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Showing 161 to 180 of 652 Records
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2006 (8) TMI 537 - KERALA HIGH COURT
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... ... ..... no infirmity in the proceedings initiated under section 45A of the Act as against the petitioner. The petitioner has raised a contention that imposition of penalty at double the amount of tax due on the purchase turnover is cumbersome, arbitrary and exorbitant. Further counsel also submitted that form 18 was issued on the bona fide belief that the selling dealer is entitled to concessional rate of tax. Counsel submitted that if at all there is breach of sub-section (3) of section 5, the breach flows from a bona fide belief and hence the authority, may be directed to reconsider the question of penalty imposed. Considering the facts and circumstances of the case, we are inclined to give a direction to the assessing authority to examine whether imposition of penalty at double the rate is justified in the facts and circumstances of the case, within a period of two months from the date of receipt of a copy of this judgment. With the above direction, this writ appeal is dismissed.
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2006 (8) TMI 536 - ALLAHABAD HIGH COURT
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... ... ..... of the Act provides exemption only on the turnover of sales during the period specified, which in the present case was from March 20, 1990 to March 19, 1997. There was no ambiguity in the provisions and if the applicant had understood the provisions in its own way and could not deposit the tax on the turnover made after March 19, 1997, the applicant had done so at his own risk. In the facts and circumstances of the case, it cannot be said to be a case of bona fide dispute. Under the provisions of the Act, the applicant was liable to pay the tax on the expiry of the period of exemption and in case if it had not been paid within the specified period, interest is chargeable under section 8(1) of the Act. Reliance is placed on the decisions of the apex court in the case of Commissioner of Sales Tax v. Qureshi Crucible Centre reported in 1993 89 STC 467 1993 UPTC 901. For the reasons stated above, revision has no merit. In the result, revision fails and is accordingly, dismissed.
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2006 (8) TMI 535 - KERALA HIGH COURT
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... ... ..... point. Loss of goods in fire and in theft has the same consequence for the purpose of levy of tax, if the commodity is taxable at the point of last purchase. Even though counsel for the respondent pointed out that loss in fire is permanent and loss in theft is not so, we do not think that the argument is acceptable because if the lost goods are retrieved, there is no need for the assessee to pay another tax on the same commodity and it will be possible to account for the retrieved goods and avoid double taxation. However, if goods are not retrieved by the assessee, the position is the same as that of loss in fire. Therefore, we are of the view that the item when lost acquires the quality of last purchase and tax is rightly levied on the respondent/ assessee as the goods, namely rubber, is taxable at the point of last purchase in the State. We, therefore, allow the sales tax revision, reverse the order of the Tribunal and restore the assessment on the turnover of lost goods.
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2006 (8) TMI 534 - KERALA HIGH COURT
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... ... ..... is court. From January 1, 2000 onwards, nylon fishing net is specifically granted exemption, which continues even now under the VAT Act. Therefore we do not think it was the intention of the Government to recover tax on sale of nylon fishing net probably because the liability ultimately falls on the fishermen. Above all, Government 39 s clarification which remains unchallenged did not entitle dealers to collect tax under section 22(1) of the Act and after depriving their valid right to collect tax, it is wholly unfair and inequitable to assess and sustain the demand based on some fine principle of law laid down by this court. Therefore we hold that nylon fishing net or net of fabric sold by the assessees is entitled to exemption under entry 7 which was later renumbered as entry 11 of the Third Schedule to the Act. Tribunals 39 orders in favour of the assessees are upheld and those against them are reversed. Tax revision cases and sales tax revisions are disposed of as above.
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2006 (8) TMI 533 - ALLAHABAD HIGH COURT
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... ... ..... is for the information relating to 31 gate passes and to prove that such gate passes relate to the applicant. The assessing authority may also enquire whether under the Mandi Adhiniyam or by any provisions Mandi Samiti required the applicant to maintain stock register and satti bahi and whether any entry of the gate pass was required to be made in such registers. On the enquiry being made on the aforesaid Caspect the assessing authority may pass fresh order after giving opportunity of hearing to the applicant. In the result, both the revisions are allowed. Order of the Tribunal and the authorities below are set aside and the matter is remanded back to the assessing authority to pass fresh assessment orders in the light of the observations made above. Applicant may also file the certified copy of the order before the assessing authority within fifteen days from today and the assessing authority is directed to pass assessment order expeditiously after making necessary enquiry.
