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Case Laws
Showing 61 to 80 of 463 Records
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1998 (4) TMI 520
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... ... ..... ioners file necessary applications for condonation of delay, the appropriate appellate authority will be taken into consideration the pendency of these petitions before this Court, while considering the prayer of the petitioners for condonation of delay in preferring the appeals. Further, in the event of the petitioners filing appeals, the appellate authorities are directed to dispose of the appeals as expeditiously as possible and at any event of the matter, not later than three months from the date of the presentation of the appeals. Further, wherever impugned notices are issued, the petitioners are given four weeks time from today to file their objections. 21.. In the light of the discussion made above, these petitions are liable to be dismissed. Accordingly, they are dismissed. However, no order is made as to costs. 22. Sri Shivayogiswamy, learned High Court Government Pleader, is permitted to file his memo of appearance within four weeks from today. Petitions dismissed.
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1998 (4) TMI 519
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... ... ..... tances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 7.. In view of the finding recorded by the Tribunal that it was a case of bona fide mistake as a result of which the documents were prepared not in the name of the assessee but in the name of another dealer and a further finding that in the import of the goods there was no intention on the part of the assessee to evade the payment of tax or assessment, in my opinion, the Tribunal did not commit any error of law when it reduced the penalty to a token amount of Rs. 1,000 because technically there was a default in compliance of section 28-A of the Act. 8.. The revision is devoid of merit and is, accordingly, dismissed. Petition dismissed.
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1998 (4) TMI 518
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... ... ..... this order, the matter would be decided ex parte. There is no doubt that this letter threatening the company with prosecution for the offence of non-submission of returns along with receipted copies of challans clearly comes within the mischief of proceedings for execution, distress or the like against the company and the objective of such a memo, is to realize taxes under threat and therefore this memo must be held to be illegal because of the immunity available to the company as a result of its being declared a sick company under the SICA Act. 22.. The application is, therefore, allowed in part. Memo. No. 10486 dated December 30, 1996 of the Assistant Commissioner, Commercial Taxes, Barasat Charge to the applicant-company is quashed. The seizure of the documents and books of accounts effected on 7th March, 1997 from the factory of the applicantcompany is held to be valid. There shall be no order as to costs. J. Gupta (Judicial Member).-I agree. Application allowed in part.
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1998 (4) TMI 517
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... ... ..... r the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. The judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 4.. In the instant case, there is nothing to indicate that the respondentassessee had deliberately failed to prefer the appeals within the prescribed period. The plea set up by the assessee was supported by a medical certificate. In absence of any material to the contrary which may justify the rejection of the medical certificate, the Tribunal, in my opinion, was fully justified, on facts, to condone the delay. The order under revision does not give rise to any question of law. 5.. Both the revisions are devoid of merit and are accordingly, dismissed. Petitions dismissed.
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1998 (4) TMI 516
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... ... ..... ontingencies. Undoubtedly, these cases involved substantial questions of law relating to interpretation of statutory provisions and notifications and of jurisdiction. To the extent that the dealer was threatened with the premature foreclosure of benefits under the schemes and the payment of tax, interest, etc., with respect to sales on which no tax had been charged undue hardship was entailed. Section 8 of the Rajasthan Taxation Tribunal Act which even permits notices being impugned was available, therefore, to the dealers. 35.. As regards the likelihood of the AA invoking section 12, RST Act in these cases that option does not exist. Suffice it to say that stands ruled out. 36.. The applications are allowed. The impugned notices and the proceedings, if any, taken pursuant thereto are quashed. No order as to costs. 37.. This judgment in original be kept on the file of application No. 50 of 1996 with authenticated copies being kept on the other two files Applications allowed.
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1998 (4) TMI 515
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... ... ..... er, the assessing authority was different from the Bureau of Investigation which wanted to enquire into certain transactions of the applicant, of course, during the period or periods in respect of which assessments had been completed. Section 19A(3) is a very special provision in the context of a taxing statute, because it clothes the Bureau with the power to hold enquiry or carry out investigation into any case of alleged or suspected evasion of tax. Any alleged or suspected evasion of tax must be considered to be an overriding necessity in the context of a taxing statute, because the State machinery is run on the strength of revenue which is raised from taxes. It is not possible for the court to interpret section 14(1) in a manner which results in frustrating the object of section 19A(3). In my opinion, therefore, the application should be dismissed. Hence, I agree with the judgment of my learned brother. D. Bhattacharyya (Technical Member).-I agree. Application dismissed.
