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Showing 41 to 60 of 217 Records
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1980 (2) TMI 247
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... ... ..... the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The question of law raised therefore stands answered by this decision. It has not been found that the assessee was guilty of mala fide. Apart from it the moment it was brought to the assessee s notice that cheque was dishonoured it deposited the amount within two days. If, in these circumstances, the appellate authority reduced the penalty even below the minimum prescribed it cannot be said that exercise of discretion was not judicial. In the result this revision fails and is dismissed. But there shall be no order as to costs. Petition dismissed.
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1980 (2) TMI 246
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... ... ..... d with hessian cloth and fastened with iron hoops for a consolidated charge of pressing and packing. It was in these circumstances that it was held in that case that there was an implied sale of packing material. In the instant case, it has not been found that separate price was charged for the packing material or that a composite price for cotton and packing materials was charged by the assessee. The contention of the assessee that the price which was charged was for net weight of cotton was not found to be untrue. The burden was on the department to prove that there was an implied sale of packing materials and this burden was not discharged by the department. In these circumstances, we are of the opinion that there was no sale of packing materials. 4.. Our answer to the question referred to us is, therefore, in the negative and against the department. In the circumstances of the case, parties shall bear their own costs of this reference. Reference answered in the negative.
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1980 (2) TMI 245
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... ... ..... sent one. However, there is force in the respondent s contention that the impugned order of the Board has been called into question after more than two years and that no reference has been asked for against that order which the assessee could have. It is also clear that the door for showing cause against imposition of penalty has not yet been finally closed to the assessee who will have reasonable and adequate opportunity to satisfy the assessing authority that either no penalty is leviable in law or that in the facts and circumstances, the present is not a fit case for levy of any penalty. In this view of the matter, we do not feel inclined to interfere With the impugned order by the Board and dismiss the writ petition with this observation that the assessing authority will be at liberty to examine the question whether penalty is leviable according to law and if so, whether it was a fit case for levy of penalty at all. There will be no order as to costs. Petition dismissed.
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1980 (2) TMI 244
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... ... ..... to say that it would assess and penalise the assessee provisionally. It appears that in view of the statutory provisions in force in Madras the point that after issuing a notice calling upon the assessee to file a revised return there was no question of making a provisional assessment was obvious to the learned Judge. Neither is there any mention of these provisions in the judgment nor have they been brought to our notice by the learned counsel for the petitioner. In these circumstances, it is not possible to find out as to whether the provisions of the Madras Sales Tax Act were, in this regard, similar to those contained in the U.P. Sales Tax Act and whether the line of reasoning adopted by us runs counter to or is inconsistent with those statutory provisions. We are accordingly of the opinion that the petitioner cannot derive any assistance from the aforesaid decision cited by his counsel. In the result, this petition fails and is dismissed with costs. Petition dismissed.
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1980 (2) TMI 243
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... ... ..... nder it in case the turnover has escaped assessment to tax or has been under-assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act or any deductions or exemptions have been wrongly allowed. Now, so far as this Court is concerned it is settled view that woollen cardigans and woollen pullovers are woollen goods and not woollen hosiery as laid down in Ram Lal and Bros. v. Commissioner of Sales Tax1979 A.T.J. 41. Therefore, in respect of woollen cardigans and woollen pullovers tax was leviable at 6 per cent and not at 3 per cent. In other words, the out-turn of the assessee in respect of these commodities had been assessed to tax at a rate lower than that at which it is a assessable under the Act. That being so action could have been taken under this provision and the view taken by the revising authority is erroneous in law. The revision is hence allowed. In the circumstances there shall be no order as to costs. Petition allowed.
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1980 (2) TMI 242
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... ... ..... den by section 15 of the Central Sales Tax Act, 1956, it is true that sales tax cannot be levied at more than one stage in respect of declared goods, in view of section 15 of the Central Sales Tax Act, but, in the present case, no tax is being levied second time. Only concessional rate of tax was charged in the first instance on the basis of the declaration made by the petitioner in terms of section 5C(1) of the Act. What is being levied under sub-section (2) of section 5C is penalty for contravention of the conditions attached to the concession. It can, by no stretch of imagination, be said to be a tax on sale or purchase of goods. This contention is, therefore, also without force. For the reasons mentioned above, we do not see any force in these writ petitions and dismiss the same. The petitioner will pay Rs. 300 only as costs to the respondents. The learned counsel prays for grant of certificate for appeal to the Supreme Court. Certificate is refused. Petitions dismissed.
