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1967 (4) TMI 197
... ... ... ... ..... ying to fill a gap in the pro- secution case. The court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that Govani might be required, as the policy of the Customs Act, 1962 requires, to prove his innocent possession. Govani had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the date of the seizures. He admitted this before and after Dutta's evidence. In these circumstances it cannot be said that the court had exceeded its jurisdiction in acting under the second part of s. 540 of the Code of Criminal Procedure. As Dutta's evidence was rightly taken and gone into, and as Govani had no defence beyond taking advantage of the inadvertent omission, the defence had no merit. The conviction was, therefore, rightly reached. The appeal fails and is dismissed. Appeal dismissed.
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1967 (4) TMI 196
... ... ... ... ..... a law of passports will not make things any better. Even if a law were to be made the position would hardly change because the utmost discretion will have to be allowed to decide upon the worth of an applicant. The only thing that can be said is that where the passport authority is proved to be wrong, a mandamus will always right the matter. In the present cases we found no valid ground for the issuance of a mandamus. We had, therefore, earlier ordered the dismissal of the petitions. ORDER In accordance with the opinion of the majority a writ of mandamus will issue directing the respondents to withdraw and cancel the decision contained in their letters dated August 31, 1966, and September 20, 1966 and to forbear from taking any steps or proceedings in the enforcement or implementation of the aforesaid decision and further to forbear from withdrawing and depriving the petitioner of his two passports and of his passport facilities. The petitioner will have his costs. R.K.P.S.
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1967 (4) TMI 195
Whether a University can be held to be local or other authority as defined in Art. 12?
Held that:- In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms.
In my judgment, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression "State" as defined in Art. 12. Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of "State" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of Art. 12 of the Constitution. Appeal dismissed.
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1967 (4) TMI 194
... ... ... ... ..... d in section 16. In such a context, the Bench observed that the above was a case where the law as re-enacted by the local Legislature, was not substantially different from what it was when the Central Legislature enacted the Central Sales Tax Act by reference to the earlier law. But in the present case that exception to the general principle is clearly not applicable. The 1939 Madras General Sales Tax Act, as already mentioned, contained no provision at all for levy of penalty in a case like the present one, and such a provision was enacted for the first time only in the 1959 Act. Therefore, the principle that legislation by reference must be confined to an enactment as it stood at the date of the reference, would clearly apply to the present case. From this point of view also, the award of penalty in this case cannot be upheld. Therefore we hold that the order of the Tribunal is right, and the revision case is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1967 (4) TMI 193
... ... ... ... ..... tners in the Tirupathur firm and the Bombay firm respectively will not make any difference to the principles set out above, because this difference in shares will have relevance only at the time when the profits and losses are ascertained and divided. But at intermediate stages when assets of the partnership are dealt with either for the purpose of acquisition or for sale, it cannot be predicated that the partners in question have specified shares in such assets. They have all got a common right of ownership in the property dealt with. From this point of view, the transfers in question in this case from the Tirupathur firm to the Bombay firm cannot be viewed as sales to attract the liability to sales tax under the Central Sales Tax Act. We, therefore, allow the revision case and set aside the assessment on the disputed turnover. The tax, if paid, will be ordered to be refunded to the petitioners. The petitioners will get their costs. Advocate s fee Rs. 100. Petition allowed.
