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Showing 61 to 80 of 577 Records
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1998 (3) TMI 653
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... ... ..... is Court with the plea that the amount was recovered under coercion cannot be accepted. In the present case there was no payment at all, i.e., the cheques were given but not encashed because of the interim order of this Court, therefore it will be considered as not paid. Since the assessee does not want composition, the cheques which have otherwise become stale shall be returned to him. The amount of Rs. 10,000 could be adjusted with the liability which the assessee may have in respect of tax under the Karnataka Tax on Entry of Goods Act, Central Sales Tax Act or Karnataka Sales Tax Act. A copy of this order be sent to the Commissioner of Commercial Taxes for proper directions to the Commercial Taxes Officers so that no allegation of illegal collection is made, and a proper procedure be given for the guidance of the officers. Petition stands disposed of accordingly. Respondents are free to make assessment/reassessment in accordance with law. Petition disposed of accordingly.
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1998 (3) TMI 652
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... ... ..... y 18, 1985 or that the assessee had not issued form 31 when that order was placed to the selling dealer. The Tribunal has proceeded to sustain the penalty for the only reason that goods were not accompanied by form 31. The Tribunal has also not refuted the case that form 31 was left with the selling dealer because of the mistake on the part of the driver. On the facts of the case, the mere absence of form 31 in importing the goods in question, in my opinion, was not a sufficient ground to attract the penalty provision in section 15-A(1)(o) of the Act unless the lapse was coupled with an intention to evade assessment or payment of tax due under the Act. No such findings are available in the instant case. The order of the Sales Tax Tribunal under revision, therefore, cannot be sustained. It is accordingly, set aside to the extent it concern the Second Appeal No. 647 of 1988. The penalty in dispute is deleted. In the result the revision succeeds and is allowed Petition allowed.
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1998 (3) TMI 651
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... ... ..... hey are tailor-made for refrigerators they cannot be classified under entry 2 of the First Schedule and the classification made by the Commercial Tax Officer should prevail over the classification made by the Deputy Commissioner. 4.. On a perusal of the order of the Tribunal, we find that the Tribunal observed that these items referred to in the earlier paragraphs are used for all purposes. It also says that they are designed and sold as accessories to refrigerators which is inconsistent with the earlier observation. Further there is no evidence that these goods are designed as accessories to refrigerators. In the absence of evidence that they are tailor-made for a particular purpose, the general entry is applicable for the purpose of taxation and not specific entry. 5.. In view of the above, we set aside the order of the Appellate Tribunal and direct the authorities to restore the order of the assessing authority. The four T.R.Cs. are accordingly allowed. Petitions allowed.
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1998 (3) TMI 650
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... ... ..... to such lackadaisical disposal of cases coming before it. 13.. To put it in a nut shell, we are unable to discern as to for what reason the matter had been remanded to the revisional authority for de novo examination. Such a remand order, we rather feel, cannot be allowed to stand as it is and the same deserves to be set aside and it is, accordingly, set aside. The matter is remitted back to the Tribunal for disposal on merits according to law. 14. In view of the fact that the assessment is relatable to the assessment year 1982-83, the Tribunal is directed to give top priority to this matter and dispose it of on merits, according to law, within three months from the date of the communication of this order to it and report the same to this Court. 15.. The revision is thus disposed of. There shall, however, be no order as to costs, on the facts and in the circumstances of the case. Consequently, no further orders are necessary in T.C.M.P. No. 489 of 1996. Petition disposed of.
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1998 (3) TMI 649
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... ... ..... fying the meaning of the expression electronic goods with reference to G.O. Ms. No. 864 is accidental or intentional in the light of the discussion referred to above. Hence, in the interests of justice and certainty, we direct the Government to take a decision and notify the same within three months from the date of receipt of a copy of this judgment. With the above direction, this writ petition is disposed of. No costs. On being mentioned we note that the petitioner has withdrawn the appeals. Since we have directed the Government to clarify the issue the learned counsel for the petitioner submits that he will be left without a remedy unless the appeals are revived. We therefore, permit the petitioner to move the Appellate Deputy Commissioner to restore the appeals on file and keep them pending to be disposed of in accordance with the clarification issued by the Government. Pending disposal of the appeals status quo shall be maintained. Writ petition disposed of accordingly.
