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Showing 41 to 60 of 233 Records
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1982 (2) TMI 288 - KARNATAKA HIGH COURT
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... ... ..... of section 12 of the Act and that therefore there was no obligation on the assessing authority to give a notice to the assessee and to hear her before making the impugned order of assessment. In the form prescribed for submitting the return, the assessee is required to state not merely the turnover but also the rate at which the whole or parts of such turnover are liable to be taxed. As stated earlier, in the present case, the assessee claimed that a part of her turnover was liable to tax only at 2 per cent and not at 6 per cent. When that part of the return was not accepted by the assessing authority, it is plain that he should have issued a notice to her and given her a hearing before subjecting that part of the turnover to tax at a rate higher than what she claimed. The view taken by the learned single judge is correct and does not call for interference. In the result, we dismiss this appeal. In the circumstances of the case, we direct the parties to bear their own costs.
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1982 (2) TMI 287 - ALLAHABAD HIGH COURT
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... ... ..... notice or recovery certificate was served on the petitioner. This submission, as well, had no merits because the Assistant Commissioner (judicial) in the appeals filed against the assessment orders made under section 21 of the Act recorded a finding of fact that the demand notices and copies of those assessment orders were served on Jaipal on 19th December, 1974. This finding has been affirmed by the Additional judge (Revisions), who is the last fact-finding authority. It is, thus, a finding of fact which cannot be challenged in writ proceedings before this Court. Thus, it has been found that the demand notice and copies of the assessment orders for the period in dispute were served on Jaipal, one of the members of the association. This being so, the view taken by the appellate authority that the appeals were barred by time was absolutely correct. There is no merit in this writ petition and it is hence dismissed. The stay order is vacated. There will be no order as to costs.
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1982 (2) TMI 286 - ALLAHABAD HIGH COURT
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... ... ..... by this Court that Merely because the assessee s books of account had not been accepted and a best judgment assessment was made at a figure higher than that indicated in the assessee s turnover it does not mean that the turnover disclosed by the assessee was necessarily wrong. Burden of showing that the turnover declared by the assessee was necessarily wrong is on the department. In the view of these decisions, there can be no doubt that the imposition of penalty merely on the finding recorded in the assessment proceedings cannot be sustained. In fact there was no material from which it could be inferred that the assessee had concealed its turnover or deliberately furnished inaccurate particulars. In the result, Revision No. 935 of 1978 succeeds and is allowed whereas Revision No. 936 of 1978 is dismissed. A copy of the order shall be sent to the Additional Judge (Revisions) to take proceedings under section 11(8) of the Sales Tax Act. The parties shall bear their own costs.
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1982 (2) TMI 285 - ALLAHABAD HIGH COURT
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... ... ..... abrics, will have to be treated as hosiery products and for the matter of that if knitting wool is considered to be woollen goods and not an article of hosiery, it is difficult to treat cardigans and pullovers as hosiery products merely because they contain knitted fabrics. In our opinion, therefore, before a garment can be treated as an article of hosiery, it has to satisfy two tests first, that it should be of the nature of an under clothing worn next to skin and secondly that it should be a knitted fabric. Cardigans and pullovers are not worn next to skin and in common parlance and in business terminology as well they are not treated as articles of hosiery but are treated as woollen goods. On this view we do not agree with the decision given in British India Corporation Ltd. v. Commissioner of Sales Tax 1982 49 STC 47 (App) 1980 UPTC 1078 and hold that it has not been correctly decided. In the result this writ petition fails and is dismissed with costs to the respondents.
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1982 (2) TMI 284 - ALLAHABAD HIGH COURT
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... ... ..... icient to arrive at a positive finding on the question whether the dealer had manufactured bricks during the year in question and had not decided the matter on merits himself, it was not open to the Tribunal to do so itself. He has further urged that from the grounds taken by the dealer in the memorandum of revision against the order passed by the Assistant Commissioner, on the basis whereof the Tribunal dealt with the matter in second appeal, it was clear that the dealer was not seeking any determination of the dispute on merits. He had only paid the minimum court-fee of Rs. 15. It is not necessary for me to express any opinion on these contentions for the order of the Tribunal is liable to be set aside on the ground that it was rendered by a Bench which was not competent to do so. In the result, the revision succeeds and is allowed. The order of the Tribunal is set aside. The matter shall be heard and disposed of in accordance with law. There shall be no order as to costs.
