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Showing 121 to 140 of 781 Records
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2007 (3) TMI 714 - GAUHATI HIGH COURT
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... ... ..... assessment is erroneous and prejudicial to the interest of Revenue, the court cannot find any fault with such an exercise. Insofar as the assessment being prejudicial to the Revenue is concerned, what the court has to observe is that if a lesser amount of revenue has come to the State on account of an erroneous assessment, surely, such an assessment must be held to be prejudicial to the interest of the Revenue. In the above view, the court is inclined to hold that both the conditions precedent to the exercise of powers under section 36 of the Act are abundantly present in the instant case. The order dated November 27, 1998 passed by the Deputy Commissioner of Taxes as affirmed by the learned Board of Revenue by order dated November 20, 2001, therefore, will not require any interference of the court. The writ petition, consequently, is found to be without any merit. It is accordingly dismissed. However, in the facts and circumstances of the case, I make no order as to costs.
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2007 (3) TMI 713 - MADRAS HIGH COURT
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... ... ..... mits that the respondent pre-determined the issue and if a direction is issued by this court to consider the case as per the materials furnished by the petitioner, that would safeguard the interest of the petitioner, and the petitioner is ready to file their objections within the time granted by this court. Having regard to the fair submissions made by the learned counsel for the petitioner, the writ petition is disposed of by permitting the petitioner to file the objections within a period of ten days from the date of receipt of a copy of this order and thereupon the respondent-assessing authority is directed to consider each and every one of the objections and also the relevant materials placed sustaining the objection raised by the petitioner or on the other hand sustaining the claim made by the petitioner in respect of 190 despatches which is in dispute in this writ petition and proceed further in accordance with law and not being influenced by the D3 proposal. No costs.
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2007 (3) TMI 712 - MADRAS HIGH COURT
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... ... ..... rected to be paid by the petitioner and having regard to the fact that as contended by the learned Government Advocate that the financial year is going to be expired by few days, taking into consideration of the fact that the major portion of the relief has been granted in favour of the petitioner, I am of the view that in the interlocutory stage the impugned order in this writ petition need not be interfered with in respect of payment of tax as directed. However, the other direction for furnishing of security is hereby modified by directing the petitioner to furnish personal bond of the Directors of the company. However, if the Tribunal is taking up the appeals of the year 2003, the Tribunal is directed to take up the petitioner 39 s appeal also, if it is otherwise ripe for hearing, without unduly altering the roaster maintained by the Tribunal. With the above observations, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
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2007 (3) TMI 711 - ALLAHABAD HIGH COURT
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... ... ..... ounsel. I do not find any error in the order of Tribunal. In the case of Bulbu Prasad Amarnath v. Commissioner of Sales Tax reported in 1964 15 STC 46, division bench of this court held as follows In order to become a manufacturer of linseed oil, it is not essential that he should himself produce oil from oil seeds with his own machinery in his own premises. If he gets oil-seed crushed into oil through a servant or agent, the law regards him as having done the crushing himself and he will be a manufacturer of linseed oil. Present revision is squarely covered by the aforesaid decision. In the aforesaid case it has been held that it is not necessary that the goods should be manufactured by dealer. The goods manufactured through the third party on job-work basis has also been considered as the manufacturing carried on by the dealer. Respectfully following the aforesaid decision, order of the Tribunal is upheld. In the result, revision has no force and is accordingly, dismissed.
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2007 (3) TMI 710 - MADRAS HIGH COURT
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... ... ..... hra Pradesh Value Added Tax Act, 2005 and section 80 of the latter Act saved the provisions of the former in toto, the rights and liabilities which had accrued or been incurred under the A.P. General Sales Tax Act, 1957, would continue even after its repeal. The saving section 8 of the A.P. General Clauses Act, 1891 is in pari materia of section 88 of the Tamil Nadu Value Added Tax Act 2006. Hence, the decision relied on by the learned counsel for the petitioner would squarely apply to the facts of the present case. For the assessment year 1997-98, the vested right has been accrued to the petitioner for invoking section 16 D of the TNGST Act and that cannot be divested. Hence, the reason given for rejecting the application cannot be legally sustainable and the order is set aside and remitted back to the authority concerned to reconsider the issue including the point of laches. The writ petition is disposed of accordingly. No costs. Consequently, M.P. No. 1 of 2007 is closed.
