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1996 (1) TMI 425
... ... ... ... ..... o the appellants for a period of five years from the date of commencement of commercial production, in so far the industries lie in Zone II, III and IV. In the notification there is no reference in any part to the manufacturing activities to be involved for claiming exemption. It is applicable to all tiny sector industries. In that view of the matter, we do not think that the department was justified in relying upon the notification dated March 31, 1983 and refusing to give the benefit of incentives as was available under the notification dated October 30, 1982. 6.. In the result, these appeals are allowed and the order made by the learned single Judge in the writ petitions is set aside, directing the authorities concerned to take into consideration the case of the appellants, with reference to the notification dated October 30, 1982 and to give the benefits to the appellants. The notices issued to the appellants by the revisional authorities stands quashed. Appeals allowed.
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1996 (1) TMI 424
... ... ... ... ..... s treated raw agarbathis and agarbathis as separate items for the purpose of levy of tax under entry 153 of the Second Schedule to the Act. As mentioned hereinabove, the answer is in the negative. It is, therefore, obvious that once the sale of agarbathi and raw agarbathi are treated on par for the purpose of levy of tax, then the benefit made available under exemption notification is applicable both in respect of sale of agarbathi as well as raw agarbathi. It is therefore clear that the demand notices issued by the department were contrary to law and cannot be sustained and the appellants are entitled to the reliefs sought in the petitions. 15.. Accordingly, all the 10 appeals are allowed. The demand notices issued against each of the appellant on the basis that the benefit of exemption notification dated March 31, 1989 is not available in respect of sale of raw agarbathi, stands quashed. In the circumstances of the case, there will be no order as to costs. Appeals allowed.
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1996 (1) TMI 423
... ... ... ... ..... collected any amount by way of sales tax, therefore, the claim for deduction was not justified merely because sales turnover has been arrived on the basis of purchases plus addition of gross profit taking into consideration after purchase expenses and the liability towards sales tax which the dealer has to bear. Thus, the 1st, 3rd and 4th contentions advanced on behalf of the petitioner stand rejected. 4.. So far as the contention advanced on behalf of the petitioner, that the decision in New Swastik Flour Mills 1992 84 STC 49 (Kar) would be applicable to the facts of the case, would not be correct inasmuch as the Supreme Court in Rajasthan Roller Flour Mills Association v. State of Rajasthan 1993 91 STC 408 has reversed the decision of this Court in the aforesaid case. Therefore, that contention also does not survive for consideration. 5.. In that view of the matter we have no hesitation to dismiss these petitions. Accordingly, petitions are dismissed. Petitions dismissed.
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1996 (1) TMI 422
... ... ... ... ..... ess or by clear implication to be culled out from the provisions of the statute. Therefore, as held by the Supreme Court the Legislature is competent enough to lift the time fetter placed on the assessing authority for completion of assessment by enlarging the same even after expiry of the period. Such legislative exercise cannot be said to be bad either on the ground of incompetence or being in any way unreasonable or arbitrary offending any of the constitutional prohibitions. 13.. Keeping in view the law as settled by the judicial pronouncements noticed above, in our opinion, plea of limitation raised on behalf of the petitioner is not sustainable. As noticed above, the Legislature in its wisdom has enlarged the period of limitation retrospectively and the impugned assessment has been completed within the said extended period. Therefore, the impugned order of assessment cannot be assailed as barred by limitation. The revision petition accordingly fails. Petition dismissed.
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1996 (1) TMI 421
... ... ... ... ..... all machineries made of stainless steel would alone come under this entry for consideration. It remains to be seen that after amendment it was clarified that spare parts made of stainless steel would not fall under item 81 of the First Schedule. It is also well-established that articles which are falling under this special entry will not come under the general entry. However, the Tribunal held that the parts and accessories of machinery made of any material especially stainless steel would fall only under item 81 as amended and cannot be brought under item 109, and the impugned turnover has to be assessed only at 6 per cent under item 81. It is also significant to note that there cannot be one rate for the machinery as a whole and another rate for its spare parts. Accordingly, we hold that the Tribunal was correct in levying tax at 6 per cent on the disputed turnover under item 81 of the First Schedule. In the result, the revision is dismissed. No costs. Petition dismissed.
