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1969 (1) TMI 66 - ALLAHABAD HIGH COURT
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... ... ..... ary jurisdiction of this court conferred by article 226 of the Constitution. It is pointed out that after the appeal the petitioner could proceed in revision and then seek the opinion of this court in a reference under the U.P. Sales Tax Act. We have carefully considered the plea, and we cannot accept it. It is well-settled that the existence of an alternative remedy is not an absolute bar to the grant of relief under article 226. There are a very large number of cases which have raised the point considered by us, and indeed the entire mercantile community dealing in this commodity is greatly agitated by the levy of the tax. To postpone the day of adjudication and prolong the uncertainty is not, we think, in the interest of justice. The petition is allowed. A writ in the nature of certiorari shall issue quashing the assessment order dated 30th June, 1968, made by the Sales Tax Officer for the assessment year 1966-67. The petitioner is entitled to his costs. Petition allowed.
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1969 (1) TMI 65 - CALCUTTA HIGH COURT
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... ... ..... ained in Ben Gorm s case 1964 15 S.T.C. 753 A.I.R. 1964 S.C. 1752. Learned Government Pleader contended that the petitioner could not succeed without impleading the State Trading Corporation because nobody knew for what purpose they had purchased the goods from the petitioner. This is, however, not acceptable, because the purpose and all the incidents of the transactions are evident from the papers on the records. In my opinion, the Rule should succeed in part, in respect of items (1) and (3) at page 95 of the petition and the Rule is made absolute to that extent. Parties will bear their own costs. Let the demand notice at annexure P be cancelled and respondents 1-3 be restrained from giving effect to the impugned assessment order at annexure N, without deducting from the turnover the amounts of the transactions referred to in items (1) and (3) at page 95 of the petition. The operation of this order is stayed for a period of six weeks from this date. Petition partly allowed.
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1969 (1) TMI 64 - MADRAS HIGH COURT
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... ... ..... . The other part of the reasoning of the Tribunal that the terms regarding the movement of goods was not agreed upon, does not appear to be factually correct. The terms of the contract in each of these cases are those recognised by the East India Cotton Association and they are stereotyped. These terms do show that the supply of cotton in fulfilment of the terms of the contract was to be made by movement of the goods from out-ofState into this State. It follows, therefore, that the goods were out-ofState at the time when they were despatched and the contract for their despatch was entered into or when they were appropriated to the contract. It is also clear that the goods moved into this State as part of the terms or under the relative contract. These features establish that the transactions in question were of inter-State character. The tax case is allowed in respect of the said disputed turnover. The petitioner is entitled to costs. Counsel s fee Rs. 100. Petition allowed.
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1969 (1) TMI 63 - MADHYA PRADESH HIGH COURT
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... ... ..... purchasing dealer and of which portions marked original were said to have been lost. The dealer was not entitled to the benefit of the concessional rate of tax under section 8(1) of the Act on the basis of the duplicates that he produced. However, as there has been some confusion in this respect, in the interest of justice, he may be given opportunity to produce the duplicates as contemplated by clauses (iv) and (v) of subrule (5-A) of rule 8. 5.. For the reasons stated above, our answer to the question is that the duplicate C Forms can be accepted in case of loss of the originals provided the duplicates are those which are referred to in clauses (iv) and (v) of sub-rule (5-A) of rule 8 of the Madhya Pradesh Sales Tax (Central) Rules. In the instant case, the duplicates that were accepted were not which were obtained under clauses (iv) and (v) and their acceptance was not legal and proper. There will be no order as to costs of this reference. Reference answered accordingly.
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1969 (1) TMI 62 - MADRAS HIGH COURT
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... ... ..... may or may not be subject to tax in view of the relevant statutory provisions. We do not think that Guduthur Thimmappa and Son v. State of Andhra Pradesh 1964 15 S.T.C. 299, 310. expresses any view to the contrary. On the other hand A.V. Fernandez v. State of Kerala 1957 8 S.T.C. 561. pointed out the essential difference between exemption or deduction for purposes of tax and nonliability to tax. The Supreme Court observed, though in a different context, that the Legislature cannot enact a law imposing or authorising the imposition of a tax on such sales (exempted sales) and they should be excluded from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed. We are of the view, therefore, that the computation made by the assessing authority is not authorised by the Act and the assessee s turnover below Rs. 10,000 did not attract tax. The tax case is allowed with costs. Counsel s fee is fixed at Rs. 100. Petition allowed.
