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Showing 101 to 120 of 665 Records
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2005 (8) TMI 647 - KARNATAKA HIGH COURT
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... ... ..... d as part of the petitioner 39 s sales tax liability. If the petitioner had paid any taxes for this period, without claiming such benefit at that time when the assessment was concluded, any part of tax paid, assuming that the petitioner was entitled to certain concessions can be refunded only on correction of such corresponding assessment order and not otherwise. Reliance placed on the Government Notification No. DE 210 EEB 95, Bangalore, dated November 23, 1995 also does not help the petitioner for claiming refund, inasmuch as, this notification is not one which permits any refund to be granted. At any rate, it is not under this notification that the petitioner claims any benefit or tax concession as the notification is subsequent to the period during which the petitioner had paid sales tax. I do not find any occasion either to quash the impugned order or for issue of a writ in the nature of mandamus to direct the respondents to grant any refund in favour of the petitioner.
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2005 (8) TMI 646 - MADHYA PRADESH HIGH COURT
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... ... ..... ificate issued in favour of the petitioner under section 16-C of the Act for the period in question or independent of the certificate, the petitioner was eligible to claim set-off. In other words, the petitioner did not come to the court with this plea that irrespective of the certificate whether granted earlier or later, the petitioner had the right to claim set-off. I, therefore, need not examine this plea. Accordingly and in view of aforesaid discussion, it is of hardly any consequence that the certificate in question was issued at a later date and hence that made the petitioner entitled to claim the benefit of set-off. In such cases, what is significant is the period mentioned in the certificate. If, therefore, it is found that set-off was claimed during the period when certificate was in force, the same has to be withdrawn by holding that it could not have been allowed. In view of foregoing discussion, I find no merit in the writ. It is accordingly, dismissed. No costs.
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2005 (8) TMI 645 - ANDHRA PRADESH HIGH COURT
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... ... ..... fficers administratively subordinate to the Commissioner of Commercial Taxes and while, in law, such circulars would not bind them, there undoubtedly exists a reasonable possibility of their being influenced by such orders/circulars issued by the Commissioner. Since the exercise of this power, is admittedly not under the provisions of the APGST Act, the impugned circular of the first respondent dated December 27, 2003 clarifying/interpreting the order of the Sales Tax Appellate Tribunal, is without authority of law and is accordingly set aside. The consequential orders, under challenge in this writ petition, are the show cause notices issued by the second respondent dated February 9, 2004. Since it is not the case of the petitioner that the said show cause notices are without jurisdiction or are tainted with malice, the second respondent may continue the proceedings, consider the matter on its own merits and in accordance with law. Writ petitions are accordingly disposed of.
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2005 (8) TMI 644 - ANDHRA PRADESH HIGH COURT
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... ... ..... e exercised by any of the authorities higher than the assessing authority including the Deputy Commissioner and therefore, the order does not suffer from any jurisdictional errors, has been rejected. This court took the view that exercise of the power under sub-section (2) of section 7-A of the Act by the higher authorities would virtually deprive the assessee of its legitimate right to prefer appeal as provided for under the provisions of the Act against the orders of the assessing authority. No other question arises for consideration. For the aforesaid reasons, we are of the view that the impugned orders reviewing the penalty is beyond the competence of the first respondentDeputy Commissioner. The impugned order is accordingly quashed. This order, however, shall not preclude the competent authority to proceed against the petitioner in accordance with law, in which event the matter may have to be decided on its own merits. The writ petition is accordingly allowed. No costs.