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2006 (8) TMI 532 - CESTAT NEW DELHI
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... ... ..... rdquo; the Commissioner was right in concluding that the service rendered by the appellant was a Management Consultancy Service. 7. The definition of Management Consultancy Service is, of course, in very broad terms. But that does not mean that any and every advise would be a Management Consultancy Service. Apparently, the appellant organization is not a Management Consultancy organization. Its expert staff are mostly engineers. The service rendered also is in the area of general awakening; conducting seminars, delivering lectures etc. It would be hard to conceive of such general efforts as consultancy. Consultancy has the connotation of relating to specific instructions on specific problems of particular clients. Therefore, prima facie, the appellant is right in its contention that it is not a Management Consultancy. The stay application is allowed and requirement for pre-deposit waived till disposal of the appeals. (Dictated & pronounced in open Court on 2-8-2006)
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2006 (8) TMI 531 - PATNA HIGH COURT
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... ... ..... been inserted as rule 19(ii) that expressly permits the adjustment of CST against input tax credit. We are told that similar provisions are made in the Rules framed by a number of other States. Though the Bihar Act and the Rules in their present form do not permit the adjustment as claimed by the petitioner, I wish to observe that the State of Bihar too, like a number of other States, will be well advised to incorporate provisions for adjustment of CST against input tax credit. This would be in conformity with the principles and the main object and purpose of the value added tax law, i.e., to avoid double taxation and to save the dealer from the harassment of first making payment and then to run around for getting its refund. In the result, this writ petition is dismissed subject to the above observation. Let a copy of this judgment be brought to the notice of the Finance Minister/the Chief Secretary and the Finance Secretary, Government of Bihar. S.K. KATRIAR J. - I agree.
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2006 (8) TMI 530 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ld refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bona fides. Keeping in view the contumacious conduct of the petitioner, we do not feel inclined to entertain the present petition and exercise extraordinary and equitable jurisdiction of this court under article 226 of the Constitution of India. Faced with the situation, the petitioner seeks permission of this court to withdraw this writ petition. Having regard to the facts and circumstances of the case, while permitting the petitioner to withdraw the petition, we impose cost of Rs. 20,000 on the petitioner payable to State Legal Services Authority, U. T. Chandigarh within two weeks from the date of receipt of a copy of this order. Receipt of costs so deposited with the State Legal Services Authority, U. T. Chandigarh be placed on record/file of the case within one week thereafter, failing which, the matter be put up before the court for further appropriate orders.
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2006 (8) TMI 529 - ANDHRA PRADESH HIGH COURT
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... ... ..... oods which are subject to Central Sales Tax Act, 1956 if the procurement of such goods is in the course of inter-State sales, or in the course of export, etc. The Supreme Court therefore came to the conclusion that the omission to take note of such factors and deducting certain amounts from out of the gross amounts payable to the dealer would be beyond the legislative competence of the State Legislature. The situation is identical to the case on hand. In the circumstances, we have no option but to allow the writ petition declaring sections 22(3) and (4) of the VAT Act unconstitutional and beyond the competence of the Legislature of the State of Andhra Pradesh. In view of the said conclusion, we do not deem it necessary to examine the constitutional validity of Explanation VI of section 2(28) and section 2(29)(c)(i)(a) and we leave the question open to be determined in a more appropriate case where there is more concrete factual foundation for the examination of the question.
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2006 (8) TMI 528 - SUPREME COURT
Whether there is as a result of misrepresentation a real likelihood of confusion or deception of the public and consequent damage to the plaintiff?
Held that:- In this case the courts below proceeded on a prima facie misconstruction of documents. They adopted and applied wrong standards. We, therefore, are of the opinion that a case for interference has been made out.
This court have differed with the findings of the courts below primarily on the interpretation of the MOU. In that view of the matter, we are of the opinion that in this case this Court would be justified to interfere with the said findings. We are, however, not oblivious of the damages which may have to be suffered by respondents herein in the event the suit of the appellant is to be ultimately dismissed. We intend to protect the same also.
For the said purpose, we would take into consideration the terms of the injunction granted by the Trial Judge that the respondents were entitled to sell their products in the name of M/s. Ram Dev Masala only from the seven outlets. The modification made by the High Court has already been noticed by us.
Thus we direct the respondents be restrained from using the trade mark including the trade name 'Ramdev Masala' in any of their products. They may, however, carry on their business in any other name insofar as manufacturing of spices is concerned. The appellant shall, as and when demands are made, supply spices produced by it for retail sale thereof to seven outlets belonging to respondents on usual terms, and in respect of such articles on the labels/pouches, on the reverse thereof, the following shall be mentioned in the minimum permissible size in terms of the provisions of Weights and Measures Act and Prevention of Food Adulteration Act. The appellant shall deposit a sum of Rs. 50 lakhs before the Trial Court or furnish a bank guarantee for the said sum by way of security.
