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Showing 21 to 40 of 272 Records
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1993 (7) TMI 348 - CALCUTTA HIGH COURT
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... ... ..... send the matter back to the ITO. 16. It is now well-settled that where an irregularity supervenes, such irregularity is curable and should be, in taxation in particular, cured. A distinction has to be maintained by the appellate authorities between an error within the jurisdiction and error of jurisdiction. It is the latter class of error that renders an order into a nullity but not the former one. Where a statutory authority rightly assumes jurisdiction, but commits an irregularity in its exercise, the appellate authorities should correct it. That is the principle the Supreme Court has laid down in Guduthur Brothers v. ITO 1960 40 ITR 298 and Kapurchand Shrimal v. CIT 1981 131 ITR 451. 17. For the reasons aforesaid, we answer the question in this reference in the negative and in favour of the revenue but the matter will be gone into afresh by the Assessing Officer as to whether the interest was leviable under sections 139(8) and 217. 18. There will be no order as to costs.
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1993 (7) TMI 347 - ITAT MUMBAI
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... ... ..... x payable under section 209A(1) of the IT Act, in Form No. 29 which were available at pp. 208 to 211. Though, patently, these documents appear to be estimates filed by the assessee, but there is no evidence to the effect that they were filed by him as the assessee has not shown us the acknowledgement. The learned Departmental Representative also could neither affirm nor deny their filing. If the assessee did file these statements, on the face of it, there is no infraction of the provisions of section 273(1) b). However, this needs to be verified. Both these appeals are, therefore, restored to the file of the Assessing Officer with directions that the fact of the filing of these statements may be checked and verified by him. In the event, they were filed as claimed by the assessee, we direct that the penalty shall stand deleted. 14. In the result, while IT Appeal Nos. 8998 and 8172 are allowed, but 8997 is partly allowed. ITA 1445 and 878 are allowed for statistical purposes.
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1993 (7) TMI 346 - SUPREME COURT
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... ... ..... ld not be repaired later. These were not such cases. The respondents have been studying in the Guru Nanak Dev College, or such other college as the case may be, for a period of one year or more. They had obtained admission therein, in the management quota, with their eyes open. They could have been and ought to have been asked to wail till the final disposal of the writ petitions, which could be - and, indeed, were - expeditiously heard. We are obliged to make these observations in view of the fact that we have come across several such orders passed by High Courts. Such mandatory orders ought not to be made at an interlocutory stage, except in rare cases, as emphasised hereinabove. 28. So far as Respondent 5 is concerned, we are informed that he had not been admitted in Chandigarh College; upon that representation we had ordered that he be admitted in his parent college. 29. The appeals are accordingly allowed, subject to the directions in the preceding paragraphs. No costs.
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1993 (7) TMI 345 - ITAT BOMBAY
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... ... ..... . There has been a shift from the older jurisprudential values of substantive rights to the present values of procedural regularity, justice is seen as the consequence of procedural fairness. There cannot be anything of greater consequence than to keep the stream of justice clear and pure, that parties may proceed with safety to themselves. We have noted that the assessee submitted before us the audit report Since it was not available before the Revenue authorities, we decline to accept the case. 9. Having regard to the facts and circumstances of the case, and after carefully- perusing the precedents over the point and in the light of the discussion made above, we, set aside the impugned order and restore the matter to the file of the Assessing Officer with direction to consider the audit report and decide the issue afresh in accordance with law after providing adequate opportunity to the assessee of being heard. In the result, appeals stand allowed for statistical purposes.
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1993 (7) TMI 344 - SUPREME COURT
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... ... ..... It has also given shape in the form of this Act to the recommendations of the Standing Committee on Health of the West Bengal Assembly. 76. The impugned orders of transfer are not in any way actuated by malafides but have been passed to effectuate the provisions of the Act the only policy being to provide proper medical facilities as stated above. 77. In view of the above discussion, all the civil appeals will stand dismissed. 78. In the view taken by us, we dismiss all the appeals with costs. 79. We further direct that if there are any proceedings pending in any court including the High Court in which the Provisions of the West Bengal State Health Service Act, 1990 or the provisions of the West Bengal Health Service Rules, 1993 are under challenge, they shall all stand dismissed. 80. The appellants in Civil Appeals Nos. 3394-97 arising out of S.L.P. Nos. 4176, 4192. 4184 and 4185 of 1992 are granted time upto the 10th of August 1993, to exercise their option join the WBMES.
