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Case Laws
Showing 361 to 380 of 1011 Records
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2011 (7) TMI 1042 - CALCUTTA HIGH COURT
Whether the contravention of provision of law is deliberate is relevant for applying the said discretion?
Held that:-In our case there is no record as to whether the gold ornaments bore any mark. The copy of issue voucher dated May 29, 2008 annexed with the supplementary affidavit filed by the petitioner indicates sending of new ornaments after repair and polish wash in exact weight without changing the weight. On repair usually the ornaments either gain or lose the weight. On polishing the ornaments usually lose the weight. No explanation offered as to why these ornaments on being repaired and polished did not change weight. So this issue voucher is incapable to prove return of the gold ornaments. The copy of the air way-bill dated May 30, 2008 speaks of sending 1.5 kg. "gold", the declared value thereof was ₹ 80,000. This is also incapable to prove return of the gold ornaments. Therefore sending back of the gold ornaments is not proved. There are no materials before us to say that the gold ornaments were returned to the petitioner for the purpose of repairing and/or polishing. We therefore find no reason to interfere with the impugned order of penalty. The application therefore fails.
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2011 (7) TMI 1041 - CALCUTTA HIGH COURT
Whether in the facts of the present case, by virtue of the settlement of the dispute in the appeal preferred against the original order of assessment dated June 30, 2005, the proceeding for penalty arising therefrom also abated?
Held that:- Set aside the proceeding for imposition of penalty in view of the clear bar created under section 9 of the SOD Act and hold that on a certificate of settlement being issued under section 8(1) of the SOD Act, there was no further scope of proceeding against the writ petitioners for penalty for suppression of the material fact on the basis of the finding recorded by the assessing officer in his order dated June 30, 2005. Appeal allowed.
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2011 (7) TMI 1040 - KARNATAKA HIGH COURT
Whether the assessee is not entitled to the commission on the payment of entry tax in so far as petroleum oil, which is used in the manufacturing of transformers?
Held that:- The reviewing authority on a proper consideration of these Explanations was justified in holding that the transformer oil even though it is brought into the local area by the assessee as a raw material and to be used as an input manufacturing of transformers, it is liable to tax at five per cent. Therefore, we do not see any error with the well considered order passed by the Additional Commissioner, which has held that the assessee is liable for payment of tax and interest.
The appeal is allowed in part. The order of the revisional authority setting aside the order of the Joint Commissioner and restoring the order passed by the assessing authority in so far as payment of tax and interest is concerned is upheld. However, the penalty portion of the order of the assessing authority as well as the revisional authority is hereby set aside. Therefore, the assessing authority is directed to issue of fresh demand excluding the penalty portion
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2011 (7) TMI 1039 - KERALA HIGH COURT
Whether the transactions were rightly assessed under the Central Sales Tax Act?
Held that:- Failure to prove inter-State transfer of goods as not under contract of sale in terms of section 6A always calls for Central sales tax assessment and not for assessment as local sales. However, the assessing officer can assess the transaction as local sales if the dealer fails to prove physical movement of the goods out of the State which also has to be proved by the dealer. So much so, the claim of the petitioner for assessment of the transaction under the local Act is not tenable. We accordingly hold that the transactions were rightly assessed under the Central Sales Tax Act. Appeal dismissed.
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2011 (7) TMI 1038 - RAJASTHAN HIGH COURT
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... ... ..... provisions of section 78(2)(b) of the Act of 1994. The Division Bench of this court in State of Rajasthan v. Tajiander Pal reported in 2003 6 Tax Update Part 3 page No. 84 held that these provisions are not mandatory and are directory in nature. The Division Bench of this court further held that if all the requisite documents are available at the time of checking of vehicle/goods, then intention to evade tax cannot be inferred. Both the appellate authorities have recorded a concurrent finding that there was no mens rea on the part of the assessee, as all the required documents were available and tax had already been paid by the assessee, therefore intention to evade tax cannot be inferred. In these circumstances, I do not find any illegality in the concurrent finding recorded by both the appellate authorities, so as to interfere with the same in this revision petition. No question of law is involved in this revision petition and the same is, accordingly, dismissed in limine.
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2011 (7) TMI 1037 - ALLAHABAD HIGH COURT
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... ... ..... appeals have been dismissed under section 10(4) of the U.P. Trade Act. It is against this order that the present trade tax revision has been filed. It may be recorded that absolutely no reasons have been furnished in the revision for the absence of the counsel or the assessee on the date fixed in the appeals, i.e., October 28, 2010. The recital in paragraph 28 of the present trade tax revision that the order dated October 28, 2010 confirms the order dated May 23, 1999 is wholly misconceived, inasmuch as the order dated May 23, 2009 was recalled on an application being made by the assessee, as is apparent from the impugned order. Both the second appeals have been dismissed under section 10(4) of the Trade Tax Act. In absence of any justifiable reasons having been disclosed for non-appearance before the Tribunal on the date fixed in the appeals, this court finds no good ground to interfere with the order of the Tribunal. The present trade tax revision is accordingly dismissed.
