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1968 (7) TMI 70
... ... ... ... ..... tion or deductions covers only cases where but for the deduction the relative amount would be part of the price. The rule does not cover a case in which the amount in question is not part of the price, for in that case no exemption is at all required. Our attention has been invited to the Explanation to the definition of turnover in the Act. But as we said, the insurance charges are incurred to cover the risk in transit of the goods and we cannot view the expenditure as for something done in respect of the goods. The tax case is dismissed. Petition dismissed.
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1968 (7) TMI 69
... ... ... ... ..... titioner had already submitted his monthly returns. The order of assessment was, however, made subsequently. He was assessed to the same tax as was due under the terms of the Hyderabad General Sales Tax Act. Under the terms of the same Act, a competent authority could suo motu in exercise of powers of revision reassess him at any time subject to the conditions prescribed. The petitioner cannot successfully set up the provisions of the repealing Act to evade his liability which in point of fact was in terms saved by the said Act. That being the position, this writ petition seeking for a writ of prohibition is liable to be dismissed. Of course, some other points also have been raised in this petition but they cannot come up for our consideration as the appeal in relation to them is pending. The petitioner has unnecessarily come to this Court after filing the appeal and got the appeal stayed. The writ petition is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1968 (7) TMI 68
... ... ... ... ..... le to exercise our discretion in favour of the petitioner by ordering repayment of money which may have been realised by the Government in lieu of the impugned tax and would leave it to the petitioner to pursue an appropriate remedy either under the Rajasthan Sales Tax Act or under the ordinary civil law for repayment of the amount. The result is that we allow this writ petition in part and hold that the assessment of sales tax on the imported bardana on the first point at the hands of the assessee-petitioner, an importer, in the series of sales in the State of Rajasthan under the notification dated 11th August, 1959, is invalid in law. The imposition of penalty by the assessing authority on the petitioner for the assessment years 1963-64 and 1964-65 is also bad. Consequently, the assessment orders dated 18th February, 1965, for the years 1963-64 and 1964-65 are set aside. In the circumstances of the case we leave the parties to bear their own costs. Petition partly allowed.
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1968 (7) TMI 67
... ... ... ... ..... qually, one may say, it makes no difference whether it is in the form of flat sheets or corrugated sheets. When the assessee in the present case sold corrugated iron sheets, he sold iron in the shape of corrugated sheets and the purchasers purchased iron in that shape. I am, therefore, of the view that corrugated iron sheets are merely iron in another shape and form and they cannot be regarded as articles or products manufactured or fabricated out of iron. They must, therefore, be held to fall within entry 15 which reads iron and steel and they cannot be taxed under the residuary entry 80. The question referred to this Court must therefore be answered by saying that the sale of corrugated iron sheets by the assessee was covered by entry 15 of Schedule B to the Bombay Sales Tax Act, 1953, prior to its amendment by Bombay Act 16 of 1957 and not by the residuary entry 80 of that Schedule. The State will pay costs of the reference to the assessee. Reference answered accordingly.
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1968 (7) TMI 66
... ... ... ... ..... mmissioner of Sales Tax 1963 14 S.T.C. 184. , if the assessee-company stocked its goods, viz., shelving racks and binstaks, as furniture and sold them as furniture, it would be a sale of furniture and more so, if it was bought by the vendee as such. Our conclusion derived independently from the brochure issued by the assessee-company is that shelving racks and binstaks manufactured and sold by the assessee-company are items of steel furniture and that conclusion is fortified by the fact that the assessee-company manufactures, stocks and sells the shelving racks and binstaks as steel furniture. Under these circumstances, we hold that both shelving racks and binstaks are steel furniture within the meaning of entry 44H of Schedule C to the Act. We, therefore, answer the questions referred to us as follows Question No. Answer. (1) In the affirmative. (2) In the affirmative. The assessee will pay the costs of this reference to the State of Gujarat. Reference answered accordingly.
