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Case Laws
Showing 41 to 60 of 60 Records
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1963 (11) TMI 64
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... ... ..... entry No. 4 of the Second Schedule of the Bombay Sales Tax Act, 1946. Mr. Nanavaty has not been able to point out any such context in entry No. 29 governing its construction which can be considered to be an overriding factor, as was the case in the Bombay decision. The expression cloth has acquired a secondary meaning, that is to say, a meaning attached to that expression in common parlance by those dealing in and conversant with handloom cloth, and the carpet of the type we have before us would not, in our view, be included in the expression handloom cloth of all varieties. On the principle laid down by the Supreme Court in Ramavatar Budhaiprasad (1) and by the Andhra High Court in the case of Kosuri Subba Raju (2), we would hold that the carpet in question would not be covered by entry No. 29, and therefore, we would answer the question referred to us in the negative. The petitioner will pay to the respondents the cost of this reference. Reference answered in the negative.
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1963 (11) TMI 63
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... ... ..... No. 2 becomes unnecessary. The State will pay to the petitioners the costs of this reference. Reference No. 6 of 1963. The assessment period in this reference is from the 1st of November, 1952, to the 31st of March, 1953, and the point that arises for our consideration in this reference is with regard to the sales of stores etc., the sale price realised by the assessee-company being Rs. 54,829. In view of our decision in reference No. 34 of 1963 and reference No. 3 of 1963, it must be held that the sales of stores cannot be regarded as sales in the course of business or as a business activity and, therefore, are not chargeable to sales tax. Our answers to the questions referred to us are as follows Question No. 2 ... In the negative. Question No. 1 ... So far as question No. 1 is concerned, in view of our answer to question No. 2, answer to question No. 1 becomes unnecessary. The State will pay the costs of this reference to the petitioners. References answered accordingly.
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1963 (11) TMI 62
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... ... ..... d to Delhi, contained a clear provision for the imposition of sales tax on sale of goods during the course of inter-State trade. The only hindrance in the way was lack of sanction by Parliament and that was removed by the Sales Tax Laws Validation Act, 1956, and then Mr. Kirpal admits, as he had to in view of the decision of the Supreme Court in Sundararamier and Co. v. State of Andhra Pradesh A.I.R. 1958 S.C. 468 9 S.T.C. 298. , holding that the effect of the Validation Act of 1956 is to lift the ban imposed on the States against taxing inter-State sales. That decision is directly against the assessee s claim in the present case. For these reasons, the answer to the first and the third questions referred to us must, in my opinion, be in the affirmative and the answer to the second question in the negative, and I would answer the reference accordingly. The assessee will pay the costs before us which we assess at Rs. 150. FALSHAW, C.J.-I agree. Reference answered accordingly.
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1963 (11) TMI 61
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... ... ..... er in section 2(c) of the Act begins with the words dealer means a person etc., and we have shown that in the instant case Messrs Laxmi Stores was not a person. If one turns to the remaining provisions of the Act, it throughout deals with a dealer and since a dealer must be a person, the notice issued in the instant case to Messrs Laxmi Stores was not either to a person or to a dealer. Therefore, it seems to us that the entire proceedings founded upon such a notice must be quashed. It is still open to the department to issue proper notices if they so choose and proceed with the assessments and/or recoveries if they think they are otherwise entitled to do so under law. The petition is allowed and the notice dated 10th January, 1962, and the orders of assessment and penalty dated 5th December, 1960, are quashed. The guarantee given by the Central Bank at the instance of the petitioners shall be cancelled. The respondents will pay the costs of the petitioners. Petition allowed.
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1963 (11) TMI 60
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... ... ..... motive. The use of tanning materials in the tanning process contributes to the making of profit as a dealer and it should therefore follow that even the business of purchasing these tanning materials involves the profit motive. If the existence of the profit motive in entering into the transaction brings the series of transactions within the expression in the course of business , there seems to be no room for doubt that the process of buying had the profit motive as a necessary ingredient. The principle laid down by that decision, with which we respectfully agree, is that a buying activity, even though without a counterpart of a selling activity, in the course of a business, whether it be as a dealer in hides or carrying on of the tannery with profit motive, would be adequate to bring the turnover of purchase price of tanning materials to tax under the Act. In the result, the tax revision petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1963 (11) TMI 59
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... ... ..... e Tribunal, Bangalore and Others 1963 14 S.T.C. 578. C.S. Nagaraja Setty and Another v. Deputy Commissioner of Commercial Taxes, City Division, Bangalore and Another 1962 13 S.T.C. 578. and Yadalam Lakshminarasimhiah Setty and Sons v. State of Mysore 1962 13 S.T.C. 583. These decisions are not apposite for our present purpose. They bear on different principles of law. In the result, S.T.R.P. 19 of 1963 is allowed and the order of the Tribunal below is set aside and that of the Assessing Authority restored. No costs. Petition allowed. S.T.R.P. 21 of 1963. There is no merit in this revision petition. From the findings reached by the Tribunal, it is clear that sales tax was not specifically charged or collected. In the bills issued to the customers, sales tax was not separately mentioned. On the other hand, some incidentals were shown. That being so, the petitioner is not entitled to the relief claimed. The petition fails and the same is dismissed. No costs. Petition dismissed.