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1969 (1) TMI 61 - MADHYA PRADESH HIGH COURT
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... ... ..... erly regarded as a department of the Government of India in the sense the word department is used in the notification. For purposes of the notification, even when a sale is made to a branch of the Railways department, the sale will be taken to be a sale made to the Railways department, as the branches of the department have no separate existence. In our opinion, the sales by the assessee in the instant case, though made to the Engineering Department of the Railways, have to be regarded for purposes of the notification as sales made to the Railways department of the Government of India, which is engaged in a commercial activity and carries on business. The sales, therefore, fell within the exception contained in the notification and were rightly not assessed at the reduced rate of tax fixed by it. 5.. For the reasons indicated above, we answer the question referred to us in the negative. There will be no order as to costs of this reference. Reference answered in the negative.
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1969 (1) TMI 60 - MADHYA PRADESH HIGH COURT
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... ... ..... nd that for making the dealer liable to purchase tax under section 4(6) of the Act, what is necessary is incontrovertible evidence that the assessee purchased the goods without paying any tax for the purpose indicated in section 4(6) and utilized them for other purpose. 5.. Following the decision of the Supreme Court in Mohanlal Hargovind Das v. State of M.P. 1967 19 S.T.C. 263 A.I.R. 1967 S.C. 1022., the question referred to us is answered by saying that even if the certificate of registration issued to the dealer is not in strict conformity with the prescribed form corresponding to the amended section 4(6), yet the dealer would be liable to be assessed under the amended section 4(6) of the Act if there is evidence to show that he purchased the goods without payment of tax for the purpose indicated in section 4(6) of the Act and utilized them for other purpose. The assessee shall pay costs of this reference. Counsel s fee is fixed at Rs. 100. Reference answered accordingly.
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1969 (1) TMI 59 - ALLAHABAD HIGH COURT
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... ... ..... He came to the conclusion on the basis of some of the entries in the Parchas of 9th July, 1957, and 29th March, 1958, two widely separated points of time in the assessment year 1957-58, that all the transactions entered into by the assessee were not recorded in his account books and on that basis proceeded to make a best judgment assessment. His decision has been endorsed by the appellate and revising authorities, and upon the facts of the case we find ourselves in agreement with that decision. We hold that upon the facts of the case, although an original assessment of the turnover for the assessment year 1957-58 had already been made the Sales Tax Officer was entitled to make a best judgment assessment of the assessee s turnover under section 21(1) 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. 100. Counsel s fee is also assessed in the same figure. Reference answered accordingly.
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1969 (1) TMI 58 - ALLAHABAD HIGH COURT
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... ... ..... decided M/s. Pooran Mal Kapoor Chand s caseS.T.R. No. 147 of 1957 decided on 30th July, 1963., the learned Judges who decided this S.T.R. No. 277 of 1966 observed as follows It seems to us that the learned Chief Justice did not, at the time when he made these observations, have in mind the facts of a case such as the one before us. If the whole basis of the original assessment is unsound, and it is found that the turnover has escaped assessment, we see no reason why the Sales Tax Officer should not be entitled to reopen the original assessment and reassess the turnover. We do not see why the right to make an assessment to the best of his judgment should be denied to him in such a case. For the reasons mentioned above, we answer the question referred to us in the affirmative in favour of the Commissioner of Sales Tax and against the assessee. We award a sum of Rs. 50 as costs in each of the two references, i.e., in all a sum of Rs. 100. References answered in the affirmative.
