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2001 (11) TMI 999 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... petitioner as a partner of the business so as to demand the taxes is not in order. Similarly, the notice dated July 19, 2001 issued for the assessment year 1999-2000 by treating the business as partnership business and serving a notice on the petitioner as a partner also is not proper. Therefore, the order dated May 18, 2001 as well as the notice dated July 19, 2001 is set aside and the matters are remanded back to the assessing authority for taking appropriate action to assess Thiru S. Venugopalan who did business for the assessment year 1998-99 and 1999-2000 as proprietor in accordance with law. 8.. The original petitions are disposed of in the above terms. As the main O.Ps. are disposed of, the O.M. Ps. do not survive. 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 8th day of November, 2001. Petition disposed of accordingly.
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2001 (11) TMI 998 - MADHYA PRADESH HIGH COURT
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... ... ..... , the writ can be entertained. The petitioner is always free to raise the grounds of attack which he has made basis in writ in appeal. Law enables the petitioner to challenge the assessment on all grounds in appeal, including those urged in the writ. 6.. Reliances placed by the learned counsel for the petitioner on the cases referred supra, are based on facts involved therein. Every case has its own facts and discretion to be exercised. I am not inclined to entertain the writ against an order of assessment order when the petitioner is admittedly in law entitled to file an appeal/ revision and raise all legal and factual grounds. They can always come to this Court in writ or reference as the case may be after exhausting all their statutory remedies. There is no reason to hold that if a proper case is made out, the impugned assessment would not sustain in law. 7.. In view of aforesaid discussion, I find no merit in the writ. It is dismissed in limine. Writ petitions dismissed.
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2001 (11) TMI 997 - ANDHRA PRADESH HIGH COURT
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... ... ..... ax and in the event if the authority realises that the petitioners have not passed on the burden on the customers and have paid tax at 16 per cent, the authority shall make necessary provision in the order for refund. In the light of these submissions, we direct the assessing authority to complete the assessment for these years and examine whether the petitioners have paid tax at the rate of 16 per cent as was in force prior to the Third Amendment Act (22 of 1995) and whether the petitioners have not passed on the burden to the customers and if it is realised that the statement made by these petitioners is correct, necessary provisions be made in the order for refund of the excess tax paid over and above 2 per cent for the relevant period. We desire that the assessment shall be completed within a period of four months from the date of receipt of a copy of this order. 14.. The writ petitions are accordingly allowed. There shall be no order as to costs. Writ petitions allowed.
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2001 (11) TMI 996 - KERALA HIGH COURT
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... ... ..... to take back the generator, the goods detained as per exhibit P3 will be released to him. Petitioner will communicate the operative portion of the judgment by telegram at his expenses. 2.. Original petition is disposed of as above. The petitioner will produce a copy of this judgment as also copy of the original petition before the respondent. Order on C.M.P. No. 59374 of 2001 in O.P. No. 36374 of 2001E dismissed. Petition disposed of.
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2001 (11) TMI 995 - KERALA HIGH COURT
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... ... ..... . The dealer has not enriched itself by collecting the amounts in question. Further, as already mentioned, the Kerala Government has already received the full amount of sales tax and surcharge due under the turnover of the petitioners which again admittedly was based on the sale price reflected in the bills. 27.. In the circumstances, the action taken by the assessing authority applying section 46A of the K.G.S.T. Act and directing forfeiture of the amounts at the rate mentioned in exhibit R4(B) is absolutely illegal. The State cannot levy tax except on the taxable turnover. Such tax has already been paid and it is not open to apply section 46A and to go behind the sale price and direct forfeiture of the State surcharge element. The original petitions are hence allowed and the relevant assessment orders and the appellate and revisional orders are set aside. Order on C.M.P. Nos. 32802 of 2001 and 33639 of 2001 in O.P. No. 20202 of 2001-E dismissed. Original petitions allowed.
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2001 (11) TMI 994 - ANDHRA PRADESH HIGH COURT
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... ... ..... ferred as a general exemption, as it relates to a particular goods, viz., hank yarn in plain reels. When once it is held that the exemption granted under the notification in question is a general exemption, the benefit of such exemption would get extended to the inter-State transactions by virtue of the provisions of section 8(2A) of the Central Act. We, therefore, hold that the exemption under the notification in G.O. Ms. No. 1067, dated September 19, 1985 issued under section 9(1) of the Act is a general exemption in so far as the sales effected to the dealers are concerned and extend the benefit of exemption in respect of inter-State transactions also by virtue of the provisions of section 8(2A) of the Central Act. 29.. Under the above circumstances, we set aside the impugned orders of the Sales Tax Appellate Tribunal in all the T.R.Cs., and restore the orders of the assessing officer. 30.. In the result all the tax revision cases are allowed. No costs. Petitions allowed.
