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1979 (7) TMI 238
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... ... ..... ction 3-A and the point of tax has also been declared by the State Government, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee. If the State Government intended to tax the turnover of kulfi and lassi, it was well nigh possible for them to amend the notification issued under section 4 on 31st March, 1956. The State Government has not chosen to do so. It cannot, therefore, be said that there was any intention of the State Government to withdraw the exemption available to the dealers of kulfi and lassi on the date the notification of 1973 was issued. 5.. For these reasons, I must agree with the view. taken by the judge (Revisions). 6.. In the result, the revisions fail and are hereby dismissed. The department shall pay Rs. 100 as costs to the assessee in each of the two cases. Let a copy of this order be sent to the Judge (Revisions) under section 11(8) of the Act. Petitions dismissed.
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1979 (7) TMI 237
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... ... ..... d sheets were the same thing as hides and skins has been decided by this Court or by the Supreme Court. This Court has held in several cases that the question as to whether certain goods fell within a particular entry or not is a question of law. As such, in our view, a question of law does arise in the present case out of the order passed by the Board of Revenue. We, therefore, allow the application and call upon the Board of Revenue to state the case and refer the following question of law to this Court for its decision Whether, on the facts and in the circumstances of the case, the Board of Revenue was right, in holding that leather board sheets, in which the assessee was dealing, fell under entry No. 12 of Notification No. F. 5(16)FD(CT)/69-II, Jaipur, dated 8th March, 1969. We have slightly reframed the question in order to bring out clearly the matter in dispute between the parties. The parties are left to bear their own costs of these proceedings. Application allowed.
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1979 (7) TMI 236
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... ... ..... rt, we cannot take a different view. 6.. The proviso to section 5(2)(A)(a)(ii) runs thus Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover. For working out the scheme envisaged in the proviso, rule 27 of the Orissa Sales Tax Rules has been framed and the rule contemplates a declaration which the assessee had admittedly furnished. When the proviso and the rule are read together, contravention of the declaration would invite the liability contemplated by the proviso. In this view of the matter, the reference has to be answered by holding On the facts and in the circumstances of the case, the Sales Tax Officer was justified in applying the proviso to section 5(2)(A)(a)(ii) of the Orissa Sales Tax Act and demanding tax on the sale price. We make no order as to costs. MOHANTI, J.-I agree. Reference answered accordingly.
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1979 (7) TMI 235
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... ... ..... cision. Ordinarily, we would not have answered the reference, but in view of what has been stated by the second appellate decision, the assessee is likely to be prejudiced unless the mistake occurring in the Tribunal s decision on the question of law is corrected. We would, therefore, answer the question by saying If the sales which are claimed to be inter-State actually took place within the State of Orissa but in view of the provisions of the Central Act are deemed to be the first sales under that Act, the principle indicated in the Joharimal Gajananda s case 1976 37 S.T.C. 157. has full application and the proviso to section 5(2)(A)(a)(ii) of the Orissa Act would not be applicable. Since there has been no clear determination of the factual aspect, the Member, Additional Sales Tax Tribunal, should require the assessing officer to go into this aspect also, while refraining the assessment. There will be no order for costs. MOHANTI, J.-I agree. Reference answered accordingly.
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1979 (7) TMI 234
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... ... ..... s of coal of different sizes, cannot amount to manufacture. For my satisfaction, the agreement relating to the year under consideration, clause 1 of which has been extracted by the Appellate Assistant Commissioner (Judicial), was produced before me. The heading of the agreement is Agreement for ash-pit cleaning and ash handling in traffic yard at PBH including purchases and removal of day-to-day accumulation of fresh ashes from traffic yard and shed. Now, what is the process which the assessee is actually following has not been brought out on record. The assessing authority has merely made inferences about the process. Anyhow, sifting of ash and pieces of burnt coal of different sizes and sale of the same cannot be regarded as a manufacturing process within the meaning of section 2(e-1) of the Act and I agree with the view taken by the learned revising authority. The revision application is hence dismissed with Rs. 200 as costs to the respondent-assessee. Petition dismissed.
