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Showing 21 to 40 of 68 Records
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1974 (1) TMI 96
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... ... ..... y the consumer. In fact no payment by the consumer to the company was ever contemplated under the terms of the contract here. 39.. We think, in the light of the discussion, we will be right in holding that there has been a transfer of property in the goods from the company to the distributor and the subsequent supply to the consumers was by way of sale by the distributor to such consumers. The Tribunal was, therefore, wrong in its approach to the question. The assessing authority has rightly dealt with the matter. We find that the Tribunal was not right in holding that the assessee was acting only as an agent and that In the transaction between the company and the distributor sales were not Involved. There was no justification to set aside, the assessment for any of the reasons stated in the order of the Tribunal. In the result, the revision by the revenue is allowed as above. But, in the circumstances, we direct the parties to suffer costs in the revision. Petition allowed.
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1974 (1) TMI 95
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... ... ..... two were different commercial commodities and cater to different needs. 3.. In view of what we have said above, the irresistible conclusion shall be that the two commodities are different and when the assessee purchased timber with an undertaking that he would resell timber in Orissa, but got it processed to sized timber and sold the purchased commodity in the shape of sized timber, there had been a violation of the undertaking in the declaration and, accordingly, he had been rightly assessed following the provision of section 5(2)(A)(a)(ii) of the Act. 4.. Our answer to the question, therefore, shall be in the affirmative, namely, the conversion brought about a different commercial commodity, and the sale thereof in violation of the undertaking made the assessee liable to be treated under the proviso to section 5(2)(A)(a)(ii) of the Act. Since there is no appearance for the assessee, we make no order as to costs. B.K. RAY, J.-I agree. Reference answered in the affirmative.
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1974 (1) TMI 94
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... ... ..... ce to all concerned and a finding should be recorded. If this procedure is followed, the cases like the one before us will not arise. In that case also the petitioner had alleged that he had no concern with the firm which was assessed to sales tax and that without any enquiry or evidence he should not have been proceeded against. The Bench quashed the recovery proceedings. The dictum of this decision is applicable to the present case. In our opinion, the Sales Tax Officer should have held an enquiry into the question as to who were the partners of the assessee-firm and thereafter should have amended the recovery certificate appropriately. In the result, the petition succeeds and is allowed in part. The respondents are directed to stay proceedings for recovery as against the petitioner, pending disposal of the question whether the petitioner was a partner in the assessee-firm by the Sales Tax Officer, Jhansi. The petitioner would be entitled to costs. Petition partly allowed.
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1974 (1) TMI 93
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... ... ..... ssessee until a final assessment was made whereunder only the under-estimate could be detected. This again provides no prop to the assessee s contention. 8. Our answers to the questions referred to us are (i) The learned Member, Sales Tax Tribunal, was not correct in holding that the expression tax due in sub-section (3) of section 11 does not refer to the admitted tax payable by the dealer on the basis of his return. (ii) The learned Member was not right in holding that penalty at the rate of one-tenth per centum of the tax due cannot be imposed till assessment under section 12 of the Act is completed. (iii) In the facts and circumstances of the case, the learned Member was not justified in holding that the maximum penalty exigible under the Act was at the rate of rupees five per every day of default. The revenue shall have costs of this proceeding. Consolidated hearing fee is assessed at Rs. 150 (one hundred and fifty). B.K. RAY, J.-I agree. Reference answered accordingly.
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1974 (1) TMI 92
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... ... ..... erved on the assessee it can be said that he has notice of assessment. Therefore, the period of limitation for an appeal has to be computed from the date on which the notice of assessment order was served on the petitioner. With respect, the decision in Giriyappa Setty s case 1967 19 S.T.C. 197. does not lay down the correct law. For the reasons stated above, we reverse the order of the Tribunal on the question of limitation and hold that the petitioner s appeal before the Deputy Commissioner was in time. The Tribunal has disposed of the appeal merely on the question of limitation, and has not considered the merits of the petitioner s appeal. The Deputy Commissioner has also not considered the merits of the appeal. Therefore, the matter has to go back to the Deputy Commissioner. Accordingly, the matter is remitted to the Deputy Commissioner to readmit the petitioner s appeal and dispose of the same in accordance with law. There will be no order as to costs. Petition allowed.
