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Case Laws
Showing 41 to 60 of 318 Records
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1990 (7) TMI 340 - KERALA HIGH COURT
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... ... ..... That analogy, however, is unavailable in the case of metal sheets and enamel ware. It is not merely a case of the metal sheets being protected or insulated for the purpose of preservation. A totally new glossy, and sometimes artistic commodity, emerges after the process referred to above. It is then not possible to treat it as yet another iron or steel article with a modicum of coating to make it preservable. We hold that it comes within entry 121. Consequently, the opinion given by the Government, as distinct from that of the Board of Revenue, has to be upheld as a correct one. De hors the determination under section 59A, the view taken by the Government is sustainable. In that view of the matter, the substantial reliefs sought for by the petitioner, cannot be granted. The contentions are devoid of substance in the light of the discussion above. Consequently, the writ petition fails and it is accordingly dismissed but without any order as to costs. Writ petition dismissed.
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1990 (7) TMI 339 - ORISSA HIGH COURT
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... ... ..... are considered by the Legislature to be of special importance in inter-State trade or commerce. If the transaction by the petitioners satisfies the conditions laid down in section 15, they would be entitled to the benefit of the provision in the manner laid down therein. This does not, however, indicate that section 5(2)(A)(a)(ii), proviso, is hit by any of the provision contained in section 15 of the CST Act. 14.. On the analysis in the foregoing paragraphs, I am of the view that the challenge to the constitutional validity and legality of the provisions in section 5(2)(A)(a)(ii), proviso, and the provisions in rule 27 and form XXXIV which are incidental to and flow from the said statutory provision cannot be accepted. It follows that the challenge to the assessment order (annexure 1) on that ground must fail. 15.. In the result, the writ application fails and is dismissed. There will, however, be no order for costs. B.L. HANSARIA, C.J.-I agree. Writ application dismissed.
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1990 (7) TMI 338 - ORISSA HIGH COURT
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... ... ..... , we accept the facts as available in the second appellate order as further statement of fact and answer the real question by stating that the Tribunal is not correct in law in deciding second appeal without taking into consideration the materials which are required to be given due weight. 6.. Under section 24(5) of the Act, on receipt of the answer from this Court, the Tribunal is required to pass an order. In the present case, rehearing the second appeal would be the only order. While rehearing the second appeal, both Sankarlal and the Revenue are to be given opportunity to produce materials. In case, Tribunal feels that further enquiry is necessary to be made, it shall keep the second appeal pending with it and shall direct either the Assistant Commissioner or the Sales Tax Officer as the case may be, to make enquiry and supply the facts which would be relevant for the purpose of deciding the second appeals. There shall be no order as to costs. J.M. MAHAPATRA, J.-I agree.
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1990 (7) TMI 337 - KARNATAKA HIGH COURT
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... ... ..... at they were not integrally connected with the ultimate production of goods. Accordingly, he allowed the writ petition. Hence, the writ appeal. 4.. According to the learned Government Advocate for the State Mr. M.R. Achar, these goods are not used in the manufacture or process of goods for sale, therefore, it should not be ordered. In support of the submission, 1977 39 STC 1 (SC) (Travancore Tea Estates v. State of Kerala) is relied upon. No doubt, that ruling of the Supreme Court points out that in the manufacture, fertilisers and pesticides used cannot be considered as goods used for the purpose of manufacture. We do not think that principle could be extended here having regard to the fact as rightly observed by the learned single Judge that they are integrally connected with the ultimate production of goods, and they would form part of goods used in the manufacture. Therefore, we dismiss the writ appeal. However, there shall be no order as to costs. Writ appeal dismissed.
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1990 (7) TMI 336 - ORISSA HIGH COURT
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... ... ..... ave no merit which are accordingly, dismissed. 8.. In view of the aforesaid discussion, the following conclusions are arrived at (a) Orders of Tribunal confirming the assessments for the year 1977-78 and in respect of the period from June 1, 1976 to March 31, 1977 are correct in law and there is no scope for interference. (b) In respect of the period between April 1, 1976 and May 31, 1976, Tribunal is to examine whether the sales to M/s. Amar Traders as given in the affidavit are acceptable. In case, affidavit has not given details, in respect of that period, dealer is to be given an opportunity to produce better affidavit quantifying the sale turnover to M/s. Amar Traders during that period for consideration by the Tribunal. 9.. In the result, question is answered in favour of the assessee in respect of period between April 1, 1976 and May 31, 1976 and against the assessee in respect of the rest of the period. There shall be no order as to costs. J.M. MAHAPATRA, J.-I agree.
