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1994 (6) TMI 221
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... ... ..... nly was more than casual in not considering the documents at all, but also ignored the legal consequences of pleadings of denials, not discharging the burden on them, and also ignoring that there is no dispute as regards the accounts as clearly admitted by the witness in the evidence, together with the fact that the witness himself was the Accountant of the Circus from 1966 upto 1982. 34. The result is that this Appeal stands allowed. Judgment and Decree in O.S. No. 526 of 1983 of the Learned IInd Additional Sub Judge, Thiruvananthapuram get quashed and set aside and consequently it is ordered that the plaintiff's suit for claim of ₹ 1,00,520/- (Rupees one Lakhs Five Hundred Twenty only) with interest at 6% per annuam from the date of the suit till recovery thereof from defendants 1 and 2 and the assets of Thiru K.S. Menon and K.S. Mohan in the hands of the defendants is hereby decreed with costs throughout. Order accordingly. A reproduction from ILR (Kerala Series)
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1994 (6) TMI 220
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... ... ..... d the necessary inquiry under Order 20, Rule 12(1)(c) of the Code of Civil Procedure expeditiously and shall pass the decree for mesne profits as quantified by the trial Court along with interest payable thereon if the trial Court so deems fit to exercise of its discretion. The trial Court must try to dispose of this aspect of the matter inquiry and pass consequential money decree for mesne profits as determined after giving an opportunity of both parties to lead necessary evidence within six months from today. 29. The decree for possession shall be executable forthwith. 30. The Registrar, High Court, Appellate Side is directed to forward the writ of this Court to the trial Court expeditiously and latest within two weeks as far as possible. The relevant record shall also return to the trial Court along with an ordinary copy of the order delivered today in this appeal duly authenticated by the Shirastedar of this Court latest within one month from today. 31. Appeal dismissed.
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1994 (6) TMI 219
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... ... ..... the country which provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Keeping this aspect also in view, it was not open to the petitioner to agitate any question concerning the acquisition of the aforesaid land known as Rambagh Polo-ground, Jaipur by or on behalf of the J.D.A. for the purpose of construction of residential houses, before this court, since the said question has already been earlier raised before the Apex Court and the Hon'ble Supreme Court has already dealt with the same by giving its valuable decision. 11. Keeping in view the aforesaid facts and circumstances of the case and the legal position and Constitutional provisions, 1 am of the considered view that this writ petition has no force and the contentions advanced by the learned counsel for the petitioner are not tenable and the petition deserves dismissal. 12. Consequently this writ petition fails and is dismissed with no order as to costs.
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1994 (6) TMI 218
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... ... ..... other authorities and no citation should at all be necessary for such an obvious proposition. But still, as it is our habit to move in the world of law only on the crutches of precedents, reference may be made to the decision of the Supreme Court in East India Commercial Co. Ltd. 1983(13)ELT1342(SC) . 9. I have no doubt that in the case at hand, if the alleged adoption was found to have taken place in fact and it was thus necessary to decide the question as to the right of the widow mother to take in adoption, I, sitting singly, would have also had to be governed by the decisions of this Court in Sahebrao (supra) and in Vaijoba (supra) and by the gloss put by them on the Supreme Court decision in Gurunath (supra) and not by my own reading thereof. But since both the Courts below have held the adoption not to have taken place, in fact, this aspect need not be pursued any longer. 10. I accordingly dismiss this Second Appeal, but make no order as to costs. 11. Appeal dismissed.
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1994 (6) TMI 217
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... ... ..... st with periodical rests. In paragraph 8 of the judgment the High Court has observed The present, therefore, is a case which would make the finding of the Karnataka High Court relevant insofar as the policy circulars of the Reserve Bank of India are concerned. 29. But the High Court ultimately decided in favour of the borrower because in its view the agreement did not provide for periodical rests nor did it stipulate for payment of compound interest, making the above quoted observations obiter dicta. In that view of the matter, we see no reason to, interfere as the decision does not ultimately rest on the aforequoted view based on the Karnataka High Court decisions. We may incidentally say that we have today by a separate judgment dismissed the Bank's appeal against the said decision. We dismiss this petition on the short ground that the agreement on which the Bank's claim is founded does not provide for payment of compound interest or interest with periodical rests.
