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Showing 21 to 40 of 62 Records
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1974 (5) TMI 102
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... ... ..... tent Lazard Brothers and Co. v. Barque Industrialle de Moscow 1932 1 K.B. 617 (624) S.C. on 6.. A court has larger power of modifying or setting aside interlocutory orders than it has in respect of final orders. Thus an order for sale of unsalable property may be set aside Tafazzul Husain v. Raghunath Prasad14 M.I.A. 40. It will thus be seen that if an order has been made without notice to a party, when that party has a right to be heard, the court or the judge has inherent jurisdiction to set it aside. In the present case, it cannot be gainsaid that the assessee has a right to be given notice of the date of hearing. Here the finding of fact is that the notice was not validly served. In our opinion, the Judge (Revisions) had inherent jurisdiction to set aside the order. In the result, the question referred to us is answered in the affirmative, in favour of the assessee. The assessee will be entitled to costs, which we assess at Rs. 100. Reference answered in the affirmative.
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1974 (5) TMI 101
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... ... ..... impugned order, though erroneous on the face of it in the light of the judicial pronouncements noted above, was with jurisdiction. Accordingly, unless a strong case is made out, the High Court should not entertain an apples cation for setting aside an order which could be done by having recourse to the provisions of the Act itself. We have noted that the petitioner s case for not having recourse to the provisions of the Act is a sad tale of negligence and inaction. Accordingly, even though the order appears to be unsupportable, no question of jurisdiction is involved in the exercise of the power of the taxing authority in making the impugned assessment. Accordingly, I am of the opinion that the petitioner has miserably failed to make out a strong or even any case for interference by this court in constitutional writ jurisdiction. The application accordingly fails and the rule is discharged without any order as to costs. All interim orders are vacated. Application dismissed.
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1974 (5) TMI 100
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... ... ..... on (5) of section 31 is four years from the date of the order which is the subject of scrutiny by the Commissioner. An application for taking action under section 31(5) can, therefore, be filed by the dealer before the Commissioner at any time before the expiry of four years from the date of the order which is the subject of scrutiny by the Commissioner. Thus, there is absolutely no merit in the contention which has been raised by the learned standing counsel No. 1 that the applications filed by the dealers in the two cases were time-barred and, as such, it is not necessary to answer the question. 22.. For the reasons already stated, I answer the common question framed in the two cases in the affirmative. I accordingly answer the common question in favour of the assessees (dealers) and against the revenue. In each case the assessee (dealer) will be entitled to costs. Hearing fee is assessed at Rs. 150 in each case. S.K. JHA, J.-I agree. Reference answered in the affirmative.
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1974 (5) TMI 99
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... ... ..... Another v. Divisional Forest Officer, West, Midnapore Division, and Others 1963 14 S.T.C. 1067.), which is reported in the same volume at page 1067, the same learned judge, who decided Shaw Brothers case(2), held that chopping of timber into firewood was a manufacturing process and, therefore, firewood was a manufactured article. The view of the learned Judge in the latter case was dissented from by a Division Bench of this Court in M/s. Pyare Lal Khushwant Rai v. State of Punjab 1974 34 S.T.C. 341 1974 R.L.R. 34. With respect to the learned Judge, we are unable to agree with the view expressed by him in the earlier ruling, namely, Shaw Brothers case 1963 14 S.T.C. 878. No other authority dealing with this point was cited before us. We would, therefore, answer the question in the negative, i.e., in favour of the assessee. In the circumstances of this case, however, we will leave the parties to bear their own costs. R.N. MITTAL, J.-I agree. Reference answered in the negative.
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1974 (5) TMI 98
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... ... ..... of Rs. 1,39,607-0-6, as it appeared from the accounts of Messrs. Atma Ram Om Prakash, was the only turnover of the assessee. In fact, it came to the conclusion that the assessee might have effected sales through persons other than Messrs. Atma Ram Orn Prakash as well and estimated his escaped turnover at Rs. 1,10,000. We are satisfied that, in these circumstances, the assessee s books were not reliable and there was reason to think that the assessee might have effected sales through persons other than Messrs. Atma Ram Om Prakash as well. It was, therefore, open to the Sales Tax Officer to estimate the assessee s turnover at an amount higher than Rs. 1,39,607-0-6 as shown in the books of Messrs. Atma Ram Om Prakash. In the result, the question referred to us is answered in the affirmative and in favour of the Commissioner of Sales Tax, U.P. As no one has appeared on behalf of the assessee, we make no order as to costs of this reference. Reference answered in the affirmative.
