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Case Laws
Showing 61 to 80 of 310 Records
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1992 (2) TMI 326
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... ... ..... d they may have wrongly issued the declarations but as far as the selling dealer is concerned if he obtains a declaration certificate and it is not known to him that the registration certificate of the purchaser had been cancelled and that cancellation is not notified in the official gazette then the selling dealer is entitled to the benefit under the Act. He cannot be penalised for the inaction of the department in non-publication or late publication in the official gazette. The selling dealer, in the present case, has acted in good faith and as far as he is concerned he had obtained valid declaration certificates at the time of making the sales. The Tribunal was, therefore, right in coming to the conclusion that the benefit claimed by the dealer could not be denied to him. For the aforesaid reasons the question of law referred to this Court is answered in the affirmative and in favour of the dealer. There will be no order as to costs. Reference answered in the affirmative.
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1992 (2) TMI 325
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... ... ..... . In Sudershan Trading Co. v. Commercial Tax Officer 1981 48 STC 263 (AP) the assessee filed copies of form I declaration instead of the originals. The question in that case was whether copies of form I can be accepted as a substantial compliance of sub-rule (4) of rule 6-A. In that context the Bench observed that the rule is directory and filing of copies of declaration in form I would be substantial compliance of the rule. Rule 6-A mandates filing of form I declaration for claiming exemption. No other mode can, therefore, be resorted to for the purposes of substantiating the claim for exemption. If the argument that by filing some other evidence, in lieu of form I, the exemption can be claimed, is accepted we would be reading in rule 6-A a provision which is not there and which is impermissible. In the circumstances, we are unable to say that the Tribunal has decided the question of law erroneously. The two tax revision cases are, therefore, dismissed. Petitions dismissed.
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1992 (2) TMI 324
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... ... ..... ners. Therefore, following the said decision, it will have to be held that, in view of section 46A, the Sales Tax Officer had no jurisdiction to impose a fine exceeding Rs. 7,500 and really he ought to have served the firm with a draft order of penalty and invited its objections in relation to it. As that procedure has not been followed and straightaway the final order of penalty was passed, that part of the assessment order dated 3rd May, 1983, annexure A/8 to the petition will have to be regarded as illegal. In the result, this petition is partly allowed. That part of the order dated 3rd May, 1983 passed by the Sales Tax Officer, Jamnagar, annexure A/8 to the petition, whereby the Sales Tax Officer has imposed a fine of Rs. 11,110.03 is quashed and set aside and it is declared that it will be open to the authorities to pass an appropriate order of fine in accordance with law. Rule is made absolute to the aforesaid extent, with no order as to costs. Petition partly allowed.
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1992 (2) TMI 323
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... ... ..... ture and therefore not permanently fastened to the building. 9.. Having considered the rival contentions of the parties and having regard to the mutual contract between the parties and their subsequent conduct and the nature of the articles in question, we are of the opinion that these articles were not permanently fastened to the building. According to us, these are movable properties and therefore goods within the meaning of the Bengal Finance (Sales Tax) Act, 1941. That being so, we hold that there was a sale of goods in this particular case and such sale was exigible to tax under the 1941 Act. In that view of the matter, we do not see any reason to interfere with the decision of the learned Tribunal below or the Appellate Assistant Commissioner and the Commercial Tax Officer in respect of the sale proceeds amounting to Rs. 1,79,200. 10.. Accordingly, the application is dismissed. No order is made for costs. P.C. BANERJI (Technical Member).-I agree. Application dismissed.
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1992 (2) TMI 322
The power of appointment under Section 5 and the scope of Section 8 and 10 of the Electricity (Supply) Act, 1948.
The effect of amendment under Section 5(6) of the said Act.
The scope of Section 3 of Electricity (Supply) (H.P. Amendment) Act of 1990.
Whether it is violative as single person's legislation?
Whether the failure to implead Chauhan would be fatal to the writ petition?
