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Case Laws
Showing 41 to 60 of 142 Records
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1970 (3) TMI 142
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... ... ..... suppression of turnover was estimated by addition of 50 per cent. of the turnover returned by the petitioner solely on the basis of the three way bills found to have been unaccounted on the inspection of the petitioner s business premises. In these circumstances, it cannot be held that an enquiry as contemplated under section 14(1) of the Act was held by the authority concerned before making the best judgment assessment. The assessment must be held to be arbitrary and contrary to the provisions of section 14(1) of the Act. The order of the Assistant Commissioner upholding the said assessment must be held to be unsustainable for the same reason. The impugned order of the Commercial Tax Officer and that of the Assistant Commissioner passed on appeal are therefore quashed and the matter is remitted to the Commercial Tax Officer for fresh disposal according to law in the light of the observations made above. The writ petition is accordingly allowed with costs. Petition allowed.
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1970 (3) TMI 141
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... ... ..... f the mills. On these facts, when the assessee sold cotton to mills outside the State so that it went out of this State as a direct result of the transactions and was actually delivered to the mills for consumption in their States, the transactions were fully covered by the explanation to article 286(1) of the Constitution, and the sales were sales in the State in which the mills existed and delivery was given and the transaction was consequently a sale outside the State of Madhya Pradesh. For this purpose mere delivery to railway is not enough. Actual delivery of goods to the mills has to be seen. See Bengal Timber etc.(1) Our answer to the last question, therefore, is that these transactions were not intra-State sales giving rise to a taxable event in the hands of the assessee. 8.. In view of the partial success, we will direct the parties to bear their own costs in these references. Our answers will be communicated to the Board of Revenue. References answered accordingly.
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1970 (3) TMI 140
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... ... ..... her it would conform to the definition of sugar . 6.. We accept Mr. Das s contention with regard to iron rods that they were not taxable at five per cent. The writ application is accordingly allowed in part. The assessment with regard to iron rods will be modified by the assessing officer by taxing at two per cent. and not at five per cent. 7.. We would, however, make it clear that in a case of this nature this court should not ordinarily interfere in exercise of jurisdiction under articles 226 and 227 of the Constitution. The matter ought to have been canvassed before the Tribunal in appeal. But with respect to iron rods, the language is plain and simple. We did interfere to prevent further harassment to the party. 8.. In the result, the writ application is allowed in part as indicated above. A writ of certiorari be issued modifying the assessment order as indicated above. In the circumstances there will be no order as to costs. ACHARYA, J.-I agree. Petition partly allowed.
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1970 (3) TMI 139
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... ... ..... to tax as being a business activity incidental to its main business of manufacturing cotton textiles. Dealing with this contention the Gujarat High Court held that such a disposal even if made with a profit-motive would not make a part of the business or an incident to the business of the assessee. The Supreme Court on appeal held that in those circumstances no intention on the part of the assessee to carry on business of selling cotton could be inferred and upheld the conclusion arrived at by the High Court in that behalf. In view of the above, the Commercial Tax Officer was not right in holding that the Andhra Pradesh State Road Transport Corporation was a dealer carrying on business in the old or scrapped vehicles and other scrap. He was, therefore, not entitled to even provisionally assess it to sales tax. The assessment order is, therefore, quashed. In the result, the writ petition succeeds and is accordingly allowed with costs. Advocate s fee Rs. 100. Petition allowed.
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1970 (3) TMI 138
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... ... ..... mponents which are to be supplied therefor under a composite contract with a customer necessarily involves the embedding of such a plant and its components in the structure. It cannot be said that the plant and the parts could be viewed de hors the totality of the contract which could be said to have been executed, only after the completion and after the machinery and plant were embedded in the structure as a whole. Only on such fixing up of the plant as required and with the assistance of the skill and labour of the assessee that the property in the plant and its component parts could be said to pass to the customer. At no point of time before such embedding could it be said that the assessee intended to sell to his customer the plant or the parts. In this view, the Tribunal was right in having excluded the disputed turnover of Rs. 2,74,083.38 from the assessable turnover. The tax case therefore fails and is dismissed. There will be no order as to costs. Petition dismissed.
