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Case Laws
Showing 21 to 40 of 84 Records
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1972 (10) TMI 121 - ALLAHABAD HIGH COURT
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... ... ..... early show that the contract was merely for the transportation and stacking of ballast stone. The Sales Tax Officer has considered this contract to be a contract of supply. Now a contract of supply in order to be taxable under the U.P. Sales Tax Act must involve sale of goods. A supply of the nature undertaken by the petitioner did not involve any element of sale. It was a pure works contract. The impugned assessment order is palpably contrary to the material on record and is clearly without jurisdiction. We, accordingly, allow this petition and quash the assessment order dated 29th March, 1972 (annexure VII to the writ petition), and the notice of demand of the same date (annexure VIII to the writ petition) issued in pursuance of the assessment order relating to the assessment year 1967-68. The recovery proceedings started against the petitioner for the recovery of the impugned tax are also quashed. The petitioner is entitled to the costs of this petition. Petition allowed.
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1972 (10) TMI 120 - MADRAS HIGH COURT
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... ... ..... nut trees may be horticultural produce. But horticultural produce as such is not exempt under the Act. We are of the view that the mere fact that the usufruct of the coconut trees is horticultural will not automatically attract the proviso to section 2(r). As pointed out by Ramaprasada Rao, J., in Palaniappa Pillai v. Deputy Commercial Tax Officer 1971 28 S.T.C. 502., the exemption provided for in the proviso to section 2(r) has to be strictly construed and the conditions laid down in that section have to be satisfied before an assessee claims exemption. In this case, it has been found by the Tribunal that the lease is annual and the only right which the assessee got under the said lease is the right to get the usufruct. In such circumstances, we are not inclined to agree with the view taken by the Tribunal that the assessee is entitled to exemption of the sale proceeds of the coconuts. The tax case is, therefore, allowed but in the circumstances, no costs. Petition allowed.
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1972 (10) TMI 119 - MADRAS HIGH COURT
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... ... ..... to accept the above reasoning. As already pointed out, the Supreme Court has held, while dealing with the validity of section 197 of the Criminal Procedure Code, that though the power to grant sanction is a discretionary one, such a power having been given to the Government and not to a minor official, it should be taken that the power will be exercised reasonably and not arbitrarily. In the same decision, the Supreme Court had expressed the view that the Government servants need a special protection from frivolous actions from parties while the other citizens may not need such a protection and that, therefore, the provision in section 197, Criminal Procedure Code, does not violate article 14 of the Constitution. We, therefore, reject the reasoning given by the lower court for holding that section 49(1) is invalid and hold that section 49(1) is valid and is not violative of article 14 of the Constitution. The reference is answered accordingly. Reference answered accordingly.
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1972 (10) TMI 118 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ration certificates of the purchasing dealers and the publication of this information in the official Gazette could be ascertained. The Assessing Authority ignored this legitimate prayer made by the petitioner-firm even though the petitioner-firm was prepared to pay the diet money of the Excise and Taxation Officer to appear as a witness. In my considered opinion, the Assessing Authority was ill-advised to act merely on a departmental communication without allowing the assessee to make a probe into the basis on which this information was supplied. The procedure adopted by the Assessing Authority stands vitiated on account of non-compliance with the principles of natural justice. For the reasons mentioned above, I quash the order dated 2nd December, 1971, passed by the Assessing Authority, Gurdaspur, respondent No. 1, and remand the case back to it for decision afresh in accordance with law. The petitioner-firm will have its costs which are assessed at Rs. 100. Case remanded.
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1972 (10) TMI 117 - ORISSA HIGH COURT
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... ... ..... en fulfilled. On the other hand, the registering authority has taken irrelevant facts into consideration and has raised a demand which is not in accordance with law. The matter has proceeded on the basis that every registered dealer has an obligation to furnish security. The demand of security has been sought to be justified on the basis of demand for additional tax raised under section 12(8) of the Act. In appeal such demands of tax have already been vacated. In the circumstances, we are satisfied that the demand for security raised in this case must be struck down as being contrary to law. We, however, make it clear that it is open to the registering authority to demand security in terms of the Act, provided before raising the demand, the petitioner is given reasonable opportunity of being heard and a demand is made in accordance with law. 8.. The writ application succeeds with costs. Hearing fee is assessed at rupees one hundred. B.K. RAY, J.-I agree. Application allowed.
