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Case Laws
Showing 81 to 100 of 608 Records
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2004 (7) TMI 626 - GAUHATI HIGH COURT
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... ... ..... knowing what is just in law). Needless to say that the discretion in general is the discernment what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution, to discern between falsity and truth, between shadow and substance, between equity and colorable glosses and pretences and not to do according to the will and private affections and ill will. It has to be done according to rules of reasons and justice, not according to the private opinion. It has to be done according to law and not humor. It is not arbitrary, vague and fanciful but legal and regular. 18.. Subject to the observations made above, the writ petition in W.P. (C) No. 2392 of 2000 stands allowed to the extent indicated above and the writ petition in W.P. (C) No. 4843 of 2000 stands disposed of. There shall be no order as to cost. W.P. (C) No. 2392 of 2000 allowed. W.P. (C) No. 4843 of 2000 disposed of.
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2004 (7) TMI 625 - MADRAS HIGH COURT
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... ... ..... ioner has a request to be made with the court that since he has made an attempt before this Court under the Constitutional provisions in filing the above writ petition, much time is lost and would crave permission to elongate the time for preferring the regular appeal before the appellate authority. Since it is a reasonable request made on the part of the learned Senior Counsel for the petitioner, the lower appellate authority is hereby directed to entertain the appeal, provided the same is preferred within thirty days from the day that this order copy is made ready. (iii) The appellate authority is further directed to consider and pass such interim orders which are necessary in the circumstances of the case even during the pendency of the appeal, if sought for, in strict observance of the law, rules and procedures. However, in the circumstances of the case, there shall be no order as to costs. Consequently, W.P.M.P. No. 30 of 2004 is also dismissed. Writ petition dismissed.
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2004 (7) TMI 624 - PATNA HIGH COURT
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... ... ..... al Procedure enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time-barred thereby perpetuating the illegality and miscarriage of justice. 11.. In our view, once it comes to the knowledge of the Commissioner from any source about any illegality with regard to any order passed by any other authority appointed under section 9, the Commissioner may exercise power of suo motu under section 46(4) of the Act and pass appropriate order. 12.. In our view, in exercise of power under section 46(4) of the Act, the Commissioner has power to satisfy himself as to the legality or propriety of the assessment order even though the matter was pending before him for counter-signing of the refund matter. 13.. Accordingly, the answer to the question is decided against the assessee. 14.. The reference is answered, accordingly. Reference answered accordingly.
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2004 (7) TMI 623 - KARNATAKA HIGH COURT
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... ... ..... petitioner is liable to succeed and accordingly, the writ petition filed by the petitioner stands disposed of with the following directions (i) The writ petition filed by the petitioner is allowed. (ii) The auction notification dated February 6, 2002 bearing No. TAX BKL. CR 9/2001-02 on the file of the second respondent vide annexure A and the confirmation of auction sale dated August 9, 2002 in No. DDS Tax CR 17 2002-03 on the file of the first respondent vide annexure H are hereby set aside. (iii) Further, the alleged auction held on February 25, 2002 vide annexure B is also set aside. (iv) However, it is needless to observe that, if the third respondent makes an application to the second respondent for refund of the bid amount, deposited by her, in view of alleged auction, the second respondent shall refund the said amount immediately to the third respondent. 13. With these observations, the writ petition filed by the petitioner stands disposed of. Writ petition allowed.
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2004 (7) TMI 622 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... Commissioner of Income-tax 1987 167 ITR 542, Hansa Agencies Private Ltd. v. Commissioner of Income-tax 1988 169 ITR 322 and Suri Sons v. Commissioner of Income-tax 1988 169 ITR 320 has held that where refund had become due to the assessee on annulment of its assessment order, it was not right on the part of the Income-tax Officer to withhold the same under section 241 on the ground that further proceeding challenging such annulment was pending before the higher forum. We are, therefore, satisfied that no ground has been shown to us warranting satisfaction on the part of the respondents that issue of refund shall adversely affect the recovery at a subsequent stage. Accordingly, we are of the view that the impugned order, annexure P/5, cannot be sustained. The same is hereby quashed. The respondents are directed to issue the refund due to the petitioner along with statutory interest, if any, forthwith. The writ petition is accordingly allowed. No costs. Writ petition allowed.
