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1989 (6) TMI 284
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... ... ..... relevant or material in holding that he was employed in a technical capacity. It may be, the employers thought that the respondent was a technician and he should be given certain concessions or perquisites. It may also be that those concessions or perquisites were given to him because of the nature of the work which the respondent was doing rather than the capacity in which he was employed. Similarly, the fact that the respondent is a member of the association of technicians in the company is not of such crucial importance as to hold that the respondent is a person employed in a technical capacity. In any case, in the absence of basic material relating to the nature of the work performed by the respondent, it has not been possible for us to differ with the concurrent finding given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity. 27. In the result, the petition fails. Rule is accordingly discharged with costs.
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1989 (6) TMI 283
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... ... ..... ny consequence at all. Therefore, it is, I cannot entertain the submission of the Government Pleader asking me not to interfere with the impugned proceedings of the Tahsildar, because the petitioner had acquiesced in the said order. This argument is clearly without any substance and has therefore to be rejected. 9. In the result, this writ petition succeeds and is allowed. The auction proceedings of the Tahsildar at Annexure 'B' is quashed as also all other orders made by the Assistant Commissioner and the Deputy Commissioner, Karnataka Appellate Tribunal also stand quashed. The matter will now go back to the Deputy Commissioner for appropriate disposal in accordance with law in the light of the observation made in the course of this order. The Deputy Commissioner will dispose of the proceedings now remitted to him within 3 months from the date of receipt of this order, subject of course to hearing the parties whenever it is necessary. No costs. 10. Petition allowed.
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1989 (6) TMI 282
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... ... ..... know the points which are against him. Before the assessment is completed he gets an opportunity before the IAC to make objection to the proposed assessment. The intention, as we find behind the provision of s. 144B, is to reduce the appeals providing a forum before the actual assessment is made and the liability is ascertained and imposed on assessee. We are, therefore, of the view that the failure to follow the procedure prescribed by s. 144B has not affected by jurisdiction of the ITO to pass an Order under s. 143(3). 7. The view we have taken is supported by the decisions G.R. Steel & Alloys (P) Ltd. vs. CIT (1984) 42 CTR (Ker) 107 (1985) 152 ITR 220(Ker), H.M. Maharaja Pawer Dewas vs. CIT (1982) 138 ITR 518(MP), Kimtee vs. CIT (1984) 40 CTR (MP) 105 (1985) 151 ITR 73(MP). 8. For the reasons aforesaid, we answer the question in this reference in the affirmative and in favour of the Revenue. 9. There will be no order as to costs. BHAGABATI PRASAD BANERJEE, J. I agree.
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1989 (6) TMI 281
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... ... ..... , would represent the profit or loss on the venture. Leaving aside its borrowings, it put up 3.25 million of its own money and stood to lose the lot. In fact, it lost 468.469. Had the film been successful, it would have made money and possibly a lot of Its actual loss cannot be regarded as a paper loss or a predetermined fee for the opportunity to participate in a tax avoidance scheme or a colourable device to attach the trappings of commerce to such a scheme. It was what it purported to be, a loss sustained in a highly speculative venture, conditioned in its form and motivated by a desire to secure a tax advantage, but on commercial terms and in the nature of trade. 9. Conclusion In my judgment, the facts found by the commissioners are such that no person acting judicially and properly instructed as to the relevant law could have come to the conclusion to which they came. I allow the appeal. Appeal allowed with costs. Solicitors F. D. McIntosh ; Solicitor of Inland Revenue.
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1989 (6) TMI 280
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... ... ..... are not communicated. Otherwise the constitutional safeguard guaranteed under Article 22(5) will have no meaning. From the various decisions of the Supreme Court, it is clear that non-supply of the grounds of detention or relevant documents must have an effect of invalidating the detention itself. In that Case the detention cannot be said to be according to the procedure prescribed by law. If the detention itself is not according to the processor prescribed by law, then the question of supporting the void order of detention by taking recourse to Section 5A will not arise. 4. In view of the aforesaid, it will have to he held that the entire detention order stands vitiated and the provisions of Section 5A cannot cure the same. 5. In the result, the petition succeeds. The impugned order of detention dated the 2nd of January, 1959 is quashed. The petitioner is directed to be set at liberty forthwith unless required in any other case. Rule is made absolute. 6. Rule made absolute.