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1998 (3) TMI 648
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... ... ..... granted exemption as they had not purchased the papers from the dealers under the Act. In that event they had been taxed at the prevailing rate. Hence they had prayed for refund of the excess tax with interest at the rate of 15 per cent per annum. We have already held that partial exemption reducing the rate of exercise books made out of paper purchased from the dealer under the Act is unconstitutional. The question requires determination what relief should be granted to the petitioner. It is to be noted that under the new Act there has been total exemption of exercise books . As the petitioner had collected tax from the consumers and the burden has already passed on, the question of refund does not arise. The prayer of refund is not acceptable as that would amount to unjust enrichment of the petitioners. Hence the said prayer is refused. 17.. The writ petitions are accordingly disposed of. However, there shall be no order as to costs. Writ petitions disposed of accordingly.
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1998 (3) TMI 647
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... ... ..... .. Surcharge is an increase on the tax payable by the dealer whose turnover exceeds the limit. The surcharge was not to be computed on the basis of the turnover. It was for this reason, in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. K.P. Paper Products 1989 74 STC 16, this Court took the view that if the amount of tax and additional tax computed is eligible for complete exemption, there cannot be a levy of surcharge for that year. Thus, the above decision is of no help to the assessee in the present case. 10.. Therefore, we hold that the Tribunal has correctly placed reliance on the decision in S. Koder Agencies v. State of Kerala 1993 89 STC 528 (Ker) and it is justified in coming to the conclusion that the assessee was liable to pay tax on the turnover for the period from April 1, 1991 to July 31, 1991. The tax revision case therefore stands dismissed. Order on C.M.P. No. 620 of 1996 in T.R.C. No. 27 of 1996 dismissed. Petition dismissed.
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1998 (3) TMI 646
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... ... ..... subsequent amendment to the Constitution as well as the definition of works contract under section 2(t) and explanation under section 2(c) in regard to the definition of sale in the Andhra Pradesh General Sales Tax Act, 1957. It is only after that amendment in 1995, perhaps, the Revenue could argue that subsequent to the amendment, consumables used in works contracts are deemed to be sold for the purpose of levy of tax. But the contract in question is prior to the amendment. There can be no question of transfer of any consumables where the contract is only for doing a job and not for selling any material. In the present case it is not in dispute that the film, chemicals and plates remained the property of the assessee and were not transferred to the customer. Hence the Appellate Tribunal was right in holding that there was no sale of the material. 3.. Hence the order of the Appellate Tribunal is confirmed. In view of this revision is dismissed. No costs. Petition dismissed.
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1998 (3) TMI 645
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... ... ..... nsidered as improper notice and a violation of rule 52 is inferred. 5.. Having regard to the above legal position I am constrained to set aside the order of assessment dated April 28, 1995 made in Rc. No. 2191/92-93 as being in violation of the principles of natural justice and statutory rules. The said order is accordingly quashed. The respondent is directed to give a fresh opportunity to the petitioner and then proceed in accordance with law. Consequently the impugned demand notice dated January 12, 1998 shall not be enforced until fresh assessment order is passed. To avoid further complications the learned counsel for the petitioner Mr. P. Rajkumar, at No. 32, Law Chambers undertakes to receive notice on behalf of the dealer. The respondent is therefore directed to issue a pre-revision notice to the said advocate at the above address by registered-post with acknowledgement due. The O.P. is ordered in the above terms and there will be no order to cost. Ordered accordingly.
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1998 (3) TMI 644
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... ... ..... d assessment of duty under the Customs Act. We also point out that the name on the bill of entry is irrelevant because the name of the importer alone will be recorded in it even if the transfer by title deeds is effected before filing the bill of entry and assessment of duty under section 28. We have to make this clear because the taxing authorities tend to raise such doubts though the amendment was specifically made to have a clear cut-off time to determine when the import ends. Therefore, let it be declared that if the transfer of title deeds is effected before filing the bill of entry and making the assessment then the sale is deemed to have been effected in the course of import, otherwise not. In the light of the above, the assessing authorities are directed to hold an enquiry and decide in each case, whether the transfer is before filing the bill of entry and making assessment of duty or thereafter. The TRCs are accordingly disposed of. Petition disposed of accordingly.