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1982 (2) TMI 283 - KARNATAKA HIGH COURT
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... ... ..... this memo, it is not necessary for us to pronounce on the question of the constitutional validity of section 8A(3A), as the memo, in effect, concedes the second contention urged for the petitioners that Notification S.O. 2048 dated 10th September, 1970, is not one made under and traceable to section 8A(1)(a) of the Act . In view of this memo, the proceedings initiated against the petitioners for revision, reassessment or rectification, as the case may be, and orders, if any, already made in such proceedings cannot be allowed to stand but require to be quashed. 8.. Accordingly, recording the memo filed by the learned Government Advocate, we allow these writ petitions in part and quash the impugned notices, proceedings or orders, as the case may be, impugned in these writ petitions. 9.. The parties are left to bear their own costs in these petitions. 10.. Sri M.R. Achar, the learned Government Advocate, is permitted to file his memo of appearance within three weeks from today.
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1982 (2) TMI 282 - ALLAHABAD HIGH COURT
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... ... ..... s of fact have to be decided before granting relief to the petitioner. The counsel for the petitioner contended that in case the petitioner files an appeal now it would be time-barred. We can protect the petitioner from this calamity, for as we have entertained the petition and it has been pending in this Court for a long length of time, we issue a direction to the appellate authority to condone the delay in filing of appeals on account of pendency of the writ petitions in this Court. We accordingly dismiss the petition on the consideration that disputed questions of fact arise which cannot be satisfactorily decided in proceedings under article 226 of the Constitution. In case the petitioner files an appeal against the impugned orders under section 9 of the Act the appellate authority will not dismiss the appeals as being time-barred, and will grant credit for the time spent in prosecuting the petitions here. The stay order is discharged. There shall be no order as to costs.
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1982 (2) TMI 281 - GUJARAT HIGH COURT
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... ... ..... iction under section 69 of the Act, we cannot travel outside the scope and ambit of our jurisdiction under section 69 of the Act. If we made the least effort, we would be flagrantly violating the mandatory provisions contained in section 69 of the Act. Under the aforesaid circumstances, we are afraid, and we must say that we have no jurisdiction even to give a direction to the Tribunal to give to the parties an adequate opportunity to lead further evidence to prove that the liquid glucose or glucanil is food and is not chemical. It is needless to say, that if the assessee had any grievance on the said finding, it is always open to the assessee to approach the constitutional forum, but surely, this is not a proper forum to ventilate any grievance in regard to the facts not canvassed nor urged before the Tribunal. The result of the aforesaid discussion is, that the reference is rejected but having regard to the facts and circumstances of the case, we make no order as to costs.
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1982 (2) TMI 280 - GUJARAT HIGH COURT
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... ... ..... ould obviously be covered by entry 76 of Schedule II, Part A. to the Gujarat Sales Tax Act, 1969, as it stood on 4th June, 1975. We answer the first question accordingly. In regard to the second question of law referred to us, we say that if the evidence collected discloses that autovolters were sold as accessories for the use of an air-conditioner or were meant for use for an air-conditioner, then the sales tax would be covered by entry 69 of Schedule II, Part A, to the Gujarat Sales Tax Act, 1969. In regard to question No. (3) we say that if the evidence discloses that the accessories sold by a dealer were not to be used or were not meant for use of a refrigerator or an air-conditioner, then the sales would be covered by entry 41 of Schedule II, Part A, to the Gujarat Sales Tax Act, 1969. We accordingly answer the questions referred to us by the Tribunal. Having regard to the facts and circumstances of the case, we make no order as to costs. Reference answered accordingly.
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1982 (2) TMI 279 - GUJARAT HIGH COURT
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... ... ..... dloom fabrics and that their price must not exceed 10 rupees per article or suit. Subject to those expressed limits, the word articles must be given its plain meaning and any interpretative delimitation of the general word articles would be unjustifiable to the prejudice of the assessee. In our opinion, considering the matter from different angles, the Tribunal was not justified in giving a restricted application to the general word used in the concerned entry, namely, articles . In the result, our decision on the question of law referred to us is that under the facts and circumstances of the present case, the Tribunal was not right in law in holding that the applicant s sales of disputed cloth bags were not sales of articles covered by entry 51 of Schedule I to the Gujarat Sales Tax Act, 1969. Our finding accordingly is in favour of the assessee and against the revenue. Under the circumstances of the case, there shall be no order as to costs. Reference answered accordingly.
