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Showing 81 to 100 of 568 Records
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1999 (8) TMI 943
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... ... ..... cant-firm, in the capacity as re-sellers of medicine, are the dealers within the meaning of the first part of section 8G(1) of the 1954 Act and are within the scope of the section 8G. I further hold that section 8G is not ultra vires the Constitution of India. Since the impugned order dated December 4, 1998 and the consequential demand notice in form VII-P dated December 17, 1998 have not ultimately been challenged on any other grounds excepting the two grounds mentioned above. I find the said order and the demand notice are valid and binding on the applicants. 34. Hence, the application of the applicants is dismissed. No order as to costs is made. ORDER According to the decision of the majority, the application is allowed. The impugned order of penalty under section 8G(3) of the 1954 Act dated December 4, 1998 and the consequential notice of demand dated December 17, 1998 in respect of the penalty of Rs. 19 lakhs are quashed. No order is made for costs. Application allowed.
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1999 (8) TMI 942
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... ... ..... of tax applicable is the tax that is applicable to cost of cylinders and not liable to tax at 10 per cent under section 3(2) of the Act as held by the Sales Tax Appellate Tribunal. Similarly, the turnover of lost gas cylinders is liable to tax at 5 per cent as held by the Sales Tax Appellate Tribunal. 17.. However, we uphold the remand order of the Sales Tax Appellate Tribunal inasmuch as the assessing authority has to work out the correct turnover as per the books in respect of both the disputed items. While making the assessments, the assessing authority will allow the deductions as per law under section 3-A of the Act as requested by the appellant in this case. Subject to the above observations, the revision petitions 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 20th day of August, 1999. Petitions dismissed.
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1999 (8) TMI 941
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... ... ..... 1998 111 STC 254 (SC), the circular issued by the Board was held binding on the Revenue and it was observed that, when the Central Board of Excise and Customs made all others to understand a notification in a particular manner and when the latter have acted accordingly, it is not open to the Revenue to turn against such persons on a premise contrary to such instructions. Such circulars would be binding on the department. In view of the judgment given by the apex Court in Usha Martin Industries case 1998 111 STC 254, it could be considered that the circulars issued shall stand cancelled only from the date this Court has so declared in the case of M/s. Sree Jagadish Colour Co s. case 1997 107 STC 522 (Kar) ILR 1996 Kar 2052. Therefore, the petitioner having acted on the basis of the circular, was entitled to purchase the lumps against form 37. The assessing authority shall modify their order in accordance with the directions given above. Writ petitions disposed of accordingly.
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1999 (8) TMI 940
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... ... ..... out of arecanut which has not suffered tax under the APGST Act, while imposing a lower rate of tax on the betel-nut powder if the arecanut has suffered tax in the State, as illegal, ultra vires and violative of articles 301 to 304 and 14 of the Constitution of India. (ii) The respondents are directed to levy tax on the sales of betel-nut powder made by the petitioner as required under clause (b) of entry 158 of the First Schedule to the APGST Act. (iii) Whether the petitioner was liable to pay tax at 4 per cent only on the sale of betel-nut powder w.e.f. November 20, 1998 or otherwise has to be agitated before appropriate forum. (iv) The petitioner s claim to refund of excess tax alleged to have been collected from the petitioner is ordered to be agitated before appropriate forum if he is entitled, since it is stated that appeals are already pending. 27.. The writ petition is accordingly disposed of. There shall be no order as to costs. Writ petition disposed of accordingly.
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1999 (8) TMI 939
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... ... ..... the absence of procedure did not mean that the person who was not legally liable to pay any amounts could do it and claim a refund from the Government, or that though the right was created the absence of procedure barred the enforcement thereof. However, since this Court has already taken aforesaid view and the revenue did not challenge this Court s decisions before the Supreme Court and the judgment in Kores (India) Ltd. 1995 97 STC 36 (All.) 1995 UPTC 605 having held the field for the last several years I find no justification why the same should not be followed. In my view, therefore, the orders of the authorities below are not in accordance with law as declared by this Court in Kores (India) Ltd. 1995 97 STC 36 (All.) 1995 UPTC 605. 11.. This revision petition is, therefore, allowed and setting aside the Tribunal s order dated February 26, 1998 on this point, it is directed that the assessing officer will refund the aforesaid amounts to the revisionist. Petition allowed.