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1990 (7) TMI 335 - ORISSA HIGH COURT
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... ... ..... ecision reported in 1958 9 STC 428 (Mahadayal Premchandra v. Commercial Tax Officer). Observation of the Supreme Court is not to be read bereft of contest. In the said decision, the assessing officer assessed the dealer on the basis of opinion of the Assistant Commissioner. That was not a case where the Assistant Commissioner indicated the view while sitting in appeal. The said decision is not applicable to the present case. 10.. The Assistant Commissioner set aside the assessment order on the ground that reasonable opportunity for producing the accounts has not been given to the dealer. Therefore, Sales Tax Officer shall give opportunity to the dealer to produce his accounts and complete the assessment to the best of his judgment as provided under section 12(4) of the Act taking assistance of accounts if they are acceptable. 11.. In the result, there is no merit in this application which is accordingly, dismissed. No costs. J.M. MAHAPATRA, J.-I agree. Application dismissed.
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1990 (7) TMI 334 - MADHYA PRADESH HIGH COURT
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... ... ..... I per cent in place of 2 per cent mentioned in the question referred to this Court. We do not agree with the contention. The statement of case or the question referred to us does not indicate that there was any dispute with regard to the rate of entry tax on packing material and, therefore, we would be going beyond the scope of this reference if we proceed to decide the rate of entry tax on packing material at the relevant time. However, it may be mentioned that if the entry tax on packing material at the relevant time was different from the rate charged from the assessee, it would be an error apparent on the face of the record which could be got removed by resorting to the provisions for rectification in accordance with law. 5.. For the foregoing reasons, the question of law referred to us is answered in favour of the department and against the assessee. In the circumstances of the case, we make no order as to costs of this reference. Reference answered in the affirmative.
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1990 (7) TMI 333 - ORISSA HIGH COURT
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... ... ..... oes not change the character of the commodity and does not defeat the object of section 5(3) of the Act if goods remain the same. 7.. Mr. A.B. Mishra, learned Standing Counsel raised one interesting question that agreement is to be looked into for application of section 5(3). Academically, Mr. Mishra is correct. In the present case, however, there is no dispute on facts that raw prawn being processed was being exported describing it as forzen shrimps. The only ground on which protection of dealer under section 5(3) was rejected is on account of the fact that prawn when processed are different commercial commodity. The same having been clearly answered by the Supreme Court in the decision referred to above, submission of Mr. Mishra has no force on the facts of this case. 8.. In the result, the question is to be answered in the negative in favour of the dealer. No costs. J.M. MAHAPATRA, J.-I agree. Reference answered in the negative. Since reported in 1988 68 STC 284 (Orissa).
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1990 (7) TMI 332 - MADRAS HIGH COURT
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... ... ..... bills issued by Mohideen Traders and Manickam Enterprises were not genuine, after examining those dealers. We are of the view that in the light of the ratios laid down in various cases, the appellant has established that the sales by Mohideen Traders and Manickam Enterprises are first sales exigible to tax. To hold otherwise, the Revenue must show, after investigation, that the bills issued by them were net genuine or they had not done any business at all. As pointed out earlier, the findings given by the Board of Revenue are merely on assumptions and presumptions, and therefore, those findings cannot be accepted. In this case, on facts, the two dealers closed their business during the assessment year. Therefore, it cannot be said that after ceasing to be registered dealers, their sales are not taxable sales. 13.. For all the reasons stated above, we allow the appeal and set aside the order of the Board of Revenue. However, there will be no order as to costs. Appeal allowed.
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1990 (7) TMI 331 - MADHYA PRADESH HIGH COURT
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... ... ..... result in arming the taxing authorities with powers to renovate the proceedings of reassessment on their failure to make reassessment within 2 calendar years from the date of commencement of such proceedings, in case they find the period of 5 calendar years prescribed under section 19(1) of the Act for reopening the case had not expired. For all these reasons, the impugned notice dated March 4, 1983 (annexure C) for reassessment issued by the respondent No. 1 also deserves to be quashed. 7.. In the result, this petition succeeds and it is hereby allowed. The impugned notice dated March 4, 1983 (annexure C) for reassessment under section 19(1) of the Act and the impugned order dated January 25, 1983 (annexure D) issued and passed by the respondent No. 1, the Addl. S.T.O., Jabalpur, are quashed. In the circumstances of the case, we make no order as to costs of this petition. The outstanding amount of security, if any, shall be refunded to the petitioner. Writ petition allowed.
