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Showing 81 to 100 of 646 Records
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2005 (9) TMI 616
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... ... ..... xemption has been granted under the earlier notification in respect of the unexpired period of tax holiday. When an exemption has been granted pursuant to a special notification meant for the newly set up industries alone granting five years 39 tax holiday subject to the conditions mentioned therein, the same can be said to have created a right as was held in the decision of Health Guard Laboratories WPTT No. 2 of 1999 disposed of on May 12, 1999 - Calcutta High Court which cannot be affected by reason of a subsequent amendment and the notification which are of general application. For all these reasons though we appreciate the argument made by Mr. Gupta, yet we are unable to persuade ourselves to agree with him. In the circumstances, the appeal fails and is hereby dismissed. The order of the learned single judge is hereby affirmed. There will be no order as to costs. Let urgent xerox certified copy of this judgment and order be given to the parties, if applied for the same.
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2005 (9) TMI 615
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... ... ..... cannot be sustained. In view of the finding as above the order of penalty also cannot be sustained. So, both the points are decided in favour of the petitioner. But we are not inclined to pass an order of refund of the amount of Rs. 8,100 to the petitioner as prayed in prayer (b) of the application. The transporter having admittedly paid the amount in the Government Exchequer, it is the transporter alone who will be entitled to get the amount by way of refund. The petitioner may, if it so thinks fit, take up the matter or settle the matter with his transporter. In view of our finding as above, we allow the application. The order dated April 19, 2001 of seizure and the order dated April 26, 2001 of penalty being unlawful are quashed. Respondent No. 1 is directed to make the refund of the penalty amount to the transporter. The petitioner is at liberty to mutually settle the matter with its transporter. There is no order as to costs. B.K. MAJUMAR (Technical Member). - I agree.
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2005 (9) TMI 614
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... ... ..... proceedings, but, however, in order to protect the interests of the department, directed the respondent-dealer to pay advance sales tax on estimated turnover of the goods at Rs. 60 lakhs. Though the Departmental Member differed with the Chairman, but the third Member, to whom the matter was referred, agreed with the view of the Chairman, and in fact, the third member in categorical terms, recorded his findings that there were no circumstances for the competent authority to initiate proceedings under section 28A of the Act. Therefore, from the majority view of the Tribunal, it is clear that categorical findings have been recorded and that the material does not show that the case would attract the provision of section 28A of the Act. The said factual findings recorded does not call for any interference by this court exercising the revisional jurisdiction. Under the above circumstances, the tax revision case fails, and the same is, accordingly, dismissed. No order as to costs.
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2005 (9) TMI 613
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... ... ..... precisely for this purpose the show cause notice had been issued. A writ in the nature of a declaration for invalidating the statutory provisions on the premise that it is unconstitutional will not be issued for the mere asking. The exercise will not be undertaken until and unless the person is really aggrieved and makes good the argument in terms of the legal and constitutional provisions. A declaration cannot be issued by this court in the present case as the petitioner has not made good the argument on the factual position, i.e., the collections had exceeded Rs. 70 crores at a particular point of time, particularly at any time during the year 1998-1999. The mere plea or submission cannot be accepted for the purpose of the declaration sought for by the petitioner. Therefore, a declaration cannot be issued and the consequential relief to quash the show cause notice through a writ of certiorari as prayed for cannot be granted. In the result, this writ petition is dismissed.
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2005 (9) TMI 612
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... ... ..... f Tamil Nadu 2004 134 STC 473. As already stated, nearly two decades have passed and the petitioner has approached the Supreme Court more than once, the assessing officer is hereby directed to re-do the assessment as expeditiously as possible by giving reasonable opportunity to the petitioner, so as to avoid any unnecessary further litigation. The petitioner is also directed to co-operate with the assessing officer to conclude the issue as expeditiously as possible. As the issue is still alive on remittal before the assessing officer and the relief of certiorari has been granted, there is no need to consider the alternative relief sought for by way of mandamus in the above writ petitions. All the writ petitions filed seeking the relief of mandamus have thus been dismissed as not arising for consideration in the above-stated factual situation of the case. Accordingly, the writ petitions are disposed of. No costs. Consequently, the connected W.P.M.Ps. and W.V.M. Ps are closed.