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1968 (7) TMI 65
... ... ... ... ..... at the provisions of section 8(2), to the extent that they enable the application of a higher rate in respect of transactions effected by a dealer in the State of Uttar Pradesh with a dealer in the State of Jammu and Kashmir, are ultra vires. It is well settled now that it is not open to an authority created under the statute to pronounce upon the vires of a provision of that statute see K.S. Venkataraman v. The State of Madras 1966 17 S.T.C. 418. If the Additional Judge (Revisions) Sales Tax was not entitled to entertain that question, we are also not competent to do so in the instant proceeding which is merely a reference arising out of an order of that authority. We must, therefore, decline to entertain this contention of the petitioner. We answer the question referred to this Court in the affirmative. The Commissioner of Sales Tax is entitled to his costs which we assess at Rs. 200. Counsel s fee is also assessed at the same figure. Reference answered in the affirmative.
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1968 (7) TMI 64
... ... ... ... ..... ed a refund of it. But if the assessee chose to take the risk and did not pay up the amount of tax and ultimately the appeal or revision failed and the amount of tax originally assessed was held payable by him, it could not be a valid answer to the claim for penalty that the assessee had obtained orders for staying the recovery proceedings. The assessee was of course given relief to the limited extent possible under the first proviso to sub-section (4) and if he had any justifying reason for not making payment of the amount of tax, he could always apply to the Collector for remitting the whole or part of the amount of penalty. But that is very much different from saying that the assessee was not liable to pay penalty under the main part of the sub-section. I would therefore prefer the view expressed by Divan, J., and answer the question as reframed by Divan, J., in the affirmative. The assessee will pay the costs of the reference to the State. Reference answered accordingly.
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1968 (7) TMI 63
... ... ... ... ..... Act can be levied, in spite of any exemption provided under the State law. With the greatest respect, we are unable to see the distinction pointed out by the Madras High Court. In our view, the amendment of section 15 does not affect the meaning of section 9 of the Central Act as interpreted by the Supreme Court. It is unnecessary to consider this matter in detail, as it is clear from a very recent decision of the Supreme Court dated 18th April, 1968, in C.A. No. 763 of 1967 (The State of Madras v. N.K. Nataraja Mudaliar) 1968 22 S.T.C. 376. that the reasoning of the Madras High Court in its above decision cannot be sustained. We, therefore, hold that all deductions allowed under the State law to be made from the gross turnover in determining the net turnover shall be liable to deduction in determining the taxable turnover under the Central Sales Tax Act, 1956. 7.. In the result, these revision petitions are dismissed. There will be no order as to costs. Petitions dismissed.
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1968 (7) TMI 62
... ... ... ... ..... rrying on the business of buying or selling goods in Uttar Pradesh and includes a firm. Section 3-C(1) also makes it clear that a firm is a dealer. So for purposes of the assessment of sales tax a firm is a unit independently of its partners (see J.B. Tandon v. Sales Tax Officer, Etawah 1957 8 S.T.C. 459. ). And it should necessarily follow that where a firm manufactures oil for sale, it is the dealer-manufacturer. None of its partners can be called a dealermanufacturer. Had the dissolved firm sold the mustard oil in question, it would have been liable to assessment under the notification. But it did not sell the oil. The oil, on its dissolution, fell to the share of Radha Krishna Maheshwari. And he sold it. He is not the dealer-manufacturer. Accordingly, he cannot be liable to tax on the sale of the oil. We allow this petition and quash the order of the revising authority, dated 3rd December, 1966. The petitioner shall get costs from the second respondent. Petition allowed.
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1968 (7) TMI 61
... ... ... ... ..... ny other provision of the Act to pay it, section 13(3) would have said so, but it does not. On the contrary what it empowers is the recovery of the tax or penalty due from a dealer, although it does not say so in so many words, and also any other amount which is due from him. Whether the amount sought to be recovered is of the one kind or the other, it is plain that such recovery could be made only from the dealer and from no one else. The decision of this Court in Diwakar v. State of Mysore 1963 14 S.T.C. 625. reinforces the view that we have taken in this case. The elucidation made in that decision precludes any appeal to section 32 of the Act, and Mr. Shantharaju very rightly made no such appeal. So we allow these revision petitions and set aside the orders made by the Magistrate and dismiss the applications presented to him by the concerned sales tax authority. The petitioner will be entitled to his costs. Advocate s fee Rs. 100 (one hundred), one set. Petitions allowed.
