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1968 (8) TMI 186 - SUPREME COURT
Whether there has been denial of equal protection of the laws?
Held that:- Act 19 of 1961 which is challenged in the present case applies to the whole State of Kerala in respect of buildings completed on or after March 2, 1961, whatever may be the nature or class of the building, the use to which it is put, materials used in its construction and the extent of profitable user to which the building may be put, its cost and its economic rental. It is unnecessary in the circumstances to consider whether imposition of a tax only on buildings constructed after March 2, 1961, and exempting buildings completed before that date may not violate Art. 14 of the Constituiton.
The High Court was, in our judgment, right in holding that the charging section of the Act is violative of the equality clause of the Constitution. Appeals dismissed
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1968 (8) TMI 185 - MADRAS HIGH COURT
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... ... ..... ity exercised due diligence to find whether the transactions constituted second sales during inter-State movement of goods and, therefore, were not liable to tax under section 6(2). If the nature of the transactions is as described by the assessee, and noticed by us in the earlier part of this order, the assessee would be entitled to have the benefit of section 6(2). Since we have found that the relevant records were before the assessing authority, we are inclined to think that the mistake is one within the purview of section 55, provided the transactions are eventually found to be second sales in the course of the inter-State movement of the goods. On that view, the petitions are allowed. That means the applications for rectification of the mistake, if any, will have to be disposed of afresh, after the concerned authority examining each transaction in question in the light of the relevant evidence. In the circumstances, there will be no order as to costs. Petitions allowed.
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1968 (8) TMI 184 - ANDHRA PRADESH HIGH COURT
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... ... ..... ingly, the Bench held that the discrimination, if any, is not traceable to section 8 but to the difference existing in the laws of the different States and that on that premises, it is difficult to postulate that section 8 suffers from the vice of discrimination and that Article 14 has been violated. By a parity of reasoning, we also fail to see how the provision relating to payment of tax as a condition for entertaining an appeal can be said to be discriminatory, merely because some other States have not incorporated a similar provision in their Sales Tax Acts. There is also no material for us to consider this question, because it has not been shown whether there are any States in India which have in their Sales Tax Acts not incorporated provisions similar to the one contained in section 21(6) of the A.P.G.S.T. Act. For these reasons, we do not consider that this writ petition has any force. It is accordingly dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1968 (8) TMI 183 - ALLAHABAD HIGH COURT
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... ... ..... of the instant case point to the conclusion, as the Judge (Appeals) has found, that Hazoor Singh was not a partner in the business and there is no material whatever to suggest that he was such a partner, it is difficult to appreciate how the remand can be justified. The remand was made because there was nothing on the record to fasten the tax liability upon Hazoor Singh and to afford to the Sales Tax Officer another innings for an attempt to collect material against Hazoor Singh. Clearly, the interests of justice did not prompt the remand. The interests of the revenue prevailed. The order of the Judge (Appeals) remanding the case was plainly perverse and wholly unjustified. In our judgment, the Judge (Revisions) acted rightly in law in quashing the order of remand. We answer the question, as reframed by us, in the affirmative. The respondent is entitled to his costs which we assess at Rs. 200. Counsel s fee is also assessed in the same figure. Reference answered accordingly.
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1968 (8) TMI 182 - MADRAS HIGH COURT
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... ... ..... anding in the instant case was that the Madras branch should despatch the goods to the buyer pursuant to what the parties have already said, wrote and did. The proposal as indicated by the first respondent in his notice dated 21st February, 1967, is therefore well within his jurisdiction and the petitioner is not entitled to the writ of prohibition prayed for. We however make it clear that there may be circumstances in each particular case of sale wherein different aspects or circumstances may arise leading to different results. It is of course necessary for the assessing authority to examine each of the invoices in juxtaposition to the correspondence attendant thereon to find out what was the intention of the parties and how it is manifest in the correspondence and whether the well known tests to make a sale an inter-State sale are satisfied in each of those cases. With these observations this writ petition is dismissed with costs. Counsel s fee Rs. 250. Petition dismissed.
