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Showing 121 to 140 of 692 Records
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2006 (7) TMI 624 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... d the High Court, we find that supplies of food, drinks and refreshments by the petitioner-clubs to their permanent members cannot be treated as deemed sales within the meaning of section 2(30) of the 1994 Act. We find that the payments made by the permanent members are not considerations and in the case of members 39 clubs the suppliers and the recipients (permanent members) are the same persons and there is no exchange of consideration. For the reasons aforesaid we accept the contention of the petitionerclubs that the supplies made to their permanent members are not sales even within the extended meaning of sale in section 2(30) of the Act of 1994 and are not exigible to taxes imposed by the Act of 1994. The applications are thus allowed. The impugned notices and orders so far as those seek to impose sales tax on the supplies made by the petitioners-members 39 clubs to their permanent members are set aside. No order as to costs. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (7) TMI 623 - KERALA HIGH COURT
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... ... ..... does not lead to the conclusion that it is not a chemical. In fact, it is common knowledge that excess chlorine escapes from water when bleaching powder is added for purification. The indication in the Schedule above makes it clear that apart from the generally known chemicals, even chemical components and mixtures not elsewhere mentioned in the Schedule are covered therein. In fact, entry 29 is a residuary entry for all chemicals except those specifically mentioned elsewhere in the First Schedule to the KGST Act. In this view of the matter, we uphold the finding of the Tribunal that the product manufactured and sold by the petitioner, namely, bleaching powder answers the description of chemical under entry 29 of the First Schedule taxable at ten per cent. However, it is open to the petitioner to claim the benefit of concessional rate, if available, for supply to organisations like Water Authority, Government Department, etc. Therefore, the tax revision cases are dismissed.
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2006 (7) TMI 622 - GAUHATI HIGH COURT
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... ... ..... t of Taxes has been designated as the Assistant Commissioner of Taxes and, hence, the notice, which has been issued, in the present case, is by an assessing authority. Even under the Assam VAT Act, 2003, the Assistant Commissioner of Taxes as well as the Superintendent of Taxes, Tinsukia, have been delegated vide notification, dated April 28, 2005, the power of assessment. The impugned show cause notice appears to be a notice for rectification of mistakes apparent from the records and the same cannot be said to be beyond the jurisdiction of the authority or suffering from any infirmity. The contention of the petitioner, on this score too, therefore, fails. The petitioner shall have the liberty to take any ground, in the reply to show cause notice, in favour of correctness and legality of the assessments, which are sought to be corrected. In the result and for the foregoing reasons, this writ petition fails and the same shall accordingly stand dismissed. No order as to costs.
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2006 (7) TMI 621 - ANDHRA PRADESH HIGH COURT
whether the decision of the Tribunal in coming to the conclusion that after the merger of the two companies, there could not have been a sale of any goods between the two companies (during the assessment years 1995-96 and 1996-97), is sustainable in law.
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2006 (7) TMI 620 - ALLAHABAD HIGH COURT
Opportunity of being heard - Notice for reassessment issued u/s 21(2) of U.P. Trade Tax Act - barred by limitation - Eligibility certificate - payment of trade tax - new unit in pursuance of the scheme of exemption notified by the State Government - claim for exemption on both items "washing soap" and "detergent" - ex parte order of assessment - HELD THAT:- The mere fact that the notice was served on the petitioner on March 30, 1993 would not cure the inherent lack of the authority of the assessing authority to issue notice without sanction of the Commissioner or the Additional Commissioner. It is also to be taken note of that it has not been brought on record nor it has been disclosed that on what date the assessing authority has sent its request for approval to the Commissioner, i.e., whether he has sent the request before issuance of the notice on March 22, 1993 or after issuance of the notice but since the approval admittedly has been granted on March 29, 1993, i.e., after issuance of the notice, it is hardly relevant as to when such a request has been made by the assessing authority.
The assessing authority, on one hand, has issued the notice u/s 21 without any authority and, on the other hand, has passed an ex parte order of reassessment though the notice was served only on March 30, 1993 upon the petitioner apparently because thereafter the matter would have become barred by limitation, after March 31, 1993.
Claim of the petitioner for exemption on both items "washing soap" and "detergent" in view of the eligibility certificate granted u/s 4-A also stands established in view of the fact that the assessing authority in his ex parte assessment on March 31, 1993 did not give benefit of such exemption to the "detergent cakes" holding that the eligibility certificate was confined only to "washing soap" the benefit of which would not extend to "detergent cake", whereas the petitioner has brought on record an order passed by the Commissioner u/s 4-A(3) of the Act which shows that the proceedings for cancellation of eligibility certificate were initiated on the same ground but the Commissioner vide his order dated September 7, 1994 found that the petitioner was entitled to exemption on both items, i.e., washing soap and detergents under the same eligibility certificate.