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1974 (5) TMI 97
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... ... ..... ng to the finding of the Tribunal, the dealer has not separately collected the sales tax as such from the buyers. In that view of the matter, the rejection of the dealer s claim for deducting the sums of Rs. 27,235 and Rs. 46,070 from the gross turnovers of the respective years 1963-64 and 1964-65 on account of sales tax cannot be said to be illegal or invalid. The order of the Tribunal does not show that it rejected the claim of the dealer for deduction of the two amounts merely on the ground that the collection of special sales tax was not separately shown in the cash memos, but the Tribunal came to the conclusion that no special tax was separately collected by the dealer from his customers. In view of the aforesaid finding, the question must be answered in the affirmative. 6.. Accordingly, I answer the question against the dealer and in favour of the department. In the circumstances, there will be no order as to costs. S.K. JHA, J.-I agree. Reference answered accordingly.
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1974 (5) TMI 96
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... ... ..... ed utensils. The turnover of pipes manufactured by the petitioner was not liable to be taxed at 3 per cent as wares made of any metal other than brass or aluminium. In Commissioner of Sales Tax v. Messrs. Ram Niwas Puskar Dutt 1971 28 S.T.C. 736 1971 U.P.T.C. 413., a Full Bench held that weights and measures could be described as wares made of a metal under the notification dated 21st May, 1963. There the Full Bench was concerned with the question whether weights and measures could be called mill-stores or hardwares. The answer was that they were not. The attention of the Full Bench was not invited to the Hindi version of the notification dated 21 st May, 1963. We are unable to read the Full Bench decision as defining the exact significance of the word ware as used in the notification aforesaid. In the result the petition succeeds and is allowed. The revisional order is set aside and the appellate order is restored. The petitioner will be entitled to costs. Petition allowed.
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1974 (5) TMI 95
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... ... ..... ication for purposes of section 8(2A) of the Central Sales Tax Act. As stated earlier, for purposes of section 8(2A) of the Central Sales Tax Act sale of goods, i.e., sale of mirror and toughened glass manufactured by the petitioner-company was under no condition and in no circumstance liable to be taxed in the petitioner s hands. Normally, it would be taken that the sale of such goods by the petitioner was exempt from tax generally unless it could be shown that such goods belonged to the class specified in the explanation to section 8(2A). We have already shown that the toughened glass and mirror manufactured by the petitioner did not fall in such a category. Accordingly, in the hands of the petitioner the turnover of their sales was not liable to tax even under the Central Sales Tax Act. In the result the petition succeeds and is allowed with costs. The two orders passed by the Sales Tax Officer dated 25th June, 1973, and 13th December, 1973, are quashed. Petition allowed.
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1974 (5) TMI 94
When does a sale liable to sales tax take place under a hire-purchase agreement?
Held that:- Appeal dismissed. The definition of "sale" in the Bengal Finance (Sales Tax) Act applicable to the State of Delhi has been amended in 1959 by Act 20 of 1959 and reads as 'sale', with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on hire-purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of, or a charge or pledge on, goods.
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1974 (5) TMI 93
Liability to sales tax under the Andhra Pradesh General Sales Tax Act of "watery coconuts" - Held that:- Appeal dismissed. We do not think that the Act can be said to contravene section 15 of the Central Sales Tax Act. Under the Act though watery coconuts and dried coconuts are treated separately there is a provision for refund when the same watery coconuts, which have suffered tax, become dry coconuts later. It is for this contingency that, as we have pointed out earlier, provision for refund is made. In any case in the future no difficulty would arise as we pointed out earlier.
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1974 (5) TMI 76
Oppression and mismanagement, Company when deemed unable to pay its debts, Winding up – Appointment and powers of provisional liquidator
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1974 (5) TMI 67
Oppression and Mismanagement ... ... ... ... ..... 82 at 587. The order under appeal merely decides the right of the respondents Nos. 1 and 2 to continue the proceeding filed under section 397 of the Act and is not a judgment . See John Herbert and Co. Pvt. Ltd. v. Pranay Kumar Dutta 1966 36 Comp. Cas. 485 70 CWN 516 (Cal.) In Appeal No. 20 of 1969 mdash decided on 16-1-70 mdash (River Steam Navigation v. Kumar Iron and Steel Ltd.) it has been held by a Division Bench of this court that an order passed under Order 1, rule 10, was not appealable. The same was the view of this court in Appeal No. 152 of 1968, Brahmaputra Tea Co. Ltd. and AIR 1917 Cal. 627. The order under appeal does not terminate any proceeding, does not determine any controversy on merit. All defences like limitation, competency of the petitioners, maintainability of the application and like have been kept open. For the reasons stated hereinbefore there is no merit in this appeal. The appeal must fail and is dismissed with costs. B.C. Mitra, J. mdash I agree.
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1974 (5) TMI 58
Powers of Court to rectify register of members ... ... ... ... ..... remanded to the trial court to be heard on evidence. The appellants will be at liberty to file a further affidavit by way of rejoinder to the affidavit-in-reply filed by the respondent (the application date of which has been left blank in the copy of the affidavit printed in the paper book, but which is to be found at page 122 of the paper book) within a fortnight from this date. There will be a cross-order for discovery within 3 weeks thereafter, inspection forthwith thereafter and the matter to appear before the learned judge dealing with company matters 8 weeks from this date to be tried on evidence. All parties to act on a copy of the minutes countersigned by the court officer. This order to be drawn up expeditiously. In the premises this appeal is allowed and the judgment and order under appeal are set aside, Costs of and incidental to this appeal and the costs of the trial court to abide by the result of the application remanded under this order. Ghose J. mdash I agree.