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1974 (1) TMI 91
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... ... ..... her the tests indicated by the Madhya Pradesh High Court in the case of B.C. Kame v. Assistant Sales Tax Officer 1971 28 S.T.C. 1. are apposite. Nor is it necessary to deal with the tests indicated in the case of photographers to some of which we have referred earlier. The sole purpose of referring to them was to draw into bold relief how the photographer s case for liability to sales tax was being viewed judicially. In our opinion, the true test is as indicated in the case of State of H.P. v. Associated Hotels of India Ltd. 1972 29 S.T.C. 474 (S.C.). by the Supreme Court and we respectfully apply the same to the facts before us. 12.. In the present case, for the reasons indicated above, our answer shall be that The assessee is not a dealer under the Orissa Sales Tax Act. 13.. The reference is answered in favour of the assessee and against the department. The assessee shall have his costs. Hearing fee, rupees one hundred. B.K. RAY, J.-I agree. Reference answered accordingly.
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1974 (1) TMI 90
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... ... ..... al. In that case, it was held that a turnover cannot be said to escape assessment if proceedings in respect of the first assessment are pending and no final order of assessment is made therein. On facts, such a situation does not obtain in the present case. Learned counsel for the petitioner in the end urged that by the original order the petitioner bad been taxed on the turnover of rab, khand and molasses for the year 1967-68 and of rab and molasses for the year 1968-69. The High Court had quashed the assessment order as such and not only in respect of molasses. Assuming for the sake of argument that this is the correct effect of the High Court s decision, the petitioner cannot gain any advantage because the order under section 21 merely brings the turnover of molasses to tax afresh. This order under section 21, therefore, cannot be held illegal on any such ground. In our judgment the petitions are without merit and are accordingly dismissed with costs. Petitions dismissed.
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1974 (1) TMI 89
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... ... ..... d to prescribe these medicines according to the ailment of his patients whom he used to see personally or who used to consult him through correspondence. Applying the rule of law laid down by the Supreme Court in Dr. Sukh Deo s case 1969 23 S.T.C. 385 (S.C.)., it could not be said that the assessee was a manufacturer of those medicines. His earnings were, therefore, not the result of the sale of medicines manufactured by him. He was a vaid owning a dispensary and gave medicines to his patients after examining them or after consultation through correspondence. He was not selling any goods in the normal course of trade and, in fact, he was not doing any business or trade and would, thus, not be termed a dealer within the meaning of section 2(d) of the Punjab Act. In view of what I have said above, the answer to both these questions, in my opinion, would be in the negative and, consequently, in favour of the assessee. P.S. PATTAR, J.-I agree. Reference answered in the negative.
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1974 (1) TMI 88
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... ... ..... If I may say so with respect, the view taken by the Bombay High Court is correct. And if I can hazard a comparison by analogy, in substance and in effect, it will stand well with the example of allowing the review. If review is allowed and a fresh order is passed, then revision under section 31(1) of the Act would be competent but such a revision from an order refusing to review and maintaining the original order intact is not competent. 5.. For the reasons stated above, I would answer the question of law referred to this court in the negative, against the assessee and in favour of the revenue. I accordingly hold that the Tribunal was not legally competent to entertain the revision filed before it against the order dated 11th August, 1967, passed by the Deputy Commissioner of Commercial Taxes, Ranchi, on the review application of the dealer. In the circumstances, there will be no order as to costs in this reference. N.P. SINGH, J.-I agree. Reference answered in the negative.
