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Case Laws
Showing 81 to 100 of 530 Records
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2002 (4) TMI 921 - MADRAS HIGH COURT
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... ... ..... hat it is appropriate to remit that part of the turnover to the Appellate Tribunal so as to record a finding as to whether a brine manufactured by the assessee would come within the entry 10 of the Third Schedule to PGST Act after discussing the contentions raised on behalf of either parties and applying the decision cited by them. 12.. For the foregoing reasons, we are disposing the revision as above stated by deciding the first question of law in favour of the assessee and against the revenue. In respect of the second question of law, the conclusion arrived at by the Appellate Tribunal is set aside and the matter is remitted back to the Appellate Tribunal with a direction to consider the contentions raised by the parties and also apply the decision cited by them and record a clear finding as to whether the brine manufactured by the respondent would encompass within the entry 10 of the Third Schedule to the Act, which is enumerated as a salt . No costs. Ordered accordingly.
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2002 (4) TMI 920 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... the fact that the order of respondent No. 1 does not disclose any basis on which he made his valuation. It does not give any basis on which market price was found. We do not know what were the amount of freight, profit, etc. No basis or supporting material for determination of value or the quality of the goods has been indicated by respondent No. 1. So even otherwise also, it is not a fit case where penalty should have at all been imposed. 7.. Accordingly we hold that the application should be and is allowed. It is ordered that the seizure dated February 3, 2001 and the order dated February 12, 2001 imposing penalty by respondent No. 1 and subsequent orders dated February 24, 2001 and March 15, 2001 of respondent Nos. 2 and 3 respectively in revision upholding the penalty and seizure are liable to be quashed and are quashed. The penalty amount, if any, be paid within a fortnight. The goods seized be released. D. BHATTACHARYYA (Technical Member).I agree. Application allowed.
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2002 (4) TMI 919 - KERALA HIGH COURT
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... ... ..... of the Rules as the assessing officer has necessarily to issue notice and any demand over and above the tax shown as due in the return should be made after making provisional or regular assessment and after issuing notice to the assessee and after hearing his objections. However, in this case I do not think there is any need to direct the officer to make an assessment because the issue is only a matter of application of section 5D to the assessee. As the case was contested on merits before me and I have decided the issue in this O.P. there is no need for remanding the matter to the assessing officer for making an assessment. In the circumstances, it is declared that the assessee is liable to pay additional sales tax under section 5D on the tax paid at compounded rate and demand vide exhibits P2 and P3 are in order and hence are sustained. The original petition is accordingly dismissed. Order on C.M.P. No. 60219 of 2001 in O.P. No. 36819 of 2001 dismissed. Petition dismissed.
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2002 (4) TMI 918 - SUPREME COURT
Which authority has the power to pass order for interim release of the forest produce seized under the Karnataka Forest Act, 1963?
Held that:- The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The necessary corollary of such provisions is that in a case where the Authorised Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/ release of the seized materials under the Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorised Officer under the Act and if he finds that such power is vested in the Authorised Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case it is the Authorised Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis. Appeal allowed.
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2002 (4) TMI 917 - ALLAHABAD HIGH COURT
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... ... ..... Rs. 7,500 and whereafter the seized goods had been released, hence the second appeal was not maintainable. The finding recorded by the Tribunal, therefore, cannot be taken to be binding as second appeal has been held to be not maintainable. This revision is also misconceived. 8.. I find force in the contention of the learned counsel for the petitioner accordingly the order dated December 26, 2001 passed by learned Tribunal is liable to be set aside and the same is hereby set aside however it is observed that the propriety and validity of the seizure has to be looked into the penalty proceedings and any observations made by the authorities below are not binding. The proceedings for the levy of penalty are independent proceedings and both the sides have fresh opportunity of proving their respective cases. Therefore, the orders passed in the seizure proceedings can not be conclusive. 9.. The revisions are allowed and the questions are answered affirmatively. Petitions allowed.