It is, therefore, established beyond doubt even on merits, that the assessment for the years 1984-85 and 1985-86 under the U.P. Sales Tax Act, 1948 and Central Sales Tax Act, 1956 was rightly made and there was no occasion for issuing notice u/s 21 and the issuance of notice u/s 21 was, thus, bad besides being without jurisdiction and authority, in view of the findings recorded. The subsequent proceedings taken as a result of the aforesaid notice resulting into ex parte order/assessment are also without jurisdiction and cannot be sustained.
Thus, we quash the impugned order of sanction passed by the Additional Commissioner on March 29, 1993 and also the notice issued u/s 21 dated March 22, 1993 and consequently also the ex parte assessment order dated March 31, 1993 passed on the basis of the aforesaid notice.
The writ petition is allowed.
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2006 (7) TMI 619 - KERALA HIGH COURT
Liability of service tax - receiving the consulting Engineers service - demand from the Kerala State Electricity Board - non-resident or was from outside India - HELD THAT:- We are of the considered view that as per sub-rule (1) of rule 6 as it stood prior to August 16, 2002 and going by the agreement as well as the reply to the show cause notice it is clear that the service receiver is the authorised person to meet the service tax liability. Even after the amendment of the rule with effect from August 16, 2002 agreement still holds good and the service receiver has taken up the responsibility of meeting the service tax liability. The question as to whether service provider has got an office in India is doubtful. According to the service receiver, office was being maintained in room No. 201, Vydyuthi Bhavan of the service receiver and that is as good an office within the meaning of the amended Rules and hence service receiver has no liability. We find it difficult to accept the said contention.
The mere fact that the service provider was provided with an office in the building owned by the service receiver it cannot be treated as an office or registered office of a foreign company. No materials have been produced to show that the service provider has got an independent registered office in India. In any view, going by the agreement entered into between the service provider and service receiver and also the reply made by the Board, it is evident that service tax liability is to be borne by the service receiver and not on the service provider.
Thus, we are inclined to allow this appeal and set aside the judgment of the Tribunal. The order of the assessing authority stands restored. Questions raised are answered in favour of the appellant. We are informed that the service receiver has already met the service tax liability, in our view, rightly. Appeal is allowed.
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2006 (7) TMI 618 - KARNATAKA HIGH COURT
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... ... ..... argued by the respondent. Acquittal order, at the most, may be a piece of evidence for the purpose of consideration of a case on merits. Law is also well settled that power and jurisdiction are totally different with regard to a proceeding by the tax authority and with regard to a proceeding before a criminal court. In these circumstances, we are not prepared to accept the argument that on the basis of the mere acquittal order, the Tribunal 39 s order has to be accepted as argued before us. In the result, this revision is accepted. The order of the Tribunal is set aside. The first question is answered in favour of the Revenue. The second question is not answered in the light of the remand. Parties are directed to appear before the Tribunal without waiting for any notice on July 17, 2006. The Tribunal is directed to complete the proceedings on or before December 31, 2006 without in any way being influenced by the earlier order or by this order. Ordered accordingly. No costs.
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2006 (7) TMI 617 - KARNATAKA HIGH COURT
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... ... ..... ellate Tribunal after noticing the judgment of the Supreme Court has rightly chosen to hold, in our view, against the assessee. The Appellate Tribunal has rightly, in our view, held that the assessee having voluntarily, and with the full knowledge of the features of the alternate method of taxation, opted to be governed by it, cannot be heard to question subsequently the levy of tax by the authorities. The revisional authority after noticing the option under section 17(6) and after noticing the legal error committed by the assessing authority, has rightly chosen to review the assessment order on the ground of prejudice to the Revenue of the State. The order of the revisional authority is fully backed by section 17(6) of the Act and also by the ruling of the Supreme Court. The Appellate Tribunal, on the facts of this case, is perfectly justified in confirming the revisional order. In these circumstances, this petition stands dismissed without considering the questions of law.
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2006 (7) TMI 616 - KARNATAKA HIGH COURT
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... ... ..... ilable to the petitioner to challenge the orders passed by authorities on facts. However, we must notice a judgment of the Supreme Court repeatedly read to us by the learned counsel for the petitioner in the case of Assistant Commissioner of Commercial Taxes v. Dharmendra Trading Company 1988 70 STC 59. That judgment is of no assistance in so far as the present set of facts are concerned. That was a case in which the court was considering the doctrine of promissory estoppel in the light of section 8A of the Act. That stands totally on a different footing. The exemption provided would depend upon the facts of each case. A mere exemption would not by itself come to the rescue of an assessee in the matter of levy particularly in the light of the factual price of higher value by the assessee. On facts, we find that the authorities are justified in passing the impugned orders. In these circumstances, questions of law are answered against the assessee and in favour of the Revenue.