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1968 (7) TMI 60
... ... ... ... ..... ometax Act, which was enacted by the Income-tax (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested rights which had accrued to the assessee, must be deemed to have come into force from 1st April, 1952. It had no greater retrospective effect than was expressly granted to it. We, therefore, see no substance in the contention of the learned Government Pleader that it affects only procedure and therefore can be given retrospective effect. Therefore the case is governed by section 14(4) as it stood before the amendment. As the notice proceeds upon the footing that the turnover will be assessed on the basis of best judgment computing the turnover by an inference based upon the sales on four days referred to in the notice, the notice is illegal by reason of the decision in The State of Andhra Pradesh v. Ravuri Narasimloo 1965 16 S.T.C. 54. In the result, the writ petition is allowed with costs. Advocate s fee Rs. 100. Petition allowed.
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1968 (7) TMI 59
... ... ... ... ..... em. The petitioners will be at liberty to press all such objections or any other objection available to him under the law before the Commercial Tax Officer in the impugned proceeding for review. The result is the petitions in C.R. Nos. 875(W) and 876(W) succeed. Entire decision or action of the respondents not to refund the excess amounts of tax to the petitioner on the ground of pendency of review is quashed and I direct respondent No. 2 to record appropriate orders in writing upon the applications of the petitioners for refund of the said amounts in accordance with law and in the light of the observations made above. These rules are made absolute to the extent indicated above. Let a writ in the nature of certiorari and mandamus in both these rules issue accordingly. The other petitions in C.R. Nos. 1082(W) and 1083(W) fail. Subject to the observations made above these two rules are discharged. There will be no order as to costs in all these four rules. Ordered accordingly.
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1968 (7) TMI 58
... ... ... ... ..... wrong even on this point as it held that shampoo was a toilet article in entry 21A and that it was not a soap. In the result our answer to the first and the third part of question No. (1) is in the negative and to the second part is in the affirmative, that is to say, Palmolive shampoo is not a toilet article within the meaning of entry 21A of Schedule E but is a soap within the meaning of entry 28 of Schedule C and is not covered by the residuary entry 22 of Schedule E and it is liable to be taxed accordingly. As regards question No. (2) our answer to the first part is in the negative and to the second part is in the affirmative, that is to say, Colgate tooth-brush and Colgate toothpaste are not toilet articles falling in entry 21A of Schedule E, but are covered by the residuary entry 22 of Schedule E and are liable to be taxed accordingly. The reference is accordingly answered. The State shall pay the costs of this reference to the assessee. Reference answered accordingly.
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1968 (7) TMI 57
... ... ... ... ..... reason stated by the Tribunal for adding the above amount is that it would compare well with the turnover assessed from 1962-63 up to 1965-66. The Tribunal s order does not show what were the turnovers as per the assessments for the above years. The assessments for these years were done by accepting the petitioner s accounts. If there was any fall in the turnover for 1964-65, the year with which we are concerned in this case, it should have been put to the petitioner, before it was adopted as a basis for determining the turnover to the best of judgment. Neither the order of the Tribunal nor the records of the case show that it was done. In these circumstances, we are constrained to hold that there was no material to support the addition made by the Appellate Tribunal, and to decide the second question raised in this revision also in favour of the petitioner. 10.. In the result, this revision petition is allowed with costs. Counsel s fee is fixed-at Rs. 200. Petition allowed.
