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Case Laws
Showing 161 to 180 of 868 Records
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2009 (4) TMI 904 - SUPREME COURT
Whether the High Court committed a grave error insofar it failed to take into consideration the fact that the appellants were not aware of the consequences of the death of the respondents and they had come to know thereabout only through the counsel at a much later state?
Whether the provision of Order 22 Rule 10A of the Code of Civil Procedure mandating the counsel of the deceased to duly inform the Court in regard to their clients passing away having not been complied with?
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2009 (4) TMI 903 - SUPREME COURT
Escapement of turnover from tax - whether the appellant-corporation could not provide any evidence in support of form F?
Held that:- In this case the appellant-corporation had furnished form F. In the said writ petition what was submitted by the appellant-corporation was that the notice for reassessment was wholly without jurisdiction and that the assessing authority could not have reopened the assessment in invoking rule 10 and rule 12(8) of the Central Sales Tax (Orissa) Rules in relation to transactions for which form F was furnished. Further, the High Court has failed to consider the challenge to the order of reassessment by the appellant- corporation on the ground that it was a case of change of opinion. Lastly, we find merit in the contention advanced on behalf of the appellant-corporation that looking to the magnitude of the matter including the demand the assessing authority ought to have given more time to the appellant-corporation for producing the relevant documents. In this case the impugned order of reassessment dated February 19, 2007 is virtually an ex parte order.
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2009 (4) TMI 902 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... Division Bench of this court rendered in the case of Chaudhary Tractor Company v. State of Haryana 2007 8 VST 10 and the judgment of honourable the Supreme Court in the case of J.K. Synthetics Ltd. v. Commercial Taxes Officer 1994 94 STC 422. It has come on record that the tax according to the return as contemplated under section 10(4) of the Act was deposited by the petitioner-dealer and no interest could be imposed. Question No. (i) concerns imposition of penalty under section 10(6) of the Act. Once Question No. (ii) has been answered in favour of the petitioner-dealer, namely, no interest was payable as the tax was deposited before filing the returns then the question of imposition of any penalty under section 10(6) of the Act would not arise. Accordingly, question No. (i) is also answered against the Revenue and in favour of the petitioner-dealer. In view of the above, both the questions are answered against the Revenue-respondent and in favour of the petitioner-dealer.
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2009 (4) TMI 901 - MADRAS HIGH COURT
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... ... ..... as he thinks fit, in regard to the payment of such tax, fee or other amount before the disposal of revision, if the applicant furnishes sufficient security to his satisfaction in such form and in such manner as may be prescribed. While the first respondent has taken note of the substantive provision,5 the first respondent has not taken note of the proviso to section 54(4). In other words the payment of disputed tax is not made a pre-condition under section 54(4). There is a limited discretion vested in the first respondent which he is supposed to exercise in a manner known to law. Therefore, the writ petition is allowed. The impugned order is set aside6 and the matter is remitted back to the first respondent for a fresh consideration. The first respondent shall consider the stay petition on the merits and pass appropriate orders within a period of two weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs.
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2009 (4) TMI 900 - SUPREME COURT
Whether appellants conviction for an offence relating to Section 138 of the Negotiable Instruments Act, 1881 correct?
Held that:- When the factual background of the present case is considered in the light of the principles referred to in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [2007 (2) TMI 311 - SUPREME COURT OF INDIA] the inevitable conclusion is that the appeal is bound to succeed. The conviction as recorded cannot be maintained.
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2009 (4) TMI 899 - DELHI HIGH COURT
Settlement of dispute - Arbitral proceeding - Held that:- The Arbitral Tribunal correctly held that the petitioner produced no evidence to establish that they had appointed an Engineer in writing under clause 3 of the Contract. The only reference to an Engineer is in the letter dated 29th December, 2007 averring for the first time that the letter dated 16th August, 1996 was, in fact, an Engineer's letter as per clauses 26 and 27. Significantly, this was well after the invocation of arbitration by the respondent on 11th November, 2007 and thus, is of no avail to the petitioner.
The petitioner's challenge to the award under Sections 11 and 16 of the Act must fail. No specific instances has been given, in the petitioner, as to which submission of the petitioner was not noted and in which manner the Arbitral Tribunal acted in a partial manner towards the respondent. Also uphold the decision of the Arbitral Tribunal dismissing the petitioner's application under Section 12 and 13 of the Arbitration Act.
No restriction on or order of the court by which the Arbitral Tribunal was precluded from adjudicating and deciding the dispute in respect of the bank guarantees. Since, the bank guarantees were given under the contract, which contained an arbitration agreement that applied, even as per the petitioner, to the bank guarantees, there is no error of jurisdiction in adjudication of disputes in respect of the Bank Guarantees by the Arbitral Tribunal.
