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1976 (3) TMI 216
... ... ... ... ..... Pigments Ltd., there was no evidence to show that in any particular transaction there was any bargain under which the assessee had waived the right to collect the tax. In view of these circumstances, we could easily come to the conclusion that the assessees did collect sales tax as such and the purchasers also consciously paid that tax. All the same, we are not interfering with the direction of the Tribunal to the assessing authority to go into the actual amount that is included in the turnover which has to be deducted. We accordingly confirm the order of the Tribunal on the question of nonincludibility of the turnover relating to sales tax in the taxable turnover, but set aside the order of the Tribunal so far as it related to the turnover of sales of empty gunnies. There will be an order accordingly. Since the assessees have substantially succeeded in the tax revision cases, they will be entitled to their costs. Counsel s fee Rs. 150 in each case. Petition partly allowed.
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1976 (3) TMI 215
... ... ... ... ..... rd or expression is construed in which case it has been held that when the same expression or word is used in a subsequent enactment, the Parliament must be deemed to have accepted the interpretation of that word or expression by the court. This is not a case where any particular word or expression is sought to be interpreted, the question being what is the scope and extent of the appellate powers of the tribunal. We do not think that the above principle applies to such a case as this. For all the reasons stated above, we are inclined to prefer the view expressed in T.R.C. No. 53 of 1967 dated 19th November, 1970, and Kaliki Veera Reddy and Co. v. State of A.P. 1974 34 S.T.C. 517., to the view expressed in Thippanna Rayappa v. Government of Andhra 1957 8 S.T.C. 660. It is admitted by the learned counsel for the assessees that if we are of the above view, the T. R. Cs. have to be allowed. They are accordingly allowed, but in the circumstances without costs. Petitions allowed.
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1976 (3) TMI 214
... ... ... ... ..... this court in East India Corporation Ltd. v. State of Madras 1973 31 S.T.C. 330., the conditions or limitations on which each could invoke their powers are different and had to be found only in the respective provisions of sections 16 and 32. We are, therefore, of the opinion that the decisions In F. K. Hasheeb and Co. v. State of Madras 1966 17 S.T.C. 38. and East India Corporation Ltd. v. State of Madras 1973 31 S.T.C. 330. do not require any reconsideration even after the decisions in Deputy Commissioner v. Dhanalakshmi Vilas Cashew Co. 1969 24 S.T.C. 491 (S.C.). and State of Kerala v. K. E. Nainan 1970 26 S.T.C. 251 (S.C.). We, accordingly, hold that the reassessment proceedings were validly initiated by the assessing officer in respect of the assessment years 1962-63 to 1965-66. No other points survive for consideration in these tax revision petitions. The petitions, accordingly, fail and they are dismissed with costs. Counsel s fee Rs. 150 in each. Petitions dismissed.
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1976 (3) TMI 213
... ... ... ... ..... ion of works contracts, the respondent has not issued any C forms and that it would establish its bona fides. It does not appear that the respondent had any motive to escape liability in using the C forms for the goods purchased from outside the State in the execution of works contracts, i.e., ship-building contracts. The respondent, being a public sector undertaking under the Ministry of Transport and Shipping, cannot be said to have deliberately or wilfully made use of the goods purchased by it for a purpose other than the purposes specified in section 8(3)(b). We are, therefore, of the opinion that it is a case of technical breach of the provisions of section 8(3)(b) in the bona fide belief that it could issue C forms by virtue of the certificate of registration. Therefore, on the facts and in the circumstances of the case, we confirm the order of the Sales Tax Appellate Tribunal and dismiss the revisions without costs. Advocate s fee Rs. 100 in each. Petitions dismissed.
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1976 (3) TMI 212
... ... ... ... ..... o fixed there which includes not merely the price of the firewood but also the transport charges. This court cannot go into the correctness of the disputed questions of fact in a petition under article 226. If the petitioner was aggrieved by the finding of the Commercial Tax Officer as being opposed to the material on record or otherwise unjustified, he ought to have filed an appeal against his assessment. In fact it transpires that the Commercial Tax Officer did not allow various other deductions claimed by the assessee and it has been stated in the writ petition that as regards these items he would prefer an appeal separately. It is, therefore, clear that if the petitioner felt aggrieved by the finding of fact in regard to transport charges, he could have filed an appeal. The finding of the Commercial Tax Officer cannot, in these circumstances, be interfered with in these proceedings. 4.. Accordingly, this writ petition fails and is dismissed. No costs. Petition dismissed.