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1980 (2) TMI 241
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... ... ..... ause (ccc) of section 2 shall be liable to pay tax irrespective of his turnover, which means that a casual trader or any other trader dealing in specified goods would be liable to pay tax in spite of the exemption granted under section 3(1) of the Rajasthan Sales Tax Act, and as he is liable to pay tax, he is equally liable to get himself registered as a dealer under section 6 of the Act. 14.. The learned counsel for the assessees has contended that the goods are already tax-paid. In reference proceedings this Court will not enter into the investigation of fact whether the goods are tax-paid or not. The assessee would, however, be entitled to submit before the assessing authority that the goods were tax-paid, and were not liable to taxation twice. 15.. With these observations, all the eleven petitions are answered in the affirmative. 16.. Looking to the facts and circumstances of the cases, the parties are left to bear their own costs. References answered in the affirmative.
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1980 (2) TMI 240
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... ... ..... still remains as to whether there has been an alteration in the identity of the commercial commodity, viz., sulphur. In my view, there is no such drastic alteration as to take out sulphur rolls from the category of all kinds of minerals as mentioned in the notification. All that has happened is that rock sulphur has been purified and put in the shape of sulphur rolls. There has been no essential change in the quality and the character of sulphur as found in the sulphur rocks and in sulphur rolls. Sulphur rolls are really nothing else but a purified form of rock sulphur. It would thus be seen that items which are in dispute continued to be mineral despite crushing into minute particles and no new commercial commodity came into being. In the result, this appeal succeeds and is allowed. The order passed by the Commissioner is set aside. The assessee shall be entitled to its costs, which is assessed at Rs. 300. Fee of the standing counsel is assessed at Rs. 300. Appeal allowed.
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1980 (2) TMI 239
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... ... ..... hes, indigo, enamel, putty, bale oil, white oil, turpentine, thinners, primers and paint-brushes. It is also settled rule of interpretation that legislative exposition as revealed by subsequent amendments made by the legislature can be used as a guide for interpreting the provisions as it stood before amendment (see Sone Valley Portland Cement Co. v. General Mining Syndicate Private LimitedA.I.R. 1976 S.C. 2520 at 2528. The above amendment reinforces the view that the goods included at entry No. 97 are those normally dealt with by hardware and/or paints merchants which are used for surface paintings of walls, doors, furniture, etc., and do not comprehend colours used by students and artists, dealt with by a stationer. 6.. For the reasons aforesaid, we make the following order The appeal is allowed, the order of the Commissioner of Commercial Taxes dated 4th June, 1976, is set aside and that of the Deputy Commissioner of Commercial Taxes (Appeals) is restored. Appeal allowed.
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1980 (2) TMI 238
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... ... ..... to find out if that substance is ordinarily used directly or indirectly to provide reasonable efficient fuel for automotive or stationary internal combustion engines. If a substance is not so used, then it is not motor spirit as defined by the Motor Spirits Act. But, in case of petrol, diesel oil and other internal combustion oils, no further enquiry regarding the ordinary use to which these things are put is contemplated for deciding whether they are covered by the definition of motor spirit . 6.. For all these reasons, our answer to the question referred to this Court is that while Esso solvents Nos. 3040 and 2445 are exigible to tax under entry No. 39 of Part II, Schedule II, to the Act, Esso solvent No. 1425 is not so exigible to tax under that provision as it is exigible to tax under the provisions of the M.P. Sales of Motor Spirits Taxation Act, 1957. In the circumstances of the case, parties shall bear their own costs of this reference. Reference answered accordingly.