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1979 (7) TMI 233
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... ... ..... e and comprehensive. Especially so, is the provision in sub-section (4)(a)(iii) of section 39, which entitles the Tribunal to pass such orders as it may think fit . We think in the circumstances that the Tribunal was justified in allowing the applicant to raise the ground regarding the rate of levy and in sustaining the argument of the counsel for the assessee. Our attention was called to the forms prescribed under the Act for appeal to the Appellate Assistant Commissioner and for appeal to the Tribunal. We have perused the same. We do not think these in anyway affect the amplitude of the provisions regarding the scope of the appeal and the power of the Tribunal in dealing with the appeal. We are not satisfied that the Tribunal exceeded its jurisdiction or misdirected itself in allowing the question regarding the rate of tax to be raised before it and in accepting the case of the assessee on this aspect. We dismiss this revision with no order as to costs. Petition dismissed.
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1979 (7) TMI 232
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... ... ..... duct contumacious or dishonest, or acted in conscious disregard of his obligations. As we have observed above, in the circumstances of the present case, it cannot be held that the assessee has acted deliberately in contravention of law without any reasonable excuse, in undertaking on job-basis the work of processing the goods belonging to other dealers meant for sale. We, however, make it clear that, in the present case, we are not expressing any opinion about the correctness or otherwise of the interpretation taken by the Board of Revenue of the provisions of section 8(3)(b) of the Central Sales Tax Act. In view of the aforesaid discussion, we do not think that any useful purpose will be served by calling for a reference in the present case relating to the interpretation of section 8(3)(b) of the Central Sales Tax Act. All the four reference applications, in these circumstances, are rejected. The parties are left to bear their own costs in this Court. Applications rejected.
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1979 (7) TMI 231
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... ... ..... d or unserviceable goods or waste product from the factory, cogent evidence has to be given that he has intention to carry on business of selling that commodity. Further, in order to ensure that there is an intention to carry on business, it has to be shown that the volume, frequency, continuity and regularity of activity is such that it can lead to the only inference that a person desires to carry on business of selling such goods. On the undisputed facts of the present case, I do not think that any such inference can be drawn and, particularly, when the department has not brought on record any material to show that the assessee, in the course of carrying on the business of manufacturing and selling glass bangles, had any intention to carry on business in the sale of coal-dust. Agreeing with the revising authority, therefore, I hold that no tax can be levied on the sales of coal-dust. The revision is hence dismissed with Rs. 200 as costs to the assessee. Petition dismissed.
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1979 (7) TMI 230
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... ... ..... was that the sales made in foreign country were not taxable as bristles were not manufactured goods within the meaning of explanation II(ii) to section 2(h) of the U.P. Sales Tax Act. It is correct that the definition of the expression manufacture has now been given a wider import but when grinding of wheat into flour is not manufacture vide U.P. Atta Chakki Vyavasai Sangh, Varanasi v. Krishi Utpadan Mandi Samiti, Varanasi1976 U.P.T.C. 322., or where the mixing of scents in ordinary til oil purchased by a dealer has not been held to amount to manufacture of perfumed oil vide Commissioner of Sales Tax v. Bechu Ram Kishorilal 1976 38 S.T.C. 236 1976 U.P.T.C. 253., it cannot be said with any justification that the sale of mutton tallow by the assessee after removing the dust and bone-pieces would amount to manufacture. I, therefore, agree with the view taken by the revising authority and dismiss this revision with Rs. 200 as costs to the respondent-assessee. Petition dismissed.
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1979 (7) TMI 229
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... ... ..... r payment of tax but there is no power of assessment in the case of a dissolved firm. It was also observed that the power of assessment and the power to recover tax are two different powers. It may also be pointed out that in the Bengal Finance (Sales Tax) Act, 1941, which is extended to the Union Territory of Delhi, section 12F was introduced by the Finance Act of 1972, which made a similar provision as was made in section 19(3) of the Bombay Sales Tax Act, 1959. In view of the aforesaid discussion, we are in respectful agreement with the decisions of this Court in the Shanti Bai s case 1968 21 S.T.C. 458. and the Mst. Jeeyakanwar s case 1968 21 S.T.C. 461. and we hold that the present reference application is not maintainable as no proceedings can be taken or continued against a dissolved firm for assessment of tax and we are unable to call for a reference in respect of the dissolved firm. The reference application is, therefore, dismissed. Reference application dismissed.
