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1981 (7) TMI 230
... ... ... ... ..... e very opposite kind of transaction. Far from there being any term in the contract between the parties that the title to the goods should be retained with the seller until the goods crossed the customs frontiers, the consignment of paper was made out by the assessee for and on behalf of International Markets. The bill of lading also was made out on the same basis. There was no clear-cut finding as to the terms of the contract in the present case. While it was stated by the assessee that the bargain with International Markets was struck purely on an oral basis by telephonic conversation, it was not stated whether even the oral contract of sale contained any agreement similar to the one which was emphasised by the learned judges in the case cited. We, therefore, do not get the slightest assistance from the said decision. The revision petition is accordingly dismissed. The order of the Tribunal is sustained. The Government will have its costs. Counsel s fee is fixed at Rs. 250.
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1981 (7) TMI 229
... ... ... ... ..... , without reference to, and subsequent to the appropriation to the contract of the goods already in stock in the Madras sales office. We cannot, therefore, say that the Tribunal had not taken a reasonable view of the facts when they held that the sale was a local sale at Madras when both the parties were at Madras when the contract was concluded at Madras when the sale was f.o.b. Madras when the assessee had a sales godown at Madras and when the assessee did not produce any lorry receipt or railway receipt or correspondence or stock registers to prove that the goods had travelled from the mill in Andhra Pradesh to Madras Port in pursuance of this transaction. We accordingly, uphold the Tribunal s determination that the turnover of Rs. 7,87,508 represented a local sale properly chargeable to tax under the Tamil Nadu General Sales Tax Act, 1959. The revision is accordingly dismissed. Since the assessee has failed, it will pay the costs to the Government. Counsel s fee Rs. 250.
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1981 (7) TMI 228
... ... ... ... ..... ity of a dealer under the Act has the power to create fictions of their own, and foist fiscal liabilities on the basis of those fictions. As we said earlier, we understand the observations of V. Ramaswami, J., only in this light. The considerations which we have discussed last do not, however, directly affect the present case. As we earlier mentioned, this case turns entirely on the findings of the Tribunal to the effect that Abdul Shukoor and Company really acted as agents of the assessee in regard to the turnover in question amounting to Rs. 89,59,712 representing sales in the course of export to foreign buyers. This finding, as we have earlier shown, is amply supported by the material evidence on record. It follows, therefore, that the Tribunal s decision excluding the turnover from assessment as export sales in unexceptionable. The revision filed by the State Government thus fails. It is accordingly dismissed. The assessee is entitled to its costs. Counsel s fee Rs. 250.
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1981 (7) TMI 227
... ... ... ... ..... ax, it could be inferred that the assessee had treated the total amount received as a single sale amount. Even in the reply to the preassessment notice, the assessee did not controvert the postulates in the notice, and did not state that the delivery of the goods were only at the vendor s site. The notice had pointed out that in all the contracts the delivery of the goods were made only at the parties site and as such expenses would be deemed to have been incurred as pre-sale charges for delivery at the site of the purchases. In the absence of any denial, the Tribunal rightly proceeded on the basis that the statement in the pre-assessment notice was correct and that the assessee had only taken its goods for delivery at the party s site, the price including the transport charges. We do not find any scope for interference with the order of the Appellate Tribunal, and therefore, the revision petition is dismissed. But under the circumstances, there will be no order as to costs.
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1981 (7) TMI 226
... ... ... ... ..... it would not amount to discrimination within the meaning of article 14 of the Constitution. In several taxing statutes, benefits are given to new entrants and in no case, has it been held that it amounts to discrimination. Under the Income-tax Act of 1961, several reliefs have been extended to particular types of business assessees and unless equally placed assessees are separately treated, the allegation of discrimination is not sustainable. Neither of the contentions of Mr. Agarwala for the assessee impresses us. We would accordingly decline to accept his submissions and choose to follow the reported decision of this Court in State of Orissa v. Harekrushna Sahu 1982 50 STC 180 (App) (1976) 1 CWR 68. Following it, our answer to the question would be in favour of the revenue and against the assessee, viz., that the liability of the assessee would continue for the period between 1st July, 1969, and 31st October, 1969. There would be no order for costs. B.N. MISRA, J.-I agree.