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1982 (2) TMI 278 - GUJARAT HIGH COURT
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... ... ..... read the words in connection appearing in the definition of the term dealer in section 2(10) of the Act in its plain ordinary commonsense and parlance, and it is difficult for us to carve out any other meaning of the said words by any stretch of imagination, and hence, it was impossible for us even to countenance the submissions of Mr. Modi, particularly when there was no ambiguity either in section 2(4)(ii) or in section 2(10) of the Act. In view of the aforesaid discussion, we need not detain ourselves any longer by referring to some of the authorities referred by the Tribunal. In the course of the hearing of the reference, our attention was invited by Mr. Modi, that in the instant case, even the assessee has to pay some amount by way of penalty. In the result, the questions which are referred are answered against the assessee and in favour of the State. Having regard to the facts and circumstances of the case, we make no order as to costs. Reference answered accordingly.
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1982 (2) TMI 277 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... the consumers, they, to my mind, are not to be made entitled to either not to pay the same to the authorities or to claim refund of the same. Thus I vary that last part of my order wherein I have held after quashing the impugned notifications that the petitioners would only be liable to pay tax in accordance with the rate prevalent prior to the coming into force of the impugned notifications and hold that they would not be made liable to pay tax in the light of the impugned notifications after the date of the said order of mine, that is, 17th November, 1981. To make it more clear it is pointed out that though the impugned notifications have, as already indicated, been held to be bad, yet on account of that declaration the petitioners would be absolved of their liability only prospectively, that is, after 17th November, 1981, and not retrospectively. Since the respondents have partially succeeded in these proceedings, I do not pass any order as to costs. Ordered accordingly.
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1982 (2) TMI 276 - GAUHATI HIGH COURT
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... ... ..... of a fresh enactment, even if it implies two steps-the intention in this regard being required to be gathered from the use of words in the enacting provisions seen in the light of the procedure gone through. We have mentioned this aspect for the sake of completeness only. It may also be stated that old rule 46A is not a subject-matter of our scrutiny. 18.. In the result, the attack on the validity of new rule 46A is negatived. This is subject to our interpretation of sub-rules (2) and (3). But as we have held that this rule could not have operated with retrospective effect, i.e., beyond 2nd November, 1971, the respondents are directed to grant drawback, set-off or refund to the petitioners up to the return period ending 30th September, 1971, on the basis of the old rule 46A. 19.. The petitions stand disposed of as aforesaid. We have disposed of these applications by a common judgment, as they involve common questions of law and facts. LAHIRI, J.-I agree. Ordered accordingly.
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1982 (2) TMI 275 - GUJARAT HIGH COURT
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... ... ..... the case as brought to light by the judgment of the Tribunal, we are of the view that the department was not correct in levying upon the assessee the order of forfeiture of Rs. 27,104 under section 37(1) read with section 46(2) of the Bombay Sales Tax Act, 1959, and therefore we do not consider it necessary to decide a further question which was agitated before us with persistence by both the sides as to whether the imposition of penalty was attracted at all under section 37(1) read with section 46(2) of the Bombay Sales Tax Act, 1959. Accordingly, our answer to the question referred to us is in the negative, that is to say, under the facts and the circumstances of this case, the Tribunal was not right in law in upholding the order of forfeiture of Rs. 27,104 under section 37(1) read with section 46(2) of the Bombay Sales Tax Act, 1959 the result is that our answer is in favour of the assessee and against the department. No order as to costs. Reference answered accordingly.
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1982 (2) TMI 274 - RAJASTHAN HIGH COURT
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... ... ..... of this Court in exercise of its powers under article 226 of the Constitution of India. The notice (exhibit 1) had already merged in the order of provisional assessment passed earlier to the filing of the writ petition. The petitioner has a right to go in appeal against the order of provisional assessment and the merits of the order of provisional assessment cannot be examined. Firstly, the petitioner has not directly challenged the order of provisional assessment and has only tried to challenge the same indirectly through the notice (exhibit 1). Even otherwise this Court in the exercise of its extraordinary jurisdiction under article 226 cannot sit as a court of appeal over the order of provisional assessment. Further, there is a proper, adequate remedy to the petitioners to challenge the order of provisional assessment by way of appeal under the Rajasthan Sales Tax Act. Thus we find no force in these writ petitions and the same are dismissed summarily. Petitions dismissed.