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1996 (1) TMI 420
... ... ... ... ..... re concluding, we would like to point out that this is a case in which the assessing authority is cancelling the certificate of registration of the assessee in an arbitrary and unfair manner and in clear violation of the provisions of section 14(8) of the Act and therefore such an order should have been cancelled with direction to pass orders afresh after complying with the provisions of section 14(8) of the Act. We are not adopting such a course because of two reasons (1) in view of the decision of the Supreme Court mentioned (Erach F.D. Mohta v. Minoo F.D. Mohta AIR 1971 SC 1653, even if an opportunity is given as contemplated under section 14(8) of the Act, the conclusion would be the same and (2) the scope of revisional jurisdiction of this Court under section 41 of the Act is restricted, as already noticed by us hereinabove. Accordingly, we hold that there is no merit in this revision petition. The revision petition is accordingly dismissed. Revision petition dismissed.
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1996 (1) TMI 419
... ... ... ... ..... benefit of set-off was available. 13.. Accordingly we answer the questions as indicated below (I) Reference No. 2-I/87 (i) Answer to Question No. (i) is in the negative, i.e., in favour of the assessee and against the department. (ii) Answer to Question No. (ii) is in the negative, i.e., in favour of the assessee and against the department. (II) Reference No. 5-I/87 (i) Answer to Question No. (i) is in the negative, i.e., in favour of the assessee and against the department. (ii) Answer to Question No. (ii) is in the negative, i.e., in favour of the assessee and against the department. 14.. These reference applications are thus disposed of with answers as indicated above but without any order as to costs. 15.. A copy of the order be forwarded immediately to the Tribunal for further action as may be necessary. 16.. Retain this order in Misc. Civil Case No. 181 of 1991 and place its copy in the connected Misc. civil case for ready reference. Reference answered in the negative.
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1996 (1) TMI 418
... ... ... ... ..... f 1984 as well. 11.. We, therefore, do not deem it proper to consider and answer the lone question as referred but call upon the Tribunal to state the additional case and refer the two questions also as noted above. 12.. These two reference applications are thus disposed of with the directions as above. 13.. The Tribunal shall comply with the directions issued by this Court in common order dated July 3, 1986, passed by this Court in Misc. Civil Case No. 288 of 1984 and Misc. Civil Case No. 294 of 1984 fully. As the matter is old, we also direct the Tribunal to comply with this order within a period of six months from the date of the receipt of the order. 14.. We make no order as to costs. 15.. A copy of the order shall be forwarded to the Tribunal immediately for compliance as directed above. 16.. Retain this order in Miscellaneous Civil Case No. 71 of 1989 and place its copy in the connected miscellaneous civil case for ready reference. Applications disposed of accordingly.
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1996 (1) TMI 417
... ... ... ... ..... ial but is admitted by the appellant, consequently compounding the offence on payment of Rs. 750 in regard thereto. 6.. In view of the above position, taking into consideration the provisions of section 41 of the Kerala General Sales Tax Act, 1963, to the effect that the High Court can consider the ground when it finds that either the Tribunal has erroneously decided the matter or has failed to decide any question of law, interference of any kind otherwise would not be permissible. The decision of the Tribunal finding substantial excess found on the day of inspection, the fact that for the previous years the assessee had to face the same situation of his accounts having been rejected, together with the situation that excess was admitted leading to the compounding on payment of Rs. 750, reveal that there is no case for interference under the revisional jurisdiction. For the above reasons revision stands dismissed. Order on C.M.P. No. 3629 of 1990 dismissed. Petition dismissed.
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1996 (1) TMI 416
... ... ... ... ..... by the assessee against the order passed by the first Additional Commissioner of Sales Tax rejecting that the appeal was not pressed before the Board of Revenue. Hence, the assessee has approached this Court for calling a reference from the Tribunal on two aforesaid questions. 4.. We have heard the learned counsel for the parties. 5.. Both the questions which have been framed are purely the questions of fact and no question of law is involved. The Board of Revenue has rightly rejected the application for making the reference on two aforesaid questions. The assessee has not kept the proper accounts. He was given opportunity to produce the record but he could not satisfactorily explain the position. The Additional commissioner of Sales Tax has rightly applied the ratio of Krishna Saw Mills case (1983) 16 VKN 182. 6.. Hence, we are of the opinion that no question of law is involved. Therefore, there is no merit in the application and the same is rejected. Application dismissed.