Despite pending applications for rectification before the Registrar of Trade Marks, the final hearing of Civil Suit No. 828 of 2000 shall be expedited and the learned Trial Judge is hereby directed to complete the hearing as expeditiously as possible preferably within a period of six months from the date of communication of this order.
For the reasons aforementioned, these appeals are allowed.
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2006 (8) TMI 527 - SUPREME COURT
Whether the possession of the property had been handed over or not?
Held that:- The property in suit for all intent and purport was acquired for the benefit of the Company. Only because at the time of acquisition of the property by Sarafs, the Company was unincorporated, the same would not mean that no title could have been passed in favour of the Company. In view of their conduct, Sarafs were estopped and precluded from denying and disputing the title of the Company over the property in dispute.
Withdrawal of suit No. 1252 of 1982 by the appellants did not create any embargo in raising a contention that the award of the arbitrator and the consequent decree passed were void ab initio and of no effect.The agreement for sale dated 11.6.1984 was not a transaction for loan. Saraf's conduct was condemnable so far as they not only raised false and frivolous pleas but also initiated frivolous proceedings in courts of law.
The subject matter of the agreement was not only the house in question but also the entire lands. Prima facie the demolition of the house took place at the instance of the appellants. However, it is not a case where the appellants are entitled to a decree for specific performance of contract.
The respondents should refund the amount of advance of Rs.10,00,000/- (ten lakhs) with interest and furthermore pay compensation to the extent of Rs.50,00,000/- (fifty lakhs). Appeal allowed.
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2006 (8) TMI 526 - MADRAS HIGH COURT
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... ... ..... tutory requirement for filing a writ petition, but a petition in MP. No.1 of 2006 has been filed to dispense with the production of the original order. The reason given for not filing the original order is more wild. At paragraph 6 of the affidavit the petitioner has stated that he is not able to file the original proceedings of the respondent dated 30.06.2006 and the petitioner has filed only a certified copy. Learned counsel for the petitioner tenders apology across the bar for not stating any reason for filing the original order. The same is accepted, but, however, it shows that the petitioner is taking a chance before this Court by retaining the original order so as to file an appeal, if the writ petition is not entertained by this Court. This sort of attitude has to be deprecated and the same is deprecated. 10. In the light of the reasons stated in the foregoing paragraphs, this writ petition is dismissed. No costs. The miscellaneous petitions are consequently dismissed.
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2006 (8) TMI 525 - MADRAS HIGH COURT
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... ... ..... e present case is concerned, though the assessment order has been passed, which is the subject matter of the writ petition on the basis that the lottery tickets are goods and the sale of which are liable to be taxed, no amount has been collected from the petitioner towards tax and the same is pending consideration before this Court. At the time of admission, the Court has also granted stay of collection of tax. 9. In the light of the decision of the Supreme Court in the case of Sunrise referred to supra and also the decision of the Supreme Court in the case of Somaiya Organis India Private Limited explaining the principle of prospective over ruling, I am of the considered view that the writ petition has to be allowed by setting aside the order of assessment, which is impugned in this writ petition and the State is not entitled to collect any tax on the sale of lottery tickets. The writ petition is accordingly allowed. No costs. The connected miscellaneous petition is closed.
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2006 (8) TMI 524 - SUPREME COURT
Validity of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971
Held that:- Rule 10(1) is the authority of law under which the pension could be withheld on compliance of stipulations of the rule. We are unable to appreciate how such a rule could be held ultra vires even at a point of time when pension was a property to which Article 19(1)(f) was applicable.
In view of the above, we set aside the impugned judgment to the extent it declares Rule 10(1) ultra vires. The appeal is allowed accordingly.
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2006 (8) TMI 523 - SUPREME COURT
Commission of the offence of causing intentional death to one Baijnath Singh and disappearance of his dead body.
Held that:- In the instant case, however, some of the witnesses examined by the prosecution are independent. The evidence of all the witnesses are more or less consistent. Nothing has been pointed out to discredit their testimonies. The learned Sessions Judge as also the High Court, therefore, cannot be said to have committed any mistake in relying upon the testimonies of the said witnesses.
A contention was raised that autopsy surgeon opined that the death must have taken place 10 days prior to the post mortem examination and in that view of the matter the prosecution case should be disbelieved. The murder allegedly took place on a boat. The dead body was thrown in the water. It remained under water for more than five days. Rigor mortis was absent and the body was fully decomposed. The soft tissues of some of the parts of the body had been eaten away by fish.Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. Appeal dismissed.