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2002 (4) TMI 916 - ALLAHABAD HIGH COURT
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... ... ..... on the goods in transaction in question, therefore, it is necessary that the assessing officer is treated to have power to give waiver but for that he has to obey and observe the formalities and requirement of circular dated January 15, 1988 and therefore, view taken on March 5, 1998 by the learned Tribunal is likely to be set aside. Therefore, the order dated March 5, 1998 is set aside and the matter is relegated to the assessee to verify and obtain the required information and obtain certificate if necessary as required under circular dated January 15, 1988 to extend the benefit to the applicant-revisionist accordingly. In these terms, the question of law is dealt accordingly. 9.. A certified copy of this order shall be given to the learned counsel for the applicant who may produce the same to the concerned authority. The assessing authority shall proceed with co-operation of the applicant-revisionist to expedite the matter preferably within four months. Petition allowed.
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2002 (4) TMI 915 - KARNATAKA HIGH COURT
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... ... ..... e petitioner had voluntarily paid the penalty. The authorities, who are conferred with the statutory and quasi-judicial powers, it is needless to point out that they are required to strictly comply with the requirement of law. The absence of it would result in totally arbitrary exercise of power. However, in the affidavit filed by the third respondent he has expressed his regrets for the procedural irregularities committed by him and for not passing an order under sub-section (4) of section 28A of the Act before collecting penalty. 6.. In the light of the discussion made above, I make the following ORDER The third respondent is directed to refund a sum of Rs. 3,000 collected from the petitioner by way of penalty within two weeks from today. 7.. In terms stated above, this petition is disposed of. However, no order is made as to costs. 8.. Sri T.K. Vedamurthy, learned Government Pleader is given four weeks time to file his memo of appearance. Petition disposed of accordingly.
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2002 (4) TMI 914 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... ary 27, 2001, no appeal has been preferred. The reason stated by the appellants that bona fidely believing the assurance given by the first respondent, the petitioner had also not filed any second appeal cannot be accepted and the original order of the Appellate Assistant Commissioner has become final. 5.. The Appellate Assistant Commissioner discussed the facts of the case as well as the action of the assessing officer in adopting the formula and held that formula is well within the purview of the law. We find no illegality in the order of the Appellate Assistant Commissioner warranting any interference and hence we dismiss the original petition accordingly. 6.. As the main original petition is disposed of, the O.M.P. does 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 29th day of April, 2002. Petitions dismissed.
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2002 (4) TMI 913 - RAJASTHAN HIGH COURT
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... ... ..... is case is squarely governed by the principle enunciated by this Court in Devarsa Gas Chem Private Ltd. v. Rajasthan Taxation Tribunal (2001) 25 Tax World 234, wherein the court referring to the decision of the apex Court in Union of India v. Delhi Cloth and General Mills Co. Ltd. AIR 1963 SC 791 held that the process which is necessary to bring the goods at the stage of marketability must be held to be a manufacturing activity. It was further held that to become goods an article must be something which can ordinarily come to the market to be bought and sold. 6.. Applying the above test to the facts of the present case, it cannot be denied that the process employed by the dealer falls within the manufacturing activity. In this view of the matter, the refusal of sanction of incentives to the unit of the respondent-assessee by the District Level Screening Committee cannot be sustained. In this view of the matter, this revision fails and is hereby dismissed. Petition dismissed.
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2002 (4) TMI 912 - SUPREME COURT
Whether there were violation of the mandatory provisions?
Held that:- In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW1) asking the accused "whether I should search him in the presence of senior officers or Gazetted officer". The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate.
We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment. Appeal allowed.
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2002 (4) TMI 911 - CALCUTTA HIGH COURT
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... ... ..... en supplied to the petitioner in the course of hearing. But such representation is to be submitted within two weeks of receiving the notice. (ii) The petitioner must disclose all materials which have been disclosed in the writ petition before the concerned authorities. (iii) Similarly, a chance is given to the respondents to produce relevant materials in support of their contentions. The authorities will not rely on any undisclosed materials in the course of hearing. (iv) Such hearing should be concluded quickly so that the authorities could pass the order within three months from the commencement of hearing. The authority must deal with all the materials produced before him on merits and pass a speaking order. 29.. The writ petition is, thus, allowed to the extent indicated above. 30.. There will be, however, no order as to costs. Later 31.. Xerox certified copy of this judgment and order be made available to the parties expeditiously, if applied for. Writ petition allowed.