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2006 (7) TMI 615 - UTTARAKHAND HIGH COURT
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... ... ..... he learned Tribunal. I have already discussed in detail with regard to the applicability of the provisions of the Sales Tax Act with regard to this agreement. As such, in view of the above discussion I am of the view that the present appeal is liable to be allowed. In view of the foregoing discussion, the Revisions Nos. 58 of 2006, 59 of 2006, 60 of 2006, 61 of 2006, 62 of 2006 and 63 of 2006 are squarely covered by the aforesaid judgments of the honourable apex court. Therefore, the transactions between the revisionist and the contractor come within the meaning of the word sale under the provisions of section 2(h) of the Act. I do not find any ground for interference in these matters. The revisions are devoid of merit and, therefore, the revisions are dismissed in limine accordingly. Sales Tax Revision No. 85 of 2001 is allowed and the impugned order dated February 6, 1992 is hereby set aside. All applications pending in this case stand disposed of in terms of the judgment.
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2006 (7) TMI 614 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... of deferment of or exemption from liability to pay tax under the 1991 Rules. The actual payment of tax by the dealer effecting first sale in the State of such goods will not be a condition for deduction of such turnover from the gross turnover for the purpose of arriving at the taxable turnover. The impugned orders, passed by the authorities below, are set aside to the extent mentioned above and they are directed to pass necessary orders giving effect to the observations made above. The impugned show cause notices issued for revision/reassessment for the assessment already framed in conformity with the finding recorded above, are quashed. Since no other point was raised at the time of arguments, we have not expressed any opinion on any of ancillary issue raised by the petitioners in the writ petitions, for which they may have their remedy, as available to them in accordance with law. The writ petitions are disposed of in the manner indicated above with no order as to costs.
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2006 (7) TMI 613 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ent criminal court. There is no dispute that the seized books of account and other documents have been retained beyond the permissible period without any order from the Commissioner. In RN-363 of 2004 we direct the respondents to return the seized records and documents within three weeks from this day unless there is any specific order or act of seizure under the provisions of the Cr.P.C. The respondents can retain xerox copies of the relevant documents duly authenticated by the petitioner or his authorised representative. Before taking back the documents the petitioner or his authorised representative will authenticate the copies the respondents want to keep. We do not find any illegality in the search and seizure of documents in the facts and circumstances of these cases. Both the applications are disposed of with the observations, findings and directions mentioned hereinbefore. Interim orders are vacated. No order as to costs. B. K. MAJUMDAR (Technical Member). - I agree.
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2006 (7) TMI 612 - SUPREME COURT
Exercise for grant of licence was stopped
Held that:- In any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licences of those licensees who had been granted licence after the said date. We do not intend to make any further observation in regard thereto.
It is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof. For the reasons aforementioned, no merit in these appeals. Moreover the period for which the applications for grant of licences had been granted has also expired. We dismiss these appeals.
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2006 (7) TMI 611 - PUNJAB AND HARYANA HIGH COURT
The stoppage of activity of purchase, sale and manufacture of goods by the petitioner on its own account, will certainly fall within the mischief of discontinuance of its business by the unit resulting in withdrawal of eligibility certificate.
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2006 (7) TMI 610 - ALLAHABAD HIGH COURT
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... ... ..... at the movement of the goods was not in pursuance of a prior contract of sale in the course of inter-State trade. There is no dispute that during the year under consideration, dealer had despatched the goods for Rs. 5,35,171 and in respect of which no evidence had been adduced. In the assessment order, which was passed in December, 1988, it was mentioned that dealer was not able to furnish the details of the sales of the aforesaid goods. No details of the sale of the goods had been furnished by the dealer even in appeal and before the Tribunal. In the circumstances, the Tribunal has erred in accepting the claim of the dealer that the goods had been despatched for sale on consignment basis, without any evidence. Order of the Tribunal to this extent is liable to be set aside. In the result, revision is allowed in part. Order of the Tribunal deleting the tax on the amount of Rs. 5,35,171 is set aside and the Tribunal is directed to pass the order under section 11(8) of the Act.