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1980 (2) TMI 237
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... ... ..... all dealers who are liable to pay tax under section 5. Consequently, the exemption under entry 72 can extend only to those dealers who are in a position to establish that the sales in question were effected in favour of the dealers possessed of certificates of registration which is the best evidence to attract the exemption. Registration is the statutory proof of the status of the purchaser and form 25 is the surest means of establishing the seller s claim to exemption. This is what is sought to be accomplished by the mandatory provisions contained in rule 32(14). In the circumstances, the contention that sub-rule (14) has to be read as directory has no substance. In my view, exhibit P2 is well-supported by sub-rule (14) of rule 32 and form 25, which, for the reasons stated by me, are intra vires the statute and perfectly valid. The original petition is accordingly dismissed. In the circumstances of this case, the parties will bear their respective costs. Petition dismissed.
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1980 (2) TMI 236
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... ... ..... essional rate becomes available to the assessee and that will not be lost by reason of the fact that the goods purchased were used by the assessee for a purpose other than what is regarded as the predominant or ordinary use of that article. We are therefore of the opinion that the Tribunal was right in holding that since what the assessee had purchased was only firewood, the fact that a good part of the total quantity purchased during the first two assessment years and the entirety of what was purchased during the third year had been utilised as raw material for the manufacture of hardboard would not operate to deprive the assessee of the benefit of the concestional rate available on account of the inclusion of the commodity in the First Schedule. No interference is, therefore, called for by this Court with the order sought to be revised. These tax revision cases are accordingly dismissed, but, in the circumstances, without any direction regarding costs. Petitions dismissed.
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1980 (2) TMI 235
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... ... ..... n the explanation is not exhaustive and it will include a proceeding initiated under section 10A of the Central Sales Tax Act. The contention cannot be upheld. The term legal proceeding has been given a special meaning by the explanation to section 4 of the Act and there is no scope for giving it an extended meaning. We are, therefore, of the opinion that the learned Member of the Board of Revenue was not justified in holding that the proceeding for initiation of penalty under section 10A of the Central Sales Tax Act is a legal proceeding and, therefore, the same could not be proceeded with against the assessee during the period in which it remained a relief undertaking under the provisions of section 4 of the Act. 5.. As a result of the discussion aforesaid our answers to the two questions referred to us are in the negative and against the assessee. In the circumstances of the case the parties shall bear their own costs of this reference. Reference answered in the negative.
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1980 (2) TMI 234
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... ... ..... order of the Tribunal against which reference is sought can be condoned under section 5 of the Limitation Act. 21.. In the result, our final conclusions are as follows (1) The answer to the first question is in the negative, that is, that the benefit of section 12(2) of the Limitation Act cannot be allowed to an applicant in a reference application filed under section 22 of the Punjab General Sales Tax Act for excluding the time spent in obtaining the certified copy of the order of the Tribunal against which reference is sought. (2) The answer to the second question is in the affirmative, that is, the delay caused in filing of the reference application due to obtaining of the certified copy of the order of the Tribunal against which reference is sought can be condoned under section 5 of the Limitation Act. 22.. The case will now go back to the Division Bench along with C.W.P. No. 301 of 1980. SANDHAWALIA, C.J.-I agree. R.N. MITTAL, J.-I agree. Reference answered accordingly.
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1980 (2) TMI 233
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... ... ..... aw cannot be said to have been finally settled unless there is a decision on the point either by this Court or the Supreme Court. An earlier decision of the Board cannot be taken to conclude the matter finally. It is remarkable that in case No. 42 of 1979 the Board has held on merits that neel is a pigment but out of sheer deference for the view taken in the other case, the application for making reference has been refused. This was not correct. Accordingly, we allow both the applications and direct the Board of Revenue to state the case and make a consolidated reference in both the on the following question Whether, in the facts and circumstances of the case, the Board of Revenue was justified in holding that neel (ultramarine blue) is not included in the term pigment and is as such taxable at the general rate of 7 per cent? There will be no order as to costs. The Board is directed to make the reference within three months of the receipt of this order. Applications allowed.