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1976 (3) TMI 211
... ... ... ... ..... cause though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances if it is of the first, it is a composite contract for work and sale of goods where it is of the second category, it is a contract for execution of work not involving sale of goods. The circumstances of this case clearly show that this is a contract for work in respect of which the principal materials were wholly supplied by the employer, namely, Century Rayon, and any materials of the respondents used incidentally in the execution of the work were merely incidental to the carrying out of the work contracted to be done, and there was no intention to transfer property in such materials as goods to Century Rayon. For the reasons set out above, we answer both the questions submitted to us in the affirmative. The applicants will pay to the respondents the costs of the reference fixed at Rs. 250. Reference answered in the affirmative.
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1976 (3) TMI 210
... ... ... ... ..... unity to disprove them. As regards the second question, from the statement of the case as also from the supplementary statement now submitted to us, the Sales Tax Officer had not denied opportunity to the assessee to cross-examine the proprietors of the firm, M/s. Kunji Lal Har Dayal, or the person who made the entries in their books. It was the assessee himself who did not take any steps to request the Sales Tax Officer to summon any person of the firm for cross-examination. He contented himself by leading oral evidence to deny the transaction. This being so, the Sales Tax Officer was not bound to summon persons from the firm, M/s. Kunji Lal Har Dayal, for purposes of cross-examination. In view of these conclusions, we answer the first question in the affirmative and the second question in the negative, both in favour of the department and against the assessee. As none has appeared to oppose the reference, there shall be no order as to costs. Reference answered accordingly.
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1976 (3) TMI 209
... ... ... ... ..... view, there should be something more than that to justify estimate on that basis. On the other point, the Tribunal went wrong as to whether the sales were at all first sales chargeable to tax. It has not referred to any evidence in its order except to a portion of the turnover to justify its finding that the balance of the turnover consisted of first sales chargeable to tax. That question will have to be decided on the basis of evidence and does not permit of any conclusion on the basis of best judgment which is confined to estimate of the turnover. One other question that arises from the common order of the Tribunal is whether what is comprehended in item 4 of the Second Schedule is factually first sale in the State or a first sale only by a registered dealer in the State. That question we leave open and express no opinion on it. The Tribunal will once again go into that question and decide it with reference to the provisions of the Act. The petitions are allowed. No costs.
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1976 (3) TMI 208
... ... ... ... ..... erved only on 7th July, 1972. The submission is that such a thing must have been done by the assessing authority with a view to avoid the bar of limitation. The said contention has been negatived by the Tribunal, while observing that the circumstances of the case do create a gross suspicion in the mind of the Tribunal, but there is no clear evidence to uphold the assessee s contention in this behalf. We are in agreement with the view expressed by the Tribunal. We must also observe that such errors (we presume that it is an error) and the inordinate delay in serving the orders, give room for such complaints, which is not conducive to the building up of confidence in the fairness of the assessing authorities, in the minds of the assessees. The authorities would do well in not providing any room for such contentions. No other contention was raised by the learned counsel and, accordingly, this tax revision case is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1976 (3) TMI 207
... ... ... ... ..... ess there is any evidence to show that that finding was given on a misrepresentation or mistake, it is not possible for the assessing authority to bring that into assessment under section 16. Even in respect of the alleged sanitary sales, we are unable to interfere with the order of the Tribunal in the circumstances of this case. In respect of the sales of sanitary goods, the statement of the assessee was that he had sold only for a sum of Rs. 1,800, but that also was as part of the works contract. Though the learned counsel for the revenue is well-founded in his contention that the Tribunal had not discussed the question of works contract in detail, we are unable to interfere with the order of the Tribunal in this case on the peculiar facts and circumstances. We, therefore, allow the revision petition so far as it related to the turnover of Rs. 17,096.24 and dismiss the same in respect of the rest of the turnover. There will be no order as to costs. Petition partly allowed.