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2005 (8) TMI 643 - MADHYA PRADESH HIGH COURT
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... ... ..... nt and judicial reasoning. It is thus, not legally sustainable. It does not take into consideration nor does it decide any of the submissions urged by the petitioner though they arise out of the case. In this view of the matter, this court cannot uphold such order, nor can it decide the issue in writ in the absence of any finding rendered by the revisionary authority on the objections taken by the petitioner against the impugned orders. Remand in such seems inevitable. Accordingly and in view of foregoing discussion, the petition succeeds and is allowed. Impugned order, dated April 22, 1999 (annexure C), passed by respondent No. 3, i.e., Deputy Commissioner, Commercial Tax, Ratlam is set aside. The case, i.e., revision is remanded to respondent No. 3 for deciding the same on merits within 6 months on all the questions urged by the petitioner which are taken note of supra, after affording an opportunity to the petitioner. No costs. Certified copy within one week as per rules.
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2005 (8) TMI 642 - ANDHRA PRADESH HIGH COURT
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... ... ..... gned proceedings undoubtedly result in serious civil consequences so far as the petitioner is concerned. The rights of the petitioner under the final eligibility certificate granted on October 30, 1998 cannot be permitted to be taken away under a decision, which remained uncommunicated to the petitioner. For the aforesaid reasons, this writ petition is disposed of directing respondent Nos. 2 to 4 not to give effect to the impugned proceedings dated December 21, 2004 of the first respondent until the same is communicated to the petitioner in accordance with law. It shall be open to the first respondent to communicate the said proceedings by duly serving the same upon the petitioner and upon such service, the petitioner shall be entitled to avail such remedies as may be available to it in law, if it intends to question the same. The further proceedings by respondent Nos. 2 to 4 may depend upon the service of the impugned proceedings dated December 21, 2004 upon the petitioner.
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2005 (8) TMI 641 - KERALA HIGH COURT
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... ... ..... ed sympathy for the SSI units which probably would not have collected tax. The secretary has confirmed in his affidavit that it is this mistake that is corrected by the impugned notification which is backed by decision of the Cabinet. I have gone through the file produced by the Special Government Pleader wherefrom it is clear that a letter by the opposition leader was an eye opener for the Government and the Finance Minister recommended reconsideration of irregular exemption granted vide SRO No. 731 of 2004. Since the Government has the power to cancel a notification and since it is conceded that the original notification was issued to neutralise judgments of the High Court and the Supreme Court, there is nothing illegal in revoking a notification issued by the Government in an indifferent manner which was not to serve any public interest. In the circumstances, challenge against the impugned notification is devoid of any merit and the writ petition is, therefore, dismissed.
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2005 (8) TMI 640 - JHARKHAND HIGH COURT
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... ... ..... t the said amount being the exact amount payable by way of appeal fee, the same cannot be said to be part of the assessed tax. In any event, it possibly would have been more prudent on the part of the petitioner-company to apply for refund in the manner indicated in sections 42 and 43 of the aforesaid Act. However, once the appeals were allowed, an obligation was also cast on the department to refund the excess amount paid as a condition precedent for filing of the appeal. Since refund vouchers for Rs. 45,254 for the assessment year 1993-94 and Rs. 1,18,621 for the assessment year 1994-95 have already been issued in favour of the petitioner on July 20, 2005, we dispose of the writ petition with a direction upon the respondents concerned to pay to the petitioner interest at the rate of nine per cent on the amount refunded, from the date of application till the date of payment. The writ application is disposed of. There will be no order as to costs. R.K. Merathia J. - I agree.
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2005 (8) TMI 639 - UTTARAKHAND HIGH COURT
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... ... ..... and not paddy husk. Explaining the above expression, the Allahabad High Court in the said case has held that when the outer covering of rice is removed, the brownish rice is produced. The rice with its outer husk is known as paddy. The outer dry covering which is obtained while paddy is de-hulled, is known as paddy husk. Paddy husk is dry and does not have the contents of oil. On the other hand, rice husk having contents of the oil element is, in fact, included under the aforesaid notification on the first purchase of which the tax could have been imposed. It is only after the paddy husk is removed from rice, can the rice husk be obtained in the process of polishing of rice, which contains oil element. Therefore, in view of the aforesaid discussion, I do not see any error of law committed by the learned Tribunal in holding that paddy husk and rice husk are two different items. Accordingly, the question of law is answered in favour of the assessee. The revision is dismissed.