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1968 (8) TMI 181 - MYSORE HIGH COURT
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... ... ..... Act, and that what was so charged by that section was smaller than the tax provisionally determined. So it is clear that the tax under the Act within the meaning of section 13 which the dealer was under a liability to pay was only Rs. 900 as determined by the final assessment and not the sum of Rs. 1,481.28. So in respect of the reduction, no penalty could have been properly recovered and the claim made by the dealer was an unanswerable claim. In the view that we take, it becomes unnecessary for us to embark on a discussion of the question whether section 13 provides for the imposition of a penalty for default in the payment of the tax provisionally determined under section 12-13. On that question we abstain from expressing any view in this revision petition. The order made by the Tribunal is, in our opinion, a proper order, and so, we dismiss this revision petition. But since the dealer has not entered appearance, we make no direction in regard to costs. Petition dismissed.
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1968 (8) TMI 180 - ALLAHABAD HIGH COURT
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... ... ..... of section 8 of the U.P. Act. We are quashing the sale proclamation (annexure F). But it will be open to the respondents to issue a fresh notice of demand as prescribed by sub-section (1) of section 8 of the U.P. Act and rule 45, and proceed to collect arrears of tax under the Central Act, arrears of tax under the U.P. Act and interest payable on the arrears under the U.P. Act in accordance with law. The petitioner has raised the question of rebate. In the present proceeding we are not determining the total amount payable by the petitioner on account of tax and interest. It is not, therefore, necessary to deal with the question of rebate in the present proceeding. It will be open to the petitioner to raise the question of rebate before the respondents at the appropriate stage. The petition is partly allowed. We quash the sale proclamation dated 28th March, 1967 (annexure F to the writ petition). Parties shall bear their own costs in this proceeding. Petition partly allowed.
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1968 (8) TMI 179 - ALLAHABAD HIGH COURT
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... ... ..... y different. The subject-matter of the appeal against the original assessment was not the subject-matter of the subsequent revisional proceeding taken by the Board of Revenue. In so far as the subject-matter of the revisional proceeding was concerned the original order remained undisturbed by the appellate order. The facts before us are entirely different. The tax liability assessed against the petitioner was modified by the appellate authority and thereafter again reduced by the Additional Revising Authority. The subject-matter continued the same throughout from assessment to appeal and thereafter from appeal to revision. In the result, the petition is allowed. The recovery proceedings in respect of the assessment years 1959-60, 1960-61 and 1961-62 taken on the basis of the notices of demand issued consequent to the appellate orders for those years are quashed. The remaining relief prayed for is refused. In the circumstances, there is no order as to costs. Petition allowed.
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1968 (8) TMI 178 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... cannot be held valid. So even this consideration does not advance the argument on the side of the respondent. The consequence is that the notification of 24th August, 1966, of the existing State of Punjab under sub-section (2) of section 6 of Punjab Act 46 of 1948 was not law before 1st November, 1966, and has not been law after that date within the meaning and scope of the word law as defined in section 2(g) of Act 31 of 1966, with the result that section 88 of the last-mentioned Act is not attracted to it, and thus that notification has not the force of law on the basis of which the final amendment as made by the respondent could have been made in the terms of subsection (2) of section 6 of Punjab Act 46 of 1948. This petition is, therefore, accepted, declaring the impugned amendment of item 30 in Schedule B to Punjab Act 46 of 1948 invalid and not an amendment according to law. There is no order in regard to costs in this petition. B.R. TULI, J.-I agree. Petition allowed.
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1968 (8) TMI 177 - MYSORE HIGH COURT
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... ... ..... uty Commissioner and remitted the appeal to him for disposal on merits. In this revision petition presented by the State, the contention raised is that the order passed by the Commercial Tax Officer is not an appealable order and that the view taken by the Sales Tax Appellate Tribunal that it was, is unsupportable. It is clear that there is no substance in this contention. Section 20 of the Mysore Sales Tax Act, 1957, as it stood after its amendment in the year 1964, authorised an appeal from every order under the Act by which the appellant is affected. It is this amended section which was in force when the Commercial Tax Officer imposed a penalty, and so, the Deputy Commissioner was in error in thinking that that order was not appealable. An order by which a penalty is imposed on a dealer is an order which seriously affects him, and so, falls within the provisions of section 20 of the Mysore Sales Tax Act. So, we dismiss this revision petition. No costs. Petition dismissed.