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2001 (11) TMI 993 - GUJARAT HIGH COURT
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... ... ..... ant period as inter-State sales although the opposite party claimed these sales as intra-State sales on the basis that the sales were effected in its Berhampur godown and tax under the Orissa Sales Tax Act, 1947 (hereinafter referred to as the Act ) was paid on the same. The ground on which such assessment was made is that the addresses of the purchasers being outside the State, there was an implied contract by which the opposite party as seller had moved the goods from the State of Orissa to outside the State. It knew that such purchasers from outside the State in pursuance of the sales would obtain necessary permits from the Forest Department for movement of the logs. As such, he had clear knowledge about the destination of the goods which was outside the State of Orissa. On such reasoning the assessing officer concluded that the aforesaid sales took place in course of inter-State trade. For this conclusion, the assessing officer has taken note of the following two aspects
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2001 (11) TMI 992 - GUJARAT HIGH COURT
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... ... ..... question of law arises from the order of the Tribunal, we have perused the aforesaid decisions with the aforesaid limited objective and we do find that the question of law as proposed in the amended reference applications does arise from the order of the Tribunal. 11.. Accordingly, these applications are allowed. The Gujarat Sales Tax Tribunal is directed to refer the following question of law to this Court and submit the statement of case in accordance with law Whether, in the facts and circumstances of the case, the Sales Tax Tribunal was right in law in holding that, the sales of printed laminated paper rolls along with polythelene strip bobbins fall within the entry cardboard boxes and cartons falling within entry No. 12(iv), Schedule II, Part-A of the Gujarat Sales Tax Act, 1969 and was also right in law in holding that the said goods did not fall within the entry 13 of Schedule III of the Act? 12.. Rule is made absolute with no order as to costs. Applications allowed.
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2001 (11) TMI 991 - GUJARAT HIGH COURT
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... ... ..... under section 15B of the Act. 20.. Rule is made absolute to the aforesaid extent only with no order as to costs. D.A. MEHTA, J.-I have gone through the judgment of my learned brother and I agree with the final order. However, I have my own reservation about the reasoning and findings recorded by my learned brother in paragraphs 8 to 16 dealing with applicability of section 15B of the Gujarat Sales Tax Act, 1969 and I hereby clarify that I do not agree with the views stated therein. However, in view of the fact that the petition is otherwise allowable on the short ground of non-applicability of provision of section 41B of the Gujarat Sales Tax Act, 1969, I have not rendered dissenting opinion in relation to stated views expressed by my learned brother vide paragraphs 8 to 16 dealing with applicability of section 15B of the Gujarat Sales Tax Act, 1969 of his judgment. 22.. Accordingly rule is made absolute to the aforesaid extent with no order as to costs. Application allowed.
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2001 (11) TMI 990 - MADRAS HIGH COURT
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... ... ..... er under section 55 of the Tamil Nadu General Sales Tax Act read with section 9(2) of the Act, on the ground that there is no error passed by the Tribunal. The same was not rejected by the secretary as it will not lie to the Tribunal. Even then the said order has to be passed only by the Tribunal as secretary has no jurisdiction to reject any petition, but he can return to the parties. 6.. So, the submission of the learned Government Advocate that the petition filed by the petitioner on May 24, 1997 is not maintain- able and so the secretary is correct in rejecting the application cannot be countenanced. Hence, the impugned order dated July 7, 1997 is set aside and the Tribunal is directed to consider the said application and pass orders. The Tribunal is at liberty to go into the question regarding the maintainability of the petition also. 7.. With the above observations, the writ petition is allowed. No costs. Consequently, connected W.M.P. is closed. Writ petition allowed.
