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Showing 41 to 60 of 273 Records
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1990 (1) TMI 288
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... ... ..... r the benefit of the business. There is no finding that the elephant formed part of the assets of the business carried on by the assessee. If that be so, the question will be different. The sale proceeds of a business asset can be included in the taxable turnover. There is no such finding on that score. The Appellate Assistant Commissioner did not consider that question at all. The Tribunal said that the sale of the elephant does not answer the definition in section 2(vi)(b) of the Act . There is no finding that the elephant formed part of the assets of the business of the assessee. In the absence of such a finding, however wide the definition of the word business in section 2(vi)(b) of the Act may be, the sale proceeds cannot be included in the taxable turnover. We sustain the conclusion of the Appellate Tribunal. 3.. The tax revision case is without merit. It is dismissed, We record our appreciation for the services rendered by Mr. P.R. Raman, Advocate. Petition dismissed.
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1990 (1) TMI 287
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... ... ..... goods was occasioned not by reason of sale, but was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal outside the State. The burden of proof is not to the hilt. It is to be evaluated on probabilities. In evaluating the evidence adduced by the dealer, in this behalf, the assessing authority should focus his mind only on those aspects or facts which will be relevant to find, whether the movement of the goods was occasioned not by reason of sale, but otherwise. Only production of those documents or papers or materials relevant or germane to find that vital aspect, should be insisted. 10.. The writ appeal is allowed. We direct the assessing authority to pass fresh orders of assessments, in the light of the observations contained in this judgment, after giving sufficient opportunity to the dealer in the matter. Writ appeal allowed. See C.P.K. Trading Company v. Additional Sales Tax Officer 1983 54 STC 222 (Ker).
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1990 (1) TMI 286
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... ... ..... regarding the purchases of gingerly oil-seeds from the shandy dealers (unregistered dealers). 8.. In the result, we hold that that part of the turnover relating to purchases of gingerly oil-seeds from agriculturists is exigible to tax under section 7-A of the Act and regarding the remaining part of the turnover alleged to have been purchased from shandy dealers (unregistered dealers) the matter is remitted to the assessing officer to find out the correctness or otherwise of the particulars given by the petitioner. It is for the petitioner to establish to the satisfaction of the assessing officer that the purchases were from shandy dealers (unregistered dealers). The assessing officer shall give relief from tax liability in respect of purchases by the petitioner from unregistered shandy dealers on his satisfying with such purchases. The tax case is accordingly partly allowed and remitted in the above terms. However, there will be no order as to costs. Petition partly allowed.
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1990 (1) TMI 285
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... ... ..... aw or is found to be guilty of conduct contumacious or dishonest or is proved to have acted in conscious disregard of its obligation. Failure without reasonable cause to pay the tax is an ingredient of the penalty provisions. In our view, looking to the circumstances of the present case, the assessee did have reasonable cause for not paying the tax within time (assuming that they did not pay tax within the time prescribed). Also, as the Tribunal itself has observed, the delay has arisen on account of technicalities and it cannot be said that there was any mala fide intention on the part of the assessee to evade or delay the payment of tax. In these circumstances in our view the Tribunal ought to have remitted the entire penalty payable in respect of the said period. 18.. The question before us is, therefore, answered in the negative and in favour of the assessee. The amount of Rs. 100 to be refunded to the applicants. No order as to costs. Reference answered in the negative.
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1990 (1) TMI 284
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... ... ..... istant Commissioner against the very same order passed by the Appellate Assistant Commissioner himself. I think that the assessing officer has gone at a tangent and returned the papers to the petitioner without understanding the provisions of the Act or the powers of the appellate authorities. The return made by the assessing authority is wholly unwarranted on the facts and circumstances of this case. I do hope that the officials of the Commercial Tax Department will at least in future, study the provisions of the Act carefully before they pass any orders on the petitions filed by the assessees or return the papers to the assessees. 4.. In the result, the writ petitions will stand allowed and the appellate authority is directed to take up the appeals and the stay petitions filed by the petitioner on file and dispose of them and pass final orders on the stay petition on merits within eight weeks from the date of receipt of copy of this order. No costs. Writ petitions allowed.