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1999 (8) TMI 938
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... ... ..... er of composition that the composition amount was collected not on the ground that a taxable transaction has taken place and that the tax payable in that behalf was being evaded, or was not paid, but on the ground that the petitioner had issued spurious sale bills in order to hoodwink the department, without actually transporting oil. The learned Judges held that the case falls under clause (b) but not under clause (a) and the amount of compounding fee could not have exceeded Rs. 1,000. The ratio of the said decision applies with greater force to the present case. 3.. For the above reasons, we partly allow the writ petition with costs of Rs. 500 and direct the respondent to collect Rs. 1,000 towards compounding fee and refund the balance amount within a period of two months from the date of receipt of this order. It is open to the assessing authority to adjust the excess amount collected towards arrears of tax or tax payable in the current year. Writ petition partly allowed.
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1999 (8) TMI 937
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... ... ..... ould be only of 4 per cent of the of the value of the goods, the levy of penalty at the maximum rate of 40 per cent would, therefore, be unjustified. It may be mentioned that rates of trade tax varied to 1 per cent to 26 per cent and the security demanded in all cases can be a maximum of 40 per cent. The security demanded should vary with the rate of tax when the rate of tax was only 4 per cent, the demand of security at the rate of 40 per cent is unjustified. In my view, therefore, security by way of a cash deposit to the extent of 15 per cent of the value of the goods would be sufficient and to this extent the Tribunal s order requires interference. 7.. In the result, the revision petitions are partly allowed and the Tribunal s order is modified to the effect that the dealer s aforesaid appeals will stand partly allowed. The seizure of the goods stands affirmed but the amount of security demanded is reduced to 15 per cent of the value of the goods. Petition partly allowed.
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1999 (8) TMI 936
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... ... ..... itioner with the liability to pay additional tax. 4.. As the provisional assessment has been made for the entire year part of which is covered by the appellate authority s order, it cannot be split up. We cannot direct the petitioner to file an appeal against that part of the assessment order which was not the subject-matter of appeal before the appellate authority. We are, therefore, constrained to set aside the provisional assessment order in its entirety. That apart, the year of assessment was over long back. There is absolutely no reason why final assessment should not be made instead of resorting to provisional assessment after a lapse of more than two years from the expiry of the assessment year. Now that we have set aside the provisional assessment order, it would be proper and appropriate to direct final assessment itself to be made according to law after giving reasonable opportunity to the petitioner. The writ petition is allowed accordingly. Writ petition allowed.
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1999 (8) TMI 935
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... ... ..... s mentioned how the extra number of employees could increase the production. The Tribunal has also not mentioned how in an automatic plant extra number of employees could effect the production. The earlier assessment was made after examining the books of accounts of the dealer and in the survey no incriminating material in the form of additional purchases of raw material or of additional sale was discovered. The extra number of employees was not a circumstance from which extra production could be assumed when the plant was automatic. The reassessment was thus based on conjectures and there was no reason to believe that any part of the turnover has escaped in the return. The Tribunal s order dismissing the dealer s appeal is, therefore, not legally tenable. 5.. The revision petition is allowed and setting aside the Tribunal s order, it is ordered that the revisionist s aforesaid appeal shall stand allowed and the reassessment under section 21 stands quashed. Petition allowed.
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1999 (8) TMI 934
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... ... ..... isdiction vested in the first respondent. If at all, the amount lying in the bank can only be attached by resorting to section 17-B. But, for doing that, the prior approval of the Commissioner is required. As seen from the communication dated July 26, 1999 the power has not been exercised under section 17-B, with the permission of the Commissioner. The impugned notices cannot therefore be sustained in law and they are examples of arbitrary and unreasonable exercise of power. In fact, a division Bench of this Court in D. Pitchaiah v. Assistant Commercial Tax Officer, Rajahmundry 1987 66 STC 283 as long back as in 1987 held that the assessing authority in order to recover the tax to be levied has no jurisdiction to restrain a third party from making the payments to the dealer, before making an assessment-provisional or final. The impugned notices are, therefore, quashed and the writ petition is allowed. 5.. That rule nisi has been made absolute as above. Writ petition allowed.