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2011 (7) TMI 1036 - ALLAHABAD HIGH COURT
Whether in respect to tax dues or other public revenue or in other cases, if one has to discard the corporate personality, then the initial burden would lie upon it to place on record relevant material and facts to justify invocation of doctrine of lifting of veil and to plead that the corporate shell be not made a ground of defence?
Held that:- In the present case, the company was declared as a sick company under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985. The findings necessary, to proceed against the assets of the directors of the company for lifting of corporate veil, would have required investigation into the affairs of the company.
In the aforesaid facts, the writ petition is allowed. The impugned notice dated March 28, 2004 for the assessment year 1999-2000 for recovery of trade tax dues is quashed to the extent that recovery be not forced against the assets of the directors of the company. It will be open to the Department to proceed against the assets of the company, or apply before the BIFR where the proceedings are still pending.
It will also be open to the Department to carry out investigation to find out if the directors of company have played any fraud, and the circumstances necessary for lifting of corporate veil are available, before proceeding to recover the trade tax dues for them.
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2011 (7) TMI 1035 - ALLAHABAD HIGH COURT
Rejection of books of accounts - addition/deletion made on estimate basis - Held that: - When no stock register of finished goods was produced at any stage then only recourse is left to make addition on estimate basis and the same was done in the present case. In the facts and circumstances, addition made/partly deleted on estimated basis appears reasonable - revision dismissed - decided against assessee.
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2011 (7) TMI 1034 - MADRAS HIGH COURT
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... ... ..... endment introduced in section 34 of the Pondicherry General Sales Tax Act, 1967, by the amendment Act 4 of 2000, cannot be held to be invalid. It cannot be said that the amendment in question contravenes the existing provisions of law, by taking away the discretion vested with the appellate authority, under section 34 of the Pondicherry General Sales Tax Act, 1967, with regard to the payment of tax by the appellants concerned. The petitioners have not been in a position to show that the amendment introduced, in section 34 of the Pondicherry General Sales Tax Act, 1967, is ultra vires and unconstitutional. Further, a number of orders had already been passed by this court holding that the amendment in question is valid in the eye of law. In such circumstances, this court finds it appropriate to dismiss the writ petitions, as they are devoid of merits. Hence, the writ petitions are dismissed. No costs. Connected M.P. Nos. 1, 1, 1, 1, 1 of 2008 and M.P. No. 1 of 2009 are closed.
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2011 (7) TMI 1033 - ALLAHABAD HIGH COURT
Whether the goods seized are actually "agarbatti" and exempt from taxation under the Act and as such require no import declaration form rendering the seizure invalid?
Held that:- Once the Department failed to prove that there was no smell or fragrance likely to be emitted on burning, the material which was in the shape of incense sticks, could not have been seized inasmuch as "agarbatti" is exempt from tax under the Act for which no import declaration form is required.The question framed above is answered in affirmative in favour of the assessee-revisionist and against the Department. The seizure is held to be bad.
Accordingly, the order of seizure dated April 21, 2011 and the consequential orders dated April 25, 2011 and April 28, 2011 are set aside.Revision is allowed
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2011 (7) TMI 1032 - KERALA HIGH COURT
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... ... ..... I am of opinion that after having initiated proceedings under section 17D of the Act the assessment has to be completed only under that section. Otherwise it would result in two parallel proceedings, namely, an appeal before the Tribunal under section 17D and an appeal against the 19(1) assessment before the Deputy Commissioner (Appeals) which will cause undue hardship to the assessees. Therefore, I am of the opinion that when the assessment is completed under section 17D, it is only appropriate escaped turnover, if any, also be assessed by the fast track assessment team itself under section 17D. In that view the impugned orders are quashed. However, I make it clear that if the fast track assessment team is satisfied that any turnover has escaped assessment it would be open to the fast track assessment team to take up the matter and complete the assessment proceedings for assessing such escaped turnover also, in accordance with law. The writ petition is disposed of as above.
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2011 (7) TMI 1031 - RAJASTHAN HIGH COURT
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... ... ..... c power. Whether they are sold in the course of execution of works contract by the contractor or by the electricity generating company does not make any difference. Since the commodity in question can be held to be used for distribution of electric power, entry No. 55 is clearly applicable to the same. Entry No. 87 shows that the said entry covers domestic appliances and not the goods used for transmission or distribution of electric power. Therefore, in the opinion of this court, the learned assessing authority was in error in invoking entry No. 87 for imposing difference tax of six per cent and the learned appellate authority as well as the Tax Board have rightly held in favour of the assessee that goods in question will be taxable at the rate of six per cent under entry 55 quoted above. Consequently, there is no force in the present revision petition filed by the Revenue and the same is accordingly dismissed. A copy of this order be sent to the assessee and the Tax Board.
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2011 (7) TMI 1030 - KERALA HIGH COURT
Whether the appellant's product, namely, fan hooks made of stainless steel rods, fall under any of the specific entries of the Third Schedule as claimed by the appellant?