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1990 (1) TMI 283
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... ... ..... e payment in instalments as a condition for stay. Whatever may be the order that may be passed by the appellate authority, he shall consider the matter on merits and pass orders in accordance with law. The guidelines therefor have already been issued by this Court in Sri Balaji Trading Company v. Deputy Commercial Tax Officer 1989 72 STC 417. The second respondent shall bear the same in mind and pass appropriate orders in the case of the petitioner. Till the second respondent disposes of the application for stay by the petitioner there will be no proceeding for recovery of the tax. However, the above direction is subject to the condition that the petitioner shall re-present the application for stay in proper form on or before 9th February, 1990. If the stay petition is not re-presented before that date, there shall not be any further stay of recovery proceedings. The writ petition is allowed with the above direction. There will be no order as to costs. Writ petition allowed.
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1990 (1) TMI 282
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... ... ..... reme Court in the case of Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh, reported in 1969 24 STC 487. This case also has no direct bearing on the question before us. 19.. It was submitted by Mr. Jetly that excluding customs duty from the turnover of sales of the applicant would be contrary to the scheme of the Act. When the sales tax is levied as a single point sales tax, the collection of sales tax would be affected by the exclusion of customs duty from the price. We are unable to appreciate this argument. We do not see how the scheme of the Act is in any way affected by the exclusion of the customs duties paid in the circumstances of the present case from the sales turnover of the applicants. 20.. The question, therefore, referred to us is answered in the negative and in favour of the assessee. The respondents to pay to the applicant costs of the references. Rs. 100 deposited by the applicant to be refunded to them. References answered in the negative.
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1990 (1) TMI 281
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... ... ..... it is not necessary for us to consider the other submissions made on behalf of the assessee relating to there being a reasonable cause for non-payment of tax or existence of ground for remission of penalty. It is also not necessary for us to consider whether satisfaction for levy of penalty has to be recorded at the time of assessment for invoking the provisions of section 36(3). 33.. In the premises, the questions referred to us are answered as follows The question referred by the State is answered in the affirmative and in favour of the assessee. Question No. (1) referred to us at the instance of the assessee is answered in the negative and in favour of the assessee. It is not necessary for us to answer question Nos. (2) and (3) raised at the instance of the assessee, in view of our answers to the earlier questions. We, therefore, decline to answer these questions. There will be no order as to costs in the circumstances of the present case. References answered accordingly.
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1990 (1) TMI 280
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... ... ..... examined in an appropriate case. 10.. We have noticed earlier that in the case on hand, the turnovers have already been subjected to tax and the tax though on record paid by the vendor of the petitioner, ultimately, it is the petitioner who paid the tax while purchasing the cotton. We cannot agree with the contention of the learned Additional Government Pleader that the judgment of the Supreme Court requires reconsideration as the judgment is binding on us and the remedy of the Revenue lies elsewhere. Therefore, applying the ratio of the Supreme Court s decision State of Karnataka v. Ayyanahalli Bakappa and Sons 1988 71 STC 202, we have no hesitation to hold that the same turnovers cannot again be. subjected to tax, particularly, when the subject-matter of the commodity is declared goods, namely, cotton. 11.. In the result, we allow the tax cases and set aside the assessments on the disputed turnovers on cotton. However, there will be no order as to costs. Petitions allowed.
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1990 (1) TMI 279
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... ... ..... d, therefore, the Tribunal was not justified in treating the sales as not exempt or treating them as liable to sales tax. The question is accordingly answered in the negative and in favour of the assessee. 6.. In view of our answer to the question in favour of the assessee, strictly speaking, it is not necessary to reframe the question so as to answer the alternative question sought to be raised on behalf of the assessee. Since, however, the Supreme Court, in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Ernakulam v. Indian Explosives Ltd. 1985 60 STC 310, has held that such imports will even be exempt on the ground of being in the course of imports, it may be desirable to observe that the assessee might have succeeded even on that score if the question was to be reframed to cover that aspect of the question. 7.. In the result, the question is answered in the negative and in favour of the applicants. No order as to costs. References answered its the negative.
