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Showing 41 to 60 of 259 Records
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1992 (8) TMI 270
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... ... ..... n can be given in the Act in the modern complexities. Some discretions, some play in the joints have to be provided for. One cannot also lose sight of the fact that discretion is vested in the State Government itself and not in the minor officers. Grant or refusal to grant exemption has to have nexus with the object of the Act. If the nexus does not exist or the action is mala fide or is vitiated by non-application of mind, the action may become bad. There is no power on earth, which is not capable of being misused. But that hard reality cannot render the provision bad. Section 12 refers to specified class of importers, but that does not mean individual cases cannot be considered on merit. Even one case may form a specified class. The respondents inform us that exemptions have in fact been granted even to genuine individual cases. This last ground also, therefore, falls. Conclusion The Act is valid and also enforceable. Result Petitions dismissed. Rules discharged. No costs.
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1992 (8) TMI 269
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... ... ..... 3 SCC 230 (McDowell and Company Limited v. Commercial Tax Officer) and AIR 1968 SC 49 1968 67 ITR 11 (SC) (Commissioner of Income-tax v. A. Raman and Co.). All those decisions have got special features. We cannot say that there is a general dictum that this Court should interfere with the pre-assessment notices on the ground that the result of the proceedings started with the pre-assessment notices will be in favour of the assessee. We cannot arrogate ourselves to the position of the assessing authority or any appellate authority under the statute or as an authority who is deciding the question in a tax revision case. We are exercising a special jurisdiction under article 226 of the Constitution of India and in that view, it is not possible for us to interfere with the pre-assessment notices issued to the appellant. The learned single Judge considered the relevant aspects in the right perspective, though briefly. In the circumstance, we dismiss the appeal. Appeal dismissed.
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1992 (8) TMI 268
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... ... ..... the assessment proceedings of the selling dealer are finalised. If the purchasing dealer has paid tax, and if there is no other dispute and the purchasing dealer claims set-off, it is difficult to appreciate how as a result of such a claim the assessment proceedings of the purchasing dealer will have to be kept pending till the assessments of his vendors are finalised. For all these reasons, we are of the view that the word tax in clause (a) of rule 42(B)(i), on correct interpretation means the amount paid by way of sales tax or general sales tax and recovered as such. In other words, the amount of tax contemplated by rule 42(B)(i)(a) is the amount of sales tax or general sales tax actually paid and recovered by way of tax, and not, only that amount of tax which could have been legally recovered. We, therefore, answer the question referred to us in the negative, i.e., in favour of the assessee and against the Revenue. No order as to costs. Reference answered in the negative.
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1992 (8) TMI 267
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... ... ..... unal that the assessee was not entitled to the deduction as urged by him, even on the basis of the comparison of the signatures as indicated above. We, therefore, answer and reply questions Nos. 1, 2, 3 and 4 referred to us and indicated above in the affirmative against the assessee and in favour of the Revenue. 23.. So far as question No. 5 referred to us by the Tribunal at the instance of the Revenue is concerned, we would say that the assessee in such case could not have been permitted to establish the claim of deduction on the basis of other evidence despite the fact that the procedural formalities were not strictly followed. We feel that the Tribunal was not justified in allowing the assessee to have the abovesaid course. We, therefore, answer and reply question No. 5 in the negative Anyhow, this would operate against the assessee and in favour of the Revenue. There shall be no order as to costs in the facts and circumstances of the case. Reference answered accordingly.
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1992 (8) TMI 266
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... ... ..... resentative show that they relate to the year 1976-77. 4.. In the light of the above categorical findings of the Tribunal confirming the findings of the first appellate authority rendered on an appreciation of the materials made available before those authorities, we are unable to interfere with the same since we do not find any patent error of law or perversity of approach in the findings rendered. An attempt has been made to canvass the correctness of the quantum of penalty. In the light of the concurrent findings of fact that the suppression in question was not only wilful but the petitioners were found to have themselves collected in respect of certain transactions tax due thereon and yet did not disclose the same, we are not inclined to take any lenient view particularly after the Tribunal itself has shown some concession in the quantum of penalty. 5.. For all the above reasons, we dismiss the above tax cases. But there will be no order as to costs. Petitions dismissed.