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2005 (9) TMI 611
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... ... ..... rovisions as unconstitutional or to read it down in a manner as is sought for on behalf of the petitioners. For the very reason, the reliance placed by Mr. Prasad, learned counsel for some of the petitioners, on the decision of this court in ITC Ltd., Kolkata v. State of Karnataka reported in 2005 4 KLJ 359 is also not of much assistance as there is no question of levy being either unambiguous in creating the charge or the levy under the charging section failing for uncertainty or ambiguity. In the circumstances, the challenge to the validity of the provisions of the Act as amended by Act No. 5 of 2000 on the ground that it is unconstitutional fails and the writ petitions are hereby dismissed. Before parting, I would like to place on record my appreciation for the valuable assistance rendered by Sri R.V. Prasad and Sri Narayana, learned counsels appearing for the petitioners and Sri Vedamurthy, learned Government Pleader appearing for the respondents in these writ petitions.
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2005 (9) TMI 610
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... ... ..... e Commissioner of Commercial Taxes, Assam, had challenged the conclusion of the High Court to the effect that unless the value of the containers is shown separately the same could not be exigible to tax. The apex court answered the question by holding that whether the value of the containers would be exigible to tax or not would depend on the existence of an express or implied agreement for sale of the containers. It is the aforesaid conclusion of the High Court that was interfered with by the apex court with the finding as mentioned above. It is, therefore, difficult to see as to how the said decision can be of any assistance to the Revenue in view of the question involved in the present case. In view of the foregoing discussions and for the reasons assigned, I am of the view that this writ petition has to be allowed. It is accordingly allowed. The impugned assessment orders for the periods in question as well as the revisional order dated July 11, 1998 is hereby set aside.
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2005 (9) TMI 609
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... ... ..... the pre-seizure report and the order of seizure, there is no such story. Moreover in this case, the officer came to know on perusal of the documents submitted that the vehicle had been moving from Haldia and the destination was at Siliguri. Thus, in this case, the documents reflected the required information for satisfaction of the officer concerned that the consignment of goods has been despatched from any place in West Bengal having destination in West Bengal. Accordingly, we hold that this is a case where, as per the proviso clause mentioned before, the concerned authority should have dispensed with the requirement of declaration. Regard being had to the fact and the circumstances of the case and point of law as discussed, we hold that the order of seizure in this case cannot be sustained. The consequent order of penalty also, as such, cannot stand. The petitioner is entitled to get the refund of the said amount paid as penalty within a period of one month from this date.
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2005 (9) TMI 608
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... ... ..... for consideration of which a direction could have been issued by this court. The position is not any different as of now. When a request for refund came to be rejected by endorsement dated May 9, 1991 more than 14 years ago, there is no question of this court issuing direction to the assessing authority to reopen the concluded assessment orders for the years in question concluded in the year 1988, to re-open at this point of time, particularly, for grant of refund, etc. There is no refund in favour of the petitioner, as a consequence of passing of any orders reducing the tax liability of the petitioner and therefore assuming that the petitioner has made yet another application for refund, no mandamus can be issued to the respondents to direct them to consider the present application of the petitioner for such refund. The submissions of the learned counsel for the petitioner are not tenable, not acceptable and are hereby rejected. Accordingly, the writ petition is dismissed.
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2005 (9) TMI 607
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... ... ..... anufactured goods sold under the brand name Cryptms . We are therefore in agreement with the reasoning of the authorities below. Assessee also raised a contention that the tax payable by the brand name holder should have been reduced by the amount of tax paid at such previous point of sale as provided in rule 32(13B) of the KGST Rules, 1963. Rule 32(13B) provides that where for any reason the goods sold by the trade mark holder or brand name holder had suffered tax at the hands of the dealer who sold the goods to such trade mark or brand name holder, the tax payable by the trade mark or brand name holder on the sale of such goods shall be reduced by the amount of tax paid at such previous point of sale. Tribunal had already directed the assessing officer to examine the above claim. Therefore no further direction is necessary on that count. In view of the abovementioned circumstance we find no merit in the revision petitions. Both the revision petitions would stand dismissed.
