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Case Laws
Showing 141 to 160 of 931 Records
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2008 (9) TMI 896 - KARNATAKA HIGH COURT
Sales of ATMs - whetehr from Pondicherry to banks who are purchasers in Karnataka are local sales liable to tax under the KST Act and the KVAT Act?
Held that:- In the case on hand it is not a case of transfer of right to use the goods.It is also not a case of oral or implied transfer of the rights to use goods.There is a written contract between the parties for manufacture and supply of goods. The branch office at Bangalore, forwarded an order for transfer of goods upon receipt by them from the buyer to their factory at Pondicherry. The goods were manufactured according to the specifications of the buyer.Thereafter the goods were handed over to a carrier who delivered the goods at the buyer's place. The technicians at the registered office at Bangalore took delivery of the consignment at the buyer's place, opened the containers, checked and after it is found to be all right in all respects handed over the goods to the buyer. The buyer in turn has made the payment directly to the factory at Pondicherry. Though the goods for which orders were placed were not in existence at the time of placing of the orders, it is not a case of transfer of a right to use the goods. It is a case of sale of the goods. The placing of the orders occasioned the movement of the goods from Pondicherry to Bangalore. The goods, after they were manufactured, thus came into existence at Pondicherry and were moved to Bangalore. Therefore, it is immaterial where the goods were delivered.
In this case, there is a movement of goods from one State to another in terms of a contract of sale. It is an inter-State sale. The situs of the sale or purchase is immaterial in respect of inter-State trade or commerce. If the sale or purchase occasioned the movement of goods from one State to another then it constitutes an interState sale and the State Legislature has no competence to tax such sale as the sale is taxed under the CST Act. The KST Act or the KVAT Act is not applicable to such sale. The impugned orders passed are therefore contrary to the settled legal position and the statutory provisions and the same cannot be sustained. Accordingly Writ petitions are allowed.
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2008 (9) TMI 895 - MADRAS HIGH COURT
Jurisdiction of the High Court to entertain appeal or revision under sections 37 and 38 of the TNGST Act, 1959 - Held that:- The intention of the Legislature is clear that on the coming into force of the repeal of Act No. 42 of 1992, the original provisions that were eclipsed during the currency of 1992 Act have again come into operation, in the sense, the superimposition of the words "Special Tribunal" for the words "High Court", faded out by giving way to the words "High Court" and the High Court has jurisdiction to entertain appeal or revision filed under sections 37 and 38 of the Act. By means of re-introduction of section 39, the same has to be considered by a Division Bench of the High Court.
For the foregoing reasons, we are of the considered view that on and from the date of repeal of 1992 Act, the High Court will have jurisdiction to entertain appeal or revision under sections 37 and 38 of the TNGST Act, 1959, as the provisions re-emerged as they stood prior to the coming into force of the 1992 Act. The order, which is impugned in this review application, has to be set aside and accordingly the same is set aside.
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2008 (9) TMI 894 - MADRAS HIGH COURT
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... ... ..... ly in case where the assessment is a best judgment assessment made on an estimate and not by relying solely on the accounts furnished by the assessee in the prescribed return. On and after April 1, 1996 an Explanation has been added below section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8.. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under section 12(1) to which the penal provisions of section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside. The above settlement of law would squarely cover the issue in this case against the Revenue. Following the same, this revision is dismissed.
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2008 (9) TMI 893 - KARNATAKA HIGH COURT
Clarification to the rate of tax applicable to the goods in question - Circular challenged - Held that:- Any circular which beneficially affects the rights of dealers as it stood at the beginning of the assessment year will apply to the entire year and the modification/withdrawal of such circular will not be relevant for that current year but will only apply from the beginning of the next assessment year.
As it is clear that the second respondent has the power to withdraw the earlier circular issued.Though the subsequent circular would have the effect of nullifying the earlier circular as it is only an interpretation of the provision, it will not have the effect of denial of the benefit of earlier circular. In other words, the impugned circular has to be only prospective and not retrospective. In that view of the matter, the petitioner is not liable to pay tax at 12.5 per cent. for the period covered under the earlier circular and is liable to pay tax at 12.5 per cent., which arises only from the date of the impugned circular.