Held that:- It has to be carefully noted that this Act was intended to deny the appellant a right to decision by a court of law and that too in a private dispute between the parties. Hence, this ruling again has no application to the facts of the case. As we observed in the beginning of the judgment, if the State is well entitled to introduce an age of superannuation how could that be called discrimination or unreasonable ? The resultant conclusion is the amending Act, particularly, Section 3 is not, in any way, arbitrary and, therefore, not violative of Article 14.
Appellant succeeds. As repeatedly stated by Mr. Shanti Bhushan during the course of the arguments that the State is willing to provide compensation for the remaining period of the tenure, we direct the State to pay the first respondent the salary, allowances and perks for the period commencing from 13.7.90 upto 25.7.92, had he continued in office but for the impugned legislation. If any payment has been made by interim orders of the court that will go towards the deduction of this liability.
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1992 (2) TMI 321
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... ... ..... e word inasmuch as there was a transfer of the right to use the vehicle for valuable consideration and the sales tax is exigible. In some of the cases, petitioners have filed writ petitions after the framing of the assessment by the assessing authorities whereas the appeal could have been filed before the first appellate authority. Learned counsel appearing for the petitioners stated that in some of the cases appeals have not been filed because of the challenge put to the constitutional validity of the amending Act. It would be in the interest of justice if those petitioners who did not file the appeals against the assessment orders, are permitted to file the same within a period of one month. Accordingly, it is directed that those petitioners who did not file the appeal earlier may file the appeal within one month from this date. In the light of the observations made above, the writ petitions stand dismissed but there would be no order as to costs. Writ petitions dismissed.
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1992 (2) TMI 320
IMPORT OR EXPORT SALE IN THE COURSE OF IMPORT OR LOCAL SALE IMPORT OF MACHINERY BY DEALER ON BASIS OF LETTER OF AUTHORITY ON BEHALF OF LICENSEE LICENSEE NOT TAKING DELIVERY GOODS ULTIMATELY RELEASED TO THIRD PARTY DEALER RAISING BILL AND RECEIVING PAYMENT FROM THIRD PARTY NO PRIVITY OF CONTRACT BETWEEN THIRD PARTY AND FOREIGN SELLER TWO SALES ONE BY FOREIGN SELLER TO DEALER AND ANOTHER BY DEALER TO THIRD PARTY SALE BY DEALER TO THIRD PARTY WAS LOCAL SALE NOT SALE IN COURSE OF IMPORT.
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1992 (2) TMI 319
Classification ... ... ... ... ..... goods are to be classified on the basis of section notes, Chapter notes and Chapter headings. The previous TI 19 and 22 of erstwhile tariff Act had a broad heading encompassing all kinds of textile, textile-fabric, and it also included industrial textile fabrics, as had also been noted in the case of Multiple Fabric (supra). Further, it has to be observed that tariff advices and departmental instructions are not binding on quasi judicial authorities exercising their functions under a statute as held by Hon rsquo ble Supreme Court in several rulings. Therefore, there is no merit in this contention of the learned advocate and the same is rejected. 36. emsp In the result the Revenue appeal in E. 2082/91-D is allowed assessee rsquo s appeal E 753/91-D is partly allowed, only to the extent of the demands of larger period beyond six months is held as time barred. Appeals E. 754 to E. 763/91-D are infructuous and that they are also rejected as not maintainable. Ordered accordingly.
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1992 (2) TMI 318
Classification ... ... ... ... ..... rectangles including square but not further worked (even if when so cut, they become articles ready for use) rdquo . In view of the clear stipulation under Chapter Note 10, the reasoning of the Asstt. Collector was not correct and the ld. Collector had rightly set aside the impugned order and he would also drew attention to the cases reported in 1990 (47) E.L.T. 161 (S.C.) and 1990 (45) E.L.T. 260 (sic). 6. emsp We have considered the submissions of both sides. We find that Tariff Entry 39.20 includes film and Chapter Note 10 mentioned inter alia that under this heading the expression lsquo films rsquo applies to films whether or not printed. As such printed film would also fall under Tariff Item 39.20 and the Collector is correct in pointing out that if duty is already paid once on such films, they will not be subject to any further duty after printing. We, therefore, confirm the order of the Collector (Appeals) and dismiss the departmental appeal as announced in Open Court.