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1994 (6) TMI 216
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... ... ..... Government's decision for removal was founded, vide paragraph 51 -A of the judgment, and came to the conclusion that there was justification for the exercise of power and, therefore, the State Government was justified in ordering removal. Similarly, the High Court also examined the allegation of mala fides in paragraphs 52 and 53 of the judgment and spurned the said charge. These decisions of the High Court are based on the assessment of facts and ordinarily this Court is loathe to re-evaluate the same unless it is shown that the High Court's appreciation of facts has resulted in miscarriage of justice. No such case is made out. We, therefore, see no reason to interfere with the High Court's assessment on both these points. There being no serious infirmity in the High Court's evaluation of the factual data, we see no reason to dilate on the said points. 11.In view of the above, we see no merit in this appeal and dismiss the same but with no order as to costs.
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1994 (6) TMI 215
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... ... ..... el for the petitioner seeks to rely upon a decision of this Court in W.A. No. 3169 of 1993. This Court has made an order on the facts and in the circumstances of that case and it does not lay down any principle of law, which could be made applicable to all cases. In that view of the matter, the petitioner cannot place reliance on that decision. Petition is therefore rejected. Petition dismissed.
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1994 (6) TMI 214
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... ... ..... ts of CMA. 34.. Parties will bear their own costs of this case. ORDER OF THE TRIBUNAL AS PER MAJORITY VIEW 35.. The application is allowed without costs in the circumstances of the case. The impugned assessment and levy orders and orders rejecting the revisions and refund claims included in annexure D of the application are quashed. The respondents are directed to refrain from assessing or levying or demanding or collecting entry tax in respect of ATF supplied to aircrafts at Dum Dum which is re-exported or conveyed outside CMA without being consumed or used therein. We also direct the respondents to refund within six months the amount of entry tax collected from the applicant in respect of ATF supplied to aircrafts at Dum Dum from January, 1985 subject to an application within eight weeks from date. On the verbal prayer of the respondents learned advocate the operation of the judgment and order as per majority view shall remain stayed for a period of twelve weeks from date.
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1994 (6) TMI 213
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... ... ..... iled a revision under section 36 of the Act before the Deputy Commissioner against the order levying the compounding fee. The case of the petitioner is that there are certain mistakes in exhibit PI order and irregularities alleged are unreal. If that is so, the same should have been raised before the payment of the compounding fee. At any rate, when composition of offence is complete on payment of compounding fee, there is no room for further grievance. In that view of the matter the contention raised by the petitioner cannot be gone into either by the Deputy Commissioner under section 36 or by the Board of Revenue under section 38. The orders passed by the Deputy Commissioner as well as the Board of Revenue are non est and void ab initio. Exhibit PI order passed by the second respondent survives. Therefore no interference is called for in the present proceeding. 3.. In view of what is said above, this original petition is liable to be dismissed. I do so. Petition dismissed.
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1994 (6) TMI 212
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... ... ..... or affirming the order of assessment made by the assessing officer. In the circumstances, the appellate orders dated May 25, 1992, in both the appeals are to be set aside and the appellate authority is to be asked to dispose of the two appeal petitions in both the cases, in accordance with law, after giving an opportunity to the applicant of being heard. The application is accordingly allowed. The appellate orders dated May 25, 1992 passed in appeal cases Nos. Nor-195 of 1989-90 and Nor-196 of 1989-90 are set aside. The respondent No. 2, the appellate authority, is directed to dispose of both these appeal cases Nos. Nor-195 of 1989-90 and Nor-196 of 1989-90, in accordance with law, after giving reasonable opportunity to the applicant of being heard, within three months from this date. In disposing of these appeals, the appellate authority will pass reasoned order. The application is accordingly disposed of. Parties will bear their own costs of this case. Application allowed.