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2005 (9) TMI 606
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... ... ..... thereof, the petitioner had chosen to file the present petition and to the extent, the petitioner has succeeded in the present writ petition and the interpretation of section 5A being one as urged by the petitioner and as held now by this court, the petitioner should be definitely given the benefit of the same by according appropriate relief. Submission of Sri Vedamurthy, learned Government Pleader, is that while the period for filing the appeal has already expired, there is still scope for correcting the order by way of rectification by the authorities as the order can be rectified. However, it is open to the petitioner to seek such relief as the petitioner becomes entitled in law in terms of this order and on the interpretation placed on section 5A of the Act. The authorities are bound to take note of the interpretation as placed on section 5A in this order and extend such benefit to which the petitioner becomes entitled to in law. Writ petition is disposed of accordingly.
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2005 (9) TMI 605
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... ... ..... r it was rendered in the light of the law laid down by the Supreme Court in aforementioned cases. It is for this reason, I find it difficult, rather not proper, to embark upon the factual inquiry based upon the documents for deciding the question of liability and remand the case to the revisionary authority. Accordingly and in view of aforesaid discussion, the petition succeeds and is allowed. The impugned order, dated March 10, 1998 (annexure P7), passed by the Additional Commissioner, Commercial Tax, Indore, in Revision No. 197/Indore/9/Prantiya is set aside/quashed by writ of certiorari. The case is remanded to revisionary authority, i.e., Upper Commissioner, Commercial Tax, Indore, for again deciding Revision No. 197/Indore/9/ Prantiya after affording an opportunity of hearing to the petitioner and to all those parties who are likely to be affected as he may deem fit within 6 months strictly in accordance with law and keeping in view the aforesaid observations. No costs.
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2005 (9) TMI 604
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... ... ..... e notification is in no way in variance or contrary with the industrial policy for the years 1993-1998. Therefore, we cannot accept the submissions made by Sri Keshava Murthy, learned counsel for petitioners on this point. In our view, none of the decisions on which reliance was placed by the learned counsel for petitioners would assist him in any manner, since the fact-situation and the question of law decided in those cases are entirely different from the one which has come up for our consideration. In view of the aforesaid conclusion of ours, if for any reason, the assessing authority has levied purchase tax on the purchase turnover of the petitioners, we cannot take any exception to the same, since the petitioners are not entitled to the benefit under the notification issued by the State Government dated August 28, 1993. Accordingly, writ petitions are rejected. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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2005 (9) TMI 603
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... ... ..... at Transport Carrier, Gwalior v.Commissioner of Trade Tax reported in 2006 143 STC 493 2003 UPTC 1218. In view of the facts and circumstances of the case stated above, in my view, the seizure of the goods and denial to issue transit pass is arbitrary and illegal and has caused harassment and pecuniary loss. Therefore, the Check-post Officer is liable for exemplary costs which is assessed to Rs. 10,000 (rupees ten thousand only). It is also open to the opposite party to claim the damages before the appropriate forum for the loss suffered due to illegal seizure, in accordance with law. In the result, revision fails, and is, accordingly, dismissed. The exemplary cost which is assessed to Rs.10,000 (rupees ten thousand) is only payable by the Check-post Officer who has seized the goods, to the opposite party, which is directed to be paid within fifteen days. The Check-post Officer is directed to issue transit pass forthwith in accordance with the direction given by the Tribunal.
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2005 (9) TMI 602
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... ... ..... ct of multifilament yarn. Considered the argument of both sides. As HDPE fabric is not liable to payment of tax, it is evident that the amount of penalty imposed taking into account the value of the same is bad in law and, accordingly, the imposition of penalty is set aside. Regarding imposition of penalty on the multifilament yarn, we direct that the matter should be remanded back to respondent No.1, Assistant Commissioner of Commercial Taxes, Howrah Range, for reconsideration and, hence, it is remanded back to him for reconsideration taking into account the views expressed above. As the goods seized were released on furnishing security of Rs.1,00,000 - 50 per cent of which in cash and 50 per cent in the bank guarantee, it is hereby directed that the bank guarantee be released forthwith and cash security be adjusted against the penalty to be imposed by respondent No.1, if there be any. The case is thus disposed of without any order as to costs. P.K.SEN (Chairman) - I agree.