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2008 (9) TMI 892 - ALLAHABAD HIGH COURT
Grant of eligibility Certificate - Held that:- To ascertain as to whether the nature of goods produced and are to be produced is the same or different, it is necessary to discuss the articles as the revisionist has set up that earlier in the first eligibility certificate he was producing non-edible oil, i.e., the rice-bran oil and after diversification he started production of edible oils, which are all together different from the earlier goods produced by it. So far as the exercise of power by the Divisional Level Committee is concerned, if it is a case of review then no doubt under rule 25(3)(c) the same Divisional Level Committee, which has granted the earlier certificate, has the right to review its order, but if it is a case of fresh grant, then the authority to whom the jurisdiction is vested on the date of application shall have the right to entertain the same and it shall also be cleared after discussion on the nature of goods, for which the eligibility certificate was granted and has been asked to grant. The Tribunal shall also discuss the comparative specification of the goods. Under the circumstances, feel it appropriate to remand the matter to the Trade Tax Tribunal to consider it afresh after providing opportunity of hearing and pass a fresh order in the matter. Therefore, hereby set aside the order dated January 9, 2004, passed by the Trade Tax Tribunal in Appeal No. 77 of 2003 and remand the matter to the Trade Tax Tribunal for fresh decision, in view of the observations made hereinabove.
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2008 (9) TMI 891 - MADRAS HIGH COURT
Whether in the facts and in the circumstances of the case, the Sales Tax Appellate Tribunal is right in holding that a new commodity has emerged in the replacement of shell by merely tapping and heating?
Held that:- The petitioner being a public sector undertaking before filing an appeal against the Commercial Tax Department, we are of the view has to obtain clearance from the Committee of Disputes (CoD). In order to discharge that obligation, when we posed a question to the learned counsel as to whether such a clearance has been obtained from the CoD, he admitted that such a certificate from CoD has not been obtained.
Hence, the revision is dismissed as not entertainable in the absence of the clearance, however, by giving liberty to the petitioner to move this court after obtaining clearance from CoD.
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2008 (9) TMI 890 - BOMBAY HIGH COURT
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... ... ..... e in cases where the value of capital asset shown by the assessee is less than its fair market value of land as on April 1, 1981, shown by the assessee on the basis of the approved valuer 39 s report being more than its fair market value, reference under section 55A was not valid. Respectfully following the propositions laid down these two cases by the co-ordinate Benches we uphold the contention of the assessee and hold that the reference made by the Assessing Officer to the DVO under section 55A in the peculiar facts and circumstances of the case is bad in law. Thus, on the sole grounds of appeal of the assessee has to be allowed. 6. Before passing, we have to mention that the assessee has submitted the arguments. As on the basis of the legal aspects itself we have decided the issue in favour of the assessee, we refrain from undertaking this academic exercise of disposing this case on the merits. In view thereof there is no merit in the appeal. The appeal stands dismissed.
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2008 (9) TMI 889 - GAUHATI HIGH COURT
Issue of notice - non reply - provisional assessment - Held that:- As it is evident that the petitioners who have not only failed to comply with the notices and have not remained present with the registers, material for the purpose of assessment and even thereafter have not chosen to resort to the remedy as provided under the Act itself, cannot be permitted to invoke the jurisdiction of this court under article 226 of the Constitution of India. As a matter of fact, the conduct of the petitioners would disentitle them from any indulgence by this court or exercise of discretionary relief. The petitioners cannot make a complaint that the assessment has not been made and there is any arbitrary or highhanded action inasmuch as there are specific notices issued to the petitioners and still they have failed and neglected to remain present for the purpose of assessment or clarification. Thereafter, as discussed hereinabove, in exercise of the powers under the Act, the Commissioner has proceeded to make the provisional assessment and attachment for which a grievance cannot be made.