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1981 (7) TMI 225
... ... ... ... ..... sion agent, or even when title is not with the commission agent, the commission agent is selling on his own without disclosing the principal. These aspects have not been examined by the Tribunal. Who held legal custody of the articles at the relevant time should have been found out. If there was a loss while the goods were in the custody of the alleged commission agent, who would have borne the loss-the owner or the commission agent-should have also been found out. We are of the opinion that unless the matter is examined with reference to these aspects, it is difficult indeed to hold whether Binayak Sabat and Sons were purchasers or commission agents qua the transactions. We decline to answer the question referred, but would suggest that while giving effect to our order, the Tribunal might hear the parties again, examine the question keeping the points indicated above and come to its conclusion in accordance with law. There would be no order for costs. DR. MISRA, J.-I agree.
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1981 (7) TMI 224
... ... ... ... ..... livery of the goods, in the case of goods returned on or after the fourteenth day of May, 1966. The deduction therefore of the sale price of the goods returned within six months from the turnover is to be related to the turnover in which the sale was made. It could not be extended to the succeeding year. At least the section does not permit so. Even otherwise the return of the goods and the deduction of the sale prices has to be read along with the turnover of sale. and purchase of a particular year. It cannot take place in other year or in respect of turnover of other year, as the goods which were returned did not form part of the turnover of the dealer in that year. In the result this revision succeeds and is allowed. The order passed by the Additional Judge (Revisions) is set aside. A copy of this order shall be sent to the Tribunal to take action under section 11(8) of the Act. As nobody has appeared for the assessee there shall be no order as to costs. Petition allowed.
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1981 (7) TMI 223
... ... ... ... ..... be penalised only because the turnover fell short by nearly six thousand. The assessee could not be expected to wait till the end of year because in that case he would be required to pay from his own pocket. The finding therefore that there was reasonable cause for realising the additional tax and no penalty could be levied on the assessee appears to be well-founded. Nor is there any merit in the submission of the learned standing counsel that the concept of bona fide was inapplicable to sub-clause (qq). It is true that unlike other sub-clauses this clause does not use the word reasonable , etc. But the penalty proceedings under tax statutes are quasi-criminal in nature. Then the opening words of the section empower the assessing authority to levy penalty only if he is satisfied about the breach committed in various sub-clauses. In the circumstances, the revision fails and is dismissed. As nobody appeared on behalf of the opposite party, there shall be no order as to costs.
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1981 (7) TMI 222
... ... ... ... ..... ts as well. Luckily, for commonsense, the popular idea of a kerchief has found favour with the Calcutta, Orissa and Kerala High Courts, who have had to administer more or less similar provisions of exemption in their respective sales tax enactments. Vide the Calcutta High Court s judgment in Delhi Cloth and General Mills Co. Ltd. v. Commercial Tax Officer, Central Section, West Bengal 1975 36 STC 575, the Orissa High Court s judgment in Radhika v. State of Orissa 1977 39 STC 93 and the Kerala High Court s judgment in Deputy Commissioner of Sales Tax (Law) v. M.M. Mohammed Abdul Khader 1980 46 STC 512. We uphold the sensible decision of the Tribunal that mill-made handkerchiefs, sold by the assessee in this case, are entitled to tax exemption under item 4 of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959. Since the revision filed by the State Government is dismissed, the department will pay the assessee their costs. Counsel s fee Rs. 150. Petition dismissed.
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1981 (7) TMI 221
... ... ... ... ..... ill not apply to a case where the jurisdiction of the assessing authority was challenged to levy tax at all. The same circumstance obtained in the present case. The plea taken by the assessee was that the turnover of scrap was not taxable at all in the relevant assessment year, and that in any event the additional tax could not be levied or imposed by the Sales Tax Officer. These pleas went to the jurisdiction of the assessing authority and could be raised for the first time in revision. Since the Judge (Revisions) declined to entertain the plea the case has to go back for consideration of these pleas by him. In the result the revision succeeds and is allowed in part. The matter is sent back to the Sales Tax Tribunal. The Tribunal will entertain the plea relating to the taxability of the turnover of scrap and the imposition of additional tax. The other points will not be reopened. In view of the divided success the parties shall bear their own costs. Petition partly allowed.