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1996 (1) TMI 415
... ... ... ... ..... 966 60 ITR 582 (SC) and Food Corporation of India v. Commissioner of Sales Tax 1983 54 STC 332 (MP). 4.. It is not in dispute that a revision petition under section 86, Rajasthan Sales Tax Act, 1994 lies if it involves a question of law. Reduction in the amount of penalty does not involve any question of law. It is simply a discretionary order. In Food Corporation of India v. Commissioner of Sales Tax 1983 54 STC 332 (MP), honourable Mr. Justice G.L. Oza (as he then was) has observed at page 338, para 14 whether any particular facts and circumstances justify or do not justify imposition of penalty is ultimately not a question of law which can be referred to the High Court . It has been held in Manji Dana v. Commissioner, Income-tax 1966 60 ITR 582 (SC), that in exercising discretion no question of law is involved. We find great force in the said contentions of the learned counsel for the respondents. 5.. Accordingly, the revision petitions are dismissed. Petitions dismissed.
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1996 (1) TMI 414
... ... ... ... ..... ion 66, no seizure could be made. 10.. Accordingly, in our opinion, the seizure at B.B.D. Bag on September 25, 1995 was valid. 11.. In the result, the application is allowed in part. The seizure on September 25, 1995 of books of account and documents at 70, Nalini Sett Road, Calcutta is declared to be invalid and the respondents, particularly respondent No. 2, is directed to forthwith return to the applicant-company the books of account and documents which were seized from that premises as per the seizure receipt. It is declared that the seizure of books of account and documents made on September 25, 1995 at Stephen House, 29/1, 4E B.B.D. Bag, Calcutta was valid and lawful. The interim order dated December 1, 1995 is made absolute to the extent of the seizure at Stephen House, B.B.D. Bag, Calcutta. Thus, the main application is disposed of without any order for costs. J. Gupta (Judicial Member).-I agree. M.K. KAR GUPTA (Technical Member).-I agree. Application partly allowed.
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1996 (1) TMI 413
... ... ... ... ..... oided if the turnover as returned by the dealer had been accepted as correct. No doubt, maintaining false or incorrect accounts furnishes a ground to the Commissioner to impose penalty but then the amount of penalty to be imposed has to be worked out in reference to the turnover as returned by such dealer. This can happen only after the return has been filed. The section has to be read as a whole and the words the turnover as returned by such dealer clearly shows that action under section 48 can be taken only after the return has been filed or else the quantum of penalty cannot be determined. This being so, the Tribunal was right in holding that the provisions of section 48 of the Act are not applicable to those cases where maintenance of false accounts has been detected before the filing of the return. In the result, the question referred to us is answered in the negative, i.e., against the Revenue and in favour of the assessee. No costs. Reference answered in the negative.
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1996 (1) TMI 412
... ... ... ... ..... ock found at the inspection was less than 2 per cent of the total stock. In fact this Court in Kunhikannan v. State of Kerala 1993 KTR 598 had an occasion to deal with the situation of rejection of accounts, where the excess was negligible however on facts when the court found that this was not a solitary situation but there were other aspects also, it has been observed even going to the extent that if this had been the only discrepancy showing negligible difference which also has to be appreciated in the light of the circulars of the department also. The result of the situation is obvious. Revision case stands allowed. Impugned orders both of all the authorities get quashed and set aside. The accounts submitted by the assessee stand accepted and the proceedings are remitted to the assessing authority for further steps according to law on the basis that the accounts submitted by the assessee are to be accepted and to be processed as such on the above basis. Petition allowed.
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1996 (1) TMI 411
... ... ... ... ..... ce on record? The appellate authority found that the dealer had credited cash sales to store purchase account and neither declared the same in his returns nor paid any tax thereon. He added Rs. 6,00,000 to the gross turnover and levied tax and imposed penalty under section 48 of the Act. In appeal, the Tribunal upheld this finding and observed that from the accounts produced by the dealer, suppression of sales was detected and this by itself would justify the addition to the gross turnover and the imposition of penalty . We have heard the counsel for the petitioner and perused the order of the Tribunal, annexure C , dated November 12, 1987. We find no infirmity therein. The findings recorded by the Tribunal are finding of fact and no referable question of law arises from this order of the Tribunal, annexure C , dated November 12, 1987. Consequently, this petition is dismissed as no referable question of law arises from the order of the Tribunal. No costs. Petition dismissed.