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1963 (11) TMI 58
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... ... ..... declaration should be furnished to the prescribed authority by the dealer selling the goods. With great respect we are unable to accept the assumption made, for the reasons stated earlier. 8.. In the case before us, the declaration forms had been produced before the Sales Tax Officer before the order of assessment was made. The question for decision in the three cases referred to in the order of reference does not arise here, and we therefore decline to express any opinion on the question whether the appellate authorities have power to condone delay in cases where sufficient cause is shown. 9.. It follows that this original petition has to be allowed. We do so and quash the orders, exhibits P-2, P-3 and P-4. The first respondent is directed to pass a fresh order of assessment taking into consideration the declaration forms furnished by the assessee on 8th March, 1961. The respondents will pay the costs of the petitioner including advocate s fee of Rs. 200. Petition allowed.
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1963 (11) TMI 57
Whether on a true construction of the agreement dated 1-6-1952 between the assessee and Caltex (India) Limited, the kerosene supplied by Caltex (India) Ltd., to and sold by the petitioner was as purchaser or as commission agents?
Whether the respondent is precluded from levying and collecting sales tax on the disputed turnover on account of the fact that a licence under section 9 of the Sales Tax Act was granted to the petitioners?
Held that:- Appeal allowed. Setting aside the judgment of the High Court we express no opinion on the interpretation of the agreement of June 1, 1952, or as to the correctness of the view taken by the High Court. We find it enough to proceed on the assumption that the view for which the respondent contends that the agreement creates an agency is correct for even so, for the reasons earlier mentioned, it must be held that the respondent is not entitled to exemption under section 9 as it is not an agent of the kind contemplated by the section. We leave the question of the proper interpretation of that agreement for decision at a later stage when the question properly arises.
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1963 (11) TMI 54
Whether the suits were not maintainable as (a) the civil court had no jurisdiction and (b) the assessee had not exhausted his other remedies?
Whether the suits were barred by time?
Whether the sales took place outside the Province of Madras and the levy of the tax in respect of some of the transactions was illegal?
Held that:- Appeal dismissed. Just as in the Canadian case it was not possible to separate the valuation of movable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from the composite turnover transactions which are validly taxed, from those which are not for that must pertain to the domain of tax officers and the Courts have no power within that domain. In our opinion, the High Court was right in declaring the total assessment to be affected by the portion which was illegal and void.
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1963 (11) TMI 43
Winding up – Powers of tribunal on hearing petition ... ... ... ... ..... article 18(a) Schedule II, article 1(d). It is perfectly plain that none of these provisions is applicable. Schedule I, article 1, refers to an appeal not otherwise provided for in the Act. If an appeal like the one brought by the appellant is provided for by article 11 of Schedule II, article 1 of Schedule I becomes inapplicable. Further the difficulty presented by Schedule I, article 1, is that it is impossible to make any valuation of the right of the person making an application for an order that the company shall be wound up under section 433 of the Companies Act, 1956. Schedule II, article 17(vii), is equally inapplicable since that article refers to a suit. Schedule II, article 18(e), is similarly inapplicable since that article refers only to an application. Schedule II, article 1(d), is again inapplicable since that article prescribes the court-fee payable on applications or petitions and not on appeals. Our decision, therefore, is that the court-fee paid is correct.
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1963 (11) TMI 34
Oppression and mismanagement ... ... ... ... ..... ntiff had no right to move the civil court must be overruled. I therefore hold that the suit was maintainable. The only other point argued by counsel for appellant was that as the plaintiff prayed for holding a meeting for carrying on the election and as that was rejected by both the courts below, the plaintiff was not entitled to have the declaration of the invalidity of the 3rd defendant s election as director. It cannot be said from this circumstance that the plaintiff s suit was not maintainable. The plaintiff s suit was maintainable because there was the prayer for the consequential relief to hold a meeting from the stage at which the chairman declared the plaintiff to be incompetent to stand for election. I can see no point in the argument of counsel that since the consequential relief was not granted by the courts below, the prayer for declaration of the validity of the election cannot stand. In the circumstances, the appeal has to be dismissed, and I do so with costs.
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1963 (11) TMI 33
Winding up - Preferential payments ... ... ... ... ..... ting its normal administrative expenses. The said percentage constituting the administrative charges is also required to be collected by the employer liable to make the contribution and paid into the fund. Damages for default or delay in payment of the administrative charges are recoverable under section 14B. So far, however, as the fifth item, viz., legal charges of Rs. 102.50, is concerned, neither the averments in the affidavit nor arguments on behalf of the appellant in court have indicated the provision of either the Act or the scheme under which the same is recoverable. It has therefore to be held that all the items claimed by the appellant except the legal charges of Rs. 102.50 are entitled to preferential payment. I, therefore, allow the appeal in part and direct that, excepting the sum of Rs. 102.50 described as legal charges, the rest of the claim of the appellant be paid out in priority as a debt included in section 530 of the 1956 Act. I make no order as to costs.