Thus this court is of the opinion that no indulgence can be granted and it does not call for any interference in exercise of its discretionary jurisdiction under article 226 of the Constitution of India.
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2008 (9) TMI 888 - MADRAS HIGH COURT
Recovery proceedings - sale of property - auction sale - Held that:- In the present case, the procedure for selling the properties by revenue recovery proceedings, the legal procedure, was not followed. No wide publicity was given. The time gap provided under sections 36 and 38 of the TNRR Act was not followed. The right of the independent owners including the petitioner in W.P. No. 5324 of 2008 was infringed as no notice was given to him and his brother who were no way connected with the company. (Though such a notice was given to them when auction notice was issued during the year 2004).
In the light of the same, these writ petitions are liable to succeed and the impugned notice are bound to set aside. In the present case, on behalf of the company, one director K.K. Gnanaprabakaran had filed an affidavit of undertaking to pay a ₹ 45,67,264 together with five per cent interest as a precondition for setting aside the sale. Therefore, the petitioner-company in W.P. Nos. 3847 and 4378 of 2008 are directed to deposit as undertaken by them vide undertaking dated June 25, 2008 within a period four weeks from the date of receipt of a copy of this order. The sale made in favour of K. Govindaraj the successful auction purchaser is hereby set aside and the Commercial Tax Department is directed to refund the amount taken from the auction purchaser within two weeks from the date of receipt of the order.
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2008 (9) TMI 887 - KERALA HIGH COURT
Penalty imposed under section 29A of the KGST - Whether the transaction in question is inter-State transaction and hence section 29A of the KGST Act will not be attracted?
Held that:- The owner or person-in-charge of the goods vehicle had not produced the prescribed documents before the Check-post Officer and if not for the Check-post Officer detaining the goods vehicles, there was every possibility of the Revenue losing the tax due to the State.
The Sales Tax Officer, (Enquiry), has not just levied the penalty under section 29A(4) of the Act, merely on the ground that the goods was not accompanied by proper documents but also there was an attempt to evade tax due under the Act by the owner of the goods. Revision dismissed.
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2008 (9) TMI 886 - MADRAS HIGH COURT
Whether starch is a product of millet and all products of millets would be exempt from tax as per the Notification No. 89/70 dated March 14, 1970?
Held that:- It is well-settled in law that a Schedule to the Act is part of the Act itself and as such it has statutory force, the Commissioner being an executive authority cannot override the provisions of the Act and in exercise of the power conferred under section 28A of the Act, he cannot issue clarification running counter to the provisions of the Act. Even if any clarifications issued contrary to the provisions of the Act those clarifications cannot have any statutory backing and consequently would have no legal sanction. Inasmuch as sago and starch are classified in entry No. 22(vi) of Part B of the First Schedule taxable at four per cent on the first sale and entry No. 44 of the Third Schedule does not include maize starch and exempt from payment of tax the petitioner is liable to pay tax at four per cent and cannot claim total exemption.
In view of the amendment to the Schedule, the circular dated March 14, 1970 cannot be made applicable to the assessee and the impugned clarification dated October 8, 1998 requires no interference. However, the adjudication on the provisional assessment notices shall be proceeded in terms of this order. With these observations, this writ petition is dismissed
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2008 (9) TMI 885 - MADRAS HIGH COURT
Submission of declaration in form F - claim for exemption of stock transfers - Held that:- In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, the petitioner-company is permitted to submit its declaration in form F, as requested by it before the Assistant Commissioner (CT), Central Assessment Circle-1, Coimbatore, to the third respondent, within a period of four weeks from the date of receipt of a copy of this order to substantiate the petitioner-company's claim for exemption of stock transfers, under section 6A of the Central Sales Tax Act, 1956. On receipt of the declaration in F forms, along with the relevant documents submitted by the petitioner-company, the third respondent is directed to pass appropriate assessment orders thereon, on merits and in accordance with law, within a period of four weeks thereafter.