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1993 (7) TMI 343 - KERALA HIGH COURT
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... ... ..... further held that the fact that Visakha Cement Works has been registered separately, licensed separately, granted interest-free sales tax loans as well as a rebate of 25 in power tariff cannot be reckoned as contributing factors to be taken as guidelines in finding whether the unit is a separate establishment or a branch of the main unit. 18. We are also of the view that the mere fact that separate licences were obtained under the Factories Act for the two factories in question is not a relevant consideration at all. Applying the principles deducible from the aforesaid decisions to the facts of this case, we are clearly of the view that the Coimbatore factory is only a branch of the establishment at Chalakudy, for the reasons which we have already mentioned. 19. In view of what is stated above, we do not find any ground to interfere with Exhibits P-5 and P-7 orders and accordingly this original petition is dismissed, but, in the circumstances, without any order as to costs.
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1993 (7) TMI 342 - SUPREME COURT
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... ... ..... lear finding as to the nature of the document dated June 23, 1952 either. If it is a sale deed as contended by the first defendant then the plaintiff's suit will have to be dismissed. If it is to be held a mortgage by conditional sale it has to be treated as subject to the tenancy right and the plaintiff would be entitled only to whatever right, title or interest that was conveyed under the document dated June 23, 1952. In fact as already stated the plaintiff did not even plead that before he executed the deed dated June 23, 1952 the second defendant surrendered his possession or his tenancy right. In either case, therefore, on the facts the findings of the Revenue Tribunal were correct and could not have been interfered with. The High Court therefore erred in setting aside the order of the Revenue Tribunal. In the result appeal succeeds and the order of the High Court is set aside and that of the Revenue Tribunal is restored. However, there will be no order as to costs.
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1993 (7) TMI 341 - CALCUTTA HIGH COURT
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... ... ..... er to apportion the expenditure, in spite of its being business expenditure as a whole, among the different classifiable heads of the said business income. Where part of business income is computed as dividend income, part of business expenditure has as well to be correlated with such dividend income. This apportionment is necessary for the limited purpose of computing allowable deduction under section 80M. 2. The approach of the learned counsel for the revenue boils down to a simple proposition that if business income is artificially classified in any part as dividend, business expenditure should also be so classified for the sake of evenness of treatment. 3. But if there is nothing in law that authorises the Court to create an additional fiction for the sake of adjustment of the lopsidedness of the fiction, that is, legislative function outside our domain. Therefore, we are not persuaded to depart from the consistent view taken by this Court with which we are in agreement.
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1993 (7) TMI 340 - MADHYA PRADESH HIGH COURT
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... ... ..... was never informed of the fact of passing of decree by the Court in terms of the award of the umpire or the amount in the decree and the amount receivable from the Board. Without all the above relevant facts, it was not possible for the Assessing Officer to determine the taxability and the quantum of tax under s. 41(2) of the Act. As has been pointed out by us at the out set, the balance sheet merely showed the written down value of the assets of the assessee and the actual compensation offered by the Board and received by the assessee in the relevant financial year. In the return, the income showed was nil. The IAC was, therefore, fully justified in inferring failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for that year and to resort to the provisions of s. 147(a) for the escaped assessment. 29. Consequently, both the questions are thus answered in negative, in favour of the Department and so against the assessee.
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1993 (7) TMI 339 - SUPREME COURT
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... ... ..... ary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. (pp.156-157) 9. The VCR/VCP were developed in 1970s and achieve the same purpose as the traditional media for exhibition of moving pictures. There is nothing in the Act which excludes the applicability of the Act to VCR/VCP. 10. The High Court was, therefore, right in holding that VCR/VCP are within the ambit of the definition of 'cinematograph' contained in Section 2(a) of the Act and the appellants in order to carry on the business of running video parlors or showing pre-recorded cassettes of films through the medium of VCR/VCP must obtain a licence in accordance with the provisions of the Act and the Rules. 11. The appeals are accordingly dismissed but with no orders as to costs.
