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Case Laws
Showing 61 to 80 of 87 Records
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1962 (3) TMI 72
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... ... ..... findings of the Tribunal and ceased to have any legal efficacy. As stated already, the violation of administrative orders issued by the Government may not be justiciable in proceedings under Article 226 of the Constitution. It may be open to the Government to vary its directions from time to time and no subject can plead estoppel against the Government to escape the operation of a statute. But, in this case, the complaint of the petitioners is not that the Deputy Commercial Tax Officer has violated the provisions of the G.O., but that he failed to give effect to the finding of the Tribunal in applying the G.O. In our opinion, the public duty of the Deputy Commercial Tax Officer to conform to the finding of the Appellate Tribunal has to be enforced by the issue of a writ of mandamus, and such a writ we hereby issue. The petition is allowed. The rule nisi is made absolute, substituting a mandamus for prohibition. There will, however, be no order as to costs. Petition allowed.
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1962 (3) TMI 71
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... ... ..... his case. Ordinarily, we should have made an order setting aside the impugned assessments since they were made on the basis of illegitimately substituted estimates. But, Mr. Ananthakrishnan for the petitioner has told us that the petitioner has paid the tax demanded of him. That being the position it would be hardly necessary for us to direct a fresh assessment of the declared turnover. In my opinion, it would be enough for us to make the following direction (a) If the petitioner has paid the tax demanded of him, that portion of the tax which is attributable to the turnover in excess of that declared by the petitioner both in respect of the Durga Lodge and Sri Krishna Vilas Restaurant shall be refunded to him. (b) If the petitioner has not paid the tax, the demand in each case will be restricted to the tax payable on the declared turnover. I make a direction accordingly. In the circumstances, there should be no order as to costs, SADASIVAYYA, J.-I agree. Ordered accordingly.
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1962 (3) TMI 70
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... ... ..... should be excluded in calculating the period of four years provided for by section 14(4). In this view, the further contention that section 14(5) did not declare the previous law, and that it was not given retrospective effect need not be considered. Though we do not wish to express our final opinion on this matter. we hold that the amendment introduced by section 14(5) cannot necessarily be construed as meaning that that was not the law previously. Further, as was laid down in the case cited above, since the provisions relating to limitation are part of the procedural law, they should be given retrospective effect, in which view section 14(5) would also govern the case. For these reasons, we agree with the majority order of the Sales Tax Appellate Tribunal and hold that the order of revised assessment is not barred by limitation. No other question has been argued before us. The tax revision case fails and is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1962 (3) TMI 69
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... ... ..... ) of section 53 confers power upon the Government to make rules to carry out the purposes of this Act. But it is difficult to say that this power includes framing of the rule such as in question here. Evidently for that reason section 21-A has been inserted which practically renders rule 25 into a, statutory provision. As a matter of fact the statement of objects and reasons for introducing that section explicitly proceeds on the footing that the Government considered the rule as beyond the rule-making power conferred by the Act. There is no indication in section 21-A that it is intended to have retrospective operation. That section was introduced by Act XIX of 1960, which itself came into force with effect from 1st October, 1960, and has, therefore, no application to the earlier period ended 31st March, 1960. On the ground that rule 25 was beyond the rule-making power of the Government, this petition is allowed and the rule nisi is made absolute. No costs. Petition allowed.
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1962 (3) TMI 68
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... ... ..... e has powers to remand the case. We therefore, hold that the Appellate Assistant Commissioner can exercise the power of remand. In view of the above conclusion it is unnecessary to express any opinion now regarding the other questions raised and we refrain from doing so. The tax revision case is dismissed. No costs. Petition dismissed.
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1962 (3) TMI 67
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... ... ..... e new Act. As pointed out by the Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. 1960 3 S.C.R. 640., such impairment of right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only. It impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. 10.. In the view we have taken, this petition succeeds and is allowed. The orders of the Deputy Commissioner of Sales Tax, Jabalpur, dated 14th June, 1960, 9th September, 1960, 20th October, 1961, and 6th November, 1961, in relation to the four second appeals mentioned in paragraph 2 of this order are quashed and he is directed to receive and dispose of those appeals in accordance with law. In the special circumstances of this case, we direct the parties to bear their own costs. The security amount deposited by the petitioners shall be refunded. Petition allowed.
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1962 (3) TMI 66
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... ... ..... tion (2) of section 8 and the wording of sub-section (2A) and the explanation to that sub-section, we have come to the conclusion that tax can be imposed under the Central Sales Tax Act even when the tax imposed by the State Act is only a purchase tax. There is no general exemption from taxation under the State Act and even if a licence was obtained under the State Act which gives the benefit of exemption to the assessee, the same will not be a general exemption as contemplated in sub-section (2A) of section 8 and the explanation to that sub-section. The tax imposed on the turnover of green ginger under the Central Sales Tax Act, 74 of 1956, for the period 1st October, 1958, to 31st March, 1959, is therefore justified. The respondent will determine the turnover for the above period and assess the petitioner on that turnover. 19.. We dispose of the two original petitions in the above terms, but, in the circumstances of the case, make no order as to costs. Ordered accordingly.