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1970 (3) TMI 137
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... ... ..... isclosure of assessable turnover or wilful default in not making a return or in making an incorrect returnsee T. P. Sokkalal Ramsait Factory Private Limited v. Deputy Commercial Tax Officer 1967 20 S.T.C. 419. Therefore, in cases where penalty was levied in the purported exercise of jurisdiction under section 16, but without a finding as indicated, then such a levy is unsustainable. But if the penalty has been levied while the assessment was made under section 12 of the Act, then it is valid and has to be sustained. In so far as the quantum of penalty is concerned, we are not inclined to interfere in the exercise of our jurisdiction under article 226 of the Constitution of India. These petitions will, however, be posted for orders to ascertain whether penalty was imposed in exercise of jurisdiction under section 12 or under section 16, and for us to pass necessary orders in each of the writ petitions after noticing certain peculiar facts in some of them. Ordered accordingly.
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1970 (3) TMI 136
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... ... ..... oncessional rate of tax they should, not be rejected. This contention is fully supported by the decision of the Supreme Court in State of Madras v. R. Nand Lal and Co.(1) 5.. As a result of the aforesaid analysis we hold that the impugned rule is not ultra vires but it is not binding on outside purchasers in filling up the C forms issued by them in respect of their purchases from dealers in Orissa. The C forms as filed in this case were valid and the sales tax authorities acted beyond their jurisdiction in rejecting them as not being in conformity with the impugned rule. 6.. In the result, the writ application succeeds. We issue a writ of certiorari quashing the orders of the Sales Tax Officer and the Assistant Commissioner of Sales Tax, and a writ of mandamus directing them to accept the C forms filed before them as valid in law, and to proceed with the assessment accordingly. In the circumstances there will be no order as to costs. ACHARYA, J.-I agree. Application allowed.
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1970 (3) TMI 135
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... ... ..... own money. 4.. Some letters were referred to in which the assessee asked the mills to send authority letters in writing for particular dates, because purchases had already been made for the mills. These letters do not justify the inference that the assessee had made purchases on his own behalf and was later on asking for these letters merely for the purpose of converting his own purchases into those for the mills. These letters make it abundantly clear that the purchases had been made under the instructions of the mills and only written documents were required so that they may be shown to the Inspectors. On consideration of the entire matter and after hearing learned counsel for the parties, we are satisfied that the order of the Board of Revenue was correct and that both the questions referred to this court must be answered in the negative, in favour of the assessee. 5.. The assessee is entitled to his costs which we estimate at Rs. 250. Reference answered in the negative.
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1970 (3) TMI 134
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... ... ..... by this Bench in Commissioner of Sales Tax v. Brijvasi Traders (Sales Tax Reference No. 238 of 1969 decided on 26th February, 1970) 1971 27 S.T.C. 55. The term leather goods, on the other hand, has been used in the relevant notification in a comprehensive manner which includes all articles made of leather except footwear. The leather covers in question are undoubtedly leather goods and fall squarely in the notification relating to leather goods. We accordingly answer question No. (1) in the affirmative against the assessee and in favour of the department and question No. (2) by saying that leather covers are taxable as leather goods under Notification No. S.T.-1367/ X-1045(19)(1960) dated 5th April, 1961, and not as cycle parts or accessories within the Notification No. S.T.-1363/X-1045(19)(1960) dated 5th April, 1961. As the success of the parties is divided, we make no order as to costs. The fee of the learned counsel is assessed at Rs. 100. Reference answered accordingly.
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1970 (3) TMI 133
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... ... ..... e best judgment assessment the past record is a relevant material. The best material was in the possession of the assessee in the shape of the books of account which were neither produced before the Sales Tax Officer nor before the judge (Revisions). In the circumstances the only course left open for the judge (Revisions) was to have assessed the turnover with reference to the past records of the assessee. On taking into consideration the past records of the assessee, the Judge (Revisions) allowed some relief to the assessee. In the circumstances, it cannot be said that the judge (Revisions) acted arbitrarily or fixed the quantum of turnover without any material. In the circumstances, we answer the second question by saying that the assessment made by the Judge (Revisions) Sales Tax was not arbitrary. The Commissioner of Sales Tax is entitled to one set of costs which we assess at Rs. 100. The counsel s fee is also assessed at the same figure. Reference answered accordingly.