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1993 (7) TMI 338 - SUPREME COURT
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... ... ..... he is not supposed to incur the expenditure at the cost of the subscribers and then claim higher commission. Expert Bodies have only recommendation two per cent commission whereas the Act provided for 5 per cent commission. We do not find any thing unreasonable in respect of the commission. 40. Again objection to Section 25 is meaningless. This is a normal duty of the foreman which has been converted into a statutory duty. We do not find anything unreasonable. The provision is in subscribers' interest. SECTION 48 41. The objection to the vires of Section 48 as to the circumstances in which chits are to be wound up is merely staled to be rejected. 42. All the provisions are in the interest of the subscribers and are very material. In any case if the order is unreasonable a party has a right of appeal under Section 59 of the Act. 43. We thus find no merit in the appeals as well as the petitions. The result is that all the appeals and the petitions are dismissed with costs.
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1993 (7) TMI 337 - SUPREME COURT
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... ... ..... 3 with the State Govt., he stated in fairness that Section 11 was enacted only to defuse the effect of the writ of mandamus issued by this Court in Om Prakash's case, to refund the fee collected therein to the appellants therein, but under its guise the State did not intend to nor would it intend to retain the said fund collected under the predecessor Act 12 of 1983 from September 30, 1983, the date on which the notification under Section 5(1) of that Act was published in the State Gazette and the entire fund would be passed on to the credit of the Board under the Act. In that view Section 11 also is valid. 9. Accordingly we hold that Section 5(1) and 11 are valid. The fee levied therein is not a tax but a fee towards the fund to expend for the purpose enumerated under Section 6(5) of the Act. The fund would be expended accordingly. In this view we hold that the appeals bear no merit. They are accordingly dismissed with costs quantified at ₹ 5,000/- in each appeal.
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1993 (7) TMI 336 - SUPREME COURT
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... ... ..... hat interference or finding could be reached on proper consideration of the facts and circumstances, suitable remedy be given. We are informed that there is no procedure prescribed under the Act or the rules to challenge the validity of the election. Even otherwise the election Tribunal cannot go into the validity or correctness of the order granted by the High Court which is the foundation to disable two members to exercise their franchise. It should be remedied only in the proceedings under Article 226. Under these circumstances it is but fit, just, proper and legal that the injury suffered by the appellant should be remedied by declaring that the election of K.C. Sadananda Pradhan is not a validly conducted election and it is accordingly declared and set aside. It is open to the Returning Officer to conduct the election of Pradhan afresh aced ding to rules. The writ is issued accordingly. 4. The appeal is allowed but since the respondents are not appearing, without costs.
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1993 (7) TMI 335 - CALCUTTA HIGH COURT
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... ... ..... assessed, there is no question of charging the registered firm with interest even though the return is filed by it beyond the time allowed, regard being had to the fact that payment of interest is only compensatory in nature. As the entire amount of tax is paid by way of advance tax, the question of payment of any compensation does not arise." (p. 230) In the instant case, the assessee was granted refund of the excess tax paid by it over the assessed tax. The question is whether the advance tax duly paid by the assessee covers the amount of tax assessed. In that event, as laid down by the Supreme Court, there is no question of charging the registered firm with interest, even though the return was filed by it beyond the time allowed. 15. For the foregoing reasons we decline to answer the second question and remand the matter to the Tribunal to ascertain the correct facts and dispose of the issue accordingly. 16. There will be no order as to costs. Banerjee, J. - I agree.
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1993 (7) TMI 333 - ALLAHABAD HIGH COURT
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... ... ..... on another loan and occasioning loss of public moneys. Thus, the representation or the objection made by the Pradeshiya Industrial and Investment Corporation, U.P. Limited, dated May 22, 1993 rejected by the Deputy Collector (Collection), Sales Tax, Haldwani alone should become the basis of the meeting of the secretaries for finding out a solution, which under the decision of the Supreme Court is their obligation. 18.. Until a decision is taken by the State of Uttar Pradesh without permitting litigation between the corporation and the Sales Tax Department, the confirmation of the auction, dated July 5, 1993 in pursuance of the recovery proceedings in the matter of sales tax dues against Fine Straw and Card Board Factory Pvt. Limited and in the matter of an attachment relating to Khata Khatauni No. 166, Khet No. 1392/Ka-Se/87/2, Rakba 4.00 Ka 1/2 bhag (wali bhumi), Lagan 40.00 shall remain stayed. With the aforesaid observations and directions, this petition is laid to rest.