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2004 (7) TMI 621 - MADRAS HIGH COURT
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... ... ..... tion has been decided by the Orissa High Court in 1988 68 STC 25 (Jayanarayan Kedarnath v. Sales Tax Officer, Cuttack I West Circle) and by the Supreme Court expressed in 1970 25 STC 74 (Addl. Assistant Commissioner of Sales Tax, Indore Region, Indore v. Firm Jagmohandas Vijay Kumar), while dealing with the similar provisions contained in respective State Sales Tax Acts. The ratio of the aforesaid decisions are applicable. 12.. For the aforesaid reasons, the writ petition is allowed and the impugned orders are quashed. It is made clear that the authorities are now required to examine the correctness of the various returns filed by the petitioners for the particular period and thereafter deal with the matter in accordance with law keeping in view the principles enunciated in (1984) 1 WLR (Suppl) 113 Sellakumar Talkies v. Board of Revenue (CT), Madras and (1964) 1 MLJ 394 (Kamalammal v. Board of Revenue by the Commissioner of Commercial Taxes). No costs. Writ petition allowed.
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2004 (7) TMI 620 - DELHI HIGH COURT
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... ... ..... ght was absent. In cases where such a negative is not made out by the dealer - and in India, by and large, the practice does not prohibit carrying home - exigibility is not repelled. 5.. In the present case, the assessee is selling the goods or eatables, food or drink, and, as such, there is no question of supply of package of services. We may point out that while the Railway charging a fare with food would be covered within the meaning of the package of service and in such a situation the levying of sales tax would not be in issue. Here the question is quite different. Our attention is not drawn to any provision making it mandatory for the Railways to provide such facilities for the passengers and the case has not been argued on that basis. 6.. Therefore, we are of the opinion that, considering the material which is placed on record, selling of food stuffs, etc., by the assessee amounted to sale. The references are disposed of accordingly. Reference disposed of accordingly.
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2004 (7) TMI 619 - RAJASTHAN HIGH COURT
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... ... ..... Mahaveer Chand Jain and Company 2000 120 STC 212 held that on the expiry date, the form ST-18A does not become non est but very same form can be validated and given life for a further period by the concerned officer. In that case, this Court further held that the Deputy Commissioner (Appeals) as well as the Tax Board were justified in drawing conclusion about want of mens rea to evade or avoid payment of tax on the part of the respondent-dealer and in not sustaining the penalty levied by the assessing officer. 9.. In view of the law laid down by this Court in the case of Mahaveer Chand Jain and Company 2000 120 STC 212, the aforesaid substantial questions of law are answered in favour of the respondentdealer and against the revenue. 10.. Thus, there is no force in this revision petition and the same is liable to be dismissed. Accordingly, this revision petition filed by the petitioner-Assistant Commercial Taxes Officer is dismissed. No order as to costs. Petition dismissed.
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2004 (7) TMI 618 - MADRAS HIGH COURT
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... ... ..... evisional authority after coming to a conclusion that the order passed by the appellate authority was vitiated by non-application of judicial mind, confirmed the order of the assessing authority without any further deliberation on the question as to whether there is requisite mens rea or not. Even assuming that there is mens rea, the extent of penalty to be imposed has not been considered. Since the order of the revisional authority is silent on these aspects, the order passed by the revisional authority is quashed and the matter is remanded to the revisional authority for fresh consideration. The matter shall be decided afresh in accordance with law. 5.. In the result, the writ petition is allowed and the order dated July 24, 2001 passed by the revisional authority is quashed and the matter is remanded to the revisional authority for fresh consideration. The matter may be finalised within a period of four months from the date of receipt of this order. Writ petition allowed.
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2004 (7) TMI 617 - RAJASTHAN HIGH COURT
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... ... ..... genuine, valid and correct one, therefore, in these circumstances, no mala fide intention or mens rea on the part of the respondent-dealer for avoidance or evasion of payment of tax can be inferred or gathered. Therefore, the findings of the Rajasthan Tax Board that there was no mens rea or mala fide intention on the part of the respondent to evade tax and thus, penalty imposed without establishing any mens rea on the part of the respondent was not in accordance with law, cannot be said to be erroneous or perverse one and further, they do not suffer from any basic illegality or infirmity. Hence, no interference is called for with the same. 26.. For the reasons stated above, no substantial question of law arises in this revision petition and there is no force in this revision petition and the same deserves to be dismissed. 27.. Accordingly, this revision petition, filed by the petitionerAssistant Commercial Taxes Officer is dismissed. No order as to costs. Petition dismissed.