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2001 (11) TMI 989 - KERALA HIGH COURT
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... ... ..... nd the matter to the Tribunal for a fresh consideration in the lines indicated above. As the matter is thus remitted to the Tribunal and since the State has taken the conten- tion that it could not furnish the list of experts, I make it clear that it will be open to the State also to furnish the list of experts in the matter. If the State chooses to do so, it may furnish the list within a period of one month from today. The State shall also furnish the signatures and all the documents available in the records contempo- raneous as far as possible of the assessee affixed in the normal course of the communication for the purpose of deciding the genuine- ness of the disputed document dated December 7, 1987. This shall also be done within the said period. Thereafter the Tribunal shall pass appropriate orders in the matter as expeditiously as possible. Original petition is allowed as above. Order on C.M.P. No. 48960 of 2001 in O.P. No. 30060 of 2001(C) dismissed. Petition allowed.
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2001 (11) TMI 988 - ANDHRA PRADESH HIGH COURT
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... ... ..... r of the State recognises no restraints, and is bounded by none except such as or imposed by the Constitution itself placing reliance on the opinion handed down in Sill v. Village of Corning 15 NY 303. 13.. In the premise of the above noticed well-settled position in law, none of the grounds urged by Sri. S. Krishna Murthy, learned counsel for the petitioner while assailing the constitutional validity of the Amendment Act No. 28 of 1996 insofar as it relates to the levy of luxury tax on corporate Hospitals deserves out acceptance. The writ petition is devoid of merit. In the result, we uphold the constitutional validity of the Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses Act, 1987 as amended by Andhra Pradesh Tax on Luxuries in Hotels and Lodging Houses (Amendment) Act (Amendment Act No. 28 of 1996) insofar as it relates to levy of luxuries tax on corporate hospitals and consequently dismiss the writ petition with no order as to costs. Writ petition dismissed.
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2001 (11) TMI 987 - KARNATAKA HIGH COURT
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... ... ..... ant of injunction, viz., existence of prima facie case, balance of convenience and the factor of irreparable loss have to be kept in view. The appellate authority has to draw a balance between the assessee and the Revenue. 13.. In the light of the various decisions referred to above, it is very clear that in these matters, the authorities have to apply their mind, while exercising their judicial discretion with regard to grant of stay. If the authorities are satisfied as per the judicial discretion, then they must record reasons with regard to the condition. In the case on hand, unfortunately, no such attempt is made by the appellate authority. In these circumstances, I have no hesitation in holding that the impugned order is unsustainable in law. 14.. This petition is allowed. The impugned order is set aside. Matter is remitted back to the appellate authority for reconsideration and for passing a speaking considered order, in accordance with law. No costs. Petition allowed.
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2001 (11) TMI 986 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ot been completely obliterated. The payer of fee has to get some special benefit. This test is not satisfied in the present case. Thus, the impugned impost is not a fee but a tax . 2.. The milk plants are a scheduled industry . These are governed by the provisions of the 1951 Act and the 1992 Control Order . The Parliament has clearly declared that it is expedient in public interest to vest the control in the Central Government. Keeping in view the declared objective and the provisions of the 1951 Act, it is clear that the State Legislature has invaded the territory occupied by the Parliament. Thus, the impugned impost is ultra vires. 3.. The State Legislature is not competent to levy the impugned cess under any of the taxing entries in Lists II and III of the Seventh Schedule to the Constitution. 63.. Thus, the writ petitions are allowed. The levy is held invalid. The notices for payment are quashed. The parties are, however, left to bear their own costs. Petitions allowed.
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2001 (11) TMI 985 - ANDHRA PRADESH HIGH COURT
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... ... ..... s in the course of interState sale and liable to Central sales tax. To make it further clear that the goods purchased by the appel lant as dealer was transferred to the agency account, which was maintained on behalf of the nonresident principals and the same resulted in the movement of the goods to the place of nonresident principals. In the process the transfer is from the local dealer to the nonresident dealer through its agent. Thus the present case is a converse case to that of the reported case of the Madras High Court in the case of L.S. Chandramouli and Company 1966 18 STC 325, as well as Nestle s Products (India) Limited 1974 33 STC 356 (Orissa). Therefore, the Commissioner of Commercial Taxes is justi fied in revising the order of the Appellate Deputy Commissioner. 9.. Under the above circumstances, we do not find any merit in the contentions of the learned counsel for the appellants and the special appeal is accordingly dismissed. No costs. Special Appeal dismissed.