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2002 (4) TMI 910 - RAJASTHAN HIGH COURT
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... ... ..... necessarily harassed. If, in a given case, it is found that the provision has been misused by the authority, sufficient safeguards are provided under the statute and the Constitution. But a statutory provision cannot be struck down only on apprehensions or hypothetical grounds. Thus, we hold the entire provisions of section 78 of the Act intra vires of the Constitution. 14.. We are not entering into the merits of the case in view of the efficacious alternate statutory remedy available under the Rajasthan Sales Tax Act. The petitioners are relegated to such remedy. 15.. Consequently, we find no merit in all the three writ petitions and they are dismissed. Keeping in view peculiar facts of the case, we direct that in case, any of the petitioners files appeal within a period of two weeks from today, the appellate authority shall entertain the same without objection to limitation and insistence on depositing 10 per cent pre-deposit. No order as to costs. Writ petitions dismissed.
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2002 (4) TMI 909 - ANDHRA PRADESH HIGH COURT
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... ... ..... at ground, we set aside the order impugned and remit the matter to the registering authority, who impose penalty of more than Rs. 12 lakhs exercising powers under section 10-A(1) of the Central Sales Tax Act, 1956. The petitioner is entitled to place all the relevant material and decisions of the courts in support of its claim before the authority. The authority, after giving a reasonable opportunity of being heard to the petitioner, shall take appropriate decision. We also make it clear that the petitioner need not wait for any further notice from the appropriate authority. The petitioner shall appear before the appropriate authority, who has passed the order impugned, on April 15, 2002 around 10.30 a.m. and place all the relevant material and then, the authority shall decide the matter according to law on merits, after affording a reasonable opportunity of being heard, to the petitioner. 10.. The writ petition is accordingly allowed. No costs. Petition allowed accordingly.
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2002 (4) TMI 908 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... been paid . The provision is comprehensive. It provides for the deposit in case of an appeal against any order. It does not exclude an order passed by the revisional authority in the exercise of suo motu jurisdiction. 9.. Mr. Dogra submits that in the proviso the expression used is tax assessed . Thus, an order passed by the revisional authority cannot be said to fall within the ambit of section 39(5). Even this contention is misconceived. When a revisional authority passes an order, it assesses the liability of the dealer with regard to the payment of tax. The demand is for the tax assessed . 10.. Mr. Dogra submits that the documents produced before the Tribunal have not been considered. 11.. We have perused these documents. These do not show that the petitioner was not in a position to pay on the crucial date. 12.. No other point has been raised. 13.. In view of the above, we find no merit in this writ petition. It is, consequently, dismissed in limine. Petition dismissed.
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2002 (4) TMI 907 - KERALA HIGH COURT
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... ... ..... substantiate that they are entitled to exemption, then of course the hearing has a meaning. However, in this case, as already stated, the admission of the petitioners themselves that what they were selling as mineral water was not mineral water, but was only drinking water which is evident from the present change of name to drinking water, would disentitle the petitioners for exemption. Therefore, the denial of opportunity before withdrawing the exemption already granted does not affect its validity. Further, one of the petitioners canvassed for the proposition that bottles are manufactured by the petitioners, and therefore, they are entitled to exemption at least on bottles. I do not think this has any relevance. The exemption is claimed on the item sold in the containers and so long as there is no sale of the bottles manufactured independently they are not entitled to any exemption on the same. In the circumstances, the original petitions are dismissed. Petitions dismissed.
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2002 (4) TMI 906 - KERALA HIGH COURT
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... ... ..... ted to the extent of Rs. 1,10,000 as agreed under exhibit P1 is accepted. In the circumstances, there will be a direction to respondents 1 to 3 to recover the amount of Rs. 1,10,000 from both petitioners and the department is free to proceed against the defaulter or the defaulter s property for any liability over and above the amount secured by exhibit P1 bond. It is seen that the petitioners have not made the defaulter a party in this case, though the petitioners jointly executed exhibit P1 surety bond in form No. 6 before the first respondent. Therefore, I find the petitioners are not entitled to any more relief than limiting the extent of liability to the amount guaranteed under exhibit P1, i.e., Rs. 1,10,000. The respondents are free to investigate whereabouts of the defaulter and proceed against her properties for recovery of the balance arrears. O.P. is disposed of as above. Order on C.M.P. No. 47233 of 2001 in O.P. No. 29033 of 2001(F) dismissed. Petition disposed of.