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1989 (6) TMI 279
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... ... ..... Rules, 1941. Reliance has been placed in this regard on the case of Swarmal Choudhury v. Commercial Tax Officer 1988 71 STC 404 (Cal) and also the Division Bench decision in Ram Lawat Shaw v. Commercial Tax Officer 1987 66 STC 235 (Cal). 18.. In view of the facts and circumstances stated above, we are of the opinion that the order of refusal of eligibility certificate to the applicant be quashed. It is ordered that the eligibility certificate be issued to the applicant for the period February 19, 1986 to February 4, 1987. The applicant may, thereafter apply for renewal of the said certificate to the appropriate authorities, who will dispose of such application according to law. It is further ordered that declaration forms be issued to the applicant as may be found admissible. 19.. In the result, the application succeeds on contest and is allowed. There will be no order for costs. B.C. CHAKRABARTI (Chairman).-I agree. L. N. RAY (Judicial Member).-I agree. Application allowed.
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1989 (6) TMI 278
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... ... ..... f 1989 be dismissed on contest but without any costs. The sum of Rs. 1,40,000, furnished as security, shall be adjusted against the total demand. Case Nos. RN-20 of 1989 and 105 of 1989 are allowed in part for the purposes indicated hereinbefore on condition that a sum of Rs. 1,00.0 in each of those two cases as costs be paid by the applicant in favour of the Commissioner of Commercial Taxes, West Bengal, within two weeks. In default of payment of such costs within the period of two weeks, Case Nos. RN-20 and 105 of 1989 shall stand dismissed. If costs are paid, it shall not be necessary for the appellate authority to serve notice to show cause afresh. The applicant shall appear before the appellate authority within two weeks of deposit of costs and take such steps as it may be advised. The cases are thus disposed of. P.C. BANERJI (Technical Member).-I agree. L.N. RAY (Judicial Member).-I agree. Case Nos. RN-20 and 105 of 1989 partly allowed. Case No. RN-2 of 1989 dismissed.
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1989 (6) TMI 277
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... ... ..... the interest of the Government must be challenged by the Government before the appellate or revisional authority. The officer passing such order cannot be subjected to disciplinary proceedings. 16.. Accordingly, we uphold the second of the arguments advanced by Mr. N. Ganapathy and hold that there is no scope for taking disciplinary proceedings against the appellant. Once such a conclusion is arrived at, obviously, the imposition of penalty, namely, stoppage of increment as ordered originally by the Board and later on, as not affecting the pension of the appellant, as ordered by the Government in the impugned Government Order also will have to be quashed. Accordingly, they are quashed. 17.. The writ appeal will stand allowed setting aside the order of the learned single Judge. The appellant will be entitled to costs. Counsel s fee Rs. 1,000. Consequent to our judgment, whatever benefits the appellant would be entitled to otherwise, he shall be entitled. Writ appeal allowed.
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1989 (6) TMI 276
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... ... ..... 85. The other application for renewal for the period from April 1, 1985 to August 14, 1985, has been pending since January 2, 1987. There is no reason why that could not be disposed of along with the application for the period from April 1, 1984 to March 31, 1985. 14.. We, therefore, allow this application under section 8 of the West Bengal Taxation Tribunal Act, 1987, without costs. We direct the Assistant Commissioner (respondent No. 1) to forthwith grant renewal of the eligibility certificate to the first applicant for the period from April 1, 1984 to March 31, 1985. We set aside the Assistant Commissioner s impugned order of March 8, 1989. We further direct the Assistant Commissioner to dispose of the application for renewal of the E.C. for the period from April 1, 1985 to August 14, 1985, within four weeks, having regard to our findings and observations in this judgment. B.C. CHAKRABARTI (Chairman).-I agree. P.C. BANERJI (Technical Member).-I agree. Application allowed.