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1979 (7) TMI 228
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... ... ..... ummed up as follows If there is only a mixture of sub-items (1) to (15), then the product will not fall within the scope of item 21 as the mixed product is a commercially different one and is not the same as the components. If there is a mixture of sub-items (1) to (15), and an organic manure, then it will fall within sub-item (16) and come within the scope of item 21. If there is a mixture of sub-items (1) to (15) with any other foreign substance, which is not an organic manure, then it would not fall within the scope of item 21 at all. It is in the light of the above that the question will have to be considered by the Sales Tax Appellate Tribunal when it considers the matter afresh as a result of our decision in this case. The result is that the matter is remanded to the Tribunal to consider the matter afresh in the light of the above reasoning and conclusion. The revision petition is accordingly allowed. There will be no order as to costs. Petition allowed. Case remanded.
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1979 (7) TMI 227
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... ... ..... and might raise a presumption that the same pattern continued in 1959-60. This decision also does not appear to be helpful. The Judge (Revisions) may be entitled to draw an inference and raise presumption if the assessee does not maintain any account book or the account books are found to be defective. But once the assessing authority found that the account books were maintained in detail and they did not disclose any discrepancy, the scope of inference and presumptions stood ruled out. The rejection of account books is not based on any material but on assumption. The finding therefore of the Additional Judge (Revisions) that the account books of the assessee were liable to rejection cannot be maintained. In the result, this revision succeeds and is allowed. A copy of this order shall be sent to the Judge (Revisions) to pass appropriate orders under section 11(8) of the Sales Tax Act. The assessee shall be entitled to his cost, which is assessed at Rs. 200. Petition allowed.
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1979 (7) TMI 226
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... ... ..... express ourselves on this question. 8.. For the reason stated, we dismiss the appeal with no order as to costs. W.A. Nos. 253, 268 and 277 of 1978 and 106 of 1979. 9.. We need not detail the facts of these writ appeals. They are practically identical and the question raised is also the same as what we have considered and dealt with in W. A. No. 252 of 1978. The only difference on facts is that in W. A. No. 253 of 1978 the ground for action against the assessee was failure to get itself registered as a dealer for the assessment year 1971-72. This would not make any difference to the principle of our reasoning in W. A. No. 252 of 1978. We may only mention that the provision to take out a registration is made in rule 5(2) of the General Sales Tax Rules. No independent arguments were advanced in these appeals. Following our ruling in W. A. No. 252 of 1978, we dismiss these appeals with no order as to costs. Issue carbon copies of this judgment to the counsel. Appeals dismissed.
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1979 (7) TMI 225
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... ... ..... ales. This Court has also pointed out that the rule was not mandatory. The same view has been earlier expressed by us, namely, that the non-compliance of the rule does not visit the assessee with a liability to tax from which it is exempted under section 4. As far as the burden of proof is concerned, even though the assessee is liable to prove that it is eligible for the exemption, still the mode of proof is not indicated in section 10. In the present case, the proof that the assessee is not liable to tax has been discharged by the production of the relevant bills and vouchers. In those bills and vouchers, it has been mentioned that the sellers to the assessee had paid the taxes. This is all that the assessee could do, and the assessee has discharged the burden that lay on it under section 10 of the Act. The exemption was rightly granted by the Sales Tax Appellate Tribunal. The revision accordingly fails and is dismissed with costs. Counsel s fee Rs. 250. Petition dismissed.
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1979 (7) TMI 224
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... ... ..... c definition has been provided in the Act concerned. That being the position, both the Appellate Assistant Commissioner (Judicial) and the Additional Revising Authority have been right in holding that dolomite is a mineral and on its sales, sales tax is chargeable at 3 per cent and not at 7 per cent. The grievance of the Commissioner, Sales Tax, the applicant in this behalf, is not correct. There is one more ground which has been taken in this revision application and it is that the Additional Revising Authority did not record any finding on grounds Nos. 3 and 5 mentioned in the grounds of revision. I do not think that that can constitute any grounds in the present application because under section 22 of the U.P. Sales Tax Act a remedy is clearly provided for making an application to that effect before the authority concerned, if permissible. In the result, the application in revision is dismissed with costs to the assessee, which are assessed at Rs. 100. Petition dismissed.