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1994 (6) TMI 211
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... ... ..... A of the Act. As pointed out by the Supreme Court in the aforesaid Kandaswami s case 1975 36 STC 191, section 7-A is at once a charging as well as a remedial provision, the object of which is to plug leakage and prevent evasion of tax. Though section 16 may provide for a procedure for reassessment, but in the facts and circumstances of the case the tax is levied only under section 7-A. Hence section 12(5) of the TNGST Act is attracted as it is a case of incorrect and incomplete returns. 10.. As far as the decision in State of Tamil Nadu v. Abdul Samak Sahib Sons 1984 57 STC 68 is concerned, it may be pointed out that, while the levy of sales tax and penalty can be held to have been made under section 7-A read with sub-section (5) of section 12 of the Act, the same cannot help the petitioner in any manner. 11.. For the reasons stated above, all the contentions urged by learned counsel for the petitioner are negatived. Accordingly, the tax case is rejected. Petition dismissed.
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1994 (6) TMI 210
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... ... ..... eader requested us to make it clear that it is open to the State to bring forth the provisions in consonance with the parameters evolved by the Supreme Court in second Gannon Dunkerley case 1993 88 STC 204. We are not inclined to make any such observations or reservations particularly since learned counsel for the petitioners expressed the apprehension that any such observation would be treated as prompting (if not directing) the Government to bring forth such amendments. That is not the function of the court. 14.. We make it clear that in the light of the definite stand of the Government and to prevent any possible mischief in the matter we interdict all authorities under the Act from resorting to rule 8(4) of the Rules as it stood prior to the amendment effected by S.R.O. No. 92/91 or to pursue with any action already adopted in exercise of the said sub-rule. With the said directions and observations, we dispose of the original petitions. Petitions disposed of accordingly.
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1994 (6) TMI 209
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... ... ..... the Appellate Tribunal are assailed in these T.R.Cs. Two contentions are raised by Shri S.R. Ashok, learned counsel for the petitioners. The point that was urged before the authority was that there was no provision in the Act authorising the concerned officer to make inventory of the accounts. However, Shri S.R. Ashok gave a different turn to this question before us contending that the concerned officer who had carried out raids and inventory was not conferred with the power to do so this is the first contention. We are not inclined to go into this question as it was not raised before any of the authority below. The second contention is that there is no suppression of the turnover. This is a question of fact and the Tribunal found that there had been wilful suppression. We are therefore, unable to interfere with the findings recorded by the Tribunal. There are no merits in the T.R.Cs. They are accordingly dismissed but in the circumstances without costs. Petitions dismissed.
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1994 (6) TMI 208
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... ... ..... ot care to bring to the notice of the assessing officer the so-called omission of the agency transactions immediately after it was noticed and the filing of statements only after the suppression of sales was detected by the Enforcement Wing Officers and the fact that a portion of the agency sales done by them was duly reported in the returns filed by them all prompt us to hold that there was a deliberate and wilful attempt on the part of the appellants to evade the payment of tax on the sales effected for millions of rupees. The aforesaid finding recorded by the Tribunal is a finding of fact based on valid evidence. Inference drawn by the Tribunal that there was wilful nondisclosure of agency transactions in the facts and circumstances of the case is justified. Consequently, levy of penalty is justified. Therefore, the contention of the petitioner cannot at all be accepted. We see no reason to entertain these tax revision cases and the same is dismissed. Petitions dismissed.
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1994 (6) TMI 207
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... ... ..... d sugarcandy are one and the same and as such he is entitled to exemption on the whole turnover of sugar-candy as per entry 5 of the Third Schedule to the Kerala General Sales Tax Act, which according to us, is a matter which can be agitated by him before the appellate authority under the statute. This Court is not inclined to decide that question at this stage. 9.. In the light of the above discussion, we are of the view that the petition is liable to be dismissed in limine. We do so and the petition is dismissed in limine. 10.. However, we make it clear that the petitioner will be at liberty to invoke the jurisdiction of the appellate authority for appropriate reliefs, if so advised and in the event of the petitioner filing an appeal before the appellate authority, the time spent by him in prosecuting these proceedings before this Court in this writ petition shall be excluded in computing the period for filing the appeal. Original petition is dismissed. Petition dismissed.