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1972 (10) TMI 116 - MADRAS HIGH COURT
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... ... ..... de the assessment which is otherwise found to be valid. In yet another decision in M/s. East India Corporation Limited v. Assistant Commercial Tax Officer, Madurai (Tax Case No. 195 of 1966)1, while considering the scope of the revisional jurisdiction of the Deputy Commissioner under section 32, this court has expressed the view that the revisional authority can exercise its power only in relation to an order passed by the assessing authority and that it cannot itself exercise the powers of the assessing authority under the relative sections. Having regard to the fact that there has been no order of the assessing authority nor a proposal to invoke the power under section 12(3) relating to the question of penalty, the Deputy Commissioner cannot, independently, invoke the power under section 12(3) and seek to levy a penalty in this case. The order of the Tribunal is, therefore, upheld and the tax revision case is dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1972 (10) TMI 115 - ALLAHABAD HIGH COURT
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... ... ..... ular case, where it was found that the assessee-firm had discontinued its business and the partners thereof had separated, the endorsement of refused by the postal authorities on the envelope containing assessment order and demand notice sent by registered post on correct address without mentioning as to who refused to take delivery of the envelope would not be sufficient to raise a presumption of service under section 27 of the U.P. General Clauses Act nor would be a Prima facie proof of the service and would, therefore, not amount to proper service. We, therefore, answer question No. (1) in the negative. Question No. (2)-In view of the above discussion, it was in the peculiar circumstances of this case essential for the postal authorities to write the name of the person who refused to take delivery of the registered letter and we, therefore, answer question No. (2) in the positive. The assessee shall get his costs which we assess at Rs. 100. Reference answered accordingly.
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1972 (10) TMI 114 - MADRAS HIGH COURT
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... ... ..... assessment is made accepting the entries in the books of account of the assessee, section 12(3) cannot be invoked. The above decision straightaway applies to the facts of the present case. The learned Government Pleader brings to our notice a decision of this court in Pavadai Chettiar Sons v. State of Madras 1968 21 S.T.C. 67. In that case, a Division Bench of this Court upheld an order of penalty levied under section 12(3). But in that case, there was a best judgment assessment after rejecting the return filed by the assessee as incorrect. Therefore, the court proceeded on the basis that there was an assessment under section 12(2) so as to attract the imposition of penalty under section 12(3). In our view, that decision will not apply to the facts of this case. Following the decision in State of Madras v. Jayaraj Nadar and Sons 1971 28 S.T.C. 700 (S.C.)., the tax case has to be allowed and is allowed accordingly. There will however be no order as to costs. Petition allowed.
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1972 (10) TMI 113 - MADRAS HIGH COURT
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... ... ..... sions of the Act will apply to the deemed dealer in respect of the business of the deceased dealer. Section 15 further provides that in respect of any tax or fee assessed as payable by such dealer or any tax or fee which would have been payable by him under the Act if he had not died, the executor, administrator or other legal representative shall be liable to the extent of the assets of the deceased in his hands. We are, therefore, of the view that on the face of the provisions of section 15 of the Act, the assessments made in these cases against the deceased dealer cannot be upheld as valid. We confirm the order of the Tribunal setting aside the orders of assessment on the above ground. Hence, it is unnecessary for us to specifically consider the question whether the assessment orders are bad for the reason that the pre-assessment notices have not been served on the legal representatives. The tax cases are dismissed. There will be no order as to costs. Petitions dismissed.
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1972 (10) TMI 112 - ALLAHABAD HIGH COURT
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... ... ..... cape from the conclusion that the Sales Tax Officer and the revisional authority erred in relying upon the survey in question. The survey in question was held subsequent to the assessment, and nothing was found in that survey which had any remote connection with the assessability of the assessee for the two years in question. This being so, the order of the judge (Revisions) is clearly vitiated in law as it is based on irrelevant consideration. In M/s. Babu Ram Vishnoi v. Commissioner of Sales TaxS.T.R. No. 650 of 1970 decided on 7th September, 1971 since reported in 1972 29 S.T.C. 392., a Division Bench of this Court, of which one of us was a member, has taken a similar view. For the reasons stated above, we answer the two questions referred in the negative and against the department. The assessee is entitled to its costs, which we assess at Rs. 100 in each case. Let a copy of this judgment be kept on the record of S.T.R. No. 509 of 1971. Reference answered in the negative.