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1970 (3) TMI 132
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... ... ..... er, and conveying gravel from stacks, spreading over the soled surface, filling the voids and consolidating the surface with power road-roller. (6) Conveying from stacks, spreading and consolidation of hard granite metal with power road-roller including spreading morrum over the metalled surface after conveying the same from stacks, rolling and watering etc. complete. 3.. On an analysis of the agreement we are satisfied that there is no agreement for sale of materials. The title to the materials passed to the purchaser as a part of the road which is immovable property. There being no sale under the Sales Tax Act the articles are not liable to tax. 4.. We accordingly quash the assessment orders dated 31st December, 1965, and the appellate orders dated 8th October, 1966. A writ of certiorari be accordingly issued. The writ application is allowed but in the circumstances there will be no order as to costs. The tax collected be refunded. ACHARYA, J.-I agree. Application allowed.
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1970 (3) TMI 131
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... ... ..... on 2(g) of the Orissa Sales Tax Act. The Tribunal fell into a confusion in holding that similar separate agreements could be executed with different parties. For instance contractor X could be asked to supply granite chips and another contractor Y could be asked to do the repair work by using those chips. Doubtless, in such a case the supply by X would constitute a sale. The confusion into which the Tribunal fell is in invoking a case of separate contract in its application to the present agreement. It was the duty of the Tribunal to examine the nature of the contract and see whether it was indivisible or not. The contract, as we have said, was indivisible and accordingly there was no agreement for sale of movables separately. 3.. On the aforesaid analysis, we would answer the question in the negative. 4.. The reference is accepted, but in the circumstances there will be no order as to costs. The reference fee be refunded. ACHARYA, J.-I agree. Reference answered accordingly.
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1970 (3) TMI 130
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... ... ..... ue that the goods were to be delivered F.O.R. in Andhra area as per the terms of the contract but the fact that the goods were to be booked F.O.R. in Andhra area does not by itself show that the property in the goods passed to the buyer the moment the goods were consigned. Here is a case where the seller retained the ownership of the goods by consigning them in his own name to Warangal and the R. Rs. were sent to his bankers to be delivered to the buyer against payment. The Tribunal, therefore, having regard to the decisions of this court and the Supreme Court, rightly held that the property in the goods passed only at Warangal and, as such, the sales were not complete in Andhra area. It is, therefore, obvious that the provisions of the Hyderabad General Sales Tax Act would apply and that the petitioners are not entitled to the exemption on the disputed turnover. In the result, we find no merits in this revision and it is accordingly dismissed with costs. Petition dismissed.
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1970 (3) TMI 129
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... ... ..... then as the movement of goods commenced from the State of Gujarat in the course of inter-State trade or commerce, in view of section 9(1) of the the Act as it stood on the relevant dates, it is the State of Gujarat from where the movement of goods commenced that has jurisdiction to assess this turnover to tax and collect the same. For the foregoing reasons, the assessment of the above turnover to tax under the Central Sales Tax Act for 1964-65 by the Additional Commercial Tax Officer (Overflow Assessment), Hyderabad, and the subsequent orders passed on appeal and revision must be quashed. For the same reasons, the Deputy Commissioner for Commercial Taxes, Hyderabad Division, must be held to have no jurisdiction to revise the assessments for the other assessment years and must be restrained from taking further proceedings in pursuance of the impugned notices. In the result, all the three writ petitions are allowed with costs. Advocate s fee Rs. 100 in each. Petitions allowed.
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1970 (3) TMI 128
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... ... ..... h Income Tax Acts. The same view has been taken in Commissioner of Income-tax v. K.H. Chambers, Madras(1). 4.. The position, therefore, is that if the integrity of the business continues in the hands of the successor, there is no discontinuance of business even if there be a change in the personnel or the owner of the business. In the present case, the Hindu undivided family had the business. In the partition, it fell to the share of the petitioner. He continued the business in its old form and shape and there was no discontinuance. The petitioner is, therefore, not liable to be assessed under section 19(3) of the Orissa Sales Tax Act. 5.. On the aforesaid analysis, the question is answered in the negative. The view taken by the Tribunal in its appellate judgment cannot be supported. 6.. In the result, the reference is accepted. In the circumstances there will be no order as to costs. Reference fee, deposited, be refunded. ACHARYA, J.-I agree. Reference answered accordingly.