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2007 (3) TMI 709 - ALLAHABAD HIGH COURT
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... ... ..... will not necessitate the use of generator. The Division Bench of the Orissa High Court held that the language of section 8(3)(b) of the Central Sales Tax Act is wide and it is not open to read it in a restricted manner, as has been done by the Sales Tax Officer. The provision applies, whether the generator is required as the exclusive source of supply of electricity or as a subsidiary one. There is nothing in the provision excluding its applicability to generator, if the same was required as a stand-by measure. The Division Bench, accordingly, directed to include all the items in the registration certificate. In this view of the matter it is held that the high speed diesel oil required for the operation of generator for the generation of the electricity is eligible under rule 13 of the Rules and under section 8(3)(b) of the Central Act for the benefit of concessional rate of tax. Tribunal rightly held so. In the result, both the revisions fail and are accordingly, dismissed.
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2007 (3) TMI 708 - MADRAS HIGH COURT
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... ... ..... d in the year 2004, the assessment order dated March 20, 1998 was challenged as aforesaid. Further, as what is put in issue in this writ petition is only an assessment order, which is appealable under section 31 of the Tamil Nadu General Sales Tax Act, 1959 and further appealable under section 36 of the said Act, it is open to the petitioner to agitate the matter before the first appellate authority. Useful reference can be had to the decisions of the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 53 STC 315 1983 2 SCC 433, State of Goa v. Leukoplast (India) Ltd. reported in 1997 105 STC 318 and Union of India v. Tata Engineering and Locomotive Co. Ltd. reported in AIR 1998 SC 287. In addition to that, this court is not venturing into the merits of the case as there are unexplained latches on the part of the petitioner for more than six years. With this observation the writ petition is disposed of. No costs. Consequently, the connected M.P. is closed.
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2007 (3) TMI 707 - MADRAS HIGH COURT
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... ... ..... having heard the learned counsel on either side and perusing the material on record, and also having regard to the nature of the prayer sought for with reference to the statutory provision under section 7F(6), by putting the learned Special Government Pleader on notice, the following order is passed The respondent is directed to consider the application of the petitioner dated April 18, 2006/March 10, 2006, which is stated to be filed for refund of tax under section 7F(6) in accordance with the statutory provision and dispose of the same within a period of twelve weeks from the date of receipt of a copy of this order. It is made clear that this direction given by this court cannot be regarded, as the court has recorded a finding in favour of the petitioner for the relief sought for in the application. It is only a mere direction for disposal of the application in accordance with the statutory provision. With the above observations, the writ petition is disposed of. No costs.
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2007 (3) TMI 706 - PUNJAB AND HARYANA HIGH COURT
Constitutional validity of the Haryana Local Area Development Tax Act, 2000 - levy and collection of tax on entry of goods into local areas for consumption, use or sale - individual service - Whether a levy is compensatory or not has to be decided with reference to the nature of the levy itself? - Violation of Article 301 - HELD THAT:- A perusal of statutory provisions shows that the levy of tax is on entry of goods into a local area for consumption, use or sale and the tax is payable by the importer with reference to value of goods at a specified rate. The tax collected is to be distributed by the State Government among the local bodies. The same is to be utilised for development facilitating free-flow of trade and commerce on infrastructural facilities such as roads, bridges, culverts, sewerage, drainage, sanitation, waste-management, electricity, drinking water and other infrastructural facilities. At least 60 per cent of the amount is to be utilised. The board is to ensure balanced development of the local areas and recommend allotment of proceeds of tax and changes in the rate of tax. The board is also to ensure that the proceeds of tax are not more than the amount actually required for development of local areas.