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1998 (3) TMI 643
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... ... ..... ined to accept this contention. 21.. A party can approach this Court under section 41 of the Kerala General Sales Tax Act in revision only if Appellate Tribunal has either decided erroneously or failed to decide any question of law . On the basis of the pleadings and facts found concurrently by the authorities, we are unable to say that the Appellate Tribunal has decided erroneously or failed to decide any question of law. There is no ground to differ from the earlier Division Bench decisions of this Court decided on almost identical set of facts in Keppee Sons v. State of Kerala 1991 1 KLT 270 and K.V. Moosakoya and Co. v. State of Kerala 1998 6 KTR 61 (Ker). Tribunal has correctly held that the petitioners are not entitled to the benefit of section 5(3) of the Central Sales Tax Act. Facts of all these tax revision cases are similar. For the reasons stated above, we see no merit in the tax revision cases. Hence all these tax revision cases are dismissed. Petition dismissed.
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1998 (3) TMI 642
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... ... ..... imposed an unreasonable restriction upon the fundamental rights of the petitioners under article 19(1)(g) of the Constitution of India. Consequently, the retrospectivity given to the Act does not become unreasonable or arbitrary. 32.. The next argument of the learned counsel for the petitioners is that the Act is confiscatory and, therefore, unreasonable and violative of article 19(1)(g) of the Constitution of India. No material is placed before us as to how it is confiscatory. Mere fact that the petitioners have not collected the tax from the customers does not make the tax confiscatory as it is not an essential characteristic of the sales tax that the petitioners must have the right to pass it on to the customer. 33.. It follows from the above that the Act does not suffer from any infirmity, and we therefore hold that it is valid and constitutional. The petitioners fail and the writ petitions are dismissed, but, in the circumstances without costs. Writ petitions dismissed.
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1998 (3) TMI 641
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... ... ..... lear that the interpretation of the entries which I have laid down in this batch of cases will apply only till the Commissioner s letter dated December 20, 1995. With effect from the date of December 20, 1995 it has been understood by all the manufacturers that only the residual entry 63, Part D, will apply and therefore that interpretation has to be upheld for the period after December 20, 1995, unless and until there are subsequent statutory changes. 11.. It is preferable that the revenue makes necessary statutory changes, if so advised, as otherwise the petitioners are likely to fall back upon the interpretation which I have adopted in the foregoing paragraphs. The O.Ps. are allowed in the above terms and there is no order as to costs. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 16th day of March, 1998. Petitions allowed.
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1998 (3) TMI 640
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... ... ..... age of tax to 4 per cent. 14.. By reading the said notification it is evident that the reduction of the tax to 4 per cent is applicable only to the goods produced by the manufacturers in the State of Karnataka and which are sold to the departments of Government of India or Government of Karnataka or Government of any other State located in Karnataka State. The appellant is not the manufacturer of the methanol mixture. The appellant is a dealer in methanol and he supplies by adding water to the methanol as a methanol mixture to the consumers. Therefore, it cannot be said that the appellant is a manufacturer of the methanol mixture. Once he is not a manufacturer within the State of Karnataka even if he sells to the Central or State Government Departments at Karnataka the benefit provided in the notification is not available. 15.. Therefore, we do not see any merits in the appeal and accordingly we proceed to pass the following order. 16.. Appeal is dismissed. Appeal dismissed.
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1998 (3) TMI 639
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... ... ..... of 30 days allowed by the Rules. Even before the expiry of appeal time, the respondent concerned acted overzealously and in unseemly haste to collect the tax, more so when a substantial question needs to be decided in appeal. The orders of this nature undoubtedly undermine the confidence of the tax-payers in the administration of tax law and gives rise to an undesirable impression that the department is following the principle of end justifying the means. We cannot but disapprove and deprecate such action on the part of the first respondent. 4.. While we decline to entertain the writ petition on account of the existence of effective alternative remedy, but, having regard to the facts and circumstances of the case, we direct the respondents not to take any coercive steps for recovery of the disputed tax for a period of one month so that the petitioner may seek appropriate remedies. The writ petition is accordingly disposed of. No costs. Writ petition disposed of accordingly.