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1963 (11) TMI 32
Winding up – Power of court to assess damages against delinquent, directors, etc. and Savings of pending proceedings for winding up
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1963 (11) TMI 13
Winding up – Powers of tribunal on hearing petition ... ... ... ... ..... 162 to order its winding up. The only decision which has been cited before us bearing on this question is Sheikh v. Berar Ginning Co. There it was held that a company could be wound up even after it had been struck off under section 247(5). We are accordingly of opinion that even apart from an order restoring the company to the register under section 247(6) the court has jurisdiction under section 162 to order winding up of the concern. On the merits we do not see any sufficient ground to differ from the judgment of Krishnaswami Nayudu J. The arguments before us have proceeded on the assumption that the respondent was a fully paid up shareholder. It is now stated before us, that the appellants do not concede this, and that the question whether the respondent is a fully paid up shareholder might be left open for decision in the usual course. The respondent does not object to it. In the result O.S.A No. 1 of 1952 is dismissed with costs and O.S.A. No. 31 of 1952 without costs.
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1963 (11) TMI 6
Exemption From Tax, Jurisdiction Of High Court, Question Of Law ... ... ... ... ..... us setting aside the judgment of the High Court, framing the following questions and sending them back to the High Court for its decision 1. Whether the whole or any part of the assessee s income of Rs. 1,24,004 referred to in paragraph 7 of the Tribunal s statement of case accrued or arose to the assessee in the State of Mysore (as it was before 1950) and exempt from tax for the assessment year 1946-47 under section 14(2)(c) of the Indian Income-tax Act, 1922 ? 2. If only part of such income accrued or arose to the assessee in the State of Mysore, what is the quantum thereof ? We agree that this is the best course to be adopted in the circumstances of the case and, therefore, by consent of the parties, we set aside the judgment of the High Court and remit the case back to it to decide the aforesaid questions. There will be no order as to the costs in this court for both parties were at fault in not seeing that the question was framed property. Appeal allowed. Case remanded.
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1963 (11) TMI 5
Whether the levy of ₹ 68,501 as penalty for concealment in the original return for the assessment year 1951-52 is legal ?
Held that:- The first order of penalty passed on January 22, 1954, was pursuant to a notice issued on January 31, 1962, in respect of which the assessee had offered his explanation on March 11, 1952. That notice was not concerned with any concealment that came to light from the production of the books on August 17, 1953, and, therefore, on this concealment the assessee had never been heard. In assessing a penalty on this notice subsequently acquired knowledge would be irrelevant. Appeal dimissed.
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1963 (11) TMI 4
Whether the business called " Castle " at Bombay was a branch of the assessee?
Held that:- Non-inclusion of the income of " Castle " in the assessment of the assessee may have been a relevant circumstance, but its effect had to be considered in the light of other circumstances on which the Appellate Assistant Commissioner had relied. Moreover, reliance placed by the Tribunal upon the single circumstance on which its decision was founded had proceeded on an assumption that in the previous year to the year of assessment 1951-52, " Castle " had carried on business and had earned income. The observations made by the Appellate Assistant Commissioner about " Castle " being separately assessed at Bombay in the status of a registered firm apparently refer to assessment of that business in subsequent years and not in the year of assessment 1951-52. The conclusion of the Tribunal, therefore, suffers from a double infirmity : it assumes the only fact on which its conclusion is founded and ignores other relevant matters on which the Appellate Assistant Commissioner relied in support of his conclusion. The Tribunal has therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was, in our view, in error. Appeal allowed.
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1963 (11) TMI 3
Whether on the facts and in the circumstances of the case, was the order of assessment made by the Income-tax Officer under section 23(4) on September 30, 1953, bad in law?
If the answer to the above question is in the negative, was not the applicant liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the Income-tax Act ?
Held that:- The answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was not served with the notice of assessment must fail. The second question will be answered as follows :
" The applicant was liable for the amount of tax payable under the order of assessment. " Appeal allowed.
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1963 (11) TMI 2
Whether on the facts and in the circumstances of the case the sum of ₹ 94,253 or any part of it accrued or arose or could be deemed to accrue or arise, or was received or could be deemed to be received by the assessee as income, profits and gains during the previous year?
Held that:- It seems to us clear that the question of law as framed by the Commissioner does arise on the judgment of the Tribunal. An application under section 66(2) cannot be dealt with by answering that question. This is what the learned judges of the High Court did. We find no reason why the question suggested by the appellant Commissioner should not have been referred. We, therefore, set aside the judgment of the High Court and make an order that the Tribunal do state a case and refer the question mentioned earlier to the High Court for its decision. Appeal allowed.
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1963 (11) TMI 1
Relief claimed in all these petitions under article 226 of the Constitution is the issuance of a writ of prohibition, directing the Income-tax Officer to forbear from proceeding further in pursuance of the notice issued u/s 34(1A).
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