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1989 (6) TMI 275
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... ... ..... lty it is clear that none of the requirements indicated above was fulfilled. The notice did not contain any details whatsoever of the alleged charge under section 10(b) except repeating the language of the said clause. No such details were given even on being asked for. Even the order of penalty does not contain any of those informations. It simply -mentioned the value of goods alleged to have been purchased on the basis of false representation made by the petitioner. It does not show that the authority concerned applied its mind to the essential ingredients of section 10(b). It also does not indicate as to how the quantum of penalty was fixed at Rs. 5,000. The impugned order of penalty, therefore, cannot be sustained. 18.. In view of what have been stated above the petition is allowed. The impugned order of penalty dated September 2, 1980, passed by the Superintendent of Taxes, Agartala, is hereby quashed. No order as to costs. J.M. SRIVASTAVA, J.-I agree. Petition allowed.
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1989 (6) TMI 274
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... ... ..... he goods in question, which are admittedly car air-conditioners, was without the authority of law and invalid. Since those were never brought within the ambit of notified goods under section 4A, there was no necessity of obtaining or producing permits for import thereof into West Bengal. Consequently, the penalty that was imposed on the applicant on April 19, 1989, must be and is hereby quashed. If any amount of penalty has already been recovered, it shall be refunded to the applicant within two weeks from now. If the goods are still under seizure, those be at once released to the applicant. By an interim order dated May 12, 1989, we directed release of the goods on furnishing A bank guarantee for Rs. 20,000. If that bank guarantee has already been given by the applicant, it shall be released within a week. Thus, the application is allowed. There will be no order as to costs. B.C. CHAKRABARTI (Chairman).-I agree. P.C. BANERJI (Technical Member).-I agree. Application allowed.
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1989 (6) TMI 273
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... ... ..... other party to the contract only on the theory of accretion and, as such, no sales tax can be levied on the value of such materials. State of Madras v. Gannon Dunkerley and Co. 1958 9 STC 353 (SC) and Carl Still v. State of Bihar 1961 12 STC 449 (SC). The position, however, has changed since the passing of the Constitution (Forty-sixth Amendment) Act, and consequent amendment of the sales tax law concerned. 11.. In view of the aforesaid discussion, we hold that the impugned orders of assessment in so far as those relate to levy of tax on the estimated sale value of materials purchased by the petitioner and used in execution of works contract are not sustainable in law. We accordingly quash the same to that extent and direct the Superintendent of Taxes to delete such amounts from the turnover of the petitioner assessed therein. With the above observations and directions the petition is allowed. The respondents to pay Rs. 500 by way of cost to the petitioner. Petition allowed.
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1989 (6) TMI 272
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... ... ..... n September 2, 1980. It is clear from the aforesaid order that the officer concerned has not applied his mind to the facts and circumstances of the case. It appears that he has not properly appreciated the scope and ambit of his power under section 26(2). He has acted as if section 26(2) gives him a blanket power to levy maximum amount of penalty provided therein in all cases, in the event of a default in the payment of any dues, which is not the correct position of law. The order does not contain any reason, whatsoever, as to why the officer concerned has decided to levy penalty and also as to why he has levied the maximum amount of penalty provided in the section in the case of the petitioner. Such a non-speaking order is not sustainable in law in view of the discussions made above. 15.. In the result, the impugned order of penalty dated May 2, 1981, passed by the Superintendent of Taxes, Agartala, is quashed. The petition is allowed with cost of Rs. 250. Petition allowed.
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1989 (6) TMI 271
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... ... ..... improper on the part of the appellate authority to have disallowed the claim merely upon an observation that the claim was not substantiated as no representative of the applicant was present. Such an order can hardly be sustained. We, therefore, are of the view that this is a fit case where the entire matter should go back to the appellate authority for reconsideration of the appeal and for writing out a proper judgment after giving fresh opportunity to the applicant of being heard. The application accordingly succeeds. The impugned order passed by the West Bengal Commercial Taxes Tribunal is set aside. The order passed by the appellate authority is also set aside and the matter is sent back to the appellate authority for reconsideration of the appeal in the light of the observations made above. The application, therefore, succeeds and is hereby allowed but without any costs. P.C. BANERJI (Technical Member).-I agree. L.N. RAY (Judicial Member).-I agree. Application allowed.
