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VAT and Sales Tax - Case Laws
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1973 (4) TMI 111
... ... ... ... ..... sessee contends that the assessee has not in fact collected tax on the sales of automobile parts on the ground that the sales are not taxable under the Central Sales Tax Act and that, in fact, no tax could have been levied or collected but for the Central Act 28 of 1969. But as the claim for exemption under section 10 not having been made before the Tribunal, the Tribunal had no occasion to consider the tenability of that claim. For the application of section 10 certain factual basis has to be established by the assessee. It has to be found out whether the assessee has not in fact collected any tax in respect of the disputed turnover for the grounds set out in the said section. We, therefore, feel that it is proper that the Tribunal should consider the point. The order of the Tribunal is, therefore, set aside and the matter is remitted back to the Tribunal for further consideration in the light of what has been stated above. There will be no order as to costs. Case remanded.
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1973 (4) TMI 110
... ... ... ... ..... tion of the learned counsel for the assessees is that even though there is some work done on the processed canvas cloth, the cost of such work, namely, stitching the ends and eyeletting would be very negligible and that, therefore, it should be considered that tarpaulin is only processed canvas cloth. Whether the work is negligible or not, the processed canvas cloth is not sold as such, but tarpaulin is sold as a separate finished product apart from the processed canvas cloth. We are clearly of the view that the Tribunal is right in holding that tarpaulin sold as a finished product cannot at all be treated as a textile falling under item 4 of Schedule III. Tarpaulin as a finished product is a different marketable commodity and it cannot be said that it is either sold as a textile or it continues to have the properties and characteristics of cloth. The result is the Tribunal s view is upheld and the tax case is dismissed with costs. Advocate s fee Rs. 150. Petition dismissed.
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1973 (4) TMI 109
... ... ... ... ..... nly to the prior order for body-building. We find that the Tribunal merely proceeded to decide the case on the basis of the assessee s statement without probing further into the matter with reference to the various records and the correspondence between the customers and the assessee in relation to the body-building works undertaken by the assessee. We therefore consider that it is necessary for the Tribunal to decide afresh on the question of the assessee s liability on the two turnovers, viz., Rs. 35,253.10, which according to the assessee represents only sales of materials, and Rs. 47,800, which is claimed by the assessee to be pure labour charges, but which, according to the revenue, represent portions of the receipts relatable to the body-building contract. The tax case is, therefore, allowed with a direction to the Tribunal to consider the matter afresh, with costs. The order of the Tribunal setting aside the penalty will stand. Counsel s fee Rs. 150. Petition allowed.
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1973 (4) TMI 108
... ... ... ... ..... plains the entries found in the anamath records which were taken from his residence, the assessing authority is entitled to proceed on the basis of the anamath records and make the best judgment assessment. We are of the view that the Tribunal has not considered the merits of the case at any length. We cannot, therefore, accept the view taken by the Tribunal that the anamath records have not been shown to be connected with the assessee. The entire matter has to be considered afresh. We, therefore, set aside the order of the Tribunal as also the order of the Appellate Assistant Commissioner with a direction that the Appellate Assistant Commissioner will restore the appeal on his file and dispose of the same in accordance with law and after giving opportunity to the assessee to put forward his case and also to produce such of those materials which he may be inclined to file and also the oral evidence. The revision is allowed with costs. Counsel s fee Rs. 150. Petition allowed.
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1973 (4) TMI 107
... ... ... ... ..... ed specification. In those circumstances, this court had expressed the view that the transaction involved was only sale of pebbles and not a works contract. It is not in dispute that the assessee in these cases paid seigniorage fee to the revenue department for collection of the sand from Palar river. After removing the sand, the assessee can always divert the sand to any other purpose, as by paying the seigniorage fee, he becomes the owner of the sand which he collects from the river. Therefore, it has to be taken that the assessee became the owner of the sand as soon as he collected the same from the river and then the property in the sand has been transferred to the public works department when he supplied the sand in accordance with the contract entered into by him. In the circumstances, we hold that the Tribunal has come to the right conclusion in these cases. The tax cases are, therefore, dismissed with costs. Counsel s fee is Rs. 150 in each case. Petitions dismissed.
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1973 (4) TMI 106
... ... ... ... ..... ng authority and which, in his opinion, was so grave as to warrant a legitimate inference that a sum of Rs. 6 lakhs and odd would have escaped assessment. But, ultimately, he gave an option to the petitioner to compound. The quantum of composition fee has been reduced by the Board. In these circumstances, when the statutory functionaries could act in two different channels and exercise their jurisdiction, the discovery of Rs. 9,000 and odd as the quantum of escapement of turnover by the assessing officer or the higher authority cannot, by itself, be a ground to hold that the call for a composition fee, which in the instant case, is Rs. 1,000 per month, for wrongful submission of incorrect returns is without jurisdiction or highly inequitable. There is, therefore, no error of jurisdiction or any violation of the principles of natural justice or any other error of law in the order challenged. The writ petition is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1973 (4) TMI 105
... ... ... ... ..... the case of Arjan Singh alias Puran v. Kartar Singh and OthersA.I.R. 1951 S.C. 193., their Lordships stated ...If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was nonexistent...... That situation indeed arises in this case. Once we hold that fresh evidence has to be eschewed out of the record as non est, the second appeal has to be disposed of without considering this evidence and it would be for the Tribunal to find out whether, in the facts and circumstances of the case, the conclusion which has been reached is justified or a different conclusion has to be reached. We decline to answer the second question for these reasons. We direct the parties to bear their own costs of these references. B.K. RAY, J.-I agree Reference answered accordingly.