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1990 (1) TMI 278
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... ... ..... her purchaser as a relevant test in our case, the facts in the present case leave no doubt that the goods were in fact manufactured as per the contract, they bore the markings of the purchaser and were sent to the respondents agent at Surat for the purpose of being delivered to the purchaser. There was no question therefore, of the goods being diverted to another purchaser in the present case. In our view therefore there is a direct nexus between the contract and the movement of goods from the State of Maharashtra to the State of Gujarat. The sale is, therefore, in the course of the inter-State trade and commerce. The question, therefore, is answered in the affirmative and in favour of the department. In the circumstances there will be no order as to costs. We are very grateful to Mr. Gaitonde who has appeared amicus curiae on behalf of the respondents who would otherwise have gone unrepresented, and has rendered us valuable assistance. Reference answered in the affirmative.
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1990 (1) TMI 277
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... ... ..... e is no formal agreement as regards the sale of packing material that there are packing instructions by the foreign buyer that packing material is neither shown separately nor separately charged and that its cost to the assessee was about 9 per cent of the sale price. It was also urged that unless the packing material was of some use to the buyer, he could not be deemed to have purchased it. This, to our mind, again is not of much consequence. What is of consequence is whether the packing material was used according to the instructions of the foreign buyer and whether it had cost the assessee an amount which could not be treated insignificant. 6.. In the result, the first question is answered in the negative and in favour of the assessee. The question No. 2 is consequential. The same is also answered in the negative and in favour of the assessee. No order as to costs. The amount of Rs. 100 deposited by the assessee is to be refunded to it. Reference answered in the negative.
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1990 (1) TMI 276
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... ... ..... payment of the tax payable by him in respect of the said business. Thus, notwithstanding the mode or the manner in which the business is transferred to him, the transferee can be proceeded against for recovery of any tax due from the transferor as if he were the dealer liable to pay the tax. An argument was advanced by Sri Gururajan that the transferor of the business was the KSFC and not the dealer and that, therefore, the provisions of section 15 can be made applicable only in a case of a direct transfer by the dealer. This argument has to be rejected in the light of the special provisions of section 29 of the State Financial Corporations Act under which the transfer is made by the KSFC in the capacity of a deemed owner which status is conferred on the KSFC to takeover the possession of the industrial concern and all its assets. For the reasons stated above, the contentions of the petitioner must fail and the writ petition is accordingly dismissed. Writ Petition dismissed.
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1990 (1) TMI 275
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... ... ..... oreover, the distribution of medicines by way of free samples to the doctors is always done with a view to advertise and promote sale of medicines. Therefore such an activity has direct nexus with the sale. Use of motor cars in one s own business, on the other hand, may be necessary irrespective of the fact whether the assessee manufactures motor cars. Besides the Supreme Court decision 1960 11 STC 757 (Wadeyar, Sales Tax Officer v. Daulatram Rameshwarlal), was not noticed by the Gujarat High Court in that decision. 10.. In the above view of the matter, we do not think that Gujarat High Court decision is of any help to the assessee. Accordingly, following the ratio of this Court s judgment in 1985 59 STC 10 (Commissioner of Sales Tax v. East Asiatic Commercial Co.), we hold that the provisions of section 14(1) are attracted in this case. The question of law is, thus, answered in the negative and in favour of the Revenue. No order as to costs. References answered accordingly.
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1990 (1) TMI 274
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... ... ..... Explanation III to the Schedule for the purpose of entry 7 should be applied by the department even to cases arising before the explanation was inserted. Otherwise, it leads to inconsistent view and discrimination in the matter of levy of tax on similar goods. That the later amendment to a statute should act as a guide in the interpretation of a provision which admits of doubt or debate is a well-settled principle of interpretation. (See Additional Commissioner of Income-tax v. A.L.N. Rao Charitable Trust) 1976 103 ITR 44 (Kar). Thus, the explanation clarifies and removes, whatever doubt, if there was any, in understanding entry 7 and its scope. In the result, and for the reasons stated above, the writ petitions are allowed, and the proposition notices impugned in these writ petitions are quashed. The petitioners are entitled to costs of Rs. 1,000, one set, in the two batches of cases represented by the two counsel-Sri Indrakumar and Sri K.R. Prasad. Writ petitions allowed.