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1974 (1) TMI 87
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... ... ..... t paper. The learned Judges placed reliance on a decision of the Kerala High Court in Sree Rama Trading Company v. State of Kerala 1971 28 S.T.C. 469. , where cellophane was found not to be paper. 4.. Keeping the true test that is usually applied in deciding a dispute of this type we are of the view that stencil paper is not paper within the meaning of serial No. 7-A of the notification. Therefore, the higher rate of tax at 7 per cent is not applicable to sale of stencil paper. Sale of it is exigible to tax at the rate of 5 per cent under the Act. Our answers to the questions referred, therefore, shall be (1) Stencil paper is not paper as specified in serial No. 7-A of the schedule as notified by the State Government. (2) The learned Member, Additional Sales Tax Tribunal, was justified in holding that stencil paper should be taxed at 5 per cent under the Orissa Sales Tax Act. We make no order as to costs of the reference. B.K. RAY, J.-I agree. Reference answered accordingly.
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1974 (1) TMI 86
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... ded its business for a whole year. We do not think that clause (c) is applicable to the present case. The business which the appellant-company was carrying on, was taken over by the Government, and before it could start any other business, as mentioned in the objects clause of the memorandum of association, the company got into litigation and then, the winding-up proceedings. Since no new business, according to the objects of the company, was started, no question of its suspension for a whole year could arise. It may be that, although this objection had not been raised in the petition, in certain circumstances it can be permitted to be raised. In this case, although no extraordinary circumstance has been made out for granting such permission, still we are of the view that there is no force in this contention. For the reasons stated above, we would allow the appeal and set aside the order of the learned judge. Company Petition No. 10/1968 is, accordingly, dismissed with costs.
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1974 (1) TMI 78
Winding up – Power of court to assess damages against delinquent directors, etc. ... ... ... ... ..... itself, and, therefore, were a continuation of the said proceedings. No question directly arose before the Supreme Court as to whether an order passed under section 543 could, or could not, be executed against the estate of the deceased director in the hands of his legal representatives. In paragraph 22 of the judgment, the Supreme Court observed that the possible liabilities of the legal representatives of two of the directors on whom their assets and properties may have devolved, do not call for a decision from the court. But the general question of liability of heirs and legal representatives of delinquent directors had arisen for consideration. It was on this question that the Supreme Court pronounced. We are unable to understand the decision as authority for the proposition which counsel for the appellants put forward before us. We are of the opinion that the order of the court below appointing the receiver calls for no interference. We dismiss these appeals with costs.
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1974 (1) TMI 69
Court – Jurisdiction of ... ... ... ... ..... eding it, may have made no orders in respect of the exercise of that jurisdiction, the jurisdiction continues to be exercisable by the District Courts in Himachal Pradesh. I am unable to accept the contention urged on behalf of the petitioner-company that in the absence of any orders by the Judicial Commissioner s Court or the High Courts which followed thereafter in Himachal Pradesh, there is no jurisdiction in the District Courts and that, therefore, jurisdiction belongs to the High Court. In my opinion, the jurisdiction conferred on the court by section 141 of the Companies Act, 1956, vests in the District Courts in Himachal Pradesh and is exercisable by them. Consequently, the petition is not maintainable in this court and the order made on October 19, 1973, disposing of the petition is without jurisdiction. Accordingly, I recall the order dated October 19, 1973, of this court and direct that the petition be returned to the petitioner for presentation to the proper court.
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1974 (1) TMI 60
Memorandum of association - Special resolution and confirmation by CLB required for alteration of
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1974 (1) TMI 59
Winding up - Appointment and powers of provisional liquidator ... ... ... ... ..... as mortgages to his prejudice and to the prejudice of the company. Here it is conspicuous to note that on November 27, 1958, there was no application for winding up at all since it was withdrawn as not pressed by the petitioning creditor. In these circumstances, we are of the view that on January 2, 1959, G. P. Raju Mudaliar as a partner of the managing agency firm should be deemed to be in lawful custody of the properties and affairs of the company and that the mortgage created by him as such managing agent and pursuant to the resolution of the general body on January 10, 1959, in exhibit A-1 is a valid instrument which is enforceable in a court of law. We have already held, agreeing with the court below, that the mortgage is true and binding in the sense that it is supported by consideration. The decree and judgment of the court of the learned subordinate judge is, therefore, unassailable. The appeal, therefore, fails and it is dismissed. There will be no order as to costs.