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1973 (4) TMI 104
... ... ... ... ..... question as it does not arise out of the appellate order and in the facts and circumstances of the case. 5.. Once the questions are answered our advisory jurisdiction ends and we are not entitled to give any directions to the Tribunal as to how the further proceeding is to be disposed of. Under section 24(5) of the Act, a copy of our judgment is to be sent to the Tribunal and the Tribunal is required to dispose of the case accordingly. We are, therefore, not in a position to accept the contention of Mr. Rath for the assessee that we should direct the Tribunal to rehear the appeal. In view, however, of the fact that the Tribunal proceeded on the footing that it was for the department to establish the quantum of the suppression, he appears not to have examined the other aspects of the matter. It would be for the Tribunal now to dispose of the appeal in an appropriate way in accordance with law. We make no order as to costs. B.K. RAY, J.-I agree. Reference answered accordingly.
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1973 (4) TMI 103
... ... ... ... ..... and there can be no doubt that as laid down by their Lordships, the recitals in the bills will certainly have great evidentiary value, which, in the absence of anything more, ought to be taken to be correct. But, it cannot conclude the matter and, at any rate, cannot prevent the assessee from producing other materials in rebuttal. 9.. As a result of the discussion aforesaid, it is clear that the view taken by the learned Member of the Board of Revenue was perfectly justified and for that reason, we answer the reference as follows That, under the facts and circumstances of the case, the railway freight deducted in the bill could not be a part of the sale price as defined in section 2(o) of the M.P. General Sales Tax Act, 1958. 10.. Let the reference be returned to the Board of Revenue for passing the final order in accordance with our opinion. There shall be no order as to costs, especially when the respondent was not represented in this court. Reference answered accordingly.
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1973 (4) TMI 102
... ... ... ... ..... o in the case of an order under section 21, a further period of one year is allowed from the date of service of the notice under that section. But under the second proviso, there is no period of limitation for an assessment or reassessment to be made in consequence of or to give effect to any order or direction contained in section 9, 10 or 11. In the instant case, the ex parte assessment order was set aside not by the Sales Tax Officer, but by the appellate authority and, as such, there was no period of limitation for making a reassessment. The question is thus misconceived. The decision of this court in Gulabchand Munishkisore v. Commissioner of Sales Tax, U.P., Lucknow 1970 26 S.T.C. 205., is, therefore, not relevant. We accordingly do not return any answer to question No. (2) and answer question No. (1) in the affirmative in favour of the assessee and against the department. The assessee is entitled to the costs which we assess at Rs. 100. Reference answered accordingly.
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1973 (4) TMI 101
... ... ... ... ..... with the goods. Such a transaction without more cannot be regarded as one in the course of export because etymologically in the course of export contemplates an integral relation or bond between the sale and the export.......... The purchase by the petitioner is distinct from the subsequent export by him to places outside Orissa and the transaction of purchase and the subsequent export cannot be tagged together to constitute one single transaction coming within the meaning of article 286(1)(a) of the Constitution or the provision of section 3 of the Central Act so as to make the levy of tax under section 3-B read with section 4 of the Orissa Act illegal. As the same question has been raised in all these cases and we do not accept the contention of the several petitioners, each of the writ petitions has to be dismissed. We accordingly dismiss them, but in the peculiar facts of the case, we direct the parties to bear their own costs. B.K. RAY, J.-I agree. Petitions dismissed.
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1973 (4) TMI 100
... ... ... ... ..... appeal before the appellate authority, or should have taken the permission of the Appellate Assistant Commissioner to expand the appeal by including the disputed turnover of Rs. 30,00,000 and odd. But no such step was taken. We are, therefore, of the view that the Tribunal was right in rejecting the appeal as not maintainable. Against the same order of the Tribunal, which is now before us, the assessee filed Writ Petition No. 427 of 1970, reported as Easun Engineering Co. Ltd. v. Joint Commercial Tax Officer 1970 26 S.T.C. 486. and a Division Bench of this Court, to which one of us was a party, considered the order of the Tribunal and held that the Tribunal exercised its jurisdiction correctly in not entertaining the appeal relating to the turnover which was not the subject-matter of appeal before the Appellate Assistant Commissioner. The order of the Tribunal was, therefore, upheld. The tax case is, therefore, dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1973 (4) TMI 99