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1990 (7) TMI 330 - ORISSA HIGH COURT
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... ... ..... partment. 3.. Tribunal can take two different views for two different years and finding of one year is not binding on the other year. With this, the answer would be in favour of the assessee. We, however, find that the Tribunal has given no acceptable reason for accepting the returned figures. When two forums have held that the case is not one where power under section 12(1) can be exercised, the Tribunal ought to have given cogent reasons for reversing the same. Accordingly, the Tribunal is not correct without considering the materials to direct the Sales Tax Officer to accept the returned figures. 4.. In the result, while answering the question as framed against the department we answer the question that actually arises in this case in favour of the department. 5.. On our answer, the Tribunal is to pass an order under section 24(3) of the Act to rehear the second appeal and pass orders in accordance with law. There shall be no order as to costs. J.M. MOHAPATRA, J.-I agree.
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1990 (7) TMI 329 - KARNATAKA HIGH COURT
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... ... ..... the safety fuse means a fuse for igniting charges of other explosives which burn and by itself does not explode. It is true that a safety fuse also contains a small quantity of explosive substance but it is only for the limited purpose of taking the fire up to and to the blasting material so as to cause explosion, but the fact remains it does not by itself explode. 7.. It is well-settled principle that in understanding the real meaning of an item of goods specified for the purpose of tax under any sales tax law, it should be understood in a manner as understood at common parlance. No one considers the safety fuse as an explosive at common parlance. Therefore, we are entirely in agreement with the view expressed by the revisional authority and the Tribunal that the safety fuse is not an explosive and therefore does not fall under entry 81-B of the Second Schedule to the Act. 8.. In the result, we make the following order The revision petition is dismissed. Petition dismissed.
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1990 (7) TMI 328 - ORISSA HIGH COURT
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... ... ..... ovided in rule 90-A is satisfied. Since there is no dispute that the condition is satisfied, approval cannot be challenged on account of absence of opportunity. 6.. Mr. N. Paikray, learned counsel for the dealer, submitted that assessment should have been under section 12(8) which is a specific provision. Both under section 12(4) and section 12(8), Legislature has given a mandata for best judgment assessment. There is no grievance that principle of natural justice has not been followed in completing the assessment to the best of judgment. How section 12(8) would have been more beneficial to the dealer has not been explained by Mr. Paikray. Accordingly, on the facts and in the circumstances of the case, such a question requires no consideration of this Court. 7.. Taking any view of the matter, no question of law arises out of the order and the Tribunal is justified in refusing to state a case. Application is dismissed. No costs. J.M. MAHAPATRA, J.-I agree. Petition dismissed.
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1990 (7) TMI 327 - ORISSA HIGH COURT
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... ... ..... f the order, the Tribunal is required to examine the records and give clear finding in support of the quantification. On the facts and in the circumstances of the case, the second appellate order is notjustified in confirming the reduced enhanced turnover by the Assistant Commissioner. Accordingly, the question is to be answered in favour of the assessee. 4.. Under section 24(5) of the Act, the Tribunal is to give a fresh hearing to determine the gross turnover and taxable turnover keeping in view the principles of best judgment assessment and determine the same afresh. However justification for enhancement on ground of suppression of sale cannot be questioned before the Tribunal any further. 5.. In the result, answer is given accordingly. No costs. The assessee shall appear before the Tribunal on 20th of August, 1990, on which day Tribunal shall fix a date of hearing under section 24(5) of the Orissa Sales Tax Act. J.M. MAHAPATRA, J.-I agree. Reference answered accordingly.
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1990 (7) TMI 326 - BOMBAY HIGH COURT
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... ... ..... ared as consignee in the original shipping documents and the material could not, thus, be diverted. In the circumstances, it appears clear to us that the facts in the present case are similar if not identical to those in Khosla s 1966 17 STC 473 (SC) and Indian Explosives Ltd. s 1985 60 STC 310 (SC) cases. Binani Bros. (P.) Ltd. s case 1974 33 STC 254 (SC), is on facts distinguishable. Having regard to the above discussion, we hold that the two sales in the present case, i.e., the sale between the applicant and the Director-General of Supplies and Disposals and the foreign supplier and the applicant are integrated or interlinked so as to form one transaction. Accordingly, the second question is answered thus Even though there were two sales, the sales were integrated or interlinked so as to form one transaction. The third question is consequential and is accordingly answered in the negative and in favour of the applicant. No order as to costs. Reference answered accordingly.