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1999 (8) TMI 933
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... ... ..... mitted that the power delegated was sought to be exercised, because the delegator does not denude his original power. This submission has no force because the Commissioner has not initiated the proceeding for hearing the matter afresh in terms of power conferred under rule 79. The Commissioner could not have done this after disposal of the matter finally by the delegated authority, and the order has assumed finality. Even if the Commissioner would have initiated the proceeding for hearing the matter afresh, it would have amounted to an attempt to review of his own order because the delegated authority had exercised power of revision by the delegator, i.e., the Commissioner. This position has been elaborately dealt with by this Court in J.K. Corp. Limited v. Sales Tax Officer, Koraput-II Circle, Rayagada 1999 115 STC 681 (1998) 2 OLR 546. The order of the Commissioner cannot therefore, be maintained and the appeals are allowed. No costs. B.P. DAS, J.-I agree. Appeals allowed.
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1999 (8) TMI 932
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... ... ..... ovision, a construction which would defeat its purpose and, in effect, obliterate it from statute book should be eschewed. So, as already stated above, there was disposal of hoops in a manner other than by way of sale within the State by the assessee and thereby definitely it would attract purchase tax under section 7-A(1)(b) of the TNGST Act. So, the finding of the lower authorities that the turnover of Rs. 5,43,196 is exigible to purchase tax at 4 per cent under section 7-A(1)(b) of the TNGST Act is perfectly valid in law. So, we see no reason to interfere with the order of the Appellate Tribunal. Hence bearing all these aspects in mind the order of the Appellate Tribunal is confirmed. In the result, the revision petition is 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 2nd day of August, 1999. Petition dismissed.
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1999 (8) TMI 931
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... ... ..... 9 based on identical reasons and the writ petitions, shall stand allowed, as prayed for. But it is made clear that the continued eligibility of the petitioners to avail of the incentives will depend upon the continued satisfactory compliance with and conforming to the other terms and conditions of the notification dated January 30, 1996. As and when, there is any violation in this regard, it will be always open to the State and the competent authorities to take appropriate action, in this regard in accordance with law. The petitioners, if made any deposit to satisfy the conditional order to stay granted in their favour, during the pendency of the writ petitions, they will be entitled to refund and restitution of the same in terms of the very conditional order passed by this Court on March 3, 1999 and the same shall also be deemed to be and read as part and parcel of this order, so far as the relief of refund/restitution ordered is concerned. No costs. Writ petitions allowed.
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1999 (8) TMI 930
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... ... ..... fficer was not actually there. In any case, it is admitted that the assessing officer had not come to his office till 2 p.m. The notice must have been issued for attendance at 10 a.m. Therefore, if a dealer who had been summoned for attendance at 10 a.m. and the officer was unable to sit in his office till about 2 p.m. it was not a reasonable exercise of discretion to proceed ex parte if the dealer had left. The assessing officer should, in such circumstances, have issued a fresh notice of hearing which has not been done. In my view, it was a fit case in which the ex parte assessment should have been recalled in exercises of powers under section 30 and the orders rejecting the applications are not legally sustainable. 4.. These revision petitions are, therefore, allowed. The Tribunal s order dated November 16, 1995 is set aside and it is ordered that the dealer s aforesaid appeals shall stand allowed and the ex parte assessment orders will stand set aside. Petitions allowed.
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1999 (8) TMI 929
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... ... ..... re the shoe lace is tied. That part of the shoe upper which protects the heel may have to be made stronger and the upper edges have to be stitched or pasted in a manner that they don t hurt the feet. Even several shoes have some design and several pieces of leather of different shapes may have to be stitched together to make a particular shoe upper. On these points, therefore, there is no finding of the Tribunal and its finding that the shoe upper and the leather were one and the same thing, therefore, cannot be sustained particularly in view of the law as explained by the honourable Supreme Court in Vijayalaxmi Cashew Company v. Deputy Commercial Tax Officer 1996 100 STC 571 1996 UPTC 602. 14.. In the result, this revision petition is allowed and setting aside the Tribunal s order, it is directed that the Tribunal would dispose of the appeal afresh in accordance with law after such enquiries as it may deem necessary for arriving at proper findings of fact. Petition allowed.