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2004 (7) TMI 616 - RAJASTHAN HIGH COURT
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... ... ..... ecking was made, the declaration form ST-18C was not accompanied with the goods, but since other papers were found genuine, valid and correct one and further, later on, declaration form ST-18C was produced by the respondent-dealer along with the reply to the show cause notice, therefore, in these circumstances, no mala fide intention or mens rea on the part of the respondent-dealer for avoidance or evasion of payment of tax can be inferred or gathered. These findings of facts cannot be said to be erroneous or perverse one and further, they do not suffer from any basic illegality or infirmity. Hence, no interference is called for with the same. 14.. For the reasons stated above, no substantial question of law arises in this revision petition and there is no force in this revision petition and the same deserves to be dismissed. Accordingly, this revision petition, filed by the petitioner-Assistant Commercial Taxes Officer is dismissed. No order as to costs. Petition dismissed.
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2004 (7) TMI 615 - KARNATAKA HIGH COURT
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... ... ..... n otherwise to use the said name or trade mark in the context in which it is used does not mean that the dealer to whom the manufacturer sells the goods must have been a registered user as envisaged under the provisions of the Trade Marks Act. The word otherwise which finds a place in the proviso is wide enough to conceive a situation, where the dealer who purchases the goods from the manufacturer even though not as a proprietor in the true legal sense is all the same beneficiary of the said trade mark or is making use of the same with the consent of the registered owner of the trade mark. 20.. In view of the above discussions, we are of the view that the Tribunal and the authorities under the Act are justified in holding that the sale made by the petitioner-company is the first sale in the State and that it is liable to tax under proviso to section 5(3)(a) of the Act. 21.. In the result, petitions are rejected. No order as to costs. Ordered accordingly. Petitions dismissed.
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2004 (7) TMI 614 - MADHYA PRADESH HIGH COURT
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... ... ..... rued or incurred under the Repealed Act as it has been expressly saved. In the present case, the departmental authorities have found that certain deductions were erroneously allowed on the basis of the fake documents submitted by the appellant-assessee. Thus, on the basis of the wrong deduction appellant certainly incurred a liability to pay the evaded tax under the Repealed Act, therefore, the departmental authorities were justified in proceeding against the appellant under section 19 of the Act notwithstanding its repeal by the provisions of the Adhiniyam of 1994. Fraud vitiates everything. Learned single Judge has reproduced the reasons which led to the reopening of the assessment against the appellant and has dealt with this aspect extensively. In our considered opinion, no case is made out so as to warrant interference with the reasoned order passed by the learned single Judge. Accordingly, appeal fails and it is hereby dismissed. No order as to costs. Appeal dismissed.
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2004 (7) TMI 613 - ALLAHABAD HIGH COURT
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... ... ..... Act. 15.. The Supreme Court has held in the case of the Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf 1958 9 STC 747 that as section 72 of the Contract Act is applicable for the recovery of the amount paid by an assessee as sales tax, refund can be ordered on the principle of section 72 of the Contract Act, if ultimately it is found that no tax is payable by the assessee. The payment of such amount by the assessee will be the payment under mistake of law. This matter with some detail has been discussed in the case of Hari Ram Seth Khandsari v. Commissioner of Sales Tax 2005 139 STC 358 (All.) 2004 UPTC 106. 16.. The dealer apart from claiming adjustment of Rs. 36,000, the dealer deposited a further sum of Rs. 36,000 on January 7, 1987. 17.. In the result the orders of the Tribunal cannot be sustained. Both the revisions are hereby allowed by holding that on the facts of these cases, interest under section 8(1) of the Act could not be levied. Petitions allowed.
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2004 (7) TMI 612 - MADRAS HIGH COURT
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... ... ..... after obtaining the certified copies, which was done by the assessee in this case properly and the appeals were also filed within the time from the date of receipt of copy of the assessment orders. 18.. The Appellate Assistant Commissioner, as well as the Tribunal, without properly considering the correctness and the validity of service of the orders and the fact that the assessee had transferred the place of business to third party, in our opinion committed an error, as if the assessment orders were served by affixture, and therefore, the appeals filed beyond the period prescribed, from the date of affixture are barred by time, which are liable to be set aside. For the foregoing reasons, both the petitions are allowed, setting aside the orders of the Tribunal as well as the Appellate Assistant Commissioner. The Appellate Assistant Commissioner is directed to take the appeals on file according to law and dispose of the same on merit. No order as to costs. Petitions allowed.