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1993 (7) TMI 332 - ALLAHABAD HIGH COURT
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... ... ..... s case could be gathered from documents that were in possession of the railway authorities, the respondent s vendor M/s. Faridabad Manufacturing and Engineering Private Ltd. and the party who despatched the goods from Madras. So far as the assessee is concerned, it placed before the assessing officer the bills of purchase of goods from the aforesaid party showing that U.P. sales tax had been paid thereon. Railway receipts were not in possession of the dealer-respondent. So far as the assessing officer is concerned, he has made no efforts whatsoever, to contact the railways or any of the parties concerned with the matter to find out if there were any facts that could be favourable to the Revenue. On the material that has been referred to by the authorities below the finding by the Tribunal that it was a purchase of cement within the State of U.P. cannot be found fault with and no question of law arises in these revisions and the same are hereby dismissed. Petitions dismissed.
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1993 (7) TMI 331 - KARNATAKA HIGH COURT
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... ... ..... the above manner it calls for levying some penalty because there was repetitive delays and this could be attributed to culpable negligence on the part of the assessee in not making any arrangement to have a bank account at Bangalore when he is trading in Bangalore. However, the quantum of penalty cannot be as high as the one directed to be levied by the Appellate Tribunal. This is a case where a nominal penalty would not only satisfy the requirement of law but would also serve as a warning to the assessee to be more diligent hereafter. In these circumstances, we are of the view that penalty of Rs. 500 for each assessment year would be an appropriate penalty. 6.. In the result, these revision petitions are allowed. The orders of the assessing authority, the first appellate authority and the Appellate Tribunal are modified by directing the assessee to pay Rs. 500 each for the assessment years 1985-86 and 1986-87 as penalty under section 12-13(3) of the Act. Petitions allowed.
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1993 (7) TMI 330 - ORISSA HIGH COURT
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... ... ..... sions to be intra vires and they do not contravene article 301, but at the same time, we are also of the view that the doctrine of stare decisis should apply in the present case. Though Mr. Mohanti, the learned counsel for the petitioners, had challenged the legality of the order passed by the Sales Tax Officer on October 21, 1989, annexed as annexure 1, but we find that the said order is against the dealer The Apptech Engineers Pvt. Ltd., Calcutta, Site at Choudwar, I.C.C. Ltd. Campus and not against the present petitioner No. 1. If the dealer was actually aggrieved by the said order, the dealer could have approached the higher forum or could have moved this Court. We are not persuaded to examine the legality of the order under annexure 1 at the instance of the present petitioner who is not admittedly the dealer. In the aforesaid circumstances, the writ application is dismissed. There will, however, be no order as to costs. B.N. DASH, J.-I agree. Writ application dismissed.
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1993 (7) TMI 329 - DELHI HIGH COURT
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... ... ..... c fraud to avoid sales tax running in crores of rupees. This perhaps was done to get benefit for claiming the exemption. The respondents have rightly taken the preliminary objection in their reply that the petitioners with such background cannot be permitted to invoke the extraordinary jurisdiction of this Court. We cannot help observing that this kind of systematic fraud for such a long period would not have been possible without the active connivance of the officials of the respondents. Learned counsel for the petitioners placed reliance on Chhabra Electric Stores v. Chief Commissioner 19721 30 STC 85 (Delhi) and Cromelite (India) Pvt. Ltd. v. State of Maharashtra 1981 48 STC 223 (Bom). We have examined the ratio of these two decisions. In the peculiar facts and circumstances of the case, the cited cases cannot provide any assistance to the petitioners. The petitions filed by the petitioners are devoid of merit and accordingly are dismissed with costs. Petitions dismissed.
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1993 (7) TMI 328 - KERALA HIGH COURT
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... ... ..... try 76-A of the First Schedule to the Kerala General Sales Tax Act and the principle of law that is discernible from the decision in Rathinaswamy Chettiar s case 1962 13 STC 419 (Mad.). It is for the final fact-finding authority-the Appellate Tribunal-to pose this aspect since the finding on that score is largely a question of fact in each case. 9.. We, therefore, set aside the order of the Appellate Tribunal to the limited extent of assessment of the turnover of opening stock on Indian made foreign liquor as on April 1, 1988 and dealt with by the Appellate Tribunal in paragraph 5 of its order dated February 12, 1992. In all other respects, the order of the Appellate Tribunal is affirmed. We remit the matter to the Appellate Tribunal for a fresh consideration in accordance with law, regarding the inclusion of the sales turnover of the opening stock of Indian made foreign liquor as on April 1, 1988. 10.. The tax revision case is allowed, to the above extent. Petition allowed.
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