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1998 (3) TMI 638
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... ... ..... utside Andhra Pradesh, the appellant/company therein is not entitled for exemption of the tax paid on the raw material. The honourable Supreme Court held therein that the said notification is violative of article 304(a) of the Constitution of India. 6.. The principle laid down by the honourable Supreme Court squarely applies to the present case. 7.. Then, the question is whether the entire explanation or a part thereof has to be held unconstitutional. The honourable Supreme Court has held that where it is unconstitutional only in part only that part of the notification be declared as unconstitutional and it is not necessary to declare the entire notification as ultra vires. Keeping in view the above dictum of the honourable Supreme Court, we hold that the words in Karnataka in Explanation II to Schedule IV to the Act are to be struck down and deleted from the explanation and the remaining explanation is held to be valid. Accordingly, we allow this petition. Petition allowed.
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1998 (3) TMI 637
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... ... ..... il. If so, all commodities possessing the characteristics of rice bran are to be classified thereunder. There cannot be a classification of an item, namely, rice bran with lesser quantity of oil . If there is an intention to tax separately rice bran oil cake, nothing prevented the Legislature from doing so and it is not in the province of the Commissioner of Commercial Taxes to issue a clarification and bring in de-oiled rice bran cake also into the purview of residuary item by declaring the same to be a different and independent commodity. The same is covered by the Second Schedule, Part C, entry 8(iii) and as such the clarification issued calls for interference. 10.. In view of what is stated above, I am of the view that annexure A cannot be sustained. I, therefore, quash the same. I hold that de-oiled rice bran comes within the ambit of the Second Schedule, Part C, item 8(iii) of the Act. The writ petitions are disposed of as above. Writ petitions disposed of accordingly.
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1998 (3) TMI 636
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... ... ..... kings as well for expansion/diversification/modernisation to the extent of investment made by them. However, the appellate order was set aside by the Additional Commissioner of Commercial Taxes by the impugned order by taking the view that since the appellant-company had already availed the exemption of sales tax under the KST and CST up to the maximum limit of 11,30,000 therefore, it was not entitled to any further exemption under the Entry Tax Act. 12.. As discussed above, though the ultimate order passed by the revisional authority, the same has to be upheld but the reason given by him for the same is not only untenable but is foundationally misconceived. There was no occasion to employ the concept of sales tax exemption for grant of exemption of entry tax to the existing units since under the notification at annexure D such exemption was not at all available. 13.. For the reasons discussed above, the appeal is dismissed with costs assessed at Rs. 1,500. Appeal dismissed.
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1998 (3) TMI 635
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... ... ..... tries the unit has to invest substantial amounts for acquisition of machineries. 8.. Having regard to the spirit and object of the Government orders, it is a matter for consideration as to whether the industries like the one where huge investment is made by way of installing machineries for bringing out the product which is sold by the unit and as to whether the benefit of this exemption be extended to such units also. These are all matters for the Government to consider in public interest and according to industrial policy. The petitioner, knowing the difficulties in this matter, has submitted exhibits P6 and P9 representations before the Government and the petitioner states that these petitions are pending before the Government. If the Government so chooses, they can consider the question of granting exemption to this unit. There is no merit in this O.P. It is accordingly dismissed. Order on C.M.P. No. 17441 of 1993 in O.P. No. 9677 of 1993-B dismissed. Petition dismissed.
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1998 (3) TMI 634
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... ... ..... spapers and newspaper waste. It is for this reason that the relief granted by the Appellate Deputy Commissioner has been set aside. In the show cause notice, there was no proposal to set aside the appellate order on this part of the turnover. The issue of exigibility of tax on the turnover representing waste papers was never put in issue. It was for the first time in the final order passed by the Commissioner that the relief given was withdrawn. We are, therefore, of the view that the order of the Commissioner in so far as he withdrew the exemption granted on the turnover of waste paper and materials to the tune of Rs. 33,27,370 is violative of principles of natural justice and therefore becomes illegal. 33.. In the result, though we answer the main point arising in the appeal against the assessee, we set aside the impugned order of revision passed by the Commissioner of Commercial Taxes on other grounds. 34.. Accordingly, the appeal is allowed without costs. Appeal allowed.
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