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2005 (9) TMI 601
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... ... ..... the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. 28.. In this case also the decision was rendered without taking into consideration of the relevant provisions of the statute which were obtaining at the time of deciding the case. With great respect to the learned judge, I am not able to follow the judgment as it comes within the meaning of per incuriam. For the very same reasons, I am of the view that the matter need not be referred to a larger Bench. 29. In the result, the writ petition fails and the same is dismissed. Consequently, the connected W.P.M.P. is also dismissed. No costs. Writ petition dismissed.
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2005 (9) TMI 600
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... ... ..... so record the reasons, if the explanation for any reason is not acceptable to it. Such bald and cryptic orders, as the one under challenge, do not inspire any confidence and they cannot be treated as orders passed in bona fide exercise of the powers. The court has no option except to interfere with such cryptic and laconic orders and we accordingly interfere with the impugned order. 8.. Accordingly, the impugned order is set aside. There shall be a direction to the respondents to consider the contents of the explanation submitted by the petitioner and pass a speaking and reasoned order, in accordance with law, and communicate the same to the petitioner. There shall be an order accordingly. 9.. The writ petition is accordingly allowed without any order as to costs. 10.. That rule nisi has been made absolute as above. Witness the honourable Sri Bilal Nazki, the Acting Chief Justice on this Monday, the twenty-sixth day of September, two thousand and five. Writ petition allowed.
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2005 (9) TMI 599
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... ... ..... turnover representing the bottles at the rates provided in the First Schedule to the Act. But, the turnover relating to cartons is to be taxed as secondary packing material at the rate provided in the First Schedule to the Act in the light of the decisions of this Court referred to earlier. 29.. In view of the above, the dealers are not entitled to any relief in the special appeals as well as tax revision cases to the extent of the bottles, but, however, they are entitled to the relief in respect of the cartons. 30.. The special appeals and tax revision cases, are accordingly disposed of. 31.. The Writ Petition No. 21392 of 2001, is filed seeking stay of collection of tax pending disposal of T.R.C. Nos. 6, 7 and 9 of 1998 filed by M/s. Mohan Breweries and Distilleries. As these tax revision cases are also disposed of the cause of action in the writ petition does not survive. Accordingly, the writ petition is dismissed. No costs. Appeals and petitions disposed of accordingly.
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2005 (9) TMI 598
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... ... ..... Act to instruct the concerned authorities (excluding the appellate authorities) to bring it to tax in accordance with the provisions of the Act. It is relevant herein to state that the correctness of the clarification as to exigibility to tax of the goods referred to therein and the legality of the consequential direction to the concerned authorities to bring it to tax are altogether different aspects of the matter. In other words, power to issue clarification/instruction and its correctness or legality are two different aspects. If the clarification/instruction given by the Commissioner is contrary to law, it is liable to be set aside. As in this case, the clarification given in the circular is not correct in law and consequently his instruction to bring it to tax is also bad in law. As stated above, on all other aspects, I am in respectful agreement with the conclusion reached by my learned brother. Accordingly, the appeal is allowed in terms stated by my learned brother.
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2005 (9) TMI 597
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... ... ..... fitness of things if the Commercial Taxes Department considers it with all seriousness to frame the guidelines in this regard also so that respective appeals or revisions involving small stakes do not unnecessarily burden the dockets of this Court. The sanction order for filing revision petitions at the instance of Revenue, showing application of mind by the competent authority should be filed with the memo of revision petition in this Court. For the present, this Court only considers it expedient to leave it to the best discretion of the department to frame the guidelines in this regard, for deciding the cut-off of stakes involved, for deciding whether revision petition should be filed in this Court or not. For the aforesaid reasons, the present revision petition filed by the Revenue, is dismissed. It is expected that the Commercial Taxes Department, will formulate the guidelines as discussed above, expeditiously not later than a period of two months. No order as to costs.
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