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1968 (7) TMI 56
... ... ... ... ..... y enough he is running a business under an agreement in the compound which he has taken on lease. His transactions may be confined to the staff of the hospital and the students. They cannot on that account change the nature of his business or his status. He is a dealer. The law in this behalf is clear and well settled. It is sufficient if we refer to the latest decision of the Supreme Court in Deputy Commercial Tax Officer v. Enfield India Ltd.(1). We do not think it necessary to discuss that case elaborately here. In the light of the said ruling we should hold that the petitioner comes within the definition of a dealer and not an agent or trustee as he claims. The assessing officer, Special Additional Commercial Tax Officer (Evasions), Vijayawada, could, therefore, assess his transactions to sales tax. In the view we have taken that there was no want of jurisdiction, this petition must fail. It is, therefore, dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1968 (7) TMI 55
... ... ... ... ..... predecessor-dealer, viz. C.S.A. This order of the taxing authority was, therefore, clearly without jurisdiction and ultra vires section 19(4) and in plain violation thereof. This is not a case where the taxing authority could be said to be exercising jurisdiction under the Act so that the taxpayer must be left to his ordinary remedy under the taxing statute. The case is clearly one of total lack of jurisdiction and also of a patent error of law and this Court would have the power and duty to interfere in such cases and grant relief to the citizen. In the result this petition must be allowed. We, therefore, issue a writ of certiorari quashing the order of the respondent at annexure B dated 5/6th April, 1968, and the consequent notice of demand dated 10th April, 1968, issued by him and we issue a writ of mandamus restraining the respondent from enforcing the said order and the said notice against the petitioner-firm. Rule accordingly made absolute with costs. Petition allowed.
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1968 (7) TMI 54
... ... ... ... ..... produced his returns before the Commercial Tax Officer has no materiality. The power under that rule was exercised by the Deputy Commissioner after it became available to him, and the enunciation made by the Supreme Court in Garikapati v. Subbiah Choudhry(1), in which it was elucidated that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto, during the rest of the career of the suit, does not assist the argument now placed before us by Mr. Katageri. The right to prefer an appeal was not to any extent impaired by rule 30-B, and even under the proviso to section 20(5) of the Act the Deputy Commissioner has the discretion to select the form of the security to be furnished by the petitioner. We are, therefore, of the opinion that the direction made by the Deputy Commissioner under rule 30-B was fully within his competence and so, we dismiss these revision petitions. No costs. Petitions dismissed.
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1968 (7) TMI 53
... ... ... ... ..... eased was a dealer who became liable to tax from 1st April, 1954, when his turnover of sales exceeded the prescribed limit and that liability devolved on the petitioner as heir. The order is not on the footing that the present assessee-firm is a dealer in its own right and there has been no assessment on that basis when it became assessable qua only its sales. Such a composite order cannot be severed and, therefore, the entire order will have to be quashed. In the result, this petition is allowed and a writ of certiorari is issued quashing the order of assessment, dated 31st October, 1965, at annexure C, along with the notice of demand dated 2nd November, 1965, and a writ of mandamus is issued restraining the respondent from recovering or taking steps for the recovery of the amount mentioned in the said notice of demand dated 2nd November, 1965. The respondent shall pay the costs of this petition to the petitioner. Rule accordingly made absolute with costs. Petition allowed.
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1968 (7) TMI 52
... ... ... ... ..... Khandwa and of payment against railway receipts, it cannot be held that the turnover of the two periods specified in the question is assessable to sales tax . It is unnecessary to add that in view of our answer to the question, the Board of Revenue must rehear the revision petitions preferred by the assessee and, after examining all the terms of the contracts of sale and after considering the effect of those terms and giving clear findings, determine the question whether the turnover of Rs. 7,70,446-5-6 in the first period and Rs. 3,39,076-10-6 in the second period is assessable to sales tax. 7.. For these reasons, our answer to the question is that on the basis of the price stipulated F.O.R. Khandwa and of payment against railway receipts it cannot be held that the turnover of the two periods specified in the question is assessable to sales tax. In the circumstances of the case, we leave the parties to bear their own costs of the references. References answered accordingly.
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1968 (7) TMI 51
... ... ... ... ..... in this case, it is clear that the action of the Sales Tax Authorities in entering upon the enquiry and determining the liability of the petitioner to pay the sales tax dues of Bhagwanji Tulsidas was without jurisdiction, and since that determination was without jurisdiction, all consequential orders flowing therefrom, viz., the order of attachment, proclamation of sales, etc., must all be set aside. We, therefore, issue a writ of mandamus against the respondents directing them not to take any further steps for recovering the amount of sales tax dues of Bhagwanji Tulsidas from the petitioner in continuation of the notices and orders already issued by them in that behalf and we further hold that the notices and orders issued in that behalf by the second respondent are invalid and of no legal effect, as having been issued without jurisdiction. We make the rule absolute. The respondents must pay the costs of this special civil application to the petitioner. Rule made absolute.
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