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1990 (1) TMI 273
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... ... ..... nism as a radio. As regards knobs, it will be difficult, if not impossible, to control the volume or to connect different stations, while p.v.c. feet is too small an item but without fixing it to the radio set, it may be difficult to place the set on its stand properly. The test, thus, may be taken to be that accessory is an item/part without which also a radio mechanism can function and is known and sold as radio set in the consumers market. In other words, parts or items will fall in the category of accessory only if these are not integral and essential parts of radio set but are additional or adjunct. These are, of course, used in the radio set with the object of improving the decorative and cosmetic look of the radio set. Since we are in agreement with the Tribunal that all the seven items are essential and integral parts of the radio set, we answer the question in the affirmative and in favour of the assessee. No order as to costs. Reference answered in the affirmative.
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1990 (1) TMI 272
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... ... ..... ccordance with this return. The applicant, however, Reported in 1990 77 STC 131. did not file any monthly return for the month of April, 1976. Penalty under section 36(3) has been levied on him for delay in the payment of tax for the month of April, 1976. 5.. For reasons which are set out in our (myself and Sugla, J.) judgment dated 8th January, 1990, in Sales Tax Reference No. 74 of 1980 (Avery India Ltd. v. State of Maharashtra 1990 76 STC 296), the provisions of section 36(3) are not attracted in a case where the assessee has not filed a return as required under law. In these circumstances in the present case also the provisions of section 36(3) are not attracted since no return was filed by the applicant for the month of April, 1976, as was required by law. This question is therefore answered in the affirmative and in favour of the assessee. The deposit of Rs. 100 made by the assessee to be refunded to the assessee in the above references. Reference answered accordingly.
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1990 (1) TMI 271
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... ... ..... in the very decision of the Supreme Court quoted supra (Shiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, wherein the plea was termed as a negative one and to be one which is not very palatably urged by the State. 5.. In the result, we would allow this writ petition, quash the order of the opposite party 3 and issue a direction to the opposite party 2 to adjust the amount paid by the petitioner as sales tax to the Assistant Soil Conservation Officers towards the tax assessed upon him as per annexure 2. An apprehension has been expressed by the learned Standing Counsel that since the tax paid by the petitioner to the Assistant Soil Conservation Officers were paid mistakenly, it is permissible for those officers to claim refund of the amount. It must be said that as a necessary consequence of the adjustment in pursuance of our decision, no such refund is permissible, if at all a claim for the same is made. There shall be no order as to costs. Writ petition allowed.
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1990 (1) TMI 270
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... ... ..... finding on merits and, therefore, it will be appropriate, in the circumstances and facts of the present case that the matter is decided by the appellate authority on merits in accordance with law without taking into consideration the above said finding given by the learned single Judge. Since the writ petition was admitted as far back as the year 1983 and was disposed of on September 14, 1984, the appellant is allowed one month s time to file the appeal in accordance with law and in case the appeal is filed within one month from the date of this order, the objection as to limitation will not be taken on behalf of the Assessing Authority. However, before the appeal is filed within time allowed, the appellant will also deposit one-third of the sales tax payable as assessed by the Assessing Authority, failing which the appeal will not be maintainable. 6.. With these observations, all the three letters patent appeals are disposed of accordingly. Appeals disposed of accordingly.
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1990 (1) TMI 269
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... ... ..... , earlier, the notices issued by the Assessing Authority for reassessment of the petitioner-firm relating to the years 1978-79, 1979-80, 1980-81 and 1981-82 were challenged successfully and once the said notices were quashed by this Court then the same could not be reopened in view of any subsequent judgment in Chhatar Extractions Pvt. Ltd. s case 1986 61 STC 374 (P and H). Apart from that, letters patent appeal against that judgment, i.e., Letters Patent Appeal No. 1091 of 1984 has been disposed of today in which it has been directed that the matter be decided afresh by the appellate authority on merits in accordance with law without taking into consideration the finding given by the learned single Judge on merits. In these circumstances, the writ petition succeeds. The impugned order (annexure P.5), dated August 13, 1988, is, therefore, quashed. Writ petition allowed. Reported as Chhatar Extractions Private Limited v. Excise and Taxation Commissioner 1990 79 STC 200 supra.
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