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2004 (7) TMI 611 - ORISSA HIGH COURT
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... ... ..... we direct that the aforesaid amount of Rs. 24,78,572 will not be refunded but will be made over to the Consumer Welfare Fund of the State of Orissa by March 31, 2005. All necessary steps will be taken by the State Government to make the Consumer Welfare Fund in the State operational, if such steps have not been already taken. If necessary, amendments may also be made to the Orissa Sales Tax Act and the Rules or any other Act. The impugned orders dated May 28, 1990 passed by the Assistant Commissioner, Sales Tax, Puri Range, Puri and dated November 23, 1998 passed by the Commissioner of Sales Tax, Orissa in suo motu revision and revision respectively are modified accordingly. The writ petition is accordingly disposed of. Free copy of this judgment will be furnished to Mr. S. Ray, learned counsel for the petitioner, Mr. Ashok Mohanty, Mr. G.K. Mohanty, learned Additional Government Advocate and Mr. K.N. Jena. A.K. PARICHHA, J. - I agree. Writ petition disposed of accordingly.
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2004 (7) TMI 610 - SUPREME COURT
Whether the Agreement had not been placed before the Government of India and was thus illegal and unenforceable?
Held that:- The fact that the 2nd Respondent-company could be incorporated with the name "Baker" as part of its corporate name and the fact that 40% shareholding was given to the Appellants in the 2nd Respondent Company prima facie shows that the Agreement dated 21st December, 1984 was acted upon and accepted even by the 2nd Respondent. The minutes of the Board Meeting held on 3rd September, 1993 also prima facie shows that even on this date the Respondents accepted this Agreement to be binding.
The execution of this Agreement is not denied by the Respondents. What has been claimed is that this Agreement was not to be acted upon and/or that as this Agreement was not put before the Government of India, the Agreement was illegal and unenforceable. This argument has found favour with the Division Bench. Prima fade, it appears to us that this is a self defeating argument If the Agreement was not to be acted upon, then there is no right in the 2nd Respondent company to use the name 'Baker'. In spite of questions from this Court no other permission or licence to use the name "Baker" could be shown to us. If the Agreement is unenforceable then the entire Agreement is unenforceable. In that case the 2nd Respondent has got no right to use the name "Baker". On the reasoning that this Agreement was illegal and unenforceable the interim injunction should have been confirmed. The goods being identical there was likelihood of confusion and/or deception if the Respondents were permitted to carry on using this name.
In the above view, the order of the Division Bench would have had to be set aside and that of the learned Single Judge restored. However, we are informed that the Trial Court has fixed 16th July, 2004 as the date for trial of the suit. Parties state that they will not ask for an adjournment.
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2004 (7) TMI 609 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Immunity from interest, penalty and prosecution ... ... ... ... ..... nce amount of Rs. 5,25,623/- has to be paid within 30 days from the date of receipt of this order. (ii) Immunity from penalties on the applicant company and co-applicants proposed in the show cause notice is granted. (iii) Immunity from interest proposed in the SCN is granted in excess of simple interest 10 p.a. on the duty amount settled above. The department should calculate the simple interest payable 10 p.a. within 15 days from the date of receipt of this order and communicate to the applicant company, and the applicant company shall pay the same in the next 15 days thereafter and report compliance. (iv) Immunity from prosecution under the provisions of Central Excise Act, 1944 is also granted to all the applicants. 15. emsp All the above immunities are granted in terms of Section 32K(1) of the Central Excise Act, 1944. Attention of the main applicant and the co-applicants is drawn in this context to sub-sections (2) and (3) of Section 32K of the Central Excise Act, 1944.
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2004 (7) TMI 608 - CESTAT, MUMBAI
Discrimination - Practice - Valuation ... ... ... ... ..... gabad has added only 2 as profit margin to the assessable value and that the department has accepted the same. We are of the view that the profit margin being the same for M.S.E.B. as a single entity, different standards cannot be applied by different Commissionerates. 2. emsp Accordingly, we set aside the impugned orders and allow the appeals with the direction that only 2 towards profit margin should be added to arrive at the assessable value in respect of the impugned assessments. (Pronounced in Court)
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2004 (7) TMI 607 - CESTAT, BANGALORE
Demand and penalty - Limitation ... ... ... ... ..... to evade payment of duty. It was a bona fide belief on the part of the appellant that scrap and waste, which was recovered while manufacturing batteries, was exempt from levy of excise duty. Further, appellant was entitled to get benefit of Modvat Scheme, therefore, there was no justifiable reason for the appellant to suppress any fact. rdquo The above observation of the Apex Court is clearly applicable to the facts of this case and hence, the demands invoking larger period is required to be set aside. As there was no suppression in evading the duty, penalty under section 11AC which has been imposed along with Rule 173Q is required to be set aside. The matter has to go back to the original authority to determine the duty liability for six months period. The appellants have given their calculation of duty, which shall be examined, and duty be confirmed for six months period only. Thus, the appeal is allowed by remand on the above terms. (Pronounced in open Court on 23-7-2004.)
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