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2008 (9) TMI 884 - ORISSA HIGH COURT
Notice for conducting tax audit for the period from April 1, 2005 till the date of audit visit challenged - Whether it is permissible to conduct tax audits as provided under section 41 of the OVAT Act repeatedly for passing fresh audit assessment orders under section 42 of the OVAT Act for a particular period in respect of which earlier an order of assessment under section 42 of the OVAT Act was passed?
Held that:- once audit assessment under section 42 is completed for a particular period, the assessing officer becomes functus officio for the same period so far second and subsequent assessment under that section is concerned. But there is no embargo for reopening the audit assessment earlier made, under section 43 of the OVAT Act.
In view of the above, the present notice issued vide annexure 1 for tax audit for the period from April 1, 2005 till the date of audit visit is bad in law and liable to be quashed. W.P. allowed.
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2008 (9) TMI 883 - RAJASTHAN HIGH COURT
Exclusion of room coolers from the entry referable to 12 per cent rate of tax - Whether exclusion of section 5, Limitation Act has to be taken as having been provided by necessary implication?
Held that:- The revision petition is barred by limitation by two days and in the overall circumstances of the case, it appears appropriate to condone the delay in filing the revision petition. Delay is, accordingly, condoned. The revision petition be registered to its regular number.
On a comprehension of the facts noticed by the learned appellate authority and having examined the notifications with the said budget speech, this court is satisfied that the learned appellate authorities have rightly construed the later notifications as being intended to exclude the room coolers from the entry referable to 12 per cent rate of tax. The view as taken by the appellate authorities calls for no interference.
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2008 (9) TMI 882 - MADRAS HIGH COURT
Whether the crown's preferential right or a crown debt is subservient to the right of the secured creditor?
Whether the sale made under the Securitisation Act is absolute and free of all encumbrances which are known and unknown to the secured creditor?
Held that:- In the present case section 13(4) possession notice was issued by the Bank on December 15, 2006. By the time possession notice under section 13(4) was issued. Property was already attached and the order of attachment and notice of sale was served on August 1, 2006 itself. Despite attachment and notice of sale of land for the outstanding sales tax dues having been served upon, in an illegal manner, bank has proceeded under section 13 of the Securitisation Act and sold the property of second respondent firm for recovery of its outstanding dues. The subsequent sale proceedings of the bank is illegal and unauthorised.
Since, first respondent has statutory charge which is having priority over all other claims against the property, petitioner-bank cannot successfully challenge the impugned proceedings of the first respondent. Despite, recovery process for the outstanding sales tax dues, the action of the bank in proceeding under the SARFAESI Act is unauthorised and the petitioner bank is not entitled to the reliefs sought for in the writ petition. W.P. dismissed.
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2008 (9) TMI 881 - BOMBAY HIGH COURT
Termination of service - Held that:- The evidence in the present case does not in any manner indicate that the workman had committed any misconduct. As aforesaid, the witnesses for the respondent had, in fact, admitted that there was no misconduct on the part of the workman and that, therefore, there was no need of either charge-sheeting him or holding an enquiry against the workman. In these circumstances, the Award Part-II of the Labour Court is unsustainable and must be set aside.
The submission of the learned advocate for the respondent No.1 that it would not be possible for the respondent No.1 to reinstate the petitioner in view of the agreement between the Airports Authority of India and Mumbai International Airport Pvt. Ltd., is unacceptable. The petitioner will be treated in the same manner as other workmen who are today working with the Airports Authority of India.
As regards the back wages, the evidence led by the workman indicates that he made several attempts to get alternative employment and that he had no independent source of maintenance. This is a fit case to remand the matter to the Labour Court to decide whether the back wages and consequential benefits are payable to the workman from 29.4.1988 i.e. the date of termination to the date of reinstatement in service.
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2008 (9) TMI 880 - DELHI HIGH COURT
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... ... ..... on 139(1) of the Income-tax Act, 1961 (hereinafter referred to as the said Act ). The Tribunal concluded as a finding of fact that the said cash deposits could not be treated as undisclosed income of the assessee within the meaning of section 158B(b) read with section 158BB. The Tribunal also found that the addition by the Assessing Officer in the block assessment year was beyond the scope and ambit of Chapter XIV-B of the said Act. The Tribunal placed reliance on the decisions of this Court in the case of CIT v. Ravikant Jain 2001 250 ITR 1411 and CIT v. Jupiter Builders (P.) Ltd. 2006 287 ITR 2872, wherein the scope of block assessment proceedings under Chapter XIV-B had been settled. 4. The findings returned by the Tribunal are pure findings of fact. It is only thereafter that the Tribunal has applied the law as laid down by this Court in Ravikant Jain s case (supra) and Jupiter Builders (P.) Ltd. s case (supra). No substantial question of law arises for our consideration.
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2008 (9) TMI 879 - ITAT MUMBAI
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... ... ..... facture. In case of Indian Hotels Co. Ltd. (supra) food stuffs prepared by cooking from the raw material such as cereals, vegetables and meet was not regarded as manufacture as the end product was not a commercially different commodity. For example, in case of meet, input and output remained the same i.e., meet. The Hon ble Supreme Court, therefore, held that raw material in such cases could atmost be said to have been processed and made eatable and it was not a case of manufactures. In case of Sacs Eagles Chicory (supra) the Hon ble High Court of Madras noted that chicory powder obtained from chicory was nothing but chicory in powder form. It was, therefore, a mere change in the form of the same commodity and not manufacture. The case of the assessee as pointed out earlier is different. 5. In view of the foregoing, we hold that the assessee is a manufacturing concern entitled to deduction under section 80-IB. We see no infirmity in the order of CIT(A) and the same is upheld.
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2008 (9) TMI 878 - SUPREME COURT
Whether in view of the arbitration clause in the tender document provided under clause 20 of the said document, the breach specified in 16.2 is an “excepted matter”?
Whether the liability of the respondent to pay Liquidated Damages and the entitlement of the appellant, to collect the same from the respondent is an excepted matter for the purpose of clause 20.1 of the General Conditions of contract?
Held that:- The provision under clause 16.2 that quantification of the Liquidated Damages shall be final and cannot be challenged by the supplier Motorolla is clearly in restraint of legal proceedings under section 28 of the Indian Contracts Act. So the provision to this effect has to be held bad. The contention of the Respondent that Clause 62 referring to special clauses has an overriding effect on Clause 16.2, cannot be accepted.. There is in fact no conflict between clause 62 and 16.2. Clause 62 has two parts in it. One part referring to the Liquidated damages and the other part refers to incentives in case the respondent/Motorolla performs its part of the contract within time. The part dealing with Liquidated Damages under clause 62 in fact refers it back to clause 16.2 dealing with the quantification of Liquidated Damages. So it is apparent that there is no dispute between clause 62 and clause 16.2. Appeal dismissed.
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2008 (9) TMI 877 - MADRAS HIGH COURT
Whether the Tribunal was right in confirming the order of the Assessing Officer, who treated the purchase of Wattle Extract from Tamil Nadu Leather Development Corporation Limited as the last purchase without referring to the clarification of the Secretary to Government by his clarification dated 06.12.1988?
Held that:- The petitioner, being an incorporated body, it clearly fell within the expression "unincorporated association" referred to in sub-clause (e) of article 366(29A) of the Constitution. Section 2(n)(v) of the Tamil Nadu General Sales Tax act, 1959, treats the supply of goods by an unincorporated association, to its members for cash, deferred payment, or other valuable consideration, as a sale. The provisions for levy of tax on the supplies effected as in this case, were clearly to be found in section 2(n)(v) of the Tamil Nadu General Sales Tax Act, which was in conformity with article 366(29A)(e) of the Constitution and thereby confirmed the order of the Special Tribunal made in the above referred case reported in All India Skins and Hides Tanners and Merchants Association and Others vs. Commercial Tax Officer, Periamet Assessment Circle and Others [2001 (12) TMI 844 - MADRAS HIGH COURT]. Thus the issue is squarely covered by the decision reported above. Revision dismissed.
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