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1987 (9) TMI 413 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY
... ... ... ... ..... the legitimate portion, which was separable prior to investment, no longer remains so after the investment in the property. If the above considerations prevail, the case of illegally acquired properties only a part of which is explained to have come from legal sources and which do not fall within the exception in section 9(1) of the Act, as in the present case, does not require any softening down of the rigours of forfeiture and by the same token, no amount would be payable by the Government to the appellant on taking over the possession of such forfeited property. Apart from this, we have also to consider the question of competence of this Tribunal to make any directions for reimbursement of the proved portion of the investment in an illegally acquired property. Since these rival points have not been argued at the bar, the learned Chairman has rightly refrained from directing any reimbursement. Subject to the above remarks, we are in agreement with the rest of the judgment.
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1987 (9) TMI 412 - SUPREME COURT
... ... ... ... ..... Section 20 can not be attracted. In the light of the discussions above therefore, in our opinion, the contention advanced by learned counsel for the appellant can not be accepted. The appellant-tenant could not be given the advantage of the provisions contained’ in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed. It is true that we maintained the decree for eviction passed by the High Court but in view of the fact that as the appellant has been carrying out the business in the premises for a long time for it would be proper to permit the appellant time to make their arrangements for shifting. We therefore direct that the decree for eviction shall not be executed upto 3 1st March, 1988 on the appellant filing a usual undertaking within four weeks. In default the respondent shall be entitled to execute the decree forthwith. In the circumstances of the case parties are directed to bear their own costs. Appeal dismissed.
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1987 (9) TMI 411 - MADRAS HIGH COURT
... ... ... ... ..... ssistant Commissioner could be availed of to save the limitation prescribed by the statute. If there had been a lacuna in the initiation of the proceeding in that it was initiated beyond the time prescribed, that lacuna will certainly deprive the authority concerned of the jurisdiction to exercise the power of revision as per section 16 of the Act. This proposition squarely comes into play and militates against the impugned notice. The order of the Appellate Assistant Commissioner cannot extend the period of limitation. The respondent cannot be clothed with jurisdiction to exercise the power of revision under section 16 of the Act beyond time, merely because the Appellate Assistant Commissioner chose to direct him to issue a fresh notice. A similar view has been expressed by the Jaipur Bench of the High Court of Rajasthan in Jaipur Udyog Ltd. v. Commercial Taxes Officer 1979 44 STC 456. Under these circumstances, the writ petition is allowed. No costs. Writ petition allowed.
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1987 (9) TMI 410 - SUPREME COURT
Whether the contractor was entitled to be paid interest on the amount which the Railway Company was liable to pay?
Whether the court had authority to allow interest for the period prior to the institution of the suit?
Held that:- The award not being a speaking award, it was not permissible to speculate on the reasons for the award of interest and the court was not entitled to go behind the award and disallow the interest. It is difficult to agree with this submission. The arbitrator is bound to make his award in accordance with law. If the arbitrator could not possibly have awarded interest on any permissible ground because such ground did not exist, it would be open to the court to set aside the award relating to the award of interest on the ground of an error apparent on the record. On the other hand, if there was the slightest possibility of the entitlement of the claimant to interest on one or other of the legally permissible grounds, it may not be open to the court to go behind the award and decide whether the award of interest was justifiable. We do not want to enter into a discussion on the legality or properiety of a non-speaking award as we understand the question is now awaiting the decision of a Seven Judge Bench. In the light of what we have said above, Civil Appeal Nos. 120 and 121 of 1981 are dismissed, Civil Appeal Nos. 6019-22 of 1983 and A Civil Appeal No. 2257 of 1984 are allowed to this extent that interest during the pendency of the arbitration proceedings is disallowed and the rest of the civil appeals are allowed to the extent that both interest prior to the proceedings and interest during the pendency of the proceedings are disallowed.
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1987 (9) TMI 409 - MADRAS HIGH COURT
... ... ... ... ..... espect of a financial year or any part thereof. This provision clearly shows that a reassessing authority is vested with the power to make an order in respect of escaped tax in respect of the whole financial year or a part thereof. This is of course subject to the condition that there is material on record to show that tax had escaped. In a case like the instant one where the consumption of electricity was unduly large which could not be reasonably accounted for by the limited number of shows which have been returned by the proprietor, we do not see any error if the assessing authority assessed the number of shows on the footing of the total consumption of electricity especially when there is no other plausible explanation with regard to the large consumption of electricity. In our view, there is no substance in the writ petition. The writ petition is dismissed. The appeal also stands dismissed. However, there will be no order as to costs. Writ petition and appeal dismissed.