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1999 (8) TMI 928
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... ... ..... hant of gur. The question is whether the purchases of gur were made by it on its own behalf or they were made as commission agent acting for ex-U.P. principals. The assessing officer held that the purchases were in the dealer s own account and the despatch of those goods subsequently to ex-U.P. businessmen were by way of inter-State sales. This finding was upheld by the first appellate authority. The dealer appealed to the Tribunal which has reversed the finding and held that the purchases were made on behalf of ex-U.P. principals and, therefore, the purchases being in the course of inter-State trade and commerce, were not taxable under the U.P. Trade Tax Act and there were no inter-State sales of the goods. This is a pure finding of fact. I have been taken through the Tribunal s order and no illegality requiring interference in revisional jurisdiction under section 11 of the U.P. Trade Tax Act, 1948 is made out. 4.. The revision petitions are dismissed. Petitions dismissed.
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1999 (8) TMI 927
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... ... ..... an agent. There can be no presumption that the Assistant Commissioner (Judicial) served the copy of the order on a person who was not legally authorised to receive the same on behalf of the appellant. Neither in the application nor in the affidavit it has been stated that the counsel was not authorised to receive the copy of the order on the appellant s behalf nor has a copy of the authorisation under which the counsel conducted the appeal before the AC(J) been filed to show that the said counsel was not an agent of the petitioner for receiving a copy of the order. In my view, therefore, the ratio of the aforesaid judgments cannot be applied mechanically and the petitioner must have shown that the counsel could not be treated as an agent of the petitioner for receiving the copy of the order. This has not been done. 8.. For the above reasons, I find no force in this writ petition and the same is hereby dismissed. The parties will bear their own costs. Writ petition dismissed.
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1999 (8) TMI 926
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... ... ..... in relation to the transport equipments. Therefore, the High Court of Kerala said that there was no reason to understand entry 140A as referring to elevators used in buildings and multi-storied structures. In effect that was a converse case to the facts of the present case. But the distinction, that the Kerala High Court makes in respect of lifts commonly used in building and multi-storied structures, cannot be lost sight of. 8.. The assessee having offered the goods for taxation as machinery, we agree with the Sales Tax Appellate Tribunal in both the cases that the assessment at 15 per cent under entry 133 is incorrect. Consequently both the revisions filed by the Revenue do not merit consideration and they are accordingly 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 20th day of August, 1999. Petitions dismissed.
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1999 (8) TMI 925
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... ... ..... not be entitled for claiming benefits. 18.. In the result, the petition succeeds and is hereby allowed. The respondents are directed to grant eligibility certificate for exemption from payment of sales tax to the petitioner in accordance with notification dated October 16, 1986, within a period of three months from the date of this order, if the petitioner fulfils the requisite restrictions and conditions mentioned in the notification. Accordingly the order passed by the Sales Tax Officer on December 29, 1990 and the memos issued on July 13, 1989 by the General Manager, Director of Industries, Jhabua, in pursuance of memo dated November 30, 1988 of Director of Industries, Bhopal, are hereby set aside, and S.T.O. is directed to make a fresh assessment in accordance with law. 19.. In view of the aforesaid directions, there shall be no order as to the costs of this petition. The amount of security, if any, be refunded to the petitioner after due verification. Petition allowed.
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1999 (8) TMI 924
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... ... ..... has without any reason linked that document with the consignment in question to assume that there was an intention to evade tax. The circumstances mentioned above, indicate that the omission to carry requisite documents with the consignment was an omission arising of an accidental slip and the conduct of a dealer as indicated by the circumstances mentioned above, negatived an assumption that there could be an attempt to evade tax. The latest assessment completely projects the revisionist as an honest taxpayer. In my view, therefore, the Tribunal s assumption that there was an attempt to evade tax is not based on any material and the seizure, therefore, cannot be sustained. 9.. The revision petition is, accordingly, allowed. The Tribunal s order dated July 7, 1999 is set aside and the dealer s aforesaid appeal is ordered to stand allowed. The seizure order is quashed and the respondent is directed to release the goods in favour of the revisionist forthwith. Petition allowed.
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