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1992 (2) TMI 317
Whether exemption from the payment of sales tax under section 4-A of the U.P. Sales Tax Act, 1948 should be for three years or five years?
Held that:- The petitioners are entitled for exemption under section 4-A of the U.P. Sales Tax Act for five years from 30th March, 1985 and accordingly they should be given the benefit.
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1992 (2) TMI 309
Registration of change of name and its effects thereof ... ... ... ... ..... of register. I do not see any good reason for rejecting this petition in exercise of my jurisdiction under section 155 of the Companies Act, 1 of 1956. Learned counsel for the company has ultimately submitted that, in case the court is inclined to allow this petition, the order of this court should be stayed for some time in order to enable the company to file a civil suit. It is not possible to accept this submission either. Courts must endeavour to put an end to the disputes and prevent multiplicity of litigation. I see no merit in the case of the company. The company cannot be encouraged to start a fresh round of litigation in respect of the same subject-matter. In the result, I allow the petition in terms of prayers (a ), (b) and (c) of the petition. The company is directed to rectify the register of members and implement this order within four weeks from today. Cost payable by the company to the petitioner is quantified at Rs. 1,000. Issue of certified copy is expedited.
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1992 (2) TMI 303
Company when deemed unable to pay its debts ... ... ... ... ..... the company is deemed unable to pay its debts in terms of section 434 of the Act. The Division Bench has clearly held that the relief claimed under sections 433, 434 and 439 of the Act cannot be diverted to the arbitrator by the company court or by the parties by their mutual agreement. It would not be either just or equitable to do so in the circumstances of the present case. Thus, I am satisfied that no case is made out for stay of the proceedings in this court under sections 433, 434 and 439 of the Act for winding up of the respondent-company. Accordingly, the application under section 34 of the Arbitration Act, is dismissed. Costs of this application shall be costs in the proceedings. The respondent-company through Shri Vajinder Jain, advocate, is directed to file its written statement to the main petition on or before April 3, 1992, to which date the case stands adjourned. Nothing herein discussed shall be construed as an expression of opinion on the merits of the case.
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1992 (2) TMI 295
Power of court to rectify register of members ... ... ... ... ..... the view that the contentions of the petitioner deserve all consideration and merit acceptance for the reasons mentioned in the earlier paragraphs of this judgment. In the result, Company Petition No. 51 of 1982 is ordered as indicated above. The register of members of the first respondent company is directed to be rectified by deleting the name of the third respondent with regard to 775 shares standing in the name of the petitioner in the register of members and to enter the petitioner s name in respect of the said 775 equity shares in the register of -members in the place of the third respondent. Taking into consideration the near relationship of the parties, there will be no order as to costs. This matter being listed for being spoken to at the request of Mr. T. Raghavan, learned senior counsel, the first respondent company is directed to issue notice of rectification to the Registrar within 30 days from the date of receipt of a copy of this order, i.e, February 27, 1992.
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1992 (2) TMI 294
Company when deemed unable to pay its debts, Winding-up of foreign companies ... ... ... ... ..... of six weeks from today. At this stage, Shri Rajesh C. Shah, the learned advocate for the applicant, prays that interest be awarded to the applicant on the amounts to be refunded in case the amount is not refunded by the bank by a particular date. No prayer is made for grant of interest in the judge s summons. I had specifically inquired of learned counsel for the applicant during the course of arguments as to whether the applicant was pressing for award of interest and the reply was in the negative. At this stage, lam not inclined to allow a change of stand. Shri N. G. Thakkar opposes the application for grant of interest. I am of the opinion that at this late stage, at the stage of delivery of judgment, the applicant cannot be permitted to make an additional claim. Accordingly, the prayer for award of interest is rejected. The application is made absolute in terms of prayers (b ), (c) and (d) with no order as to costs. Issue of certified copy of this judgment is expedited.