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1994 (6) TMI 206
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... ... ..... shall be levied. A plain reading of the provisions extracted above shows that the maximum penalty alone was prescribed by section 14(8) at five times of the tax or the fee due by the assessee and no minimum as such was prescribed where the nonsubmission of the return before the prescribed date or incorrect disclosure of the turnover was wilful. In these cases though it is argued by the learned counsel for the petitioner that the non-disclosure was not wilful, yet, we are unable to accept this contention as the Tribunal found that the omission was wilful. However, as the Tribunal proceeded on the assumption that minimum penalty was two times the tax due we are unable to sustain the penalty levied. But in view of the fact that the omission has been found to be wilful, we consider that ends of justice would be met by reducing the penalty to half the penalty imposed by the Tribunal. The revisions are accordingly allowed but in the circumstances, without costs. Petitions allowed.
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1994 (6) TMI 205
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... ... ..... n 21 of the Act does not bar the Appellate Tribunal from granting stay of further proceedings consequent upon order of remand where the proceedings do not relate to recovery of tax or penalty. From the above discussion it follows that there is no illegality in the order under revision nor does it suffer from any error of jurisdiction. It is needless to point out that the stay granted by the S.T.A.T. operates only to such further proceedings as will have to be taken pursuant to that part of the order allowing the appeal and remanding the case for further enquiry but not with regard to any proceedings which will be taken pursuant to that part of the appellate order dismissing the appeal in part. In the result the revision is liable to be dismissed and it is accordingly dismissed. No costs. The Appellate Tribunal is directed to dispose of the appeal as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order. Petition dismissed.
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1994 (6) TMI 204
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... ... ..... ave said above, the retention of seized documents beyond the period of thirty days in this case is totally unauthorised in the absence of compliance of the requirements aforesaid. It is abundantly established in this case that no decision has been taken by the officer who seized the documents within a period of thirty days from the date of seizure that they are required for prosecution and if at all any such decision has been taken the same has not been communicated to the petitioners. Accordingly, I direct the respondents to return all the documents seized from the business places of the petitioner s on December 17, 1993, as expeditiously as possible, at any rate within a period of two weeks from today. In case the respondents require any extracts of the documents they are allowed to take them as may be considered necessary, under sub-rule (10) of rule 34 of the Rules. The writ petitions are disposed of as above. No order as to costs. Writ petitions disposed of accordingly.
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1994 (6) TMI 203
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... ... ..... ad not been dealt with under any law for the time being in force relating to the duties of customs cannot at all be countenanced. 23. As such, sub-item (a) of item 70 of the First Schedule gets attracted to the ship-stores of the petitioner, in the sense of making them exigible to duty at the point of first sale in the State at 50 per cent. Such being the case, the other facet of the submission that the ship-stores, namely, imported foreign liquor of the petitioner bonded in the licensed warehouse and supplied to ocean going vessels falls under item 1 of the Sixth Schedule, for tax liability at 30 per cent, as had been contended by learned counsel for the petitioner, has to necessarily fail. 24.. For the reasons as above, the writ petition deserves to be dismissed, even at the admission stage and the same is accordingly dismissed. Consequently, W.M.P., is also dismissed. There shall, however, be no order as to costs, in the circumstances of the case. Writ petition dismissed.
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1994 (6) TMI 202
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... ... ..... are dismissed. The assessment orders are confirmed. As the assessment orders are confirmed on merits, there remains no occasion for considering whether the appellants are entitled to refund of 25 per cent of the assessed tax which they have paid pursuant to our interim order or that they are entitled to any refund with any interest. In view of this conclusion of ours, we have not gone into the wider question whether even if the appellant had succeeded in the appeals on merits and the assessment orders were set aside, the appellants could have got refund in the absence of clear proof that the disputed tax was not passed on by them to the consumers and whether on the doctrine of unjust enrichment, the appellants could not have been entitled to such refund. The interim stay granted by us against the recovery of the remaining tax amount as per the assessment orders stands vacated. In the facts and circumstances of the case, there will be no order as to costs. Appeals dismissed.
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