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1976 (3) TMI 206
... ... ... ... ..... or promised (i.e., the sale may be for cash or on credit) but if the consideration is something other than money the contract is not, strictly speaking, one of sale in English law. Where goods are given or promised in exchange for goods, the transaction is a barter or exchange. Similarly, goods may be given in consideration for work done, or for rent, or for board and lodging, or in return for the extinction of a right or the abandonment of a claim, or any other valuable consideration. None of these bargains is a true sale. In the instant case, certainly the transfer of the article was not for money consideration alone. We are, therefore, of the opinion that the transactions involved in the scheme of the assessee are not liable to be taxed as sales under section 3(1) of the Tamil Nadu General Sales Tax Act. We, accordingly, allow the tax revision case and set aside the orders of assessment. The assessee will be entitled to its costs. Counsel s fee Rs. 250. Petition allowed.
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1976 (3) TMI 205
... ... ... ... ..... re us, namely, that the authority was not competent to make a best judgment assessment in reassessment proceedings, and has not considered the other points raised by the respondents on the merits. It was also the contention of the respondents that the conditions which would enable the Assistant Commissioner to make a best judgment assessment did not exist in their case. This point too has not been considered by the Tribunal. What is also referred to us is a question of law in the abstract about the power of a reassessing authority to make a best judgment assessment. These points will, therefore, all fall to be decided by the Tribunal when it comes to dispose of the case finally after it receives a copy of our judgment. For the reasons set out above, we answer the question referred to us in both these references in the affirmative. The respondents will pay to the applicant the costs of both these references quantified in all at Rs. 250. References answered in the affirmative.
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1976 (3) TMI 204
... ... ... ... ..... upheld. In the result, the first question referred to us must be answered in the affirmative. As far as the second question is concerned, we find that in view of the other findings of the Tribunal, to which we have referred earlier, the description of the containers in which the cashew-nuts were packed as heat-sealed might be misleading and, therefore, we are refraining the second question as follows Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the sales by the assessees of fried and salted cashew-nuts to Air-India under bill dated 31st May, 1968, in pursuance to Purchase Order No. CM-58633 dated 11th April, 1968, were not covered by entry 6 of Schedule E but were covered by entry 5 of Part I of Schedule D to the Bombay Sales Tax Act, 1959? We answer this question as refrained also in the affirmative. The applicant to pay to the assessees the costs of this reference fixed at Rs. 250. Reference answered in the affirmative.
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1976 (3) TMI 203
... ... ... ... ..... or the respondents, agreed that section 4-B was not applicable to the case of the petitioner. In view of this, we do not think it necessary to give any decision on the scope and ambit of section 4-B of the Act. For the reasons recorded above, it is held that the notification dated 15th January, 1968 (annexure P-3), including paddy and rice in Schedule C issued by the State Government in exercise of the powers conferred under section 31 of the Act is valid and does not suffer from any illegality that section 31 of the Act does not suffer from the vice of excessive delegation of legislative power and that the petitioner is a dealer as defined under the Act. The result is that all the aforementioned writ petitions fail and the same are dismissed with no order as to costs. Civil Miscellaneous Petitions Nos. 618, 2420, 882 and 889 and Civil Writ Petitions Nos. 354, 418, 463 and 555 of 1975 are allowed. DHILLON, J.-I respectfully agree and have nothing to add. Ordered accordingly.
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1976 (3) TMI 202
... ... ... ... ..... anu Bhai v. Commissioner of Sales Tax 1975 36 S.T.C. 421., see to what use the commodity in question is normally put. Looked at this way, on the basis of facts found by the Tribunal, one has to conclude that the batteries cannot be regarded as normally used only for transistors. Similarly, the arc carbons also cannot be regarded as normally used only for cinematographic projectors. As stated by the Tribunal these commodities are used for various purposes, apart from transistors or projectors. In such circumstances, and for the reasons stated above, we are of the opinion that the batteries cannot be regarded as parts or accessories of transistors nor can the arc carbons be regarded as parts or accessories of cinematographic equipments. With great respect, we do not agree with the reasoning adopted by the Andhra Pradesh High Court in the cases cited above. Consequently, we dismiss the tax revision case, but direct the parties to bear their respective costs. Petition dismissed.