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1968 (8) TMI 176 - ALLAHABAD HIGH COURT
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... ... ..... or of jurisdiction has been pointed out and no manifest injustice can be said to arise because of the proceedings taken by the Sales Tax Officer for recovery of the sales tax assessed against the petitioner. That application must also fail. Accordingly, we make the following orders Sales Tax Reference No. 574 of 1963-The questions referred are answered as follows Question No. (1) In the affirmative. Question No. (2) Need not be answered. Question No. (3) Need not be answered. Question No. (4) Need not be answered. Question No. (5) Need not be answered. Question No. (6) Need not be answered. Inasmuch as question No. (1) has been answered against the dealer on the basis of the law declared subsequently by the Supreme Court, there is no order as to costs. Special Appeal No. 330 of 1963-The special appeal is dismissed with costs. Miscellaneous Application No. 177 of 1963-The application is dismissed with costs. Reference answered accordingly and appeal and application dismissed.
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1968 (8) TMI 175 - MADRAS HIGH COURT
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... ... ..... sos could be read into one another. They provide for two separate matters. If and when the admitted tax is fully paid the appeal becomes entertainable. Nevertheless, the question of limitation may arise. In that event the relevant proviso will be the first one which enables the officer in case of sufficient cause for the delay to excuse the delay. In the circumstances of this case we are satisfied that there was sufficient cause. The writ petition is allowed. There will be a direction to the Appellate Assistant Commissioner aforesaid to entertain the appeal and dispose it of in accordance with law. No costs. Petition allowed.
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1968 (8) TMI 174 - RAJASTHAN HIGH COURT
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... ... ..... ared to entertain the objection regarding validity of notice at this stage when the order of reassessment has already been passed and, as we are given to understand, the assessee has also filed an appeal from that order, and the same is pending. It is open to the assessee to question the correctness or validity of the order of reassessment in appeal on this ground also. We, therefore, need express no opinion on the question whether the notice under section 12 is bad and whether the order of reassessment is not sustainable on that account and leave the party to agitate this point in appeal from the reassessment order, if so advised. In the result, we hold that section 5-A of the Act is neither ultra vires Articles 286, 301 and 304 of the Constitution nor is it in contravention of section 15 of the Central Sales Tax Act. All the writ applications are, therefore, dismissed but in the circumstances of the case we leave the parties to bear their own costs. Applications dismissed.
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1968 (8) TMI 173 - MADRAS HIGH COURT
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... ... ..... arch, 1967. We should, however, deprecate such over-anxiety on the part of assessing authorities to make material alterations in orders so that they could rectify errors apparent on its record. By such an open correction, the assessing authorities who are exercising jurisdiction under a statute are exposing themselves to open criticism by higher authorities, besides such an act being calculated to advance an illegality and to suppress mischief. Learned counsel for the revenue is unable to persuade us to come to a conclusion that the order has not been made on 5th April, 1967. If, therefore, the order has been so made, it is beyond the prescribed period of time and therefore unenforceable in the eye of law. On this ground also the petitioner should succeed. The rule nisi is made absolute and the order impugned is struck down as one having been passed without jurisdiction, besides being illegal. This writ petition is allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1968 (8) TMI 172 - GUJARAT HIGH COURT
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... ... ..... certificate was operative. No such situation obtains in the present case. No authority has found that the assessee ought not to have been registered or that his registration should be cancelled. Here the question is entirely different. The assessee is admittedly a dealer in respect of other transactions carried on by it and it is properly registered as a dealer in respect of those transactions. The only question is in regard to sales effected by the assessee to its members in the canteen and so far as this activity is concerned, the assessee contends that it is not carrying on business and therefore those sales are not liable to tax. That contention is not met by anything in section 22, sub-section (5-A) and, for reasons which I have given above, it must be accepted as correct. The answer to the second question must also therefore be in the negative as proposed by Mehta, J. The Commissioner will pay the costs of the reference to the assessee. Reference answered accordingly.