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1980 (2) TMI 232
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... ... ..... er, having taken a contrary view, should have given an opportunity to the appellants to produce the prescribed C forms and could not have straightaway proceeded to levy tax at the rate of 10 per cent under section 8(2)(b) of the Central Act on the ground that the appellants had not produced the C forms. Therefore, the orders of the Commissioner are also liable to be set aside on this ground. However, as we have upheld the contention of the appellants that desiccated coconut is the same as coconut which is one of the declared goods, the question of directing the Commissioner to give the appellants an opportunity to produce C forms does not arise. 23.. In the result we make the following order (i) The appeals filed by the assessees are allowed and the orders of the Commissioner of Commercial Taxes are set aside and the corresponding orders of the assessing authority are restored. (ii) The revision petitions filed by the State are dismissed. (iii) No costs. Ordered accordingly.
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1980 (2) TMI 231
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... ... ..... entire assessment was before the Board. If so, certainly, the Board can even sustain the order of the Deputy Commercial Tax Officer on a ground different from the one given by the Deputy Commercial Tax Officer provided the Board had given an opportunity to the appellant to meet the new ground. The Board in this case in the notice which it issued to the appel. lant herein had given it that opportunity by pointing out that the appellant would be entitled to claim exemption only if it proved that there was an earlier taxable sale in the State and even after the opportunity contemplated was made available to the appellant, the appellant did not prove that the earlier sale was a taxable sale in the State. If so, the Board of Revenue was right in revising the order of the Appellate Assistant Commissioner and sustaining the assessment made by the Deputy Commercial Tax Officer, though on a slightly different ground. Consequently, the appeal fails and is dismissed. Appeal dismissed.
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1980 (2) TMI 230
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... ... ..... her expressly or by necessary implication make section 22 apply to the collection of surcharge. Section 3(2) of the Tamil Nadu Sales Tax (Surcharge) Act, 1971, reads as follows Section 3. (2) Save as otherwise provided in this Act, the provisions of the said Act shall apply in relation to the surcharge payable under subsection (1) as they apply in relation to the tax payable under the said Act. Having regard to the fact that what was sought to be levied under the Act of 1971 was only a surcharge which was dependent upon the liability to pay sales tax and also the language of section 3(2), we are unable to uphold the contention of the learned counsel for the appellant. Section 3(2) will apply every provision of the Tamil Nadu General Sales Tax Act, 1959, as is applicable to sales tax, to the surcharge. Under these circumstances, we cannot hold that the order of the Board of Revenue is erroneous from any point of view. Consequently, the tax case is dismissed. Appeal dismissed.
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1980 (2) TMI 229
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... ... ..... inds of mineral oils (not otherwise provided for in this Act), quenching oils and greases . The High Court held that having regard to the association of words, the words all kinds of mineral oils in the entry bear only a limited meaning, namely, mineral oils which are lubricants. In our opinion, therefore, the words all types of pipes and pipe fittings in entry No. 56 must be construed as embracing pipes used for sanitary purposes. These words do not include conduit pipes, which are used for the purpose of casing of electrical wiring and are covered by entry No. 30. Similarly these words cannot be construed to include mild steel pipes used for the purpose of making furniture or carriers of automobiles. 6.. For all these reasons, our answers to the questions referred to us are that conduit pipes fall under entry No. 30 and M. S. pipes fall under the residuary entry of Schedule II to the Act. Parties shall bear their own costs of this reference. Reference answered accordingly.
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1980 (2) TMI 228
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... ... ..... mal Sons Private Ltd. v. Deputy Commissioner of Sales Tax 1971 28 S.T.C. 247., and it was held that a penalty under section 17(3) of the Act could not be imposed for failure to file with the return any document which is required by rule 15(4) to be filed along with the return. Learned counsel for the Commissioner did not point out any reason for holding that the decision of this Court in Jiwanmal Sons Private Ltd. v. Deputy Commissioner of Sales Tax 1971 28 S.T.C. 247. required to be reconsidered. In these circumstances, following the decision in Jiwanmal Sons Private Ltd. v. Deputy Commissioner of Sales Tax(1), our answer to the question referred to this Court is that levy of penalty under section 17(3) of the Act, on account of failure to furnish along with the return, statements under forms VIII-B and XII-A prescribed by rule 15(4), is not justified. 4.. In the circumstances of the case, parties shall bear their own costs of this reference. Reference answered accordingly.
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