The Arbitral Tribunal has rightly held that once it stood admitted by the petitioner that the material issued by it was used for its project and that there was no theft or pilferage, the petitioner could not make any claim against the respondent for excess consumption or deny the claim of the respondent for additional works which were necessitated due to site conditions and the, change in design.
Arbitral Tribunal in the present case comprised of Engineers, two of whom were appointed by the President, Institution of Engineers. Their decision to apply the Hudson Formula for calculating the damages and expenses cannot be faulted merely because they choose to apply the said formula. This objection of the petitioner thus has no merit and is therefore, rejected. The Arbitral Tribunal directed the petitioner to pay only 50% of the amount of losses and damages suffered by the respondent on account of the prolongation of the work. The objection raised by the petitioner, namely that the Arbitral Tribunal despite holding that the respondent was liable for 50% of the delay granted the entire claim, is therefore, clearly misconceived and is rejected.
In the present case, the petitioner has not been able to set out any ground on merits on which the Arbitral award merits interference from this Court except in the case of the butterfly valve and the award is modified and respondent held liable to pay ₹ 3,45,000/- instead of ₹ 2,00,000/- ordered by the Arbitral Tribunal on this claim. This amount of ₹ 3,45,000/- instead of ₹ 2,00,000/- shall be adjusted from the amount payable by the petitioner to the respondent. However, thus also allow the plea of the learned counsel for the petitioner Shri Bhat that in light of the current interest rates levy of 18% interest per annum was excessive and consequently reduce the rate of interest awarded by the Arbitral Tribunal to 12% uniformly. The present petition is accordingly dismissed with the above modifications with costs of ₹ 20,000/- in favour of the respondent.
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2009 (4) TMI 898 - SUPREME COURT
Appointment of arbitrator - whether any dispute exists between the parties? - Held that:- The Court without considering that whether any dispute exists between the parties, could not have appointed an Arbitrator. Therefore, the Court was not justified in appointing a Retired High Court Judge as the sole Arbitrator in the present case. Appeal allowed.
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2009 (4) TMI 897 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... nt case in the assessment proceedings nowhere it is stated by the assessing authority that it is the petitioner who had paid tax due under the Act. There is a categoric statement of the assessing authority in the assessment proceedings of the assessee that, it is the sellers who had collected the tax. The sellers are coffee planters and the petitioner is only the purchaser. Keeping all these aspects of the matter and properly analysing the provisions of section 44 of the KGST Act, the authorities under the Act as well as the Tribunal has negatived the claim of the assessee. We are in full agreement with the findings and conclusions reached by the Tribunal. Therefore, the questions of law raised by the assessee require to be answered against the assessee and in favour of the Revenue. Consequently, all pending interlocutory applications are also rejected. Ordered accordingly. S. Ganesh, Senior Advocate, (C.N. Sree Kumar and Anil D. Nair, Advocates with him) for the appellants.
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2009 (4) TMI 896 - MADRAS HIGH COURT
Equitable mortgage - whether any equitable mortgage was created by the third respondent or not? - Whether it is not necessary always that an original title deed alone should be deposited for creating an equitable mortgage?
Held that:- The issue as to whether any equitable mortgage was created by the third respondent or not is a question of fact to be pleaded in a suit and decided on the basis of the evidence to be adduced in the suit. Such disputed questions of fact cannot be gone into in the writ petition. Hence, we do not find any error or infirmity in the reasoning of the learned judge and accordingly, as stated above, the writ appeal fails and the same is dismissed.
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2009 (4) TMI 895 - RAJASTHAN HIGH COURT
Tax, penalty, interest and penalty under section 59, penalty under section 61 of the Sales Tax Act imposed - Held that:- No substantial question of law emerges in this case because the apex court has only held that there is liability of tax upon the respondent with regard to supplied material for construction work which falls under the definition of "sale" but further it is not adjudicated by the apex court as to from which date interest or penalty can be imposed. It is settled law that any adjudication made by the apex court has prospective effect unless it is specifically otherwise directed by the court. In the judgment of Karya Palak Engineer, C.P.W.D., Bikaner [2004 (8) TMI 114 - SUPREME COURT OF INDIA] it is nowhere adjudicated by the honourable apex court that this adjudication will have retrospective effect. In this view of the matter no error has been committed by both the Deputy Commissioner (Appeals), Jodhpur and learned Tax Board, Ajmer while adjudicating the appeals. The revision petition is, therefore, bereft of merit.