Held that:- We uphold the impugned clarification declaring the rate of tax on the stainless steel fan hooks as 12.5 per cent under section 6(l)(d) of the Act. However, the learned Government Pleader referred to the amendment made with effect from April 1, 2008, whereunder the proviso to section 94(8) providing for prospective effect of clarification is taken away. So much so, the appellant's contention that the clarification has to be applied prospectively cannot be accepted. However, since the clarification is issued only pursuant to the judgment after relevant year, we direct the respondents to waive the interest, provided the appellant clears the arrears of tax within three months from now. However, the waiver granted need not be treated as a proceedings for the Department in other cases.
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2011 (7) TMI 1029 - PATNA HIGH COURT
Whether the deduction made by respondent Nos. 1 and 2 in the name of entry tax from the bills of the petitioner is violative of the provisions of the Bihar Entry Tax Act, 1993 including provisions of the Bihar Finance Act, 1981?
Held that:- This writ petition is allowed and respondent-M/s. Hindustan Petroleum Corporation Ltd. (respondent No. 2) as well as its wholly owned subsidiary company M/s. HPCL Biofuels Ltd. (respondent No. 1) are restrained from deducting any amount from the bills of the petitioner on import of goods from Haryana in the State of Bihar in the name of entry tax as they have no jurisdiction to deduct any amount of entry tax from the bills of the petitioner.
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2011 (7) TMI 1028 - GUJARAT HIGH COURT
Validity of notification by which annual capacity determination rules - Whether rules ultra vires Section 3A of the Central Excise Act - Held that:- where for a period of seven days or more nothing can be produced or manufactured, then, prorate reduction would be available under Sub-section(3) of Section3A and in case, the manufacturer/producer manufactures/produces something less than the annual production capacity (as determined under Sub-section(2) of Section3A), then, he can always approach the Commissioner, convince him that his annual capacity though is much, but, he has produced some quantity less than his annual capacity and as such case, he is entitled to refund. If the section takes care of the rights of the producer/manufacturer by providing that on less production/manufacture, he would be entitled to refund and the Supreme Court says that Section3A is relatable to the production and not the capacity only, then, it would not be proper to say that Section3A is ultra vires the Constitution. We would agree with the learned Counsel that excise can be levied on the production and/or manufacture and not otherwise, but, Section3A cannot be held to be ultra vires the Constitution or the Central Excise Act itself, simply because it provides levy of excise on the annual production capacity, specially when it gives a right to the manufacturer/producer to claim refund on less production - Following decision of Messers Gopal Iron & Steel, Co. (Gujarat) Ltd. & anr. [2006 (7) TMI 644 - GUJARAT HIGH COURT] - Decided in favour of Revenue.
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2011 (7) TMI 1027 - SUPREME COURT
Whether there is no arbitration agreement and therefore the applications under section 11 of the Act filed by the contractors ought to have been dismissed?
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2011 (7) TMI 1026 - SUPREME COURT
Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to “inform” the suspect of his -6-right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section?
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2011 (7) TMI 1025 - SUPREME COURT
Whether the Permanent Lok Adalat at Hyderabad did not have territorial jurisdiction?
When a flight is delayed due to bad weather, after the boarding of passengers is completed, what are the minimum obligations of an air carrier in particular a low cost carrier, to ensure passenger comfort?
When there is delay for reasons beyond the control of the airlines, whether failure to provide periodical lunch/dinner or failure to take back the passengers to the airport lounge (so that they can have freedom to stretch their legs, move around and take food of their choice) can be termed as deficiency in service or negligence?
Whether the award of compensation of ₹ 10,000/- with costs calls for interference?
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2011 (7) TMI 1024 - SUPREME COURT
Whether the said finding recorded by the High Court can and should be set aside in the present appeal which is filed by the husband?
Whether proceedings initiated by the respondent no. 2 for commission of offence punishable under Section 498A of IPC should be quashed or not?
Held that:- When an apparent irregularity is found by this Court in the order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it. There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.
Therefore, that part of the impugned judgment by which the complaint filed by the respondent no. 2 under Section 498A of the Indian Penal code is quashed by the High Court will have to be set aside while disposing the appeal filed by the appellant.For the foregoing reasons, the appeal filed by the appellant fails and therefore the same is hereby dismissed.The impugned Judgment quashing the complaint filed by the respondent no. 2 for alleged commission of offence by the appellant under Section 498A IPC, is hereby set aside and the complaint lodged by the respondent no. 2 under Section 498A of the Indian Penal Code as well as charge sheet submitted by the Investigating Officer for the same shall stand restored/revived. Subject to above mentioned direction the appeal stands disposed of.
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2011 (7) TMI 1023 - ITAT CHENNAI
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... ... ..... vision order passed by the Commissioner of Income-tax is not sustainable. The reason pointed out by the Commissioner of Income-tax that the assessing authority has not examined the issue, has now become an academic issue for the reason that on the merit of the issue, the assessing authority has decided the issue in accordance with law. But, as a matter of fact, we have to state that the assessee has furnished the details of collections made by the assessee and the Assessing Officer has applied his mind on that topic. The only issue is that the subject matter was not discussed by the Assessing Officer at length in his assessment order. In the result we find that the revision order passed by the Commissioner of Income-tax in the present case is not sustainable in law. Accordingly the revision order is vacated. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court at the time of hearing on Wednesday, the 13th day of July, 2011 at Chennai.
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