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1996 (1) TMI 410
... ... ... ... ..... pute to the fact that the purchase of zinc from M/s. M. Ratan and Company was made before the ship carrying consignment entered the Indian Customs Frontier. It is not also in dispute that the applicant and M/s. Gram Engineering have their places of business in West Bengal. The only question calling a decision is if the deemed sale of zinc to M/s. Gram Engineering can be said to be a sale in the course of import. Thus, the above decisions relating to inter-State sales have little to do with the case before us. In view of the circumstances discussed above, we hold that the deemed sale of zinc to M/s. Gram Engineering is not covered by the provisions of section 27(1)(a) and hence is liable to be taxed under section 6D of the 1941 Act. The application is, therefore, dismissed. Since the applicant has already paid the tax payable on the said deemed sale , we make no order as to costs. L.N. RAY (Chairman).-I agree. M.K. KAR GUPTA (Technical Member).-I agree. Application dismissed.
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1996 (1) TMI 409
... ... ... ... ..... pondents in their affidavit-in-opposition as no such ground has been taken either by respondent No. 2 or respondent No. 3. It is therefore not necessary for us to discuss the decision reported in (1989) 22 STA 1 (Cal) (Gajraj Masala Products v. Commercial Tax Officer) cited by the learned State Representative, Mr. Goswami, or the decisions rendered by this Tribunal and reported in 1991 82 STC 173 (Kalyan Kr. Chatterjee v. State of West Bengal), 1992 85 STC 188 1992 25 STA 212 (Bharat Rolling Mills v. A.C.C.T.) and 1996 100 STC 197 1993 26 STA 448 (Srimati Bharati Khara v. Commercial Tax Officer) cited by the applicant s learned advocate, Mr Chakraborty. 11.. In the above view of the matter the application is dismissed without any order for costs. On the verbal prayer of the learned advocate for the applicant, the operation of the judgment and order is stayed for four weeks. L.N. RAY (Chairman).-I agree. P.R. BALASUBRAMANIAN (Technical Member).-I agree. Application dismissed.
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1996 (1) TMI 408
... ... ... ... ..... only if he comes to the conclusion that the assessment made by the assessing officer is erroneous and prejudicial to the interests of the revenue. The assessee cannot say that the assessment made by the assessing officer is erroneous and prejudicial to the interest of the revenue. Therefore, the assessee cannot approach the Deputy Commissioner to invoke his revisional jurisdiction under section 32(1) of the Act. Therefore, the Tribunal, in the present case, was not correct in remitting back the application filed by the assessee for fresh disposal on the ground that opportunity was not given to the assessee as contemplated under section 32(3) of the Act. 10.. In the result, the orders passed by the Tribunal in the applications filed by the assessee for the assessment years 1979-80, 1980-81 and 1981-82 are set aside and the orders passed by the Deputy Commissioner in the applications filed by the assessee are restored and the revisions are allowed. No costs. Petitions allowed.
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1996 (1) TMI 407
... ... ... ... ..... of law mentioned in the preceding paragraphs. The disputed questions of fact are to be taken care of by either the assessing authority or the appellate authority. Here italicised. Point No. 4 13.. There are two impugned orders dated September 18, 1995-one passed under the 1954 Act and other passed under the 1956 Act. Both these impugned orders can be challenged before the Deputy Commissioner (Appeals), Commercial Taxes, Udaipur, under section 84 of the 1994 Act. As such it is not necessary for us to decide the question whether or not the Tribunal has the jurisdiction to adjudicate upon a matter arising under the 1956 Act. 14.. To conclude, we refuse to admit the petition/application in the exercise of our extraordinary jurisdiction under section 8 of the 1995 Act for the reasons mentioned above. With it falls through the stay application. The applicant-firm is at liberty to approach the proper forum and to seek any remedy available to it under the law. Application dismissed.
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1996 (1) TMI 406
... ... ... ... ..... ltimately the Supreme Court also rejected this contention of the assessee and it was finally decided by the Supreme Court on November 26 , 1981. However, before that the assessee had already paid Rs. 27,48,703 towards entry tax. Therefore, it is submitted that the applicant-assessee was bona fide pursuing its remedy and they should not have been subjected to penalty. It is true that they were pursuing their bona fide remedy, therefore, they should not have been subjected to penalty. But, they are definitely liable to pay interest on the amount which was retained by them towards the entry tax, if there is any. We have already held above that the assessee-company will be liable to pay entry tax on the bauxite brought by them at the rate of Rs. 70.79. Therefore, after working out that if any amount remains, on that amount the assessee-company will pay interest according to law. However penalty is set aside. Question No. 2 is answered accordingly. Reference answered accordingly.
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