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1982 (2) TMI 273 - ALLAHABAD HIGH COURT
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... ... ..... to the relevant material to be brought on record in the case, including judicial pronouncements, if any, on the subject. Such a matter is normally not to be determined solely on the basis of personal observation by an authority constituted for the purpose under the Act. The learned standing counsel is, therefore, right in his submission that the Tribunal should not have taken upon itself, by personal observation, to decide whether the commodity marketed by the dealer could be treated to be covered by entry scents and perfurmes . Since, in the instant case, this is precisely what has been done by the Tribunal, it appears desirable to send the matter back to it for reconsideration in accordance with law. The order of the Tribunal is set aside and the case is remanded to it for decision afresh in accordance with law. Let a copy of this order be forwarded to the Tribunal in terms of section 11(8) of the Act. Parties shall bear their own costs. Petition allowed and case remanded.
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1982 (2) TMI 272 - GUJARAT HIGH COURT
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... ... ..... concealment of any sales by the respondent-assessee to M/s. Shah Trading Company, and hence we are in entire agreement with the reasoning and the ultimate conclusion arrived at by the Tribunal. In view of our aforesaid discussion, we need not burden this judgment by referring in detail form No. 16 wich is given along with the Bombay Sales Tax Rules, 1959, nor we should refer to any conditions for the issuance of such a certificate. Under the aforesaid circumstances, the two questions which are referred by the Tribunal could have been formulated only in one question, and had it been so formulated, some confusion could have been avoided and our task would have been easier and simpler. As a result of the aforesaid discussion, we answer both the questions referred to us in favour of the respondent-assessee and against the State. Having regard to the fact that the respondent-assessee has not chosen to appear before us, we make no order as to costs. Reference answered accordingly.
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1982 (2) TMI 271 - KERALA HIGH COURT
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... ... ..... do not afford any guideline to determine whether the first respondent is an officer answering to the requirements of explanation II to section 45A, the action taken by him in this case cannot be sustained. I hold that the notification issued in 1963 can have no application to the case on hand, for, reliance on the notification will be to equate a Check Post Inspector with the Intelligence Officer. In the absence of a notification under explanation II to section 45A, it is not possible to fix the rank of the Intelligence Officer in this case. Under these circumstances I hold that the petitioner is entitled to succeed in his challenge against exhibits P3 and P5. I quash exhibits P3 and P5 and direct that no proceedings against the petitioner shall be taken pursuant to these orders. In view of this finding I do not think it necessary to decide the various other questions raised in the petition. I allow this petition and direct the parties to bear their costs. Petition allowed.
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1982 (2) TMI 270 - GUJARAT HIGH COURT
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... ... ..... a nature which would fall within the ratio of any of the four Supreme Court cases referred to above. But Mr. Pathak with his usual tenacity argued the matter for about a couple of days and made a desperate effort to persuade us to take the view that the questions framed by the Tribunal are questions of law. To our repeated requests made to Mr. Pathak to satisfy ourselves as to how the questions formulated by the Tribunal are questions of law, Mr. Pathak could not give to us any satisfactory answer. Under the circumstances, we are of the view that the questions referred to us by the Tribunal are not questions of law, and hence we reject the reference as we decline to answer the questions formulated by the Tribunal as they are not questions of law. Suffice it to say that questions referred to us substantially can only be answered having regard to evidence . Reference rejected. The applicant-assessee to pay to the State Government the costs of the reference. Reference rejected.
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1982 (2) TMI 269 - ORISSA HIGH COURT
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... ... ..... rn and sewing thread were one and the same commodity. We are not inclined to accept the submission of the learned standing counsel that the matter should be referred to a larger Bench merely on account of the fact that the Kerala High Court did not approve of this Court s decision. As already pointed out, this Court s conclusions were based upon two aspects, one relating to the merit of the matter and the other referable to the plea of promissory estoppel. We are inclined to reiterate the view expressed in the reported decision of this Court and would humbly differ from the view taken by the learned Judges of the Kerala High Court. For the reasons indicated in the reported judgment of this Court, our answer to the question referred is against the revenue and we would hold that sewing thread is taxable at the same rate as prescribed for the cotton yarn. There will be no order for costs. BEHERA, J.-I agree with my Lord, the Chief Justice. Reference answered in the affirmative.
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