squarely covers the case in favour of the assessee. 4. Following the ratio of the above order in Grasim Industries Ltd case (supra), we set aside the impugned order and allow the appeal. Dictated and pronounced in open court.
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2008 (12) TMI 682 - SUPREME COURT
Whether offence punishable under Section 138 of the Act is made out against the appellant?
Held that:- Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of the view that after finding the appellant guilty under Section 138 of the Act, the judicial discretion of imposing appropriate sentence could not have been abdicated by the learned Single Judge in favour of the learned Magistrate. Having found the appellant guilty under Section 138 of the Act it was the bounden duty of the High Court to impose appropriate sentence commensurate with the facts of the case. Therefore, we do not approve or accept the procedure adopted by the High Court. Be that as it may, in this case, we have found that reversal of acquittal itself was not justified. Appeal allowed.
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2008 (12) TMI 681 - KARNATAKA HIGH COURT
Whether the Tribunal was correct in holding that the provision made by the assessee for bad and doubtful debt is an allowable deduction ?
Whether the Tribunal committed an error in holding that section 80-O deduction should be allowed on the gross income received by the assessee by ignoring the provisions of section 80AB of the Act ?
Whether, on the facts and in the circumstances of the case, the Tribunal is right in allowing the notional /hypothetical cost for ascertainment of purchase price of raw materials for deduction under section 80HH and section 80-I of the Act by ignoring the computation contemplated in the said provisions read with section 80AB of the Act ?
Held that:- Questions Nos. 1 and 2 are answered against the assessee by following the judgment of this court dated June 25, 2008, passed in 2008 (6) TMI 338 - KARNATAKA HIGH COURT.
It is an undisputed fact that the FAGP, after manufacturing the goods transfers it to its toilet soap unit and that neither octroi nor local taxes are being paid when such transfer/sale is made. However, determination sought for in terms of the Explanation to section 80-I(8) of the Income-tax Act is not the cost of the goods but the market value of the goods. The goods to be sold in the open market would naturally include not only the cost of the goods but also such additional expenses. In addition to the expenses referred to above, the notional profit to which the seller would be entitled to, could be added to arrive at the market rate of the inputs. The availability of the goods at the nearest market is a question of fact. The said market could either be next door or miles apart either way, the cost of the goods at the nearest avail- able market would have to be reckoned and to that the cost of transportation, octroi, local taxes, etc., has to be added. The figures so arrived at would in terms of the Explanation to section 80-I(8) would constitute the market value. Question No. 3 is answered against the Revenue and in favour of the assessee.
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2008 (12) TMI 680 - SUPREME COURT
Application under Section 8 of the Arbitration and Conciliation Act, 1996 dismissed - Held that:- As there is no arbitration agreement with reference to the subject-matter of the suit filed by the plaintiff (first respondent herein), rejection of the application filed by defendants under Section 8 of the Act, does not call for interference. The special leave petition is, therefore, dismissed
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2008 (12) TMI 679 - MADRAS HIGH COURT
Levy of penalty under the Tamil Nadu Additional Sales Tax Act - Held that:- In the absence of the substantive provision, in the AST Act itself, relating to levy of interest, the provisions of the TNGST Act cannot be the source of power of such levy. Similarly, unless there is a charging section for levy of penalty, there can be no automatic reading of the power to levy penalty. The levy of penalty cannot be sustained. Appeal allowed.
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2008 (12) TMI 678 - SUPREME COURT
Whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955?
Held that:- Admission of the appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the judgment and order of the High Court does not warrant any interference. Appeal dismissed.
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2008 (12) TMI 677 - SUPREME COURT
Whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act?
Held that:- Banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminal Procedure.
Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh. Appeal allowed.
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2008 (12) TMI 676 - SUPREME COURT
Whether an appeal under Section 19(1) of the Contempt of Courts Act, 1977 was not maintainable against an ad interim order of injunction.?
Held that:- It is not a fit case wherein we should exercise our jurisdiction under Article 136 of the Constitution of India. The appeals are dismissed with costs. Counsel fee assessed at ₹ 50,000/- in each case.
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