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1974 (5) TMI 56
Oppression and Mismanagement – Right to apply under section 397 and 398, Winding up – Application for
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1974 (5) TMI 43
Compromise and arrangement ... ... ... ... ..... the parties concerned, in order to find out if this part of the compromise was still enforceable. It may not be fair to exercise the powers under section 392 to enforce merely a part of the compromise, by ignoring altogether the other part. The two parts shall have to be performed by the parties concerned, though not simultaneously. We, therefore, feel that the learned company judge was wrong in ignoring the compromise which binds the company as much as the appellant. It is, therefore, necessary to investigate into all these matters and weigh the pros and cons thereof, before ordering the sale of the property. In view of the delay, which has already been caused, we are sure the proceedings will be expedited. We, accordingly, allow this appeal, set aside the order of the learned company judge and remand the case back to him for final disposal in accordance with law, after taking into consideration the observations made herein. There shall, however, be no costs in this appeal.
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1974 (5) TMI 34
Memorandum of association - Special resolution and confirmation by CLB required for alteration of
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1974 (5) TMI 26
Cash Credits, Penalty Proceedings ... ... ... ... ..... ttracted. Regarding Rs. 5,650 in respect of foreign sales, the assessee had not received back the goods even till now. This amount could be added to the income only for the purpose of accountancy. There could be no mala fide intention to suppress the purchase price of goods from the closing stock. This explanation was found to be satisfactory by the Tribunal. That being a finding of fact recorded by the Tribunal on evidence before it, it cannot be disregarded by us in the exercise of our advisory jurisdiction under section 256 of the Act. The explanations offered by the assessee do not appear to be false or unreasonable. The Tribunal, therefore, cannot be said to have unjustifiably cancelled the order imposing penalty. Our answer to the question referred to us, therefore, is in the affirmative, i.e., in favour of the assessee and against the revenue. In the peculiar circumstances of the case, however, there shall be no order as to costs. Question answered in the affirmative.
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1974 (5) TMI 25
Actual Cost, Setting Up ... ... ... ... ..... was it eligible for depreciation allowance. The reason is very simple. Depreciation is allowed only on the actual cost of a business asset or any addition made thereto subsequently. Now the expenditure incurred on the shifting of the factory from one site to another can neither be said to be a part of the actual cost nor can it be said to be incurred in making any additions to the factory. For the reasons stated above, we are satisfied that the view taken by the Tribunal is correct, and we cannot uphold the contention of the learned counsel for the department that the expression actual cost would mean merely the price of the machinery and not any preliminary and incidental expenses incurred in connection with the acquisition and installation of the machinery. We accordingly answer both the questions in the affirmative, in favour of the assessee and against the department. The assessee is entitled to the costs which we assess at Rs. 400. Questions answered in the affirmative.
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1974 (5) TMI 24
Concessional Rate, Other Statutes, Priority Industry, Taxing Statutes ... ... ... ... ..... , but to enable the word as used in the Act, when there is nothing in the context or the subjectmatter to the contrary, to be applied to some things to which it would not ordinarily be applicable. Even if both the interpretations--one put by the learned counsel for the company and the other by the learned counsel for the department--are taken to be correct, it is the principle of interpretation that the interpretation which is favourable to the subject should be adopted and that which is favourable to the department should be discarded. In case that principle is applied to the present case, the interpretation which supports the assessee has to be accepted. For the aforesaid reasons, we are of the opinion that the conclusions arrived at by the Income-tax Appellate Tribunal are correct. We, therefore, answer the question in the affirmative, that is, in favour of the assessee. In the circumstances of the present case, we make no order as to costs. PREM CHAND PANDIT J.--I agree.
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1974 (5) TMI 23
Benami Transaction ... ... ... ... ..... observed, the income from the property was included in the assessee s income under section 64(iii) of the Act and not on the basis that the assessee was the real owner of the property. This evidence is not relevant to the question whether the income from the property is liable to be included in the assessee s income under section 64(iii) of the Act. The findings of the Tribunal are thus based upon an erroneous construction of section 64(iii) of the Act they are inconsistent with the relevant evidence they are based partly on irrelevant evidence and they are based upon conjectures and surmises. The findings of the Tribunal come within the mischief of the rule laid down by the Supreme Court in S. P.Jain s case. We, therefore, answer both the questions referred to us in the negative, i.e., in favour of the assessee and against the revenue. The assessee is also entitled to the costs of these proceedings. The counsel s fee is fixed at Rs. 250. Questions answered in the negative.
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