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1987 (9) TMI 408 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... the view of the Tribunal that because radiator is a part or accessory of the motor vehicle, it cannot also be a part or accessory of the diesel engine. It is not necessary to ask the question whether the radiator is a part or accessory of the motor vehicle for the purpose of applying the notifications. The question to be considered is whether the radiator is a part or accessory of the diesel engine and if the answer is yes , no other consideration should prevail. Once the radiator is held to be a part or accessory of the diesel engine, the concessional rate of tax prescribed by the notifications applies. For the reasons stated above, we have no hesitation in coming to the conclusion that a radiator is an accessory of the diesel engine and, therefore, the notifications directly apply and the sales can be subject to tax at the rate of 8 per cent only. 11.. In the result the tax revision case is accordingly allowed. No costs. Government Pleader s fee Rs. 250. Petition allowed.
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1987 (9) TMI 407 - ORISSA HIGH COURT
... ... ... ... ..... urt while disposing of the special leave petition set aside the order passed by this Court and directed to admit the writ application to its file and dispose it of on merits on the question as to whether the appellants are entitled to the benefit of the Industrial Policy Resolution dated July 18, 1979. In view of the directions of the Supreme Court the writ application has to be disposed of on merits and cannot be dismissed as not maintainable on the ground of availability of alternative remedy. We would, therefore, refrain from discussing the point of law on the subject. In the conclusion, we hold that the petitioners are entitled to the benefit of the Industrial Policy Resolution dated July 18, 1979 and on that basis tax liability of the petitioners has to be computed. 8.. In the result, the writ application is allowed and the assessment order in annexure-1 is accordingly quashed. We, however, make no order as to costs. V. GOPALASWAMY, J.-I agree. Writ application allowed.
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1987 (9) TMI 406 - ORISSA HIGH COURT
... ... ... ... ..... fore the delivery of the goods when he had agreed to pay it separately. The purchasing dealer had clearly directed that after the weighment at a particular place, the goods would be stacked up to a height of 10 feet. In my opinion, after the weighment was thus done at the place desired by the purchasing dealer, all necessary operations for completing the sale and drawing up the bill by the selling dealer were over for all practical purposes. The additional charges were, therefore, incurred for handling the materials for the convenience and on the instruction of the purchaser. The Tribunal has, therefore, taken the correct view of the law that the stacking charges in question did not form part of the sale price and as such were not exigible to sales tax under the Act. 11.. The answer to the question must, therefore, be given in favour of the dealer. In the circumstances, however, I shall make no order as to costs. P.C. MISRA, J.-I agree. Reference answered in the affirmative.
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1987 (9) TMI 405 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... of the vehicle on the date the hirer exercises his option and becomes the owner of the vehicle after fulfilling the terms of the agreement. It is for the sales tax authorities on the facts and circumstances of each case to determine as to which of the two methods are to be adopted. It has not been urged by the learned counsel for the applicant that on the facts and circumstances of the case, the method adopted by the Tribunal was not open to be adopted at all. 7.. In view of the foregoing discussion, our answer to the question No. (a) referred to us is that in the facts and circumstances of this case, the Tribunal was justified in directing the initial payment to be included in the amount on which depreciation is to be allowed. 8.. As regards question No. (b), since in our opinion, the said question does not arise out of the appellate order of the Tribunal, it is returned unanswered. Under the circumstances of the case, there shall be no order as to costs. Order accordingly.
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1987 (9) TMI 404 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... nal Thermal Power Corporation pays to the petitioner the amount of sales tax it is liable to pay by virtue of the clarification of the State Government in its memorandum dated April 3, 1986. As observed by the Supreme Court there is no legal liability on the National Thermal Power Corporation to do so. But when the other statutory corporation owned by the State Government, namely, the A.P. State Electricity Board, has fairly and reasonably agreed to reimburse the additional tax liability of the petitioner, we hope and trust that the National Thermal Power Corporation will not seek to defeat the legitimate claim of the petitioner for reimbursement of additional tax liability due to inclusion of additional tax under section 5-A and surcharge under section 6-B of the Andhra Pradesh General Sales Tax Act. Subject to the above observation, the writ petition is dismissed. But in the circumstances there shall be no order as to costs. Advocate s fee Rs. 200. Writ petition dismissed.