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1969 (1) TMI 57 - MYSORE HIGH COURT
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... ... ..... the sale by the agent for the purposes of the Sales Tax Act becomes his own independent transaction falling as it does within sub-clause (iii) of clause (a) of the 3rd explanation to section 2(t), it does not become so in the latter. The mistake which was responsible for the assessment made by the assessing authority was attributable to the impression that even in a case where the agent does not credit the principal s account with all the realisations and collections it was possible under the Act to deduce two transactions, although it is clear that it could not be so done. Even the Deputy Commissioner and the Tribunal committed the same mistake committed by the assessing authority. So we allow this revision petition and set aside all the three orders against which this revision petition is directed. We issue a direction to the assessing authority to make the rectification sought by the petitioner. The petitioner will get his costs. Advocate s fee Rs. 100. Petition allowed.
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1969 (1) TMI 56 - ALLAHABAD HIGH COURT
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... ... ..... nown concern engaged in the manufacture of pharmaceuticals and cosmetics. They have divided their various products into separate divisions like pharmaceuticals, cosmetics and pesticides. They have placed their well-known Binaca tooth-pastes in the cosmetics division and not in the pharmaceutical division even though they claim medicinal properties for the different varieties of their tooth-pastes. This shows that in the commercial world dentifrices like tooth-pastes and tooth-powders are regarded as items of cosmetics and toilet requisites. We are, therefore, of the opinion that the tooth-powder in question is an article of cosmetics or toilet requisites falling with item 6 of Notification No. 905/X dated 31st March, 1956, and we answer the question accordingly. The Commissioner of Sales Tax is entitled to his costs which we assess at Rs. 50 in each case and the fee of the learned counsel for the department is also assessed at the same figure. Reference answered accordingly.
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1969 (1) TMI 55 - ANDHRA PRADESH HIGH COURT
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... ... ..... nd under section 15(b) of the Central Act, and the assessing authorities should entertain the applications made by the petitioners and consider the same on merits without reference to the G.O. Ms. No. 1094, Revenue, dated 14th July, 1964. As we are of the view that the applications should be entertained and disposed of by the assessing authorities, it is unnecessary for us to decide the question whether rule 27-A of the Rules under the State Act is ultra vires the powers of the rule-making authority. For all the foregoing reasons, we, therefore, allow the writ petitions to the extent mentioned above and direct the respondents herein to entertain the applications of the petitioners herein for refund of the sales tax levied under the State Act in accordance with the provisions of section 15(b) of the Central Act and the proviso to section 6 of the State Act, and dispose of them according to law. In the circumstances of the case, we make no order as to costs. Petitions allowed.
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1969 (1) TMI 54 - ALLAHABAD HIGH COURT
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... ... ..... The terms of the remand order disclose that the Sales Tax Officer was intended to recheck the calculation and examine what was the amount of tax actually collected and realised under section 8-A(4). It was an enquiry restricted to a specific area, and it was not open to the Sales Tax Officer to proceed to determine the entire turnover of the assessee. If any turnover had escaped assessment by reason of having been omitted from the original assessment proceeding the remedy lay in taking proceedings under section 21. For taking those proceedings it was necessary for the Sales Tax Officer to comply with the conditions embodied in section 21. He had to have reasonable belief that turnover had escaped assessment and before taking the assessment proceeding he was bound to issue a notice to the assessee. We answer the question accordingly. The assessee is entitled to his costs which we assess at Rs. 100. Counsel s fee is assessed in the same figure. Reference answered accordingly.
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1969 (1) TMI 53 - MYSORE HIGH COURT
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... ... ..... essing any opinion on the validity of the postulate placed before us by Mr. Srinivasan. That question has to be decided only in a case in which it properly arises, and, in these cases, it does not. But, it is however clear that in the cases before us in which the appellant brought the trucks from Jamshedpur to Bangalore after he had entered into an agreement for the sale of those trucks to his customers, the freight was paid by him for purposes of the sale which he had agreed to make to his customer, and so, that freight could not be included in the taxable turnover. Whether or not the freight paid in any other contingency is properly within clause (f)(i) of rule 6(4), it is plain that the freight paid for purposes of a sale, is not taxable turnover. So, we allow these appeals and set aside the order made by the Commissioner of Commercial Taxes and restore that made by the Deputy Commissioner. The appellant will get his costs. Advocate s fee Rs. 100 one set. Appeals allowed.