We find merit in the contention raised on behalf of the petitioners. The levy is not to meet the cost of any specific facility already provided or planned to be provided. The parameters clearly laid down in Jindal [2006 (4) TMI 120 - SUPREME COURT] are that compensatory tax represents the costs incurred in procuring facilities/services on the principle of "pay for value". It is a charge for offering trade facilities. It adds to value of trade and commerce. It is based on the principle of equivalence. It must have a broad proportion to the benefit derived to defray the cost of regulation or to meet the outlay incurred for some special advantage to trade and commerce and intercourse. The impugned levy initially was meant to be for assistance to local areas for their development generally and the amendment brings about only a superficial change in the language while retaining the basic character of the levy as a source for raising general development. In this view of the matter, we are unable to hold that the facial test is met. Mere specification of the 60 per cent of the amount being in line with judgments dealing with the levy of fee is of no consequence when the very subject-matter of utilisation cannot be treated as any special direct or exclusive service or benefit to the payer of the tax.
Thus, the data given by the State in respect of the amount Spent does not stand scrutiny. As rightly pointed out by learned Counsel for the petitioners, the expenditure incurred is 17 per cent of the total collection and the expenditure is far less than the collection of much more amount under other statutes levying compensatory taxes to cover the cost of at least some of the very same services. The burden of proof on the State cannot be held to have been discharged.
Though the levy was earlier upheld by this Court with reference to the parameters as understood from the judgments of the honourable Supreme Court, including judgments in Bhagatram [1994 (11) TMI 337 - SUPREME COURT] and Bihar Chamber of Commerce [1996 (2) TMI 430 - SUPREME COURT], which now stand disapproved by the Constitution Bench, applying the parameters as laid down in Jindal [2006 (4) TMI 120 - SUPREME COURT], we are of the view that the impugned levy is not compensatory in character. The same amounts to restriction on free flow of trade and commerce and is hit by Article 301 of the Constitution of India.
We record our finding accordingly.
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2007 (3) TMI 705 - MADRAS HIGH COURT
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... ... ..... atute gives a complete protection to the assessees that before every assessment order made, notice of proposal would be issued to the assessee in which the proposal made against the assessee has been categorically stated by calling for objections. Even that opportunity can be taken by the assessee by filing objections by contending that any of such proposal is against the statutory provision. When the statute gives a complete protection to the petitioner, I am of the view that this sort of entertaining of original petition in respect of certain internal correspondence between the officers will not give the expected purpose or result. Therefore, as the petitioner-association is having no cause of action to come to this court and individual assessees were directed to approach the authorities and the same thing would be applicable to the present case also, the writ petition has to be dismissed. Accordingly, the writ petition is dismissed. However, there is no order as to costs.
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2007 (3) TMI 704 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ceedings, the prayer made is for directing the Tribunal to refer the question of law to this court in appeal, however, undisputed facts are already on record, the regular course, if follows, would unnecessarily delay the disposal of the case. With the consent of the parties, we have proceeded to answer the question at this stage. This court has already held in STC No. 19 of 1992 (Chaudhary Tractor Company, Tohana Distt. Sirsa v. State of Haryana) decided on May 29, 2006Reported at 2007 8 VST 10 (P and H) relying upon its earlier judgment and referring to the judgments of the Delhi and Andhra Pradesh High Courts have already held that such a course can be adopted. Accordingly, we answer the question No. 1 in favour of the assessee and against the respondents by holding that in the facts and circumstances of the case, action of the authorities in determining the taxability of the goods in summary proceedings is not legally sustainable. The petition is disposed of, accordingly.