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2006 (7) TMI 609 - ALLAHABAD HIGH COURT
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... ... ..... ied that there has been non-application of mind to the statutory rules by the Trade Tax Tribunal while passing the impugned order. In view of the aforesaid, the order passed by the Trade Tax Tribunal dated July 2, 1999 in Second Appeal No. 257 of 1998 (assessment year 1990-91), Second Appeal No. 93 of 1999 (assessment year 1990-91) and Second Appeal No. 271 of 1998 (assessment year 1990-91) cannot be legally sustained and is hereby quashed. The Trade Tax Tribunal is directed to decide Second Appeal No. 257 of 1998 (assessment year 1990-91), Second Appeal No. 93 of 1999 (assessment year 1990-91) and Second Appeal No. 271 of 1998 (assessment year 1990-91) afresh having regard to the provisions of rule 4(4) of the Rules of 1957. The aforesaid exercise must be completed by the Trade Tax Tribunal within two months from the date a certified copy of this order is filed before the Tribunal. The present trade tax revision is accordingly allowed subject to the observations made above.
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2006 (7) TMI 608 - KERALA HIGH COURT
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... ... ..... the petitioner. As far as the claim for refund of security deposit is concerned, it is seen from exhibit P3 order dated November 4, 1985 that the petitioner was found entitled for refund of the security deposit of Rs. 18,080. Though it is contended that the petitioner made several claims, exhibit P4(2) is the request produced in the writ petition, that is dated June 16, 1998. The Revenue cannot have an unjust enrichment on the deposit of the petitioner, after it has been found that the assessee is entitled for refund of the same. Therefore, it is only in the interest of justice that the petitioner is granted interest at the rate of 10 per cent provided under section 44(4) at least with effect from June 16, 1998 in respect of the amount of Rs. 18,080. The amount as above shall be disbursed within three months from the date of production of a copy of the judgment. The writ petition is disposed of as above. Order on C.M.P. No. 53095 of 2002 in O.P. No. 31401 of 2002 dismissed.
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2006 (7) TMI 607 - BOMBAY HIGH COURT
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... ... ..... in para 6 of judgment in the case of Azad Coach Builders Pvt. Ltd. 2006 145 STC 176. So far as the division Bench judgment of this court in the case of Narang Hotels and Resorts Pvt. Ltd. 2004 135 STC 289 is concerned, the said judgment in para 80 lays down the test to determine as to whether the sale has occasioned the export. Having applied the said test to the transaction in question, we are satisfied that the submissions made by the learned counsel appearing for the respondent needs acceptance. So far as the decision in the case of Usha Martin Black Ltd. 1996 101 STC 389 is concerned, in our view, it does not lay down a test contrary to what has been laid down in the case of Narang Hotels and Resorts Pvt. Ltd. 2004 135 STC 289. The judgments cited by the Revenue, in our view, do not advance the case of the Revenue. In that view of the matter, no substantial question of law arises in this application. The same is, therefore, dismissed in limine with no order as to costs.
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2006 (7) TMI 606 - ALLAHABAD HIGH COURT
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... ... ..... e form was furnished and lease deed was filed on April 16, 1994, after expiry of 60 days. Argument of learned counsel for the applicant that the provisions of section 4-A(5)(a) is applicable and not section 4-A(5)(b), has no substance. Section 4-A(5)(a) presupposes a complete application in all respects where no information was required and if required, the same is to be fulfilled within 60 days. It does not include a case where the application is considered incomplete for any reason by the Divisional Level Committee and the unit is required to complete the application and to furnish necessary required information. The decision in the case of Tarun Alum Pvt. Ltd. v. Commissioner of Trade Tax 2003 22 NTN 393 is based on different facts. This issue, though raised, has not been adjudicated as is being adjudicated in the present case. Thus, the decision is not applicable. For the reasons stated above, I do not find any merit in the revision. In the result, revision is dismissed.
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2006 (7) TMI 605 - KERALA HIGH COURT
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... ... ..... 2, casting liability on the appellants and other incumbents to pay tax, is ultra vires the powers conferred under section 10(3) of the Act. On that reason, the impugned judgment has to be reversed and consequently, exhibit P 8 has to be quashed. In the light of these findings, there is no reason for considering the contention on promissory estoppel. We have also carefully considered the contention of the Government Pleader that exhibit P8 does not amount to retrospective cancellation, but only withdraws the benefit conferred in exhibit P10. But the particular method adopted in exhibit P8 is cancellation and the power exercised to issue exhibit P8 was that conferred by sub-section (3) of section 10, which enabled the Government to cancel or vary the notification only prospectively. Anyhow, what is done by exhibit P8 is not a variation of exhibit P1, but only cancellation of exhibit P10. Necessarily, that contention cannot be countenanced. Writ appeals are accordingly allowed.
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