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2005 (8) TMI 638 - GAUHATI HIGH COURT
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... ... ..... y of an appeal open to him. As the writ petition was admitted as far back as in the year 1999 and had remained pending for a period of 6 years, the court had considered it proper to adjudicate the matter on merit instead of relegating the petitioner-assessee to the appellate forum at this belated stage. The argument advanced on behalf of the petitioner that he had filed an application for review of the order of assessment by means of the representation enclosed as annexure 6 to the writ petition and that no orders on such prayer for review has been passed, which entitles him to a direction from the court for passing of necessary orders on the prayer for review, cannot find acceptance of the court inasmuch as the aforesaid contention advanced at the hearing runs contrary to the tenor of the pleadings made in the writ petition. For all the aforesaid reasons, I do not find any merit in this writ petition. It is accordingly dismissed. The interim order passed earlier is vacated.
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2005 (8) TMI 637 - ANDHRA PRADESH HIGH COURT
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... ... ..... ommissioner (CT), Charminar Division, appears to have extended time for filing form VAT 115 up to May 20, 2005 which may as suggested by the learned counsel for the petitioner runs contrary to the rules but the same cannot be taken as a precedent and we cannot compel the competent authorities to act contrary to law. No writ of mandamus lies compelling the competent authority to act contrary to law. 5.. For the aforesaid reasons, we are not inclined to grant any order whatsoever to the petitioner in this writ petition. It is entirely a different matter if those proceedings that are presented before us by the learned counsel for the petitioner are impugned. The said orders upon which reliance is placed by the learned counsel for the petitioner are not impugned before us in any one of the writ petitions. 6.. For the aforesaid reasons, no relief could be granted to the petitioner in this writ petition. The writ petition shall accordingly stand dismissed. Writ petition dismissed.
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2005 (8) TMI 636 - MADHYA PRADESH HIGH COURT
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... ... ..... er the Act. What differs is only its application - as to whether in the given case, such set-off could be availed of by the petitioner or not? It may be relevant to mention that the petitioner had claimed set-off on the basis of decision rendered by the High Court. So there was some legal basis to claim the set-off. It may be a different aspect of the case that later on the authorities in course of assessment proceedings did not find the case of petitioner to be legally acceptable so as to sustain the claim of set-off in their favour. In the facts appearing, in my humble view, no case for penalty as such was made out. 8.. In view of aforesaid discussion, the petition succeeds and is allowed. Impugned order dated April 28, 1998 (annexure D) passed by the Additional Commissioner (respondent No. 1) is set aside. As a consequence, the original order dated March 17, 1997, passed by the assessing officer (annexure C) is also quashed being consequential in nature. Petition allowed.
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2005 (8) TMI 635 - ANDHRA PRADESH HIGH COURT
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... ... ..... ere is no answer forthcoming from the department as to how they could refuse to refund the amounts to the petitioner as is required under section 21(2) of the Act. The high handed and arbitrary action of the respondents is required to be deprecated and we accordingly do so. 8.. For the aforesaid reasons, this writ petition is allowed as prayed for. There shall be a direction to the respondents to forthwith refund the amount of Rs. 7,01,282 deposited by the petitioner for the assessment year 2003-04 at the time of preferring the appeal before the second respondent within a period of one week from the date of receipt of a copy of this order. The petitioner is entitled to payment of interest at the rate of 18 per cent on the said amount. The order shall be complied with and it is made clear that under no circumstances will further extension be granted to the department for refunding the amounts. The petitioner is entitled to costs quantified at Rs. 5,000. Writ petition allowed.