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1992 (8) TMI 265
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... ... ..... starts to run from the date of the service of the order appealed against. Proviso to sub-rule (9) of rule 68 of the U.P. Sales Tax Rules, 1948, lays down that the service on the State Representative shall be deemed to be service on the Commissioner. The Tribunal has also taken the same view and, therefore, there is no error in the judgment of the Tribunal and as such this argument has no force. Lastly the restoration of the quantum made by the Sales Tax Tribunal was challenged. A perusal of the order of the first appellate authority shows that it gave absolutely no reason whatsoever for reducing the enhancement by Rs. 70,000. On the other hand the Tribunal has gone into great details as to why the best judgment assessment made by the assessing authority be restored. There seems to be no error in the view taken by the Tribunal. In any case it is a finding of fact and no question of law is involved. The revision has no force and is dismissed accordingly. Application dismissed.
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1992 (8) TMI 264
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... ... ..... on 22-A prescribes inspection of the record by the in-charge of the check-post and the officer authorised as aforesaid and the record should be relating to the goods carried which are in possession of such driver or other person in-charge who shall, if so required give his name and address and the name and address of the owner of the vehicle and names and addresses of the consignors and the consignees, if any. Under section 16(9)(b) the case could be compounded by charging the fee which could not exceed more than three times of the tax. Even under section 22-A of the Act and more so its sub-section (7), the compounding fee could be not exceeding 30 per cent of the value of the goods. Viewed from any angle in my opinion, the compounding fee of more than Rs. 50,000 and the tax which was attempted to be evaded cannot be said to be excessive and no case for interference could be made. Consequently, the writ petition is dismissed with no order as to costs. Writ petition dismissed.
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1992 (8) TMI 263
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... ... ..... efore the respondent No. 3 contending that, inter-alia, he was not the owner or partner of the company. He had no concern with the company whatsoever except the fact that he had given his trucks to the company on hire, therefore, he was not liable to pay the tax payable by the company. There is no material before us to suggest that the objection filed by the petitioner has been disposed of either way. We, therefore, presume that the objection filed by the petitioner is still pending before the respondent No. 3. On the facts and circumstances stated hereinbefore, we are of the view that it would be appropriate to direct the respondent No. 3 to decide the objection of the petitioner after permitting him to produce such evidence as he may desire within 4 months from the date of production of a certified copy of this judgment before him and it is so ordered. In the meantime the impugned recovery against the petitioner shall remain stayed. The petition is disposed of accordingly.
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1992 (8) TMI 262
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... ... ..... or nicotine in circulation system through saliva. Tooth paste or any dentifrice is used purely for dental and oral hygiene but the purpose of gurakhu is one form of tobacco intake. The frequency in which it is generally used by a consumer in the course of a day is also a functional test that use of it is one form of tobacco addiction like the use of khaini or powder of roasted tobacco leaves which is in vogue in rural population. In the premises, we uphold the order of the learned single Judge and hold that the tax cannot be levied on gudakhu or gurakhu as the expression tobacco covers it. The petitioner is entitled to exemption under the West Bengal Sales Tax Act and also under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. We also confirm the direction of the learned single Judge for return of the sum of Rs. 25,000 being the cash security furnished by the respondent. There will be no order as to costs. K.M. YUSUF, J.-I agree. Writ appeal dismissed.
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1992 (8) TMI 261
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... ... ..... hana-dhal, sweet flavoured powder, etc. In another commodity there was a mixture of tobacco with chuna and sopari. It is, therefore, looking to these facts that this Court has said that there was no transformation of a different constituent element. For the reasons which is assigned more than once, this authority also would not go to strengthen the case of the assessee before us. Thus, it appears very clearly that the Tribunal was perfectly justified in saying that the abovesaid activity was an activity of manufacture and cannot be said to be a mere activity of resale. We fully agree with the abovesaid conclusion recorded by the Tribunal. Looking to the settled legal position in this respect and further looking to the finding of the facts recorded by the Tribunal, no other view is possible. We, therefore, answer the above referred question to us in affirmative, against the assessee and in favour of the Revenue with no order as to costs. Reference answered in the affirmative.