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1998 (4) TMI 514
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... ... ..... aimed by the petitioner or by the third respondent in the capacity of transferee as alleged by the petitioner. However, there is nothing illegal in the action taken by the first respondent to proceed against the petitioner for the arrears due in pursuance of the notice issued by him on April 4, 1996. In such circumstances, we decline to give any specific direction to the assessing authority to proceed against Mr. Sumanth Sharma, the third respondent as prayed by the petitioner. Thus the contention of the petitioner fails in this regard also. 12.. In fine, the prayers of the petitioner contained in O.P. Nos. 595 of 1996 and 1265 of 1996 are decided against the petitioner. Accordingly O.Ps. Nos. 595 of 1996 and 1265 of 1996 are dismissed. 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 29th day of April, 1998. Petitions dismissed.
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1998 (4) TMI 513
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... ... ..... single Judge are quashed. It is stated that against the judgment of the Division Bench in Avinyl Polymers Pvt. Ltd. v. State of Karnataka 1998 109 STC 26 ILR 1998 Kar 576, the appeals are pending before the Supreme Court. We make it clear that in case the Supreme Court holds in favour of the tax-payers, it is open to the writ petitioners to approach this Court on renewing the request. 5.. We make it clear that this judgment will apply to all the tax-payers without further approaching this Court, and the judgment in Arun Manikchand Shah v. State of Karnataka 1999 115 STC 64 ILR 1995 Kar 3080 is no more good law in view of this judgment. Reported as J.S. Ramesh v. State of Karnataka 1997 106 STC 580 (Kar). 6.. The writ petitioners are permitted to pay the tax if not paid already in two instalments, first instalment within three months from today and remaining within three months thereafter. 7.. Writ appeals are allowed accordingly. No orders as to costs. Writ appeals allowed.
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1998 (4) TMI 512
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... ... ..... aprice of any statutory authority. Their Lordships were of the opinion that if the initiation is done within a reasonable time, there is no reason why the same should not be directed to be completed within the same period. But in view of the Division Bench ruling of this Court on the same subject in Subba Rao v. Commissioner of Commercial Taxes 1967 19 STC 257 (Mys) interpreting section 21 of the Karnataka Sales Tax Act, 1957, I do not think this Court can take a different view in the matter. 4.. As regards the second contention is concerned, regarding the existence of factual premises as to whether the power under section 21 of the Act can be initiated, I am of the view that this is primarily a question of fact to be examined by competent authority conferred with appellate jurisdiction. The petitioner is directed to pursue the remedy of statutory appeal under section 22 of the Act. Without prejudice to the said right, the writ petition is dismissed. Writ petition dismissed.
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1998 (4) TMI 511
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... ... ..... well as the Orissa Sales Tax Act is concerned. It is not true as apprehended by the petitioner that in West Bengal Sales Tax Act there are sufficient guidelines to protect the rights of the works contractor which are absent in Orissa Sales Tax Act. Inconsistently studying with the problems of the works contractor as discussed threadbare in Gannon Dunkerley s case reported in 1993 88 STC 204 (SC) as well as Cooch Behar Contractors Association v. State of West Bengal 1996 103 STC 477 (SC) and 1989 73 STC 370 (SC) (Builders Association of India v. Union of India) it appears that all the problems have been answered in the instant cases. We find that the revisional authority in the impugned order (annexure 5) has rightly rejected the contention of the petitioner and we do not find any better merit in the contention of the petitioner to interfere with the same. The writ petition thus stands dismissed. There would be no order as to costs. R.K. DASH, J.-I agree. Petition dismissed.