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1962 (3) TMI 65
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... ... ..... -tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income. It was held by a Division Bench of this Court in Kalidindi Subbaraju Gopalaraju and Co. v. Commissioner of Income-tax, Madras(1), that where it is found that there has been a deliberate suppression of income the penalty leviable under section 28(1)(c) is to relate to the actual tax assessed on the income as finally estimated which.........need not be confined to the income shown to have been concealed. Having regard to the purpose, object and intendment of section 14(2), which is the same as that which underlies section 28(1)(c), we are led to conclude that the same interpretation as was placed on the provisions of section 28(1)(c) should govern the provisions of section 14(2) as well. In this view, we hold that the order of the Tribunal is correct. This tax revision case is accordingly dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1962 (3) TMI 64
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... ... ..... re-weighed at the mills in Bombay when payment was to be made. On these facts and circumstances, the Tribunal came to the conclusion that this turnover did not represent sales within the State so as to make the Bharat Vijay Mills, the last buyer in the State, but not the assessee. On behalf of the petitioner, reliance was placed on the recitals in some of the contracts that the passing and weighment was at Adoni, and that the delivery was also at Adoni. On the strength of this circumstance, we were not prepared to brush aside the other facts and hold that the goods were sold to the mills at Adoni. The Tribunal is the final fact finding authority, and we do not find that the conclusion of the Tribunal is, in any way, affected by an error of law warranting our interference. This contention of the petitioner is equally unsustainable. No other point has been argued before us. The petition, therefore, fails and is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1962 (3) TMI 63
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... ... ..... does not require much of an argument to say that the hotel proprietor would, in fixing the cost per each meal, take into account the cost of every one of these articles of drink served as accompaniments to the food. In that view, there is certainly a sale of those articles of drink as well. A contrary construction on the proviso is not only not warranted, but would lead to manifestly incongruous results. For all these reasons, we cannot accept the contention on behalf of the assessees that the turnover in question does not relate to articles of food and drink sold in those hotels. We hold that the proviso to section 3(1) (b) of the Act governs these cases. The decision of the Tribunal in each of these cases is, therefore, set aside, and the Tax Revision Cases are allowed. Inasmuch as the decision of this Court in Kadiyala Chandrayya v. The State of Andhra 1957 8 S.T.C. 33. was rendered subsequent to the order of the Tribunal, we make no order as to costs. Petitions allowed.
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1962 (3) TMI 62
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... ... ..... f coffee seeds purchased in the State of Mysore, in respect of which sales tax had already been paid under the 43rd entry of the Second Schedule to the Mysore Sales Tax Act, 1957. Since there are no materials before us on the basis of which we could ourselves come to the conclusion on this question, that part of the assessment of the Commercial Tax Officer which relates to the turnover of Rs. 75,482-96 nP., for the period between 1st October, 1957, and 20th March, 1958. has to be, in my opinion, set aside with a direction that the Commercial Tax Officer will now determine the question whether in the light of the principles enunciated in this order, any part of that turnover is taxable under the Central Sales Tax Act. It is ordered accordingly. The matter will now go back to the Commercial Tax Officer, Davanagere, who will proceed to make the assessment in respect of that part of the turnover afresh and according to law. No costs. SADASIVAYYA, J.-I agree. Ordered accordingly.
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1962 (3) TMI 61
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... ... ..... k or of sale of goods must depend upon the facts and circumstances of each case. On the facts of the present case the Tribunal has found that what was intended by the parties was the sale and purchase of the manufactured motor-body as an article or chattel. In our opinion, the said finding of the Tribunal is correct on the construction of the contract between the parties and consequently the contract between the parties in the present case was a contract for the sale of goods. There is no dispute that if the contract under consideration is regarded as a contract for sale, the applicants would be dealers within the meaning of section 2(6) of the Bombay Sales Tax Act, 1953. The result, therefore, is that both the questions which have been referred to us by the Tribunal in the present case must be answered in the affirmative. We answer them accordingly. The applicants will pay the costs of the opponent. The costs are quantified at Rs. 250. Reference answered in the affirmative.