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1981 (7) TMI 220
... ... ... ... ..... placed on the entry and therefore referred the above question. 3.. As far as we are concerned, we find that the matter is no longer res integra. In M.C.C. No. 327 of 1976 (Commissioner of Sales Tax v. Truel Tubes, Industrial Estate, Indore 1980 46 STC 473) decided on 7th February, 1980, this Bench while construing entry 56, held that conduit pipes fall under entry 30 and M.S. pipes fall under the residuary entry of Schedule II to the Act. It follows from the above judgment that they do not fall under entry 56. We are bound by the Division Bench decision of this Court and following the above decision, we would answer the question in favour of the assessee and against the department and say that the cast-iron pipes, which are not used for sanitary fittings, would not be taxable under entry 56 of Part II of Schedule II appended to the M.P. General Sales Tax Act, 1958. The reference is answered accordingly. 4.. There shall be no order as to costs. Reference answered accordingly.
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1981 (7) TMI 219
... ... ... ... ..... ssessing authority. It is this order of the Board of Revenue which was confirmed by this Court. The decision in that case cannot be said to lay down, as a matter of universal principle, that wherever the Board of Revenue interferes in a case of estimate, the Board s reasoning has to be accepted by this Court. The reasonableness of the estimate would depend on the facts of each case. We therefore see no scope for applying the earlier decision to the present case. It has to be confined to its facts and to similar situations. Having regard to the features pointed out by us, we consider that the Appellate Assistant Commissioner s order could not have been properly interfered with on the facts and we therefore hold that the Board of Revenue had no material to restore the assessment as made by the Deputy Commercial Tax Officer. The order of the Appellate Assistant Commissioner should have been left as it was. The appeal is allowed with costs. Counsel s fee Rs. 250. Appeal allowed.
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1981 (7) TMI 218
... ... ... ... ..... the amount of freight in the taxable turnover could not be said to be mala fide or unreasonable. In the instant case there was no question of the assessee entertaining a belief that it was not liable to submit an application for renewal of registration in from XIV. It is a clear case of conscious diregard of the statutory obligations on the part of the assessee in this behalf and as such penalty under section 15 A(1)(g) was attracted. In Khandelwal Medical Stores (Sales Tax Revision No. 1010 of 1978 decided on 19th September, 1979-Allahabad High Court) of course it has been laid down that penalty under this provision cannot be imposed in the absence of mens rea. Since in this case notice was not taken of the Supreme Court decision in Joshi, Sales Tax Officer v. Ajit Mills Limited 1977 40 STC 497 (SC) it is not binding on this Court. In view of the above discussion, the revision fails and is dismissed with costs to the Commissioner of Sales Tax which are assessed at Rs. 200.
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1981 (7) TMI 217
... ... ... ... ..... ivision Bench we do not think that beyond stating that the tax liability is determined by the subsequent event the Division Bench did not consider the question of rate of tax to be applied to the transaction of last purchase. That is the question we have endeavoured to consider here. Hence we think T.R.C. No. 88 of 1977 was wrongly decided. We hold that irrespective of the time at which the purchases are determined as last purchases liable to tax, the rate of tax would be that prevalent on the date of the purchases which are identified as last purchases subsequently. Accordingly the assessees in both the cases succeed. In T.R.C. No. 68 of 1980, the purchases prior to 1st July, 1974, are liable to be taxed only at 3 per cent which was the rate prevalent at that time. In T.R.C. No. 121 of 1980 the purchases prior to 1st July, 1974, are exempt from tax. The assessment will have to be modified accordingly. The tax revision cases are allowed as above. No costs. Petitions allowed.
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1981 (7) TMI 216
... ... ... ... ..... e declaration in original in form I signed by the selling registered dealer, the petitioners have filed copies of such declarations supplied to them by the commission agents who purchase goods on their behalf from the selling registered dealers and the assessing authorities are directed to act on such copies in the light of the observations made in this judgment and dispose of the objections raised by the petitioners and complete the assessments pending, if any, for the relevant years. In cases where assessments have already been made, those assessments are set aside so far as the disputed turnovers are concerned and those assessing authorities will reassess the dealers in the light of the objections filed by them and in the light of the observations made in this judgment. The writ petitions, in other respects, are dismissed. The parties, in the circumstances, are directed to bear their respective costs. Government Pleader s fee Rs. 50 in each case. Petitions partly allowed.