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1968 (8) TMI 171 - ANDHRA PRADESH HIGH COURT
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... ... ..... er rule 51-A of the Andhra Pradesh General Sales Tax Rules, a direction might be given that the tax due may be recovered in the first instance from the properties of the firm, before the sales tax authorities proceed against the petitioner. Rule 51-A is in these terms In case of default of payment of the tax, penalty or any fee leviable under the Act, the properties of the firm may be proceeded against in the first instance for the recovery of the amount due from the firm. The terms of this rule are clear enough, and it gives the authority a discretion to proceed against the properties of the firm in the first instance. The authorities may be expected to act fairly and justly, keeping in view the provisions of this rule. We do not think it necessary to issue a direction in this regard. In the result, these writ petitions fail and are dismissed-Writ Petition No. 718 of 1966 with costs Advocate s fee Rs. 250-and Writ Petition No. 719 of 1966 without costs. Petitions dismissed.
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1968 (8) TMI 170 - ALLAHABAD HIGH COURT
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... ... ..... e refundable amount against an outstanding liability of the dealer. We are unable to equate the refund of an amount payable to a dealer with the adjustment of such an amount towards a liability outstanding against him. In the one case the dealer applies for the repayment of the money into his hands. In the other, he applies that the amount instead of being repaid to him be credited towards the liability outstanding against him. We are of opinion that the subject-matter of the first proviso cannot be confused with what is contemplated within the second proviso. The two matters are distinct and separate and, therefore, the period of limitation prescribed under the first proviso cannot govern the matter of adjustment contemplated by the second proviso. We, therefore, answer the question referred to this court in the negative. The respondent is entitled to his costs which we assess at Rs. 200. Counsel s fee is also assessed in the same figure. Reference answered in the negative.
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1968 (8) TMI 169 - PUNJAB HIGH COURT
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... ... ..... n for general public use is the essence of manufacture for the purposes of this Act. A goldsmith or a tailor or a shoemaker who only makes things to the order of particular customers is not any the less a manufacturer or producer than a goldsmith or a tailor or a shoemaker who makes and keeps ready-made things for all and sundry. On the basis of the above discussion and the judgments referred to, I hold that the petitioner in this case is a dealer within the meaning of section 2(d) of the Act and he himself manufactures or produces goods for sale as contemplated in section 4(5)(b) of the Act. There is, in my opinion, no difference between the case of a chemist who prepares medicines on the prescriptions of any doctor and the doctor who has his own dispensary to dispense his own prescriptions for his patients. In the result, there is no merit in the petition which is hereby dismissed but in the circumstances of the case, there will be no order as to costs. Petition dismissed.
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1968 (8) TMI 168 - ALLAHABAD HIGH COURT
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... ... ..... ales Tax Act and has pointed out that the notifications refer variously to the parts of an article, the spare parts of an article and the component parts of an article and urges that in the context a component part must be understood as an integral part of the article. We have already pointed out that, in our opinion, the body mounted on the chassis of a motor vehicle is an integral part of the motor vehicle. Therefore, the submission on behalf of the respondent does not carry his case any further. In our judgment, the truck bodies manufactured and sold by the respondent must be considered as component parts of motor vehicles and, therefore, liable to charge by reference to Notification No. S.T.-905/X dated 31st March, 1956, issued under section 3-A of the U.P. Sales Tax Act. We answer the question accordingly. The Commissioner of Sales Tax is entitled to his costs, which we assess at Rs. 200. Counsel s fee is also assessed in the same figure. Reference answered accordingly.
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1968 (8) TMI 167 - SUPREME COURT
Whether the chaff-cutter (kutti-ki-machine) comes under item (12) 'mowers' of Notification No. 736-3694-V-SR dated April 1, 1959, issued by the State Government as laid down in item 1 of Schedule I appended to the Madhya Pradesh General Sales Tax Act, 1958?
Held that:- Appeal dismissed. Kutti-ki-machine or the chaff-cutter is used only after the removal of stems, hay, grass etc. from the earth. Thus the decision of the High Court is correct and must be upheld.
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