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2001 (11) TMI 984 - ANDHRA PRADESH HIGH COURT
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... ... ..... lay on the ground that the cause of action arose when the old law was in force when there was no limitation prescribed for condoning the delay. To the same effect is the judgment of this Court in Bakka Venkamma v. Deepa Narisi Reddy (1995) 3 ALD 724. Judgments in Deputy Commissioner of Commercial Taxes, Madras Division v. Sri Swami and Company 1962 13 STC 468 (Mad.), Ajanta Printers v. Commissioner of Sales Tax (M.P.) 1988 68 STC 441 (MP) and Commissioner of Sales Tax v. Someshwar Dutta Taula 1991 82 STC 385 (All.) also do, in a way, support the above view. Therefore, we do not find any merit in the last contention of the learned counsel for the petitioners. 25.. In the result and for the foregoing reasons, we uphold the constitutional validity of sub-rule (5-A) of rule 17 of APGST Rules, as inserted by way of amendment vide G.O. Ms. No. 816, Revenue (CT. II) Department dated November 15, 2000 and dismiss the writ petitions with no order as to costs. Writ petition dismissed.
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2001 (11) TMI 983 - MADHYA PRADESH HIGH COURT
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... ... ..... e power to check the goods in transit and if necessary to seize it. Such power is conferred on the authorities-check-post officer under section 29-A(8) of the Act. In their opinion, it was a case falling in sub-section (a), (b) and (c) of section 29-A(8) because the documents filed by the petitioner were not found to be in conformity with the requirement and hence, a case of contravention of these sub-sections was made out empowering the check-post officer to seize the goods and impose the penalty. 8.. In my opinion, if the two authorities under the Act come to a conclusion that a case of contravention of sub-clauses (a), (b) and (c) of section 29-A(8) is made out on facts and that a discretion to impose a penalty should follow then the writ court does not find any jurisdictional error in the approach and finding of the two authorities, i.e., assessing and revisionary. 9.. As a consequence, the petition is found to be meritless. It is dismissed. No costs. Petition dismissed.
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2001 (11) TMI 982 - MADHYA PRADESH HIGH COURT
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... ... ..... e proceeding to decide the legal issue observed in para 9 Section 8(1)(a) provides for set-off or refund of tax in respect of tax-paid goods in certain circumstances. In the instant case there is no dispute that the applicant purchased goods in the shape of raw materials at full rate of tax . In the face of this admitted position, the applicant was entitled to set-off in terms of section 8(1)(a) of the Act. Such a facility and concession cannot be denied on the supposed grounds that such a assessee could have purchased tax-free goods as raw materials in view of the later notification. The reasonings and the grounds contained in the orders passed by the Tribunal do not appear to be correct and sound. 13.. In the present case the position is just the reverse. 14.. I, therefore, do not find any merit in the writ as the view taken by two authorities was perfectly legal and proper. It did not call for any interference. The petition thus fails and is dismissed. Petition dismissed.
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2001 (11) TMI 981 - MADRAS HIGH COURT
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... ... ..... ng been treated uniformly and all of them having been given the same benefits. There has been no hostile discrimination against the petitioner. 18.. Reference was made by counsel to the decision of the apex Court in Choksi Tube Company Ltd. v. Union of India reported in (1998) 77 ECR 88 (SC). In that case, the Supreme Court held that where the customs authority had exercised discretion in favour of one importer but had refused to grant a similar benefit to another importer and the Government had made no attempt to file counteraffidavit in the Supreme Court to defend their case, and no reason was forthcoming to justify the difference in treatment, exemption should be granted to the petitioner in that case as well. The ratio of that decision is not attracted to the facts of this case. 19.. We do not, therefore, find any merit in this petition. The Special Taxation Tribunal has rightly rejected the claim of the petitioner. The writ petition is dismissed. Writ petition dismissed
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2001 (11) TMI 980 - MADHYA PRADESH HIGH COURT
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... ... ..... o oppose the writ. The State has not denied any of the averments of the writ and hence, the petitioner is entitled for writ. When a decision is taken to grant the benefit, by a competent authority, when it is informed to the petitioner, when it is not then withdrawn, then I fail to appreciate the working of the State in not allowing a person concerned to enjoy the benefit. Even in this Court, the State had no reply except to say that due to pendency of some cases (not even in relation to petitioner), the implementation was deferred. It is in my view no defence. 7.. Petition, thus, succeeds and is allowed. A writ of mandamus is issued against the respondents to issue necessary eligibility certificate in favour of the petitioner on the basis of decision taken by the State Level Committee in its meeting on March 11, 1998 and communicated to the petitioner on June 16, 1998. Let the certificate be issued within three months from the date of this order. No costs. Petition allowed.
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