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1998 (4) TMI 510
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... ... ..... e petitioner-company the benefits of exemption of sales tax as provided in clause 30-FFFF of the Finance Department Notification S.R.O. No. 789/90 dated August 16, 1990 for a small-scale industry reduced by the period of enjoyment of exemption as medium scale industry. 8.. The sales tax authorities are also directed to revise the sales tax assessment orders for the relevant periods after allowing the petitioner-company benefit of sales tax exemption as a small-scale industrial unit. 9.. In the writ petition the petitioner-company has claimed that it is a pioneer unit and accordingly entitled to additional benefit. It is not possible for us to determine whether it is a pioneer unit or not. It is open to the petitionercompany to raise such claim before the concerned authorities and if raised, the authorities concerned will consider and decide such claim. 10.. Writ petition is allowed as indicated hereinabove. No order as to costs. R.K. Patra, J.-I agree. Writ petition allowed.
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1998 (4) TMI 509
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... ... ..... ing its policy, the executive authority is within its right to indicate the criteria for determination of increase in production, as stated earlier, and the same cannot be said to be arbitrary and violative of articles 14 and 19(1)(g) of the Constitution of India. The right to get tax incentive is not a fundamental right. Right guaranteed under article 19(1)(g) of the Constitution is the right to practice any profession or to carry on any occupation, trade or business limiting the right of the existing industrial units in getting the sales tax concession and as the petitioners herein have already reaped the benefits of earlier scheme as new units it cannot be held that there has been violation of articles 14 and 19(1)(g) of the Constitution of India, and I do not find any illegality on the part of the respondents in withdrawing the sales tax exemption. 44.. For the reasons stated above, the writ petitions stand dismissed with costs of Rs. 2,000 each. Writ petition dismissed.
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1998 (4) TMI 508
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... ... ..... e for the purpose of set-off. He found that the value of the ingots was Rs. 6,74,28,301, tax collected is Rs. 26,97,132. Adding the tax collected to the turnover, the tax actually paid was Rs. 28,07,142. The Deputy Commissioner was of the opinion that only the tax collected should be excluded from the turnover for the purpose of ascertaining the tax on the purchase for the purpose of set-off. He, therefore, restricted the set-off to the amount of the tax collected, i.e., Rs. 26,97,132 instead of allowing the deduction of actual tax paid of Rs. 28,07,142. The appellate Tribunal was of the view that this bifurcation was not permissible as according to the terms of G.O. Ms. No. 763, Revenue, (CT.II) dated August 21, 1990 what is to be set-off is tax paid against tax payable. We agree with the view of the Appellate Tribunal, and we do not find any question of law arising from the order of the Tribunal. The tax revision case is accordingly dismissed. No costs. Petition dismissed.
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1998 (4) TMI 507
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... ... ..... x due in respect of the taxable turnover for the year 1990-91, the fact that the petitioner had omitted to show the purchase turnover of copra in the taxable turnover is only a technical or a venial defect as pointed out by the Supreme Court in Hindustan Steel s case 1970 25 STC 211. By applying the decision of the Supreme Court in Hindustan Steel s case 1970 25 STC 211, it has to be held that no penalty is exigible. The decision of the Supreme Court in Cement Marketing Co. of India Ltd. s case 1980 45 STC 197 squarely applies to the facts of this case. On the facts of the case on hand, it cannot be held that the assessing authority as well as the Board of Revenue is justified in imposing penalty on the petitioner under section 45A(1) of the Act. I accordingly quash exhibits P2 and P5 orders passed by the first and third respondents respectively. The original petition is allowed as above. In the circumstances of the case, there will be no order as to costs. Petition allowed.
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1998 (4) TMI 506
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... ... ..... a v. Administrator General of West Bengal 1960 3 SCR 578 AIR 1960 SC 936). The Legislators do not always deal with specific controversies which the courts decide. They incorporate general purpose behind the statutory words and it is for the court to decide specific cases. If a given case is well within the general purpose of the Legislature but not within the literal meaning of the statute, then the court must strike the balance. 13.. In view of the above principle laid down by the Supreme Court, it is evident that the courts had to construe the statute as per the intention of the Legislature which is emphasised by reading the statute unless it leads to some absurdity or inconsistency. In the present case, by reading section 5(1-A) along with the two provisos, it is manifest that the exemption is not available for the turnover on which tax is paid before the incorporation of section 5(1-A) of the Act. Therefore, we do not see any merit. Appeal is dismissed. Appeal dismissed.