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1981 (7) TMI 215
... ... ... ... ..... c materials. And sub-item I is as follows 1. Cotton fabrics other than (i) embroidery in the piece, in strips or in motifs, and (ii) fabrics impregnated or coated with preparations of cellulose derivatives or of other artificial plastic materials. These provisions speak for themselves, and no further discussion is necessary to repel the contention advanced by the learned Government Pleader. In the result we set aside the Tribunal s order to the extent it holds embroidered cotton sarees are not cotton fabrics falling within entry 7 in the Third Schedule to the Act, and hold that they come under the said entry. These revisions are allowed to that extent, but without any order as to costs. The learned Government Pleader asks for leave to appeal. We do not think that this is a fit case of general importance that needs to be decided by the Supreme Court or that this involves any substantial question of law that needs to be decided by that court. Leave declined. Petitions allowed.
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1981 (7) TMI 214
... ... ... ... ..... ons, an exemption which falls within section 10(1)(ii) of the Kerala General Sales Tax Act. By reason of that exemption it cannot be said that water is not liable to be taxed under the Act. Water is taxable and continues to be taxable notwithstanding the exemption. That is because water sold by anyone other than those who fall within the exempted class would be liable to be taxed under the Act. Hence the Tribunal was in error in applying the decision in T.S. Govindarajulu Naidu v. State of Kerala 1979 43 S.T.C. 233. to the case before it. The decision of the Tribunal has necessarily to be set aside. 3.. It is said that other contentions had been raised such as the absence of a sale of water to the assessee. We are only disposing of the question raised before us so that the matter will stand remitted back to the Tribunal for disposal of the appeals afresh in the light of our decision and for consideration of other points, if any, that may arise. No costs. Ordered accordingly.
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1981 (7) TMI 213
... ... ... ... ..... the case of the department that the entire turnover of purchase of timber was liable to be taxed under section 5A. Evidently that cannot be, for, even according to the Tribunal and consistent with what we have found here a part of the turnover represents sale of logs as logs. What the quantum of that turnover is, is another question. Whether the turnover indicated by the assessee in the statement filed before the Deputy Commissioner in appeal should be found to be correct is a matter for examination. The Deputy Commissioner chose to accept the statement without indicating reasons. Of course that statement would represent the case of the assessee. Such representation called for examination. That is what the Tribunal has directed to be done. Hence that part of the order of the Tribunal is unexceptionable. The result is that the tax revision case is allowed to the extent of deleting the tax on a turnover of Rs. 33,529.80 and confirmed in other respects. Petition partly allowed.
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1981 (7) TMI 212
Whether the transactions in this case constituted a sale for the purpose of the Haryana General Sales Tax Act and the Central Sales Tax Act?
Held that:- Appeal allowed. The High Court should not have proceeded beyond recording the assurance that the State Government would withdraw the instructions and holding that therefore the writ petition had become infructuous. In our opinion, no further question arose for consideration by the High Court. The High Court erred in pronouncing on the merits of the question whether the transaction constituted a sale under the aforesaid sales tax enactments. It will be for the Assessing Authorities to deal with the question on the merits in accordance with law.
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1981 (7) TMI 205
Whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party?
Held that:- Appeal dismissed. The Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job-contract basis, its case would be covered by the terms of the second sub-clause of section 8(3)(b), provided that the textiles so sized, bleached and dyed by the assessee were intended for sale by such third party. If it is proved in any proceedings initiated under section 10(d) or section 10A that the textiles sized, bleached or dyed by the assessee for a third party on job-contract basis were not intended for sale by such third party, as would be evident if such textiles were in fact not sold by the third party but were used for its own purposes, the assessee would incur the penalty prescribed in those sections.
Thus quash and set aside the notices which have been issued against the assessee on the basis that merely by using dyeing colours and other chemicals purchased by it in sizing, bleaching and dyeing textiles for third parties on job-contract basis, the assessee contravened the provisions of section 10, clause (d), and rendered itself liable to penalty under section 10A.
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