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1990 (7) TMI 325 - ORISSA HIGH COURT
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... ... ..... can be inferred when it was not challenged that the letter was not properly stamped or was sent in incorrect address. The Chairman was not correct in law in finding that such refusal is immaterial. When rule 84 provides that notice can be sent in either manner on the finding that if one mode is invalid the other mode becomes valid. 10.. Accordingly, the question of law that arises is answered in stating that refusal of registered letter is valid service of notice on the facts and in the circumstances of the case and the annulment of the assessment by the Tribunal is not correct. 11.. On our answer, the Tribunal is to pass an order under section 24(5) of the Act. In the present case Tribunal is to pass an order to remand the matters to the Sales Tax Officer to give opportunity to the dealer as indicated by the majority of two Members for completing the assessment afresh. 12.. In the peculiar circumstances of this case, we make no order as to costs. J.M. MAHAPATRA, J.-I agree.
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1990 (7) TMI 324 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... interim injunction as was granted by the District Judge. The contention of the counsel for the petitioners is that normally recovery of dues to the Government should not be stopped by issuing injunctions. In support of this contention reliance has been placed on the decision of the Supreme Court in Commissioner of Income-tax v. Bansi Dhar and Sons 1986 157 ITR 665 AIR 1986 SC 421. The ratio of the aforesaid decision is not applicable to the facts of the case on hand as discussed above. If the recovery was to be effected from the property of the Board, obviously there was no question of granting any injunction. Since the arrears are being recovered from persons who were prima facie not liable to pay the same, the District Judge rightly exercised discretion in the grant of injunction. It has not been shown that this discretion was exercised illegally in any manner. Finding no merit in the revision, the same is dismissed. There will be no order as to costs. Petition dismissed.
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1990 (7) TMI 323 - ORISSA HIGH COURT
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... ... ..... port was not brought to the notice of the dealer. 7.. Under section 24(5) of the Act, the Tribunal is to pass an order on the basis of our answer. In the present case, while passing the order the Tribunal is required to hear the dealer in respect of the explanation to be offered and receive rebuttal material with regard to the report of the Inspector obtained in the year 1977. For this purpose, the matter is not required to be remitted back to the subordinate taxing authorities since the Tribunal is a fact-finding authority and the assessment is of the year 1973-74. After giving opportunity to dealer for obtaining explanation and rebuttal material if any, the Tribunal is to keep in mind the principle of best judgment assessment as laid down by the Supreme Court in 1957 8 STC 770 (Raghubar Mandal Harihar Mandal v. State of Bihar) and other such decisions and determine the turnover and tax, if any. There shall be no order as to costs. J.M. MAHAPATRA, J.-I agree. Case remitted.
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1990 (7) TMI 322 - ORISSA HIGH COURT
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... ... ..... ide it goes to the stage where the defect or deficiency is found out. Where the defect or deficiency as found affects the jurisdiction as in the case of absence of notice, protection under third proviso is not available. Merely because the Tribunal sets aside the order of assessment under section 23 for absence of notice, the third proviso cannot give protection to Revenue. Accordingly, as on April 16, 1974, completion of assessment has become barred by limitation and there was no scope for any assessment. 6.. Even though assessment cannot be completed under section 12(4) of the Act beyond the period of limitation, there is no prohibition for accepting the return as provided under section 12(1) of the Act. Accordingly, assessment is not to be annulled but the same is to be confined to the return figure. 7.. In the result, answer to the question is made in favour of the dealer to the extent indicated above. No costs. J.M. MAHAPATRA, J.-I agree. Reference answered accordingly.
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1990 (7) TMI 321 - MADRAS HIGH COURT
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... ... ..... he instant case, I find nothing unreasonable in the prayer of the petitioner that xerox/photo copies of the seized documents, etc., be allowed and furnished to him at his cost. The respondents accordingly are directed to make all documents, etc., seized from the custody of the petitioner available for being photographed/ xeroxed and those copies prepared/obtained at the cost of the petitioner. The petitioner is directed to appear before the Deputy Commercial Tax Officer, Group I, Enforcement Wing I, with a petition to the said effect. On receipt of the petition, the Deputy Commercial Tax Officer shall forthwith fix a date and make the seized documents, etc., available for being photographed/xeroxed and copies prepared for delivery to the petitioner. The petitioner shall, however, be liable for the entire cost of the preparation of xerox/photo copies of the seized documents, etc. With the direction as above, this petition is disposed of. Writ petition disposed of accordingly.
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