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1967 (4) TMI 192
... ... ... ... ..... ing authority, and was perfectly legal. In regard to the quantum of penalty, we are of the opinion that the Tribunal had given the necessary relief by reducing the penalty to one half of what had been awarded by the assessing officer and there is no ground at all to interfere with the quantum of penalty. In regard to the estimate of the turnover for the period anterior to the period covered by the anamath accounts, the authorities below have given sufficient reasons for presuming the existence of transactions in the anterior period, to which we have referred to earlier in this judgment. We are of the opinion that the reasons given for the inference of suppressed turnover in the anterior period are adequate reasons and that there are no grounds to interfere with the decision both regarding the necessity to estimate the suppressions as well as the quantum of suppressions estimated. The revision case is therefore dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1967 (4) TMI 191
... ... ... ... ..... any case the phawada is not used for breaking or loosening earth for agricultural operations or for weeding out plants or for hoeing of the weeds. The phawada cannot, therefore, be described as an implement which is principally and primarily used for agricultural purposes. Unfortunately, in this particular case, the Sales Tax Tribunal has not recorded its finding on this aspect of the matter. Our answer to the question referred for our decision therefore is that a phawada is included within the English expression hoe . But from that it does not necessarily follow that it is also an agricultural implement exempt from sales tax under entery No. 1 of Schedule I of the M.P. General Sales Tax Act, 1958, and that it is for the Sales Tax Authorities to decide that question after considering appropriate evidence. 9.. The reference is answered accordingly. The non-applicant shall pay the costs of the Commissioner of Sales Tax, M.P. Hearing fee Rs. 100. Reference answered accordingly.
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1967 (4) TMI 190
... ... ... ... ..... ted 19th February, 1964, in so far as it related to the fourth quarter of 1963-64 and the assessment proceedings commenced during that time relating to the said quarter are, therefore, wholly illegal and without jurisdiction. Here the impugned order does not show as to how much demand has been created for the period ending 31st December, 1963, and how much for the last quarter it is impossible to sustain any part of the order. 6.. I, therefore, allow this writ petition and set aside the impugned order of the Assessing Authority dated 9th July, 1964, and direct that the petitioner-firm would be reassessed for the year 1963-64 in accordance with law. The question of exemptions to which the petitioner-firm may or may not be entitled under section 5(2)(a)(ii) of the Act read with rule 26 of the Rules framed thereunder shall also be considered and decided by the Assessing Authority on merits afresh. In the circumstances of the case there is no order as to costs. Petition allowed.
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1967 (4) TMI 189
... ... ... ... ..... entioned in paragraph 3 that It is further pointed out that the fact of dissolution of the firm is corroborated from the file which is evident from the impugned order itself. There is an earlier order of the Assessing Authority, Bhatinda, of 2nd December, 1963 (annexure J) wherein it is mentioned that a penalty of Rs. 1,350.66 was levied taking a lenient view as the firm has since been dissolved . Inthefaceoftheseadmissions,itcannotlegitimatelybeurged on behalf of the State that the plea of dissolution of the firm had been taken for the first time by the petitioner in this Court. In my opinion, this petition must be allowed and the impugned assessment quashed. The petitioner has the right to take advantage of the Supreme Court authority in The State of Punjab v. Jullundur Vegetables Syndicate 1966 17 S.T.C. 326., and is entitled to be assessed on the basis of the principle enunciated therein. The petitioner is further entitled to the costs of this petition. Petition allowed.
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1967 (4) TMI 188
... ... ... ... ..... article which includes plaited string for fastening besides ornamental fabrics of linen, cotton, silk, etc., to which we have referred earlier. But it appears to us that it is the more ordinary meaning of lace , as commonly understood, as an ornamental fabric, rather than its rare use to mean a plaited string for fastening, like shoe-laces, etc., that was intended to apply to the entry in question. In fact, some of the braided cords produced before us are suited for the purpose of fastening, since they are in the shape of well-knit strings, but it appears to us to be more preferable to adopt the broader view of textile , which we have mentioned above, namely, articles produced as a result of weaving, and from this point of view, braided cords, now under consideration, will also be entitled to the exemption provided in entry 4 mentioned above, as textiles. In view of the above, these revision cases are dismissed with costs. Advocate s fee Rs. 100 one set. Petitions dismissed.