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1969 (1) TMI 52 - ALLAHABAD HIGH COURT
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... ... ..... he dealer. This clause read with clause (f) of rule 20-B yields the result that in case the application is filed after the due date, the exemption certificate granted under clause (e) shall have the effect from the date of application. This would indicate that an application for exemption does not become competent until the Sales Tax Officer has satisfied himself that the amount of fee has been properly calculated and paid. From this it follows that what is of substance is the payment of the correct amount and not the mere filing of the chalan. As said earlier, the only function of a chalan is to furnish proof that the payment has already been made. That being the position we answer the question referred to us in favour of the department and against the assessee by saying that the fee was to be paid on the turnover from 22nd of August, 1957, to 31st of March, 1958. In the circumstances of the case we direct the parties to bear their own costs. Reference answered accordingly.
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1969 (1) TMI 51 - SUPREME COURT
As in the assessment and collection of tax the liability has to be determined by the provisions of the Central Sales Tax Act as expressly so decided in Travancore Rubber and Tea Co.'s [1967 (4) TMI 134 - SUPREME COURT OF INDIA]
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1969 (1) TMI 42 - IN THE COURT OF APPEAL
Directors - Power of ... ... ... ... ..... for the company in general meeting to decide by ordinary resolution. To litigate or not to litigate, apart from very special circumstances, is for decision by such a resolution. If, as I consider, the company could validly decide by ordinary resolution not to institute proceedings to avoid the voidable allotment mdash a resolution which could not possibly be said to contradict or alter the articles mdash it seems to me to support entirely the view that an ordinary resolution in the terms posed in the point of law would be effective, having as it would in substance the same purpose and effect as a resolution not to bring proceedings to avoid the allotment. In the end, however, the contention of the minority shareholders that the suggested resolution would be a resolution to allot shares, or a resolution to alter or contradict any provision of the articles, is, in my judgment, quite unfounded and I also would dismiss the appeal. Karminski L.J. I agree, and have nothing to add.
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1969 (1) TMI 41 - HIGH COURT OF MADHYA PRADESH
Investigation of company’s affairs in other cases ... ... ... ... ..... r the time being in force and there is no justification in the language of section 237(b) for reading into that provision any limitation as regards the period of affairs to be investigated or as regards the persons in the management of the affairs of the company or as regards the members of the company. Again, under section 237(b)(n) read with clause (a), it is not obligatory on the part of the Government to prescribe the manner in which the report by the Inspector is to be made. For the foregoing reasons, this petition is allowed and the order made by the Company Law Board on 7th December, 1967, under section 237(b) directing an investigation into the affairs of the petitioner-company is quashed. The respondents are restrained from giving effect in any manner to the impugned order dated 7th December, 1967. The petitioner shall have costs of this application. Counsel s fee is fixed at Rs. 500. The outstanding amount of the security deposit shall be refunded to the petitioner.
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1969 (1) TMI 40 - HIGH COURT OF BOMBAY
Winding up – Powers of tribunal on hearing petition and Power of Court to enlarge or abridge time
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1969 (1) TMI 25 - HIGH COURT OF JUDICATURE AT MADRAS
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... ... ..... ct for trade purposes. The levy therefore under Item 14E has to be sustained in the present case. 4. There was an argument by the learned Counsel for the petitioner that her account-books and other papers were taken by the respondent and she had no opportunity to show cause against the actual computation of the demand. It is pointed out by the learned Government Pleader as against this that after the Writ Petition was filed, when a civil miscellaneous petition was filed, certain objections of the petitioner about the period of the levy were taken into account, and the computation was reduced substantially. Further, the petitioner has come to this court as soon as a show cause notice was issued to her for enforcing the demand. Therefore, it will be open to the Petitioner to make any further representations about the quantum of the levy before the assessing authority himself and get any relief to which she will be entitled. The writ petition is dismissed. No order as to costs.
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