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1987 (9) TMI 403 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... a notification delimiting the jurisdictional areas of these officers and their jurisdiction is confined to certain specified areas. He points out that the concurrent jurisdiction is no longer in force now. May be so, but even this would not validate the impugned notice because the notification delimiting the areas of jurisdiction cannot have retrospective effect and would not therefore retrospectively validate the impugned notice. For the above reasons and following the said Bench decision, we quash the impugned notice. The writ petition is accordingly allowed. There shall be no order as to costs. It is obvious that this order does not preclude the Commercial Tax Officer having ordinary jurisdiction over the area concerned to take fresh proceedings according to law against the petitioner. Section 24-A of the Act is relevant in this behalf. The writ petitions are allowed accordingly. There shall be no order as to costs. Advocate s fee Rs. 150 in each. Writ petitions allowed.
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1987 (9) TMI 402 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... not given any opportunity to explain as to whether the application made by it for grant of eligibility certificate was or was not within time. 4.. In view of the aforesaid circumstances, we are of the opinion that a case has been made out for issuing a suitable direction to respondent No. 1 to consider the representation made by the petitioner, a copy whereof has been attached as annexure E to the writ petition, and pass final order thereon expeditiously inasmuch as considerable time since after the making of the representation has already elapsed. 5.. In the result, this writ petition succeeds and is allowed to the extent that respondent No. 1 is directed to decide the representation made by the petitioner a copy whereof has been attached as annexure E to the writ petition, within two months of the production of certified copy of this order by the petitioner. There shall be no order as to costs. Security amount, if deposited, be refunded to the petitioner. Petition allowed.
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1987 (9) TMI 401 - ORISSA HIGH COURT
... ... ... ... ..... er in many ways is also similar. The decision in 1974 33 STC 83 (Orissa) (Ram Chandra Badrinarayan v. State of Orissa) was again referred to by a Full Bench of this Court in the case of State of Orissa v. Bharat Saw Mill 1980 46 STC 389 with approval. 10.. On a circumspection of all the facts and circumstances as well as the authorities discussed above, I have no doubt in my mind to reach the conclusion that the decision of this Court in the case of Ram Chandra Badrinarayan v. State of Orissa 1974 33 STC 83 is still a good law holding the field. Once I come to this conclusion, the answer to both the questions must be given in favour of the dealer and against the department. The dealer therefore did not contravene the provisions of section 5(2)(A)(a)(ii) of the Act. 11.. In the result, the reference is accepted and the questions are answered accordingly, but in the circumstances I shall make no order as to costs. D.P. MOHAPATRA, J.-I agree. Reference answered in the negative.
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1987 (9) TMI 400 - ORISSA HIGH COURT
... ... ... ... ..... f the Act by selling the pulses after converting the same into dal and accordingly raised further demands for the assessment years in question. 4.. The dealer failed before the first appellate authority but succeeded in second appeal before the Tribunal which ultimately has made these two references. 5.. The matter need not be discussed in great detail since this Court in several cases including a recent case, i.e., S.J.C. No. 18 of 1981 (Samaleswari Store v. State of Orissa 1988 68 STC 228) decided on September 2, 1987, dealing with exactly a similar point, has held that the dealer by such conversion did not contravene the said provision of law. It is conceded at the Bar that this case is squarely covered by the decision of the aforesaid case (S.J.C. No. 18 of 1981) (Samaleswari Store v. State of Orissa 1988 68 STC 228). 6.. Accordingly, our answer to the question must be given in favour of the dealer and against the Revenue. No costs. Reference answered in the affirmative.
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1987 (9) TMI 399 - ORISSA HIGH COURT
... ... ... ... ..... an assessment is complete. A Bench of the Allahabad High Court, of course, dealing with an income-tax case, following the above Supreme Court case, took a similar view in the case of S.P. Kochhar v. Income-tax Officer, Dehradun 1984 145 ITR 255 1983 TLR 181. The observation in Ghanshyamdas s case 1963 14 STC 976 (SC) AIR 1964 SC 766 would apply with full force to this case and it must be held that the proceeding initiated by the opposite party for the period in question by issuing the notice in annexure I cannot be sustained. Keeping the assessment proceeding incomplete, the assessing authority had no jurisdiction to take recourse to the powers conferred upon him under section 12(8) of the Act. 10.. The writ application, therefore, must succeed. It is accordingly allowed and the notice in annexure 1 is hereby quashed. In the circumstances, however, I shall leave the parties to bear their own costs. P.C. MISRA, J.-I agree. K.P. MOHAPATRA, J.-I agree. Writ application allowed.