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1962 (3) TMI 60
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... ... ..... f or refund of the whole or part of the tax leviable on any class of sales or purchases under section 8, 9, 10 or 10A shall be granted to the purchasing dealer in such circumstances and subject to such conditions as may be specified. It would thus be seen that under the provisions of this section, namely section 18B, it is open to the rulemaking authority to provide the circumstances and conditions subject to which drawback, set-off or refund of the tax leviable under section 10 be granted to the purchasing dealer. These being the specific powers conferred by the statute on the rule-making authority, it cannot be said that clause (II) of sub-rule (1) of rule 11 is ultra vires of the powers of the rule-making authority or beyond the competence of the rule-making authority. The contention raised by Mr. Trivedi, in our opinion, should thereof fail. In the result, we answer the second question in the negative. We however make no order as to costs. Reference answered accordingly.
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1962 (3) TMI 59
Whether the appellant is not liable to pay tax under the provisions of the Central Provinces and Berar Sales Tax Act, 1947 (Act 21 of 1947) on the ground alleged that it had not been validly registered as a dealer under section 8 of the Act?
Held that:- Appeal dismissed. Even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under section 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of assessment passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that section 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under section 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the assessment of tax made thereunder.
As section 21 of the Act bars the jurisdiction of Civil Courts to entertain suits calling in question any orders passed by the authorities under the Act, and in the view which we have taken it is unnecessary to go into the question whether in view of this section the present suit is maintainable.
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1962 (3) TMI 50
Winding up – Overriding preferential payments ... ... ... ... ..... uction or the price offered by them for the mills. We are also of the opinion that the question as to whether or not the appellants could give a valid discharge in respect of the afore-mentioned debentures of the second series was a matter which should not have been gone into in the liquidation proceedings. The appellants would have their legal rights, as they must have them, in respect of the debentures, for the fact that the debentures were actually issued to them and that they had paid good money for the same remains admitted on all hands. In view of what we have said above, we are of the opinion that this appeal must fail because in substance we are upholding the order of the learned company judge, namely, that the appellants were not entitled to claim a set-off in respect of the debentures of the second series, though on different grounds. We, therefore, dismiss this appeal but under the circumstances of the case direct the parties to bear their own costs of this appeal.
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1962 (3) TMI 49
Winding up - Preferential payments ... ... ... ... ..... y suit, he should not be made to suffer the loss. It is however, not possible to see how the petition can be in a better position than the engineering company itself for it is common ground that the engineering company could not have claimed preferential treatment in the matter of satisfaction of its claim for costs under the decree and as a creditor the engineering company itself would have ranked as an ordinary creditor and not as a preferential one. Mr. Awasthy has not been able to satisfy me by referring to the statutory provisions or any authoritative decisions that section 530 is not exhaustive and that , it is possible to hold that as a creditor in the circumstances which obtain in this case the petitioner can base his claim for preferential treatment outside section 530 I would hold that the petitioner claim should be admitted in the sum of Rs. 6,929.19 nP., but that the will rank as an ordinary creditor. Considering all the circumstances, I make no order as to costs.
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1962 (3) TMI 48
Winding up - Preferential payments ... ... ... ... ..... 56. Under section 116 of the Indian Companies Act, 1913, it is the duty of the company to file with the Registrar for registration the prescribed particulars of every mortgage. No doubt, this was a duty cast upon the company, still the company had not discharged it, but it was equally open to the Punjab State as a mortgagee to make an application under section 116(1) which the Punjab State also omitted to do. Assuming that the failure on the part of the company to discharge a legal obligation imposed under section 116(1) was blameworthy, its consequences cannot be visited by giving any effect to the provisions of section 109. In the circumstances, the Punjab State cannot claim any benefit which would have accrued to it had the mortgage been registered with the Registrar under section 109 of the Indian Companies Act, 1913. In this view of the matter the application of the State cannot succeed and is, therefore, dismissed. The parties are, however, left to bear their own costs.
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1962 (3) TMI 46
Winding up - Payment of debts due by contributory and extent of set off, Power of Tribunal to make calls, Debts of all descriptions to be admitted to proof and Preferential payments
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1962 (3) TMI 33
Power to pay certain commissions and prohibition of payment of all other commissions, discounts, etc.
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1962 (3) TMI 32
Whether the appellant company having been ordered to be wound up by an order of a court of competent jurisdiction and the official liquidator being in charge of the same, the appeal by the managing director and agent was not properly filed and is not maintainable?
Held that:- We do not think that section 457 of the Companies Act, 1956, or the corresponding provision in the 1913 Act contemplates that on an order of winding up by the court any person other than the liquidator shall have the power to institute or defend any suit, prosecution or other legal proceeding, etc. Harcharan Dass having ceased to be the managing director or managing agent was not competent to file the appeal or continue it on behalf of the company. The argument that there is no automatic cesser of the power of Harcharan Dass as agent or that the appeal is a continuation of the suit is not available to Harcharan Dass in view of the clear provisions in section 334(e) and section 457 of the Companies Act, 1956.
We, therefore, hold that the preliminary objection must succeed and the appeal must be held to be incompetent, hence dismissed.
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