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2007 (3) TMI 703 - ANDHRA PRADESH HIGH COURT
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... ... ..... n force against the tax payable for a year. The language of rule 28(14) of the Rules itself suggests such an interpretation. When it mentions that the security furnished shall be maintained in full so long as the registration certificate continues to be in force, it should be understood that the continuance of registration certificate remaining in force is subject to one year for which the surety has been given. For the period, i.e., one year for which a person gives a surety, the surety remains responsible for tax, penalty, interest, etc., till the registration certificate continues to remain in force. With this view, we do not think that the earlier judgments of this court need any re-consideration. Therefore, the writ petitions are allowed and the impugned notices are quashed. The petitioner submits that he is entitled to certain refunds. This is a matter to be taken into consideration by the respondents in accordance with Rules. Rule nisi has been made absolute as above.
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2007 (3) TMI 702 - ALLAHABAD HIGH COURT
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... ... ..... so borne by the dealer. It has also been observed that under the agreement in case of failure of power, chilling would be carried on by ice. This shows that the chilling plant as such, was not transferred for use and the agreement was to provide milk and water at a specified temperature. In the case of Bharat Sanchar Nigam Ltd. v. Union of India reported in 2006 3 VST 95 2006 145 STC 91 2006 6 RC 276 2006 282 ITR 273 2006 JT 6 SC 114, the apex court held that the delivery of the possession of the goods at some stage is necessary for transfer of right to use the goods. In the absence of delivery of possession of chilling plant to Dugdh Utpadan Sahkari Sangh Limited, Bulandshahar for use, the case did not fall under the transfer of right to use the goods. On the facts and circumstances of the case, both the appellate authorities have rightly held so. The revision is devoid of any merit and is liable to be dismissed. In the result, revision fails and is, accordingly, dismissed.
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2007 (3) TMI 701 - ALLAHABAD HIGH COURT
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... ... ..... l Mills, Aligarh reported in 2008 15 VST 155 (All) App 2006 4 VLJ 7 this court held as follows (at page 157) Issue No. (a) qua the taxability of tin container is concerned the same is no more res integra inasmuch as this court in the case of Commissioner of Trade Tax v. Maluk Chand Cotton and Oil Mill, Aligarh reported in 2005 26 NTN 477 has specifically held that the tin containers were separately liable to tax and since the purchase has been made by the assessee within the State of U.P., there is no liability of any tax being assessed in respect thereto. In view of the aforesaid the order passed by the Trade Tax Tribunal in respect of the above issue is affirmed. Since the tin containers were purchased within the State of U.P. and were liable to tax at the point of manufacture or import and the applicant being neither manufacturer nor importer, turnover of tin containers is not liable to tax. In the result, all the revisions are allowed. Order of the Tribunal is set aside.
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2007 (3) TMI 700 - ALLAHABAD HIGH COURT
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... ... ..... e were in fact used for manufacture of oil through solvent process could not have been gone into by the assessing authority on remand inasmuch as the aforesaid issue was not covered by the order of remand which was for specific purpose. From the order of the Tribunal impugned in the present writ petition it is apparently clear that the aforesaid legal contention raised on behalf of the department has not been noticed and the Tribunal has not recorded any finding in that regard. The order of the Tribunal in respect of the said subject has also to be quashed. The last issue qua the levy of interest on admitted tax has to be examined by the Tribunal itself afresh after deciding the above issue. In view of the aforesaid all the sales tax revisions are allowed in part. The matter is remanded to the Tribunal to decide the issues Nos. (b) to (e) as aforesaid afresh, in accordance with law, preferably within six months from the date a certified copy of this order is filed before it.