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2009 (4) TMI 894 - RAJASTHAN HIGH COURT
Sales tax revision - Held that:- While exercising revisional jurisdiction, scope is very limited and if any question of law arises, then, it must be formulated after mentioning the grounds. In a very casual manner, this revision petition has been filed under section 86 of the Act of 1994 having three paragraphs; and, in the fourth paragraph, questions of law have been formulated. It is very strange that in para 4, ten questions have been formulated. However, upon perusal of the whole of the revision petition including statement of facts, it is revealed that only ground is raised in para 4 of the statement of facts that the Tax Board has not appreciated the relevant provisions of law and material available on record in its proper light. For this assertion, no specific provision of law or material is pointed out by the petitioner nor any ground is raised except para 4 of the statement of fact. Therefore, no question of law arises for interference. Revision dismissed.
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2009 (4) TMI 893 - KARNATAKA HIGH COURT
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal had material to hold that there is a transfer of property in goods to the petitioner from the printer and also from the petitioner to the customer so as to warrant a conclusion that there are two sales?
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the petitioner carries on "business" and that there is no dispute about the fact?
Held that:- The findings have been affirmed by the first appellate authority with reference to the legal contentions urged by the Tribunal with reference to the findings challenged in the appeals before the Second Appellate Tribunal, which is the second appellate authority with reference to the same at paragraph No. 11, which, after recording its reasons has further concurred with the concurrent finding of fact recorded by the first appellate authority. Therefore, it cannot be said that the points answered by the Tribunal are vitiated on account of the erroneous finding for want of legal evidence on record.
We are in respectful agreement with the concurrent finding of fact recorded by the appellate authority as the same is based on materials, the accounts books and various other materials referred to in the order of the assessing officer by the Intelligence Wing of the Sales Tax Department and as the same has been rightly concurred with by the KAT, we do not find any reason whatsoever to interfere with the same. Appeal dismissed.
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2009 (4) TMI 892 - ALLAHABAD HIGH COURT
Grant of an exemption under notification dated July 27, 1991 rejected - Held that:- The facts, which emerge from the material on record are that the assessee had purchased land for setting up of a new unit in the year 1993. He had completed the construction in the year 1994. The assessee had also applied for the power connection, which had been granted to him but had not been fixed.
It is also clear from the record that the assessee had indeed purchased the til oil for ₹ 2,68,800. On March 27, 1995 generators were found at the site, even by the survey report dated April 26, 1995. The fact that the generators were found at the site is also evident from the certificate dated March 29, 1995 issued by the Assistant Director, Electricity Safety Department, U.P. Government, Mathura. Thus clearly the assessee has been able to establish his case that the "date of production" as stated was prior to March 31, 1995. The provisions of section 4A, Explanation (3) thus stood satisfied by the assessee.
Thus the view as taken by the Tribunal with regard to the "actual date of production " is clearly a mistaken view and deserves to be struck down and the assessee is entitled to the benefit of Notification No. 1093 dated July 27, 1991. Revision allowed.
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2009 (4) TMI 891 - ALLAHABAD HIGH COURT
matter remanded - ascertain as to what was the number of woollen goods/garments, which are to be taxed as an unclassified item - Whether, in view of the facts and circumstances of the case, the Trade Tax Tribunal was justified in holding that the pullovers and cardigans made out of acrylic and nylon which were sold by the applicant are different and ready made garments of wool?
Held that:- It is difficult to accept the contention of the learned counsel for the assessee that even though woollen garments are specifically excluded from the entries whose benefits he seeks, simply because they are garments they should be treated to be covered under entry No. 4 of Notification dated September 7, 1981. Wool is completely different from cotton. The arguments of learned counsel for the assessee are, therefore, rejected. The view taken by the Tribunal is correct. Decided in favour of the Revenue and against the assessee
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2009 (4) TMI 890 - RAJASTHAN HIGH COURT
No examination of the matter in its entirety and objectivity - whether the relevant material on record has altogether been ignored?
Held that:- No error has been committed by both the authorities below while setting aside the order passed by the assessing authority because, at the time of physical verification, bill and bilty of 10 electric motors were produced for perusal and according to proviso to rule 62A(3), for the goods which are purchased for production there was no requirement of declaration form ST-18A. In this view of the matter, it is obvious from the facts of the present case that electric motors were purchased and were in transit for the purpose of generating electricity for manufacturing thread, therefore, there is no illegality in the orders impugned which may give rise to any question of law to be decided by this court. Moreover, the question of mens rea is totally irrelevant in this case.