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1992 (8) TMI 260
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... ... ..... ered by item (11) of rule 93-I is irreversible. The reference is accordingly answered in the affirmative in favour of the Revenue and against the dealer. 7.. Before we part with the case, a submission made on behalf of the dealer needs to be noticed. It was urged that under bona fide belief that the article in question can be sold to registered dealers against declaration forms, the dealer has effected such sales to registered dealers who have issued declaration forms and have paid tax on their sale turnover. It is urged that if the dealer is required to pay tax again, it would amount to double taxation in respect of the same article. Reliance is placed on a decision of this Court in the case of Rama Rao and Sons v. State of Orissa 1990 77 STC 303. While exercising reference jurisdiction it is not open to us to delve into this question. It is open to the dealer to avail such remedy as is available to it in law. D.M. PATNAIK, J.-I agree. Reference answered in the affirmative.
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1992 (8) TMI 259
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... ... ..... hat the retention of the books of account, documents and diary of the petitioner, seized on 21st August, 1987 and 8th December, 1987, after the expiry of the period of 90 days, is illegal and the petitioner is entitled to have them returned. In the result, the petition succeeds and is allowed. The Sales Tax Officer (Special Investigation Branch), Muzaffarnagar, respondent No. 2, is directed to return to the petitioner the books of account, documents and diary, seized from it on 21st August, 1987 and 8th December, 1987, within a period of two months from the date of production of a certified copy of this judgment before him. The Sales Tax Officer, Sector-I, Muzaffarnagar, the respondent No. 1, is directed not to proceed with the assessment proceedings in respect of the years 1986-87 and 1987-88 pursuant to the impugned notices dated 4th December, 1989, copies whereof are annexures 14 and 15 to the petition, for a period of 3 months to be computed from today. Petition allowed.
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1992 (8) TMI 258
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... ... ..... relating to or the turnover in question sought to be brought to tax by the Joint Commissioner was neither directly or indirectly an issue or even remotely concerned in the appeal before the first appellate authority. Consequently applying the ratio of the two decisions referred to supra, we have to see whether the initiation of the proceedings under section 34 in the case before us is in conformity with the period of limitation provided for under section 34(2)(c) of the Act. The order of the assessing authority being one passed on October 13, 1977, in the light of our conclusion that the Revenue could not take advantage of the order of the first appellate authority, the notice issued on November 8, 1982, initiating proceedings under section 34 of the Act beyond five years is clearly barred by limitation. On this ground alone, the tax appeal deserves to be allowed and it shall stand allowed as such. But in the circumstances, there will be no order as to costs. Appeal allowed.
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1992 (8) TMI 257
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... ... ..... he Tribunal. The petitioner has explained the reason why this petition has been filed. On the basis of the view taken in this matter, Tribunals as well as the sales tax authorities have started quashing such assessment orders resulting into irreparable loss to the department. Number of such cases is reported to be approximately 5,000 involving substantial revenue. No question of law is involved. Having regard to the totality of all these factors, we are not inclined to throw the petition out on the ground of existence of alternate remedy and hence we overrule the preliminary objection. 15.. To conclude, this writ petition is allowed. The impugned order of the Tribunal is quashed and set aside. The matter is now remitted back to the Tribunal for disposal of the second appeal on merits, in accordance with law. Needless to mention that since the matter is old, it would be disposed of on priority basis. Rule made absolute accordingly. No order as to costs. Writ petition allowed.
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1992 (8) TMI 256
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... ... ..... opinion, would not entitle the authority to invoke the provisions of rule 8(2)(iv)(b) of the Rules to cancel the composition permitted under section 17(4) of the Act to the assessee. As held by a Division Bench of the Madras High Court in R. Sundaresa Iyer and Sons v. Board of Revenue 1971 28 STC 430 The facts found in the compounding proceedings may not by themselves be material in the assessment proceedings. The assessing authority will have to rest the assessment in the light of the materials themselves which he will have to judge with a fresh mind. 10.. In the view we have taken above, S.T.R.P. Nos. 43 and 44 of 1989 are dismissed. S.T.R.P. No. 45 of 1989 is allowed. The order of the authorities pertaining to the year 1984-85, in so far as it relates to withdrawal of the composition benefit (annexures F and N ), is set aside. S.T.R.P. No. 46 of 1989 which pertains to penalty is also rejected. S.T.R.P. Nos. 43, 44 and 46 of 1989 dismissed. S.T.R.P. No. 45 of 1989 allowed.