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2007 (3) TMI 699 - ALLAHABAD HIGH COURT
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... ... ..... concessional rate as may be notified by the State Government Provided that any notification under this clause or clause (a) in respect of paddy may be made effective from a date not earlier than the first day of May, 1977 Provided further that the Rules to carry out the objects of this clause or clause (a) may also be made effective from the date not earlier than the first day of May, 1997. Since the rice bran is not a declared commodity, the benefit of concessional rate of tax is not admissible to the dealer on their purchases, where admittedly they are not holding the recognition certificate under section 4B(2) of the Act. In this view of the matter, the order of the Tribunal is erroneous and is liable to be set aside. In the result, revision is allowed. Order of the Tribunal is set aside granting the benefit of the concessional rate of tax on the purchases of rice bran of Rs. 12,88,647.95. The Tribunal is directed to pass appropriate orders under section 11(8) of the Act.
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2007 (3) TMI 698 - ALLAHABAD HIGH COURT
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... ... ..... the meaning of section 10(d) of the Central Sales Tax Act inasmuch as the revisionist was not to manufacture any goods for sale, yet it purchased the materials and used them for the construction of the cold storage. But it was led to this default by the belief that it can do so and for which it found support from the action of the assessing officer in granting it a registration certificate knowing fully well that the dealer is establishing only a cold storage. In my view, therefore, the dealer did have reasonable cause for the default and could not be subjected to penalty. Thus, in my view, on the facts and circumstances of the case, the dealer used the goods purchased against form C in the construction of cold storage under the bona fide belief and there was a reasonable excuse, the penalty is not sustainable and liable to be set aside. In the result, revision is allowed. The order of the Tribunal is set aside and the penalty under section 10A of the Central Act is quashed.
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2007 (3) TMI 697 - ALLAHABAD HIGH COURT
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... ... ..... t cannot be applied. Similar is not the position in the case of refund. The provision relating to the refund is a procedural provision in which there is no levy or charge and thus, it does not require any substantive provision. The procedural provision of the refund has been specifically made applicable to the Central Act under section 9(2) of the Central Act. Section 29A(2) and 29A(3) of the U.P. Trade Tax Act are the provisions relating to the refund, therefore, in my opinion they are applicable to the Central Act. The validity of section 29A of the U.P. Trade Tax Act has already been upheld by the apex court in the case of Kasturi Lal Harlal v. State of U.P. reported in 1987 64 STC 1 1987 UPTC 135 and Kheria Brothers, Lalitpur v. Assistant Commissioner (Judicial), Sales Tax, Jhansi reported in 1995 UPTC 593. For the reasons stated above, both the revisions have no merit and are liable to be dismissed. In the result, both the revisions fail and are, accordingly, dismissed.
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2007 (3) TMI 696 - MADRAS HIGH COURT
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... ... ..... an appeal before the second appellate authority, the Tribunal within the time prescribed under the statute. Time-limit is in currency and not over as it is evident from the order which has been signed by the Appellate Assistant Commissioner (CT), Coimbatore on March 20, 2007 and has been served on the petitioner on March 22, 2007. Hence, the petitioner is having full period of limitation for filing appeals. Till such time, the respondents can wait and proceed further. Hence the following order is passed The respondents are hereby directed not to take coercive steps against the petitioner for demanding and collecting arrears of sales tax and penalty which is the subject-matter of appeals in AP. CST Nos. 536, 537 and 538 of 2006 till the appeal time expires. It is open to the petitioner even prior to that to move the appellate authority and get interim orders . The writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
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2007 (3) TMI 695 - MADRAS HIGH COURT
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... ... ..... d infraction, the Tribunal confirmed the orders of the lower authorities, which in the opinion of the court requires no interference. So far as the imposition of penalty under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959 read with section 9(2A) of the CST Act, of course the turnover was made known to the respondents by claiming the transactions as a stock transfer. But that exemption has been deliberately claimed when the transaction is not true by filing a false declaration in form F . Hence, while exercising the jurisdiction under article 226 of the Constitution of India, this court is of the view that the jurisdiction has to be exercised judicially when the exercise of jurisdiction is discretionary and equitable. A person who invokes the discretionary equitable jurisdiction must come to the court with equity. When the petitioner lacks equity, he cannot expect a equitable order before this court. The writ petitions are dismissed on the above terms. No costs.
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