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1992 (2) TMI 293
Penalty for wrongful with holding of property ... ... ... ... ..... J 57 1988 63 Comp Cas 1 . Though the beneficent provision contained in section 630 is penal, it has been purposely enacted by the Legislature with the object of providing a summary procedure for retrieving the property of the company, ( a) where an officer or employee of a company wrongfully withholds possession of property of the company, or (b) where, having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment. It is the duty of the court to place a broad and liberal construction on the provision in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy. So, I am clear that the question of limitation does not arise in this case, since it is a continuing offence so long as withholding continues. No pther ground was urged before me. In view of the above, the petition does not deserve admission and is dismissed.
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1992 (2) TMI 292
Circumstances in which a company may be wound up, Winding up Application for, Affidavit verifying petitions
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1992 (2) TMI 271
Whether the sub-tenancy is true?
Whether it is valid in law?
Whether the consent of the landlord is true and valid?
Held that:- The directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been alteredshe is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance which was not present before the Division Bench and which has been brought to our notice is the consent of the landlord to the sub-tenancy in her favour.
Thus direct the appellant to furnish security in a sum of ₹ 5 lakhs by way of a bank guarantee to the satisfaction of the learned company judge of the Bombay High Court, within two months from today. The amount already deposited by the appellant in pursuance of the order under appeal shall continue to lie in court. The said amount and the security furnished by her in pursuance of this order shall be subject to the decision in the appellant's suit, now transferred to the Bombay High Court.
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1992 (2) TMI 270
Winding up Suits stayed on winding-up order ... ... ... ... ..... oceeded with against the company except by leave of the court and subject to such terms as the court may impose... (4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court. There must have been a purpose why Parliament inserted sub-section (4) in section 446. The exception starts operating after an appeal is pending whether before the Supreme Court or the High Court. If any proceeding was pending before the High Court relating to a company against which a winding up order has been passed and, if an appeal has been filed, the context changes. Leave has to be sought from the appellate court whether under section 483 of the Companies Act, 1956, before the High Court, or an appeal before the Supreme Court. In either case, it would come within the exception clause and leave is to be sought from the court where the appeal is pending. The application of PICUP, A-7, is thus laid to rest with this order.
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1992 (2) TMI 269
When does a company become liable to pay interest under section 73(2A) of the Companies Act, 1956?
Held that:- It cannot but be held that the payment of interest is only compensatory and not penal. Merely because clause 10 to which a reference has already been made uses the word "penal", it cannot amount to penalty. Viewing the statutory provisions from the above perspective, I agree with my learned brother that the liability to repay the excess amount arose on the expiry of the eighth day from 1st November, 1990.
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1992 (2) TMI 252
Classification ... ... ... ... ..... uo , the imported article, in our view, warrants its classification under Chapter Heading 84.31, as held by the Collector (Appeals). Thus, when classification of imported article - the Granite Press Roll - ought to have been made under Tariff Item No. 84.31 of Chapter 84, as is held by us, CEGAT has gone wholly wrong in classifying that article under import Tariff Item No. 68/16(1) of the 1st Schedule to the Customs Tariff Act, 1975, particularly when that article could not have been regarded as an article of stone, as such, to become an excepted item under Note 2 to Section XVI read with Note 1(a) to Chapter 84 warranting its classification under Heading in Chapter 68 and according to rules governing classification of materials or substances or their parts. In view of the above discussions, we are of the view that 9 number rupture discs are classifiable under Heading No. 84.17(I). We uphold the finding of the Collector (Appeals). The appeal filed by the revenue is dismissed.
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