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2006 (8) TMI 522 - CESTAT CHENNAI
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... ... ..... order. We are of the view that, the appellants, being members of the association which obtained a judgment from the High Court, are presently bound by the DGST s decision which was taken in pursuance of the High Court s directive. The appellants can hardly claim prima facie case against the above levy of service tax inasmuch as the DGST has declared the service to be taxable as Business Auxiliary Service . In the present applications, there is no plea of financial hardships. Taking into consideration the overall facts and circumstances of the case, we direct the appellants to pre-deposit 50 percent of the tax demanded, for the purpose of Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944. This deposit shall be made within 4 weeks. Report compliance on 19-9-06. 2. emsp In the event of due compliance, there shall be waiver of pre-deposit and stay of recovery in respect of the balance amount of tax. (Dictated and pronounced in open court)
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2006 (8) TMI 521 - SUPREME COURT
Detention order passed on 12.2.1997 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challenged - Held that:- Appeal dismissed. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.
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2006 (8) TMI 520 - GAUHATI HIGH COURT
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... ... ..... d due to share transactions is just and proper. The factual matrix of the case at hand is also identical in the sense that the assessee in this appeal is also an investment company. During the assessment year 1994-95, the assessee disclosed an interest income of Rs. 10,91,708 and the said income was adjusted by adjusting against the loss in share trading amounting to Rs. 13,85,049. Both the Commissioner of Income-tax (Appeals) and the learned Tribunal rendered concurrent findings after evaluation of the materials on record. This court in an appeal under section 260A is not required to re-appreciate the evidence on record and review the concurrent findings of the Commissioner of Income-tax (Appeals) as well as the learned Tribunal on facts. Therefore, having regard to the decision in CIT v. Janki Textiles and Industries Ltd. 2003 264 ITR 579 (Gauhati), we are inclined to answer the question in favour of the assessee and against the Revenue. The appeal is accordingly dismissed.
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2006 (8) TMI 519 - GUJARAT HIGH COURT
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... ... ..... take committed by the Tribunal. Prayer sought for is allowed with liberty to file Misc. Application for correction of apparent mistake committed by the Tribunal, if any. Appeal, as having been withdrawn, stands disposed of accordingly.
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2006 (8) TMI 518 - ITAT MUMBAI
Chargeability to tax - Interest income - receipt of incomes - maintained a separate bank account - professional fees received from the clients in his capacity as a solicitor for the purpose of discharging obligations of the clients - Expenditure in respect of use of motor car, telephone, printing and stationery - Nature of expenditure - HELD THAT:- It is true that when the assessee did not disclose the interest income in the original returns of income filed by him, he wrongly claimed deduction for TDS. As per the provisions of section 199 of the Act, credit for TDS shall be allowed for the assessment year for which the relevant income is brought to the charge of the tax. When the income itself, was not shown by the assessee, in the original return of income, the claim for TDS was patently wrong. However, that should not be a reason for bringing to the charge of tax such income, which is not chargeable to tax at all in the hands of the assessee as per the provisions of law. The Assessing Officer is within his right to deny credit for the TDS but he cannot bring to the charge of tax the income, which is not assessable in the hands of the assessee.
Thus, we hold that the relevant interest income is not chargeable in the hands of the assessee and we direct the Assessing Officer to exclude such income from the assessee’s total income for all the assessment years under appeal. The Assessing Officer is also directed to withdraw the credit in respect of TDS allowed to the assessee for all the assessment years.
Expenditure in respect of use of motor car, telephone, printing and stationery - Nature of expenditure - HELD THAT:- No material was produced before us to controvert the finding of the ld CIT(A) or to show that no part of the expenditure is in the nature of personal expenditure of the assessee. The ld CIT(A) has sustained disallowance merely at 10 per cent. of the telephone expenses, motor car and depreciation on motor car. In the facts of the case, this cannot be said to be unreasonable or excessive. The disallowance of printing and stationery expenses have been deleted by the ld CIT(A) except for the assessment year 1995-96.
We fail to understand as to why such disallowance should be sustained for the assessment year 1995-96 when for all the assessment years there is a consistency finding by the ld CIT(A) that this expenditure was entirely for professional purpose. Therefore, for the assessment year 1995-96, we modify the order of the ld CIT(A) to the extent that the disallowance from out of the printing and stationery expenses is directed to be deleted. With regard to the disallowances from out of other expenses as mentioned, orders of the ld CIT(A) are upheld.
In the result, the appeals of the assessee are partly allowed.
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