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1972 (10) TMI 111 - MADRAS HIGH COURT
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... ... ..... s of the Supreme Court expressed the view that the payment of seigniorage fee by itself would not be sufficient to make the assessee owner of the ballast, as the same always continued to be the property of the railway. We are not able to construe that decision as laying down that the payment of seigniorage fee will not be of any consequence under all circumstances. In that case, as the land belonged to the railway and the quarrying was done in the railway land, the payment of seigniorage fee to the Government was treated as inconsequential because such a payment will not make the property, which was in the railway pass on to the assessee. Therefore, we are not inclined to agree with the learned counsel for the respondent that the decision of this court in Muthurma Reddiar v. State of Madras requires reconsideration. We are of the opinion that the principle laid down in that case still holds good and, following the same, the tax cases are allowed. No costs. Petitions allowed.
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1972 (10) TMI 110 - MADRAS HIGH COURT
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... ... ..... particular transaction is taxable under the provisions of the Act Reliance is placed by the counsel on a decision of this court in T.A. Kumarasamy Pathar v. State of Madras 1969 23 S.T.C. 447. But we are not able to see how that decision will help him. In that case, the scope of the expression total turnover occurring in section 7 came up for consideration. Having regard to the definitions of turnover and sale occurring in the Act, the expression total turnover was construed as not including any turnover relating to inter-State transactions, for inter-State transactions are outside the scope of the Madras General Sales Tax Act. It is not possible for us to accept the above contention of the respondent, which, if accepted, would entirely defeat the purpose and object behind section 10. In our opinion, the decision of the Tribunal so far as the above turnover is concerned cannot be upheld. The tax case is, therefore, allowed with costs. Counsel s fee Rs. 150. Petition allowed.
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1972 (10) TMI 109 - MADRAS HIGH COURT
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... ... ..... true that the goods have been consigned in one wagon in the name of the respondents who are the sole selling agents of the paper company and they have taken delivery of the same and distributed the packages to the concerned purchasers. But that will not make any difference to the nature of the transaction being inter-State. The fact that the respondents have taken delivery of the goods and distributed the same to the various purchasers is not of any consequence for the reason that the goods indented by the various dealers had been separately packed with distinct marks and separately billed for by the paper mills, and there is no discretion on the part of the respondents to divert the said packages to anyone else. These facts are, in our view, sufficient to establish that the transactions involved in all these cases are inter-State transactions. The orders of the Tribunal are, therefore, to be upheld and the tax cases are, therefore, dismissed. No costs. Petitions dismissed.
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1972 (10) TMI 108 - ORISSA HIGH COURT
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... ... ..... The definition of dealer in the Orissa Sales Tax Act includes a casual dealer as defined in section 2(bb). Mr. Bhattacharya contends that there must be plurality of transactions to make a person a casual dealer. We do not think there is force in the contention. Keeping in view the intention of the particular person in entering into business, the nature of the transaction and the surrounding circumstances, even a single transaction may make one a casual dealer. It is true in the definition transactions of a business nature have been used, but it is wellknown that plural or singular would not be very material (see section 13 of the Orissa General Clauses Act). Even if the contention of Mr. Bhattacharya was available to be gone into, we have no doubts in our mind that we should have negatived it. The reference is accordingly answered as already indicated. We think it appropriate to direct the parties to bear their own costs. B.K. RAY, J.-I agree. Reference answered accordingly.
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1972 (10) TMI 107 - MADRAS HIGH COURT
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... ... ..... ove decision that the word coal occurring in a fiscal statute has to be understood in its popular and commercial sense and that the word coal has to be given a meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. We are not able to see any difference between the facts in the case before the Supreme Court and the facts in the present case before us. It is also significant to note that item 26 of Schedule 1, on the basis of which the Tribunal has distinguished the Supreme Court case, has been deleted by the Madras Act 7 of 1964 with effect from 1st April, 1964. It is, therefore, not possible to distinguish the decision of the Supreme Court on the ground that the Legislature s intention appears to be different so far as the Madras general sales tax is concerned. This tax case, therefore, is allowed and the order of the Tribunal so far as this turnover is concerned is set aside. There will be no order as to costs. Petition allowed.