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1987 (9) TMI 398 - ORISSA HIGH COURT
... ... ... ... ..... on of the decision of the Supreme Court in the case of Manganese Ore (India) Ltd. 1976 37 STC 489. 5.. The amending provisions had fallen for consideration before some of the High Courts and the imposition and collection levied before the commencement of the amending Act were held to be within the authority of law in view of the amending provisions. In this connection, reference may be made to Commissioner of Sales Tax v. Bombay Commercial Traders 1978 41 STC 215 (Bom) and Pannalal Kankariya and Sons v. Additional Assistant Commissioner of Sales Tax, Indore 1982 49 STC 64 (MP). I find myself in complete agreement with the view taken by the learned Judges in both these cases and would therefore hold that in view of the change in the legal position, the orders imposing penalities stand saved and protected. 6.. The answer to the question must therefore be given in favour of the Revenue and against the dealer. No costs. P.C. MISRA, J.-I agree. Reference answered in the negative.
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1987 (9) TMI 397 - KERALA HIGH COURT
... ... ... ... ..... Tax Officer acted mechanically on a misconception that he was bound to impose the maximum penalty under section 10A in every case, and that he has no discretion in that matter. The quantum of punishment is a thing to be determined in exercise of the judicial discretion vested in the authority under the above section. It follows that the Sales Tax Officer has acted in violation of the law in imposing the maximum penalty on the petitioner. We concur with the said observation. It is also appropriate to note that the said observations were approved by a Bench of this Court in Marikar (Motors) Ltd. v. Sales Tax Officer ILR (1973) 2 Ker 204. 5.. In the light of the above, we quash exhibits P2, P3 and P5 orders in O.P. No. 2323 of 1980. We also set aside the order of the Board of Revenue dated 1st April, 1980, which is appealed against in M.F.A. No. 318 of 1980. 6.. The original petition and the miscellaneous first appeal are disposed of as above. Petition and appeal allowed. nbsp
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1987 (9) TMI 396 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... uently, the substance of the transaction in canteen sales, evidenced by its dominant object, is not sale of food, but rendering of services as a welfare activity as enjoined by the Factory Act and the State Rules. The fixation of price of food articles supplied by the canteen on non-profit basis as required under rule 80 of the M.P. Factories Rules is in conformity with the dominant object of service and welfare and excludes the intention of sale of food as business activity. 6.. In view of the discussion aforesaid we are of the opinion that in the facts and circumstances of the case the Tribunal was justified in holding that canteen sales are not exigible to tax as the dominant object in running the canteen is welfare of the employees and not carrying on business in sale of food articles. Accordingly our answer to the question is, therefore, in the affirmative and against the Revenue. There shall, however, be no order as to costs. Reference answered in the affirmative. nbsp
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1987 (9) TMI 395 - MADRAS HIGH COURT
... ... ... ... ..... therefore, the petitions filed beyond the period of 45 days are not maintainable and the petitions are accordingly dismissed. However, it is made clear that we have not considered the question whether the proviso is ultra vires the powers of the legislature on any ground raised by the learned counsel. For the purpose of completeness, we may say that he vaguely suggested that while the provision relating to appeal did not exclude the application of section 5 of the Limitation Act, the provision relating to revision is excluded and that may amount to discrimination. As already stated, the petitions are filed to excuse the delay in filing the revision petitions under section 38 of the Tamil Nadu General Sales Tax Act, 1959. We are sitting as revisional authorities and our jurisdictions are restricted to consideration of the provisions of the Act itself and as such revisional authorities we cannot go into the constitutional validity of the provision itself. Petitions dismissed.
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1987 (9) TMI 394 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... l tax. We are in respectful agreement with the said Bench decision, and hold that surcharge must be taken into account while determining the rate of tax payable under sub-section (2-A) of section 8. For the above reasons, we are of the opinion that when sub-section (2-A) of section 8 of the Central Sales Tax Act speaks of the lower rate at which sales tax is charged under the State enactment, it includes not only the sales tax chargeable under section 5 and additional sales tax chargeable under section 5-A, but also surcharge leviable under section 6-B of the State enactment. In other words, whatever is payable by way of tax under the State enactment in the case of intra-State sale, will also be payable by way of Central sales tax in the case of inter-State sale, in cases to which subsection (2-A) will apply. The writ petitions are, accordingly, dismissed but, in the circumstances, there shall be no order as to costs. Advocate s fee Rs. 150 in each. Writ petitions dismissed.
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