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1967 (4) TMI 187
... ... ... ... ..... of section 2(g) of the Madras General Sales Tax Act, 1959, had to be determined not solely by reference to the fact that he described himself as an auctioneer but it had to be considered in the light of the particular contract between him and the purchaser and the surrounding circumstances. One can visualise a case where an auctioneer, besides functioning as a crier or a broker, also obtains dominion over the property sold and is authorised to hand over possession of the property to the successful bidder. In such circumstances he could be considered to be a dealer for the purpose of section 2(g) of the Act. But on the facts of this case, the auctioneer had no such dominion over the property, and had no authority to transfer it to the buyer. In the above circumstances, we are of the opinion that the Tribunal is right in its view that the transactions in question do not attract the levy of sales tax. The case is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1967 (4) TMI 186
... ... ... ... ..... e contracts in question are composite contracts to render work to the contractee. The Tribunal has not rightly appreciated the principle in Udani Engineering Co. v. State of MadrasT.C. No. 55 of 1960. and has therefore wrongly approached the subject. We have no hesitation in holding that, having regard to the various clauses in the contracts already referred to by us and the predominant indicia which overwhelm the contracts in question,these are works contracts and they do not involve in any manner or in any wise a sale of materials as is popularly or legally understood. No other question was argued before us though it was raised before the Tribunal. We, therefore, set aside the order of the Tribunal excepting to that portion of the same relating to remand and in so far as they directed the inclusion of the turnover relating to both the contracts in question as assessable turnover. T. C. No. 28 of 1964 is therefore allowed with costs. Counsel s fee Rs. 150. Petition allowed.
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1967 (4) TMI 185
... ... ... ... ..... partment. Another factor which we bear in mind in coming to that conclusion is that the railway coaches can hardly have a general market and they are specially made to order according to the terms and specifications in the contract. We do not think that this factor by itself may justify the conclusion that the transaction is a sale of goods. But that taken with the other terms, particluarly the fact which we infer from the contract that property in the materials used in the body-building passes during the progress of the work, inclines us to the view that it is a works contract. The terms of the contract before us were more or less similar to those in State of Gujarat v. Kailash Engineering Co. (P.) Ltd. 1967 19 S.T.C. 13. in which the Supreme Court held that the contract was a works contract. T.C. No. 102 of 1964 is allowed only in respect of the first item of turnover, namely Rs. 4,17,780. The petitioner is entitled to his costs. Counsel s fee Rs. 100. Ordered accordingly.
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1967 (4) TMI 184
... ... ... ... ..... rt in T.C. No. 247 of 1962. But, with due respect, no reference was there made to section 3(2), which governs single point liability. The effect of the section is that where the transactions are second purchases or sales, there is no liability on them, as the single point of levy is fixed at the stage of first purchase of the goods in question. Neither the revenue authority nor the Tribunal has recorded a specific or satisfactory finding with reference to the material on record that the purchases were not second purchases. No doubt section 10 provides a rule of presumption and throws the burden on the assessee. But we consider, in the circumstances, that the respondent should be given another opportunity of convincing the department that the purchases to the tune of Rs. 6,227 were second purchases. The tax revision is allowed and the matter is remitted to the assessing authority for consideration and disposal in respect of a turnover of Rs. 6,227. No costs. Petition allowed.
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1967 (4) TMI 183
... ... ... ... ..... ot whether the goods moved out of the State of Madras pursuant to a prior existing contract of sale. T.C. Nos. 300 to 302 of 1965 are allowed and the appeals are remitted to the file of the Tribunal for fresh disposal in accordance with this judgment. In W.P. No. 836 of 1966 the facts have been briefly set out at the outset of this judgment. While under the Madras General Sales Tax Act the excise duty is deductible from the turnover, no such provision has been made for deduction of the excise duty from the turnover of inter-State sales or purchases under the Central Act with the result unequal burden will fall on differences in the quantum of turnover because of allowance in the one case and disallowance in another, of deduction of excise duty. That will impede the freedom of inter-State trade, commerce and intercourse under Article 301 of the Constitution and is not saved by Article 303. W.P. No. 836 of 1966 is allowed with costs. Counsel s fee Rs. 100. Ordered accordingly.