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2005 (8) TMI 634 - UTTARAKHAND HIGH COURT
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... ... ..... counsel for the assessee, contended that section 15-A(1)(l) gets attracted when some false certificate or declaration is issued. In this connection, he further submitted that the form IIIC(2) was genuine, as obtained from the Sales Tax Officer. I am unable to agree with the submission of the learned counsel for the reason that though the department should not have issued form IIIC(2) to the assessee, but even if it was issued, since assessee had the knowledge that he had not paid the tax as such using form IIIC(2) was an offence which attracted penalty under section 15-A(1)(l). 8.. Therefore, this Court is of the view that the learned Sales Tax Tribunal has erred in law by setting aside the penalty. As such, the revision deserves to be allowed. And the same is allowed. Question of law as mentioned above is answered in favour of the Revenue. Impugned order dated November 25, 1991 is set aside to the extent imposition of penalty was reversed by the Tribunal. Petition allowed.
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2005 (8) TMI 633 - KARNATAKA HIGH COURT
Levy of tax on the taxable turnover - Works contract of "processing and supplying photographs, photo prints and photo negatives"- Whether section 2(3) and section 5 of the Karnataka Taxation Laws (Amendment) Act of 2004 has the Constitutional approval or not ? - HELD THAT:- A careful reading of the entire judgment in Golden Color Lab [2003 (7) TMI 665 - KARNATAKA HIGH COURT], would show that unless entry 25 is declared to be invalid and unsustainable in any subsequent proceedings, the judgment of Keshoram 1999 (9) TMI 938 - KARNATAKA HIGH COURT] continues to be binding on the State Government. Unless and until entry 25 is considered as or unless and until the Supreme Court re-considers and pronounces upon a similar entry 25 of any other State, the Keshoram decision [2001] 121 STC 175 (Kar) continues to be binding on the State. In these circumstances, the petitioners are right in their submission that in the light of the binding judgment of Keshoram and in the absence of any declaration in terms of the findings in para 23, the State Government lacks legislative competence in the light of a binding judgment on the parties. We, therefore, find substance in the argument of the petitioners with regard to the unconstitutionality of the impugned Act in the case on hand in the given circumstances.
At this stage, we must also notice an argument of the State with regard to re-enactment in the light of the observations of the division Bench in Golden Color Lab case. It is no doubt true that the division Bench did say that the decision in ACC [2001 (1) TMI 248 - SUPREME COURT], at best, may enable the State to re-enact the provisions similar to entry 25. This sentence has to be read along with other findings in paras 22(3), 23, 26 and 27. If read the judgment as a whole, it would be clear that re-enactment is permissible or possible only in the event of a subsequent declaration with regard to entry 25 being invalid and unenforceable and only in the event of the Supreme Court re-considering or pronouncing a similar question in similar term as in entry 25 in terms of the findings in para 23.
Admittedly, it is nobody's case before us that entry 25 was re-considered in any other judgment subsequent to Golden Color Lab. In these circumstances, the Golden Color Lab case is binding on the parties.
In the light of our discussion with regard to legislative competence in terms of this order, it is unnecessary for us to consider the submission of Sri Naganand, learned Senior Counsel with regard to confiscation. In these circumstances and in the result, these petitions are accepted and we declare that the provisions of section 2(3) as unconstitutional. Respondents are hereby restrained from enforcing the provisions of the Karnataka Taxation (Amendment) Act, 2004. In the light of the declaration in terms of the orders in so far as Act No. 3 of 2000 is concerned, all consequential proceedings including assessment order and consequential demands are also set aside. Parties are to bear their costs.
Petitions allowed.
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2005 (8) TMI 632 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... escape the mischief as provided under section 14 of the Act of 1999. 12.. The petitioner has referred to article 265 of the Constitution. In this connection a reference may be made to article 265 of the Constitution which runs as No tax shall be levied or collected except by the authority of law . This article has no relevance in the present facts and circumstances of the case because the tax was assessed under the Act of 1999 which prohibits any refund under section 14 of the said Act. The petitioner having failed to make out any case for striking down section 14 of the Act of 1999, we do not want to interfere with the said Act. 13.. Thus in any view of the matter the petitioner is not entitled to any relief, far less to speak of the refund as claimed for. Thus there is no merit in this application and the application should fail. 14.. In view of the majority decision this petition is dismissed. We make no order for costs. All interim orders are vacated. Petition dismissed.