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1974 (1) TMI 46
Winding up - Statement of affairs to be made to official liquidator ... ... ... ... ..... fore, Parliament wanted that mere making of default would be an offence and that onus was on the accused to show that he had a reasonable excuse for the same, section 454(5) of the Act would have been differently worded. Admittedly, the legislature has not so provided and we do not find any compelling reasons to imply and place that onus on the accused. As a result we hold that in a prosecution under section 454(5) and (5A) the burden of proving that the accused without reasonable excuse made a default is on the complainant in the first instance. The question of onus will have to be decided by keeping the distinction between legal burden of proof laid down by law and a provisional burden raised by the state of evidence as explained by us in detail above. The question is answered accordingly. As the matter is still pending the case will now go back to the learned single judge for being disposed of in accordance with law and on merits and in the light of the answer given by us.
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1974 (1) TMI 44
Company when deemed unable to pay its debts ... ... ... ... ..... affidavit of the Registrar that the company is really unable to pay its debts. The second ground for a winding-up order is, therefore, not made out . The matter was examined by Harbans Singh J. (as my Lord the Chief Justice then was) in S. Krishnamurthy, Registrar of Companies, Punjab v. Rohtak Hissar Transport Company ( P.) Ltd. 1966 36 Comp. Cas. 9, 14 (Punj.) and it was observed .....the mere fact that the company s assets are less than its liabilities is, by itself, no ground for sending the company to winding-up. The test laid down is that the company should be commercially solvent which means that the company should be in a position to meet its liabilities as and when they arise . In the light of the above judgments, I hold that the Registrar of Companies has not been able to prove in the present case that the respondent-company is unable to pay its debts. I, therefore, find no merit in this petition which is dismissed, but the parties are left to bear their own costs.
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1974 (1) TMI 31
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... ... ..... g before our eyes in regard to the property. I think, this is one of the key sections that should help us to defeat the free-play of unaccounted money and cheating of the Government. In other words, the provisions of s. 52(2) are not meant to cover bona fide transactions even if the consideration declared was less than the fair market value of the transferred asset by more than 15 and there is no dispute there that the transaction in question was a bona fide one. It is not the Department s case that the assessee actually received consideration at more than Rs. 10.00 per share for the shares of K.C.P. Ltd., transferred to his brother. The provisions of s. 52(2), therefore, have no application here. 13. For the above reasons, we set aside the order of the AAC and hold that the capital gain declared by the assessee in the return on the transfer of 12,724 equity shares of K.C.P. Ltd. was correctly computed and the same should be accepted. 14. In the result, the appeal is allowed.
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1974 (1) TMI 30
SSI exemption - Matches - Tax and exemption - Classification - Whether discriminatory - Limits to judicial review
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1974 (1) TMI 29
Estate Duty, Hindu Succession Act ... ... ... ... ..... kshara school of Hindu law, (c) he forms a joint Hindu family with his sons, and (d) his interest in the property is that of a coparcener, have to be settled in each individual case. The facts found by the Tribunal in the instant case, which have been given above, do not, in my view, lead to that conclusion. The answer to the question of law referred to us, therefore, has to be in the negative, i.e., in favour of the department. It must, however, be made clear that the case has now to go back to the Tribunal for deciding the appeal on the merits. All the points urged by the assessee, especially those which were mentioned in their grounds of appeal Nos. 1 and 5 (printed at page 49 of the paper-book), on which particular emphasis was laid by their counsel, have to be considered by the Tribunal and findings given thereon. The appeal, in my opinion, could not have been decided on this law point alone. There will, however, be no order as to costs. PRITAM SINGH PATTAR J.--I agree.
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