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1976 (3) TMI 201
... ... ... ... ..... ce-cream is and what sweetmeats are, we are unable to accept Mr. Dada s contention that ice-cream is a sweetmeat. Mr. Dada also sought to argue that the said place of business at Apollo Bunder was an establishment conducted primarily for the sale of sweetmeats. In view of our finding that ice-cream is not sweetmeat, this question does not arise for our consideration. Even apart from this, there is nothing in the judgment of the Tribunal to show that what was sold primarily at the said place of business was ice-cream and, in fact, the Deputy Commissioner, who has in his order in appeal held that the said place of business was conducted primarily for the sale of sweetmeats, has himself said that small sales of ice-cream were effected at the said place of business. For the reasons set out above, we answer the question submitted to us in the affirmative. The applicant will pay to the respondents the costs of this reference fixed at Rs. 250. Reference answered in the affirmative.
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1976 (3) TMI 200
... ... ... ... ..... n runs contrary to the actual decision arrived at by the Supreme Court, in the sense that had that view been correct, their Lordships of the Supreme Court could never have come to the conclusion to which they have in fact come. In any event, as far as the goods in question before us are concerned, viz., electrical energy, it is quite clear that these goods could not be said to be a completely finished product in the sense of being ready for sale until measured, as we have already pointed out earlier. In view of this conclusion, it must necessarily follow that the Tribunal was right in coming to the conclusion that the assessees were entitled to the set-off claimed in respect of the said amount under rule 11(2)(c) of the said Rules. In the result, we answer the questions referred to us as follows (1) In the negative. (2) In the negative. (3) In the negative. The applicant to pay to the assessees the costs of this reference fixed at Rs. 250. Reference answered in the negative.
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1976 (3) TMI 199
... ... ... ... ..... t to the levy of tax under the Bombay Sales of Motor Spirit Taxation Act, 1946. It was in view of this and in consonance with the scheme followed in 1946 that this exemption given under the Bombay Sales Tax Act, 1946, was continued under the Bombay Sales Tax Act, 1953. This legislative history makes it quite clear that it was never the legislative intention that the sales of motor spirit should be exempted from the levy of sales tax, but the exemption was granted from such levy under the general sales tax law, namely, the Bombay Sales Tax Act, 1953, merely on account of the item being taxed under a separate sales tax law dealing in particular with that item. In the result, in our view, the question referred to us must be answered in the affirmative. The assessees to pay the costs of the reference fixed at Rs. 250. The fee of Rs. 100 paid by the assessees to be appropriated towards the amount of the costs awarded by us to the department. Reference answered in the affirmative.
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1976 (3) TMI 198
Whether the agreements which the respondents were called upon to execute in respect of the aforesaid rights relating to forest produce were in the nature of leases or licences?
Whether the respondents could be validly called upon to pay the sales tax?
Held that:- Appeal dismissed. In Reference under Stamp Act, section 46(1), where a licence issued to an arrack renter expressly required as one of its conditions that the licensee should deposit a sum equal to three months' rental as a security for the due performance of the contract and the licensee executed a muchalka stating that he agreed to all the terms and conditions mentioned in the licence, it was held that neither the licence nor the muchalka taken separately or together fulfilled the conditions of a mortgage as defined in the Stamp Act, i.e., neither thereby actually created an interest in the deposit in favour of the Government. Thus no manner of doubt that the respondents could not be called upon to pay the stamp duty under article 35(c) of the Stamp Act.
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1976 (3) TMI 190
Whether Sales Tax Tribunal is right in holding that jeera, dhania, panmohuri, methi, postak and pipali are oil-seeds within the meaning of section 14 of the Central Act and the tax payable under the State law in respect of the sale or purchase of these goods inside the State, cannot exceed 2 per cent of the sale or purchase price thereof?
Whether the communication No. 4(8)-ST/57 dated 31st January, 1958, issued by the Government of India which is only an official communication having no statutory sanction behind it can have any legal effect to hold the goods in question as oil-seeds as understood in common parlance and whether such an official communication is binding on the State Government."whether it is a fit case for interference with the order of the High Court when it held that the Sales Tax Tribunal was right in its conclusion?
Whether it is a fit case for interference with the order of the High Court when it held that the Sales Tax Tribunal was right in its conclusion?
Held that:- Appeal dismissed. The Tribunal in the facts and circumstances of the case held that the particular commodities came within the definition of clause (vi) of section 14 of the Central Act, it is not possible to hold that it was not right. The answer to the first question by the High Court is, therefore, rightly in the affirmative. We do not also see anything wrong in the High Court's answering the second question in the way it did.
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