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1979 (7) TMI 223
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... ... ..... ks was based on survey dated 3rd October, 1976, when certain loose papers, diary and exercise books were found. He asked the assessee to produce them before him and as it failed because they were misplaced he drew an inference that other circumstances to impose penalty were present. This was contrary to accepted principles of imposition of penalty. It could not be assumed that the turnover was concealed as the assessee failed to satisfy that the entries in papers seized at the time of survey were incorrect. In the result, this revision succeeds and is allowed. The order passed by the revising authority is set aside. The question of law raised by the assessee is decided in its favour by saying that in the absence of any circumstance or evidence other than the finding in the assessment proceedings no penalty could be levied. The assessee shall be entitled to its cost which is assessed at Rs. 200. The fee of the learned standing counsel is assessed at Rs. 100. Petition allowed.
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1979 (7) TMI 222
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... ... ..... iolation of article 20(1) of the Constitution. The Assessing Authority while imposing the penalty on a defaulting assessee for non payment of tax can by no stretch of imagination be deemed to be prosecuting such an assessee for the commission of a criminal offence and imposition of such penalty cannot be held to have been imposed in connection with the commission of an offence. Similar challenge was repelled in a Division Bench decision of this Court in C. W. P. No. 1177 of 1976 Fairdeal Agencies (Regd.), Ambala Cantt. v. State of Haryana 1979 44 S.T.C. 231. decided on 8th August, 1978, by a Division Bench consisting of S. S. Sandhawalia, C. J., and S. S. Dewan, J., and also in a single Bench decision in C. W. P. No. 2487 of 1977 (Mangal Chand Phool Chand v. State of Haryana 1980 45 S.T.C. 477. decided on 19th December, 1978, by M. R. Sharma, J. For the reasons recorded above, there is no merit in this petition and the same is hereby dismissed with costs. Petition dismissed.
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1979 (7) TMI 221
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... ... ..... escribed in the notification. Lassi is prepared from dahi (curd), a milk product, and yet in the Dina Nath Lassiwala s case 1971 28 S.T.C. 173., lassi was held to be a milk product. In Kwality Ice Cream Co. v. Sales Tax Officer 1974 34 S.T.C. 396., the High Court of Delhi held that ice-cream is a milk product. In Dayal Singh Kulfiwale, Aminabad Park, Lucknow v. Commissioner of Sales Tax 1979 43 S.T.C. 374 1978 U.P.T.C. 732., it was held by this Court that kulfi is a milk product. It is thus clear that ice-cream being a milk product was exempt from sales tax and the revising authority rightly excluded the turnover and directed the assessing authority to reframe the order. In the result, these revisions fail and are dismissed. The question of law raised by the Commissioner of Sales Tax is decided by saying that ice-cream, being a milk product, is exempt from sales tax. The assessee shall be entitled to its costs, which are assessed at Rs. 200 one set only. Petitions dismissed.
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1979 (7) TMI 220
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... ... ..... the benefit available to them and granted to them by the legislature. In fact, it has to be remembered that section 7(2-A) does not impose any other condition, except the actual withdrawal of the option, for the continuance of the benefit of section 7 for the future years when once that benefit had been granted by the assessing authority for one year. This statutory benefit cannot be taken away by a rule. It is in this context that we have to direct the Commissioner to examine the records and find out whether the assessee had the benefit of section 7 in the prior year. If so, in view of the provision of section 7(2-A), the assessee will continue to get the benefit so long as he has not formally withdrawn the option to be so assessed. Rule 18 return cannot be understood as such a formal withdrawal. The matter is, therefore, remanded and the order of the Board is set aside for this purpose. The appeal is accordingly allowed. There will be no order as to costs. Appeal allowed.
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1979 (7) TMI 219
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... ... ..... erstood and no one can call glass sheets to be glassware just as no one will call a brass sheet or silver ingot to be brassware or silverware. We would, accordingly, partly agree with the finding of the Financial Commissioner but partly we must differ. We cannot agree with the finding that glass sheets would be raw material for fabricating window-panes thereby making window-panes glassware . We agree with the finding that glass sheets as such are not glassware . As we have said before, glassware is a term which is well-understood. Articles made of glass particularly vessels or containers would be glassware . It becomes clearer when we read the entry as a whole because it deals with the glazedware, china-ware including crockery besides glassware. Turnover from sale of glass sheets or glass panes cannot be taxed as falling under entry No. 23. The reference is answered accordingly. The dealer would be entitled to its costs. Counsel s fee Rs. 300. Reference answered accordingly.
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