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1967 (4) TMI 182
... ... ... ... ..... authority had the jurisdiction on account of the newly added statutory provision itself to direct the impugned deposit being made. If the impugned order had been made after the Act was amended in 1965, no fault could probably be found in it. At the time when the order was made on 27th October, 1964, however, the Commissioner was obviously acting under rule 61-A which did not vest in him any discretion of the kind now given to him by section 21(3A). In these circumstances, the impugned order has to be set aside. It will, of course, be for the revising authority to exercise its discretion under section 21(3A) as amended in the matter of requiring or not requiring the amount of tax assessed to be deposited before the revision petition is heard on merits. For the foregoing reasons this writ petition is allowed and the impugned order of respondent No. 3, dated 27th October, 1964 (annexure C ), is set aside. In the nature of things there is no order as to costs. Petition allowed.
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1967 (4) TMI 181
... ... ... ... ..... quotas to its members. This activit will not amount to a business and the petitioner cannot be said to be a dealer. The petitioner-association is not engaged in buying or selling any commodity. All that it is doing is collecting and distributing the maida to its members. The contention of the learned counsel that the petitioner-association is not liable to tax has to be upheld. It was submitted on behalf of the department that the provisional assessment was made because the petitioner did not prefer any objections to the provisional assessment. It may be that the petitioner did not specifically prefer any objections to the notice dated 26th September, 1966. But in submitting his return, he had made it amply clear by his communication dated 23rd September, 1966, that he was not liable to pay any tax. The plea that the assessment was made because the petitioner did not object cannot, therefore, be accepted. This writ petition is allowed. No order as to costs. Petition allowed.
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1967 (4) TMI 180
... ... ... ... ..... ing on business in fair price shop. We have looked into its articles of association and nowhere is there any reference to the carrying on of business in fair price shop. What appears to be probable is that the assessee in order to provide amenity to its workmen has opened the fair price shop so that commodities may be made available to them at fair price. It may be that in fact profit accrues. But that is not what is material. The question is whether the assessee meant to run the fair price shop as a trade or commerce or a commercial activity. We do not find it possible to say that the fair price shop is a commercial activity of the assessee. We hold that the assessee is not carrying on the business of selling commodities in the fair price shop in a trade or commercial sense, and that, therefore, it is not with reference to the fair price shop a dealer within the meaning of the Act. On that view the tax case is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1967 (4) TMI 179
... ... ... ... ..... unable to agree with this contention. If manganese ore is taxable on sale point as general goods at the rate of three pies per rupee, there is nothing wrong in the Tribunal remanding the matter for fresh assessment according to law. The learned counsel for the assessee suggests that the proper procedure for the Tribunal is to issue a fresh notice in which event he would have raised all necessary pleas. The learned counsel further complains that the order of remand reads as if it is a directive issued to the assessing authority to make the assessment on the lines indicated. But we do not find any such mandate issued to the assessing authority to make the assessment. The order of remand is, therefore, confirmed but the assessing authority will afford all reasonable and adequate opportunity to the assessee to raise all his contentions germane to the assessment proceedings. T.R.C. No. 13 of 1966 is therefore dismissed but there will be no order as to costs. Petitions dismissed.
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1967 (4) TMI 178
... ... ... ... ..... ication to the case of transactions relating to groundnuts. It was further observed that when once it is established that tax could be levied on the purchase of certain goods, it cannot be postulated that the department has to wait till the commodities are disposed of by the purchaser, and that the said submission lacks substance and has to be overruled. We are, therefore, unable to agree with the contention on behalf of the assessees that the principle stated with reference to a tanner purchasing hides and skins can be applied in Interpreting the language of item 6 of the Third Schedule to the Andhra Pradesh General Sales Tax Act relating to groundnuts. As already indicated, we hold that the words when purchased by a miller In the State occurring In item 6 of the Third Schedule refer to the purchases by the first miller in the State. We therefore set aside the orders of the Tribunal and allow these revision cases with costs. Advocate s fee Rs. 50 in each. Petitions allowed.
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