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1972 (10) TMI 106 - ALLAHABAD HIGH COURT
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... ... ..... nition certificate would be exempt from payment of additional tax while the dealers holding recognition certificates would be liable to the additional tax. This would result in discrimination. There is a fallacy in this argument. A dealer, who does not hold a recognition certificate, would no doubt not be liable to pay additional tax, but that would be so because the normal rate of tax in his case would be 3 per cent. In the cases of dealers like the petitioner, holding recognition certificates, the rate of tax including the additional tax would still be less than three per cent. Thus the rate of tax at which the petitioner would be assessed together with the additional tax would still be less than the rate of tax payable by a dealer who does not hold a recognition certificate. We fail to see how the petitioner can complain of any discrimination. For the reasons stated above, we dismiss this petition, but in the circumstances we make no order as to costs. Petition dismissed.
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1972 (10) TMI 105 - MADRAS HIGH COURT
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... ... ..... e goods from the customs department, but he purchased the same to accommodate another dealer. But that statement was found to be incorrect and the purchases from the customs department were held to be for the assessee s own account and benefit. On these facts, the assessing authority rightly concluded that the assessee had not come forward with the truth at the stage of the original assessment and that the penalty wag justified under section 16(2). According to the learned counsel for the assessee, the Board of Revenue has no power to exercise the power under section 16(2) and enhance the penalty fixed by the Appellate Assistant Commissioner. We are of the view that the Board, in exercise of its revisional jurisdiction, had only modified the order of the appellate authority by imposing the correct amount of penalty, having regard to the turnover enhanced at the stage of revision. The result is, the tax case is dismissed with costs. Advocate s fee Rs. 150. Petition dismissed.
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1972 (10) TMI 104 - SUPREME COURT
Whether, under the circumstances of this case, the assessment passed by the Assistant Sales Tax Officer, Sector 11, was a valid assessment or a void one without jurisdiction?
Held that:- Appeal dismissed. Unless there is some provision either in the Act or in the Rules framed which precludes the assessee from raising any objection as to jurisdiction, if the same is not raised before the assessing authority, the assessee cannot be precluded from raising that objection at a later stage. An objection as to jurisdiction goes to the root of the case.
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1972 (10) TMI 95 - SUPREME COURT
Whether the turnover relating to the supplies of food and drink to the workers at the canteen could be charged to sales tax under the Andhra Pradesh General Sales Tax Act, 1957?
Held that:- As the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales.
Both the appeals are dismissed in respect of levy of penalty. They are partly allowed so far as they are related to scrap in respect of the second period, 1st September, 1964, to 31st March, 1965, and dismissed in respect of the 1st period, 1st April, 1964, to 31st August, 1964. In so far as Appeal No. 2119 of 1969 is concerned it is also partly allowed in respect of the advertisement materials for the period 1st September, 1964, to 31st March, 1965, and dismissed in respect of the 1st period, 1st April, 1964, to 31st August, 1964, and with respect to canteen sales the appeal is dismissed in respect of the 1st period, 1st April, 1964, to 31st August, 1964, and allowed in respect of the second period, 1st September, 1964, to 31st March, 1965, and the matter remanded.
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1972 (10) TMI 94 - SUPREME COURT
Whether the Commercial Tax Officer could have refused the refund on the ground that no application was presented by the petitioners before us within the time allowed by rule 39-A(3)?
Held that:- Appeal dismissed. This is not a fit case where we should interfere in exercise of our powers under article 136 of the Constitution.
Under rule 18 framed under the Mysore Sales Tax Act, 1957, we are informed that a dealer will have to submit his annual return within 30 days of the end of the financial year. That means even if a sale in the course of inter- State trade has been made on the 31st March of a year, the refund application will have to be made within 30 days from that date. The position will be worse still if the dealer is required to submit quarterly returns. The learned counsel for the State was not in a position to tell us whether in the Mysore State the dealers have to file quarterly returns. Thus the impugned rule is merely an attempt to deny the dealers the refund to which they are entitled under the law or at any rate to make the enforcement of that right unduly difficult.
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