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2005 (8) TMI 631 - CALCUTTA HIGH COURT
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... ... ..... sis of the order of the adjudicating authority in 2002 and that authority has granted the petitioner the right to claim eligibility certificate under rule 3(66a) of the said Rules for three years with effect from January 5, 1993 the Tribunal should have upheld the claim of the petitioner since the Tribunal did not find any error in the order dated February 12, 2002. By holding to the contrary the Tribunal has acted erroneously in law. 12.. The order of the Tribunal is therefore set aside. The authorities are directed to give the petitioner the benefit under the order dated February 12, 2002 by allowing the reopening of assessment for a period of three years with effect from January 5, 1993. This writ application is therefore allowed. The order of the Tribunal is quashed. 13. There will be no order as to costs. 14. Urgent xerox certified copy of this judgment if applied for be given to the parties as expeditiously as possible. Tapan Kumar Dutt, J. - I agree. Petition allowed.
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2005 (8) TMI 630 - MADHYA PRADESH HIGH COURT
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... ... ..... une 2, 1994 instead of August 2, 1994. We accordingly hold that the third respondent not being qualified to be appointed to the office of Member of the Appellate Board on July 9, 2004, his appointment is invalid and he is not entitled to hold office of Member of the Appellate Board. 24.. In view of the above, both the petitions are allowed in part as follows (i) The challenge to the validity of rule 4(3) of the M.P. Vanijyik Kar Niyam, 1995 is rejected. (ii) The challenge to the order dated July 9, 2004 putting an end to the tenure of N.C. Jain, is rejected. (iii) The order dated July 9, 2004 appointing the third respondent as a Member of the M.P. Commercial Tax Appellate Board is quashed. Consequently, it is declared that third respondent is not entitled to continue as a Member of the said Board. (iv) The third respondent shall pay costs of Rs. 2,000 to the petitioner in W.P. No. 3197 of 2004. The other parties to bear their respective costs. Writ petitions allowed in part.
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2005 (8) TMI 629 - ALLAHABAD HIGH COURT
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... ... ..... s claim. The Tribunal has rightly come to the conclusion that freight was incurred by the selling dealer and was included in the sale price of bajri and sand. It having found that the applicant has not paid any amount towards freight, the submission of the learned counsel for the applicant that freight shall not form part of the turnover is misconceived and is liable to be rejected. The upshot of the above discussion is that there is no merit in the revision so far as it relates to the liability of the applicant to pay purchase tax under section 3-AAAA and freight is concerned. There is no fault in the order of the Tribunal on these points and they are hereby confirmed. With regard to levy of interest is concerned it is held that the applicant is liable to pay interest under section 8(1-A) and 8(1-B) of the Act. The applicant is not liable to pay tax under section 8(1) of the Act. In the result both the revisions are allowed in part, as indicated above. No order as to costs.
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2005 (8) TMI 628 - MADRAS HIGH COURT
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... ... ..... y concerned is justified in insisting the deposit before taking up the appeal. Even the decision relied on in para 2 is only observation/suggestion to the Government. Till necessary provision is made by the Government, no contra direction can be issued. Though the learned Senior Counsel for the appellant has prayed that the appellant may be permitted to furnish bank guarantee instead of deposit of 25 per cent of the admitted (?) amount, here again, admittedly, there is no provision for the same and it is not in dispute that furnishing the bank guarantee is not a substitute for depositing the required amount, as per the statute. As said earlier, in the absence of any such provision, we are unable to accept the claim made by the learned Senior Counsel for the appellant and we do not find any error or infirmity in the order of the learned single Judge. Accordingly, the appeal fails and the same is dismissed. Consequently, W. A. M. P. No. 467 of 2005 is also dismissed. No costs.
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