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1998 (4) TMI 505
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... ... ..... th the decisions of the Madras High Court in Vadivel Achari s case 1969 23 STC 273 and Jayarama Chettiar s case 1948 1 STC 168 referred to above. 26.. In view of the abovementioned reasons, we hold that the finding of the Kerala Sales Tax Appellate Tribunal in T.A. No. 23 of 1991 that there was element of sale within the meaning of section 2(xxi) of the Kerala General Sales Tax Act in the transaction entered into by the assessee with the supplier of the gold ornaments from outside the State, is unsustainable in law. We affirm the finding of the Tribunal that the assessee is not liable to be taxed under the Central Sales Tax Act. In the result the assessment order dated August 7, 1989 passed by the Assistant Commissioner (Assessment), Special Circle against the assessee for the year 1980-81 is set aside. T.R.C. No. 65 of 1993 filed by the assessee is allowed and T.R.C. No. 77 of 1993 filed by the Revenue is dismissed. Assessee s petition allowed. Revenue s petition dismissed.
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1998 (4) TMI 504
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... ... ..... at a different view, namely, that before ordering affixation, it is the duty of the assessing authority to attempt service of notice either by personal delivery as contemplated in clause (a) or by sending it by registered post as contemplated in clause (c) and if none of the alternative modes is practicable having tried and found it to be unsuccessful, then it may order service by affixture. In other words, the modes of service referred in clauses (a) to (c) are only alternative and not cumulative and, therefore, it cannot be said that all the three modes had to be exhausted before service of affixation under clause (d). However, it is not necessary for the purposes of the present case to dwell upon the view expressed by the Madras and Karnataka High Courts because as stated earlier, the order under revision is perfectly valid and it is hereby sustained. 20.. In the result, the revision fails and is dismissed. Stay order dated April 6, 1990 is discharged. Petition dismissed.
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1998 (4) TMI 503
Whether by virtue of Article 105 of the Constitution a Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court?
Whether a Member of Parliament is a "public servant" falling within the purview of the Prevention of Corruption Act, 1986?
Held that:- Member of Parliament does not enjoy immunity under Article 105(1) or under Article 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof.
A member of Parliament is a public servant under Section 2 (c) of the Prevention of Corruption Act, 1988.
Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Section 7, 10, 11, 13, and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.
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1998 (4) TMI 502
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... ... ..... n section 2(2)(e) and section 11, which cover different situations. Section 2(2)(e) saves the transaction entered into between the bona fide purchaser and the previous holder prior to the issue of notice under section 6(1). Section 11 deals with a different situation, where the transfer takes place subsequent to the notice under section 6(1) and does not cover even if the transferee is a bona fide purchaser. The plea of the bona fide purchaser will be available only where the transaction is entered into before the issuance of the notice under section 6(1), but not after the notice is issued. We have, therefore, no hesitation in rejecting this contention of the appellant. The decision in W. P. No. 3476 of 1991 of the High Court of Bombay dated July 18, 1995, has no bearing on the facts of the present case. The learned judges upheld the transaction in favour of the petitioner. For all the aforesaid reasons, we dismiss the appeal and confirm the order of the competent authority.
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1998 (4) TMI 501
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... ... ..... litigation agreed to an addition of Rs. 23,054 to his total income. The Incometax Officer made a note on the front page of the return filed by the assessee with regard to the aforesaid amount and got it signed from the assessee. The Income-tax Officer also initiated penalty proceedings and the same was subsequently imposed by the Inspecting Assistant Commissioner and confirmed by the Tribunal. On a reference, their Lordships took the view that penalty under section 271(1)(c) could not be levied on the basis of the impugned addition since there was no material on record to show that such amount was the income of the assessee and admittedly there was no independent finding by the Income-tax Department to the said effect. In the light of the discussion in the preceding paragraphs, I, in the final analysis, confirm the view taken by the learned Accountant Member. The matter would now be listed before the Division Bench for passing an order in conformity with the majority opinion.
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