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1970 (3) TMI 127
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... ... ..... ly indefensible. It is abhorrent to the principles of natural justice. Once the appeal is barred by time, a right accrued in favour of the dealer. Such a right cannot be affected without giving him a reasonable opportunity to oppose the prayer for condonation. We would accordingly answer question (2)(a) by saying that the delay in filing the appeal cannot be condoned without giving notice to the respondent. It follows, as a logical corollary, that since the delay was condoned without giving the respondent an opportunity of being heard, he can re-agitate the matter after appearance, and ask the Tribunal, to get its order Since reported as Belpahar Refractories Ltd. v State of Orissa and Another 1970 26 S.T.C. 567. reversed after hearing both parties. Question (2)(b) is accordingly answered in the affirmative. 5.. The references are accordingly accepted, but in the circumstances without costs. The reference fee be refunded. ACHARYA, J.-I agree. References answered accordingly.
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1970 (3) TMI 126
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... ... ..... n from the Tribunal s order that a catalogue and price list issued by a manufacturer of typewriter, namely, J.K. Machines Limited does not show that the typewriter ribbons are included in the list of spare parts of a typewriter. The mere fact that a machine cannot be used without some other accessory is not by itself decisive of this question. The point to be considered is, whether a typewriter is sold commercially with or without such ribbon. It is clear from the facts presented before us that they are being sold in the market without the typewriter ribbons. That being the position, it must follow that the typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Act as contended for by Sri P.K. Shyamasundar. For the above reasons, we do not find any reason to differ from the conclusion of the Tribunal set out earlier. The petitions, therefore, fail and are dismissed, but without costs. Petitions dismissed.
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1970 (3) TMI 125
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... ... ..... less than the minimum limit for liability to tax prescribed in section 3(1) of the Madras Act. The learned Judges took the view that the reference to section 3 in section 5 is only intended to refer to the goods in respect of which different rates of tax are levied and that it would be inappropriate to say that a dealer coming under section 5 is being taxed really under section 3 of the Act. As pointed out by the learned Judges in that case section 5 is a special charging section and the expression notwithstanding anything contained in subsection (1) of section 3 removes the case of such a dealer from the ambit of section 3 and when tax is levied under section 5, it cannot be assumed that the dealer is taxed under section 3 so as to attract section 7. Having regard to the view we have expressed on the relative scope of sections 3, 5 and 7 of the Act, the petitioner s contention has to fail. The writ petition is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1970 (3) TMI 124
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... ... ..... t we restate the rule to suit the facts of this case as follows Before a proposed notice of assessment on the best judgment formula can be issued, the fiscal authority should establish that there exist circumstances which in its opinion suggest that there has been a sale or a purchase by a dealer under the Bombay Sales Tax Act, 1959. But if it is shown that circumstances do not exist or that they are such that it is impossible for a reasonable and a prudent and well instructed person to form an opinion therefrom suggestive of a sale under the Sales Tax Act, then the opinion and the consequential action is challengeable on the ground of non-application of mind or on the ground that it was formed on collateral grounds. Thus, therefore, the notice issued, without even the requisite material to act, is beyond the scope of the respondent. For all the above reasons, this writ petition has to be allowed. It is accordingly allowed with costs. Counsel s fee Rs. 250. Petition allowed.
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1970 (3) TMI 123
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... ... ..... e Deputy Commissioner to intervene as it were in proceedings initiated or commenced by a Commercial Tax Officer by seizure of goods, withdraw the proceedings to his own file, and pass orders of confiscation. In the absence of an express provision in the Act enabling the Deputy Commissioner, Commercial Taxes, to intervene in that manner, we do not see how he can pass an order of confiscation in a case where seizure has been effected by a Commercial Tax Officer. Sri Anantha Babu also urged that assessments for the years 1959-60 and 1960-61 having been finalised and the accounts of the petitioner including the present disputed transaction having been accepted, it was not proper for the commercial tax authorities to make an order of confiscation. There seems to be substance in this contention also. In the result, the writ petition is allowed with costs. Advocate s fee Rs. 100. The securities furnished by the petitioner will be returned to him by the department. Petition allowed.
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