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1992 (8) TMI 255
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... ... ..... larations which were not filed along with the return, could not be filed subsequently before the assessment. We have held above that it is not mandatory for the assessee to file the G form declarations along with the returns and if an assessee failed to file the same along with the return, he can file the same before the order of assessment is passed. As admittedly in this case the G form declarations were filed before the order of assessment was made, the assessee was entitled to the benefit of concessional rates under section 5-B. We are supported in our view by a judgment of a Division Bench of this Court in State of Andhra Pradesh v. A.K. Traders (1988) 7 APSTJ 92, wherein it is held that the G form declarations could be filed before the assessment was made when they were not filed along with the return. For the above reasons, the order of the Sales Tax Appellate Tribunal is valid in law. The T.R.Cs. fail and they are accordingly dismissed. No costs. Petitions dismissed.
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1992 (8) TMI 254
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... ... ..... se tax was leviable on the goods in question. The contention was that as there was no sales tax under the State law, section 8(2A) of the Central Sales Tax Act would be attracted. It is this contention which was repelled by the Supreme Court. That is not the position in the present case. The said decision, therefore, has no application. 8.. In view of the foregoing discussion, we are of the clear opinion that the sales of oil-cakes in the State of Maharashtra were generally exempt from tax within the meaning of section 8(2A) of the Central Sales Tax Act by virtue of the notification dated July 24, 1981. There were no conditions attached to the exemption. That being so, section 8(2A) will be attracted and the inter-State sales of oil-cakes will also be exempt from tax. The impugned orders of the Additional Commissioner and the Tribunal are, therefore, not correct and hence set aside. 9.. In the result, the writ petition is allowed. No order as to costs. Writ petition allowed.
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1992 (8) TMI 253
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... ... ..... e purview of entry No. 121. This contention is fallacious for more than one reason. In the first instance, it is not sold as a gas but as a chemical liquid secondly, applying the ratio of the decision in 1963 14 STC 184 (All) (Bishambar Dayal Shri Niwas v. Commissioner of Sales Tax) and 1970 25 STC 85 (All.) FB (Commissioner, Sales Tax v. Prayag Chemical Works) the nature of the commodity has to be construed mainly from the point of view of the vendor and thirdly, the meaning of the word in common parlance and the common user thereof, namely, the user of anhydrous ammonia, directly as a fertilizer which appears to be its dominant use. 12.. In the view we have taken above, anhydrous ammonia sold by the appellant does not fall within the purview of entry No. 121 of the Second Schedule for the purpose of levying sales tax as held by the Joint Commissioner. The appeal is accordingly allowed. The impugned order passed by the Joint Commissioner is hereby set aside. Appeal allowed.
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1992 (8) TMI 252
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... ... ..... ownership of the respondent-company by that time. It is also not possible to say that the property in the system passed on to Fertilizer Corporation of India incidentally. We are therefore of the opinion that the transaction of sale as evidenced by the request for quotation and the purchase order and also the bill dated December 14, 1976, was really a sale of the N.P. handling system consisting of conveyor belts and related equipments and also a sale of other services and that it was a divisible contract as held by the Deputy Commissioner. The Tribunal was therefore not right in holding that it was not a transaction of sale of goods. We therefore, answer the question referred to us in the negative, i.e., in favour of the department and against the assessee. No order as to costs. It may be clarified that we have not considered the question as to whether the sale took place in Gujarat or outside, as no such question had been referred to us. Reference answered in the negative.
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1992 (8) TMI 251
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... ... ..... is case that the assessment year in question is 1972-73. The penalty has been imposed by an order dated September 30, 1982. Though the relevant section underwent a change in 1979, we are not concerned with that. As the section stood during the assessment year in question 1972-73 penalty should have been imposed before March 31, 1978. The fact that the notice has been issued on March 1, 1978, will not take away the rigour of the section by which the penalty ought to have been imposed. Though a question was taken before us whether the amendment which came into force on December 1, 1972, could be made applicable for the assessment year 1972-73, we are not expressing any opinion on this question because we propose to dispose of this tax revision case on the ground that no penalty has been imposed within the period of five years ending assessment year 1972-73. Accordingly, the order of the Tribunal is set aside and the tax revision case stands allowed. No costs. petition allowed.
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