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1989 (6) TMI 270
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... ... ..... the assessee (firm) in the sum of Rs. 30,000 and the failure to produce primary documents, like the sale bills and the daily stock register available and produced before the Intelligence Officer and signed by him on November 6, 1985 and the crucial slips, is plainly justified on the totality of the facts and circumstances. We are of the view, that the Appellate Tribunal did not dispose of the appeal in accordance with law. Unfairness and unreasonableness are writ large in the manner of disposal. On this short ground the decision of the Appellate Tribunal dated December 22, 1987, is erroneous in law and deserves to be annulled. 4.. We set aside the order of the Appellate Tribunal, dated December 22, 1987, and order a remit of the matter to the Appellate Tribunal. The Appellate Tribunal shall restore the appeal to file and dispose of the same in accordance with law, and in the light of the observations contained hereinabove. The tax revision case is allowed. Petition allowed.
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1989 (6) TMI 269
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... ... ..... on record to show that in trade circle or in common parlance pea-gravels are known as stone or sub-products of stone. In fact, the revenue itself is not sure about its nature and description. The assessing officer treated it as sub-product of stone at the assessment stage. Before the High Court it was contended to be stone . Even if technically or scientifically pea-gravels can be termed as stone, it is apparent that in common parlance or in commercial parlance pea-gravels is not known as stone or sub-product of stone. Even the use of pea-gravels is clearly different and distinct from that of stone or sub-products of stone. In view of the aforesaid factual position we hold that pea-gravels are not stone or subproducts of stone and do not fall under item 29 of the Schedule of taxable goods attached to the Act and as such it is not taxable. In the result, the impugned order of assessment is quashed and this writ petition is allowed. No order as to costs. Writ petition allowed.
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1989 (6) TMI 268
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... ... ..... s. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant and Co. 1935 AC 532 and Secretary of State v. Mask Co. AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petition in limine. The learned counsel for the petitioner submitted that section 25(5) of the Act is violative of article 14 of the Constitution. He has not laid any foundation in the writ petition as to how the provisions are violative of article 14 of the Constitution nor he could substantiate the same during the course of his arguments. We decline to interfere until all the statutory remedies are exhausted. Writ petition dismissed.
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1989 (6) TMI 267
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... ... ..... The element of guess work appearing on the assessment was reasonable and cannot be said to be arbitrary or whimsical. 14.. In that view of the matter, we do not find any substance in the writ application filed before the High Court and which has eventually been transferred to this Tribunal and registered as RN-222(T) of 1989. It is significant to note that the dealer not only did not apply for registration but even took no steps whatsoever for nearly three years after the order of the West Bengal Commercial Taxes Tribunal was passed. It is true that there was no question of limitation in the matter of filing of the writ application but then unconscionable delay is certainly a factor which cannot be overlooked. 15.. Having considered the respective contentions of the parties, we dismiss the application being RN-222(T) of 1989 on contest but without any order as to costs. P.C. BANERJI (Technical Member).-I agree. L.N. RAY (Judicial Member).-I agree. Writ application dismissed.
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1989 (6) TMI 266
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... ment dated June 6, 1977, and the undertaking given by the promoters of the company to the Industrial Finance Corporation of India. In any case, even this dispute involves triable issues to be determined by a civil court on relevant evidence being adduced. For resisting the winding up petition under section 433, in our opinion, the company has clearly set up a bona fide case by producing prima facie evidence of its defence. In the circumstances, we hold that the company judge was in error in perfunctorily ordering the winding up of the company. In our opinion, the act of the PSIDC in presenting the winding up petition smacks of mala fides as, in the face of the serious contest by the PCL, instead of filing a suit in a civil court, the petition for winding up the company has been filed to pressurize for enforcing payment. We, therefore, hold that there is no valid case for winding up the company and set aside the impugned judgment and allow the appeal with no order as to costs.
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1989 (6) TMI 257
Stock exchange, Central Government’s power to call for periodical returns, etc. and Power to make rules
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