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2002 (4) TMI 905 - GUJARAT HIGH COURT
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... ... ..... sion in Viswa and Co. v. State of Gujarat 1966 17 STC 581 was again cited with approval by the Supreme Court in the case of D. Shivanna v. State of Karnataka, 2000 120 STC 258 (Kar). What is necessary is that such article must be of a kind which is generally used for household purpose and if that test is applied in the present case, there is no doubt that the article in question, namely, electrocom juicer, blender and grinder is a domestic electrical appliance. 10.. In the above view of the matter, we hold that the Tribunal was right in holding that the article electrocom juicer is a domestic electrical appliance covered by entry 92 in Schedule II, Part A to the Gujarat Sales Tax Act, 1969 and that it would not be covered by entry 16(1) in Schedule II, Part A to the said Act. Both the questions are, therefore, answered in the affirmative in favour of the Revenue and the reference stands disposed of accordingly with no order as to costs. Reference answered in the affirmative.
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2002 (4) TMI 904 - KERALA HIGH COURT
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... ... ..... ar. Therefore I see no ground to invalidate the explanation to the notification. Therefore the original petitions are dismissed. Order on C.M.P. Nos. 18807 of 2000 and 17410 of 2001 in O.P. No. 11405 of 2000 dismissed. Order on C.M.P. No. 48062 of 2001 in O.P. No. 29562 of 2001 dismissed. Order on C.M.P. No. 4606 of 2001 in O.P. No. 2774 of 2001 dismissed. Order on C.M.P. Nos. 26248, 59511 and 61531 of 2001 in O.P. No. 16548 of 2001 dismissed. Order on C.M.P. Nos. 26291, 59510 and 61565 of 2001 in O.P. No. 16591 of 2001 dismissed. Order on C.M.P. No. 43695 of 1999 in O.P. No. 25907 of 1999 dismissed. Order on C.M.P. No. 452 in O.P. No. 305 of 2000 dismissed. Order on C.M.P. Nos. 1870 and 15557 of 2000 in O.P. No. 1180 of 2000 dismissed. Order on C.M.P. No. 45777 of 2000 in O.P. No. 27247 of 2000 dismissed. Order on C.M.P. No. 48326 of 2000 in O.P. No. 28639 of 2000 dismissed. Order on C.M.P. No. 53103 of 2000 in O.P. No. 31253 of 2000 dismissed. Original petitions dismissed.
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2002 (4) TMI 903 - KERALA HIGH COURT
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... ... ..... benefits available to them under the notification. Probably the items purchased are not for use in manufacture and therefore they may run the risk of penalty if the declarations are issued as claimed by the petitioner. At least there may be a doubt in the minds of the buyers as to their eligibility to issue declarations for the transaction. Therefore, the petitioners cannot compel such unwilling parties to issue declarations and run the risk of penalty. In the circumstances and in view of want of provision for issuing declarations in the contract between the parties, I do not think that the petitioner is entitled to, as a matter of right, claim concessional rate on sales to the purchasers. Moreover, as already found, when full rate of tax is loaded in the contract price, the petitioner will be unjustly enriched by concessional rate because there is a deemed collection at full rate of tax, when agreed price is collected. The original petition is dismissed. Petition dismissed.
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2002 (4) TMI 902 - RAJASTHAN HIGH COURT
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... ... ..... ther been brought to my notice that in a later circular issued by the very same authority, tools, zigs, dyes and moulds which come along with machine, have been included in the eligible fixed capital investment. Apparently, it appears to be a vacillating view on the part of the Industries Department to classify the moulds which are essential for the purpose of bringing out production to be treated as part of the fixed plant and machinery or to be treated merely as chattels. 5.. As the department itself had accepted in its later circular to include the cost of moulds testing equipments in the eligible fixed capital investment and the respondent has already been allowed to avail of the benefit in respect of such investment by amending the eligibility certificate to that extent, no interference is called for in these revision petitions and the order passed by the Tax Board. 6.. Accordingly, these revision petitions are dismissed, with no orders as to costs. Petitions dismissed.
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