Thus both the authorities below set aside the order passed by the assessing authority for the reason that goods purchased were required by the respondent dealer for generating electricity to manufacture thread and there is exemption provided under proviso to rule 62A(3), therefore, in this matter there was no requirement of declaration form ST-18A. Tax revision dismissed.
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2009 (4) TMI 889 - MADRAS HIGH COURT
Incorrect exemption claimed under section 5(3) - Whether the action of the Tribunal in granting the relief of exemption of additional surcharge is correct or not?
Held that:- As the notification was not cancelled, it is very clear that the Government did not want to cancel the benefit. The other contention of the Government Pleader is that the notification is qualified with reference to the city of Madras and other peripheral areas, and due to be cancelled when a particular provision has been taken away from the statute. We are not able to approve the argument of the learned Government Pleader. Even in the reintroduced section, there is no much difference when compared to the earlier section. De hors the deletion and re-introduction of the section, unless the notification issued by the Government for which the Government has every power is cancelled as per law, the benefit of the exemption granted by that notification has to be extended to the assessee.
No illegality or irregularity in the order of the Tribunal.
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2009 (4) TMI 888 - MADRAS HIGH COURT
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... ... ..... nalty was statutorily fixed by the amended provision which came into effect on and from July 1, 2002. So, if there is a difference between the tax paid and tax assessed, the penalty has to be levied under section 12(3)(b) of the Act. The taxability of income from transfer of REP licence was again confirmed in the case of Yasha Overseas v. Commissioner of Sales Tax 2008 17 VST 182 by the apex court. The scope of statutory penal provision has also been enunciated by the three-judge judgment of the apex court in Union of India v. Dharamendra Textiles Processors 2008 18 VST 180 2008 306 ITR 277. There is absolutely no material whatsoever made available for us to take a different view, having regard to the dispute as to the taxability of the turnover or any genuine reason given by the assessee for non-payment of the tax on that turnover prior to the framing of the assessment. Hence, we do not find any reason to entertain this tax case revision. The tax case revision is dismissed.
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2009 (4) TMI 887 - MADRAS HIGH COURT
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... ... ..... run canteen (Heavy Vehicles Factory), Avadi, Madras and settled by the said unit run canteen. The above factors clearly prove that the sales were made by the assessee in favour of the canteen stores. The reasoning of the Tribunal, that as the canteen stores have purchased mixers for the benefit of women welfare association which is catering to the needs of the welfare of the heavy vehicle factory and the residents of the heavy vehicle factory are the ultimate beneficiaries are all immaterial to decide the issue whether the assessee is entitled to the benefit. If the terms of the Government order is complied with by the assessee, the assessee is entitled to get the benefit of G.O.P. No. 3125 dated December 30, 1964. Hence, we are of the view that the reasoning of the Tribunal is against the very purpose for which the G.O., was issued and the order of the Tribunal is set aside by holding that the assessee is entitled to the benefit of the G.O. The appeal is allowed. No costs.
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2009 (4) TMI 886 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal being the final fact-finding authority has failed to appreciate the material facts by application of independent mind?
Whether the Tribunal is correct in law in having deleted actual suppression with equal addition made on the exhibition sales which were not accounted for by the assessee till the date of inspection carried out on October 27, 1998?
Whether the order of the Tribunal in having deleted the consequent penalty is legally sustainable?
Held that:- When the entire amount of exhibition sale has been reflected in the books of accounts and offered for taxation, we are of the view that the Tribunal has correctly come to the conclusion that there is absolutely no necessity to warrant making equal addition in a sum of ₹ 4,00,973 towards exhibition sale, which otherwise would amount to penalising the dealer who offered the entire sale for taxation by maintaining books and other accounts, however belatedly incorporated the sales for valid reason. Revision dismissed.
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2009 (4) TMI 885 - KERALA HIGH COURT
"Ujala Supreme" and "Ujala Stiff and Shine" - Whether both the items fall under residuary entry 103 of S.R.O. No. 82 of 2006 which provides for rate of tax on items not covered by any of the entries in the list provided in the notification or by any entry of any of the Schedules to the Act?
Held that:- Even though classification of items under VAT regime is also based on HSN numbers, the same does not mean that the products made out of items with HSN numbers should be classified as the original items with same HSN number. When the products made from industrial raw material are commercially different with distinct use and purpose, it cannot be treated as the raw material from which it is made. Our findings above rendered with regard to Ujala Supreme squarely apply to Ujala Stiff and Shine also. We are therefore of the view that the Commissioner of Commercial Taxes is perfectly justified in classifying the two items under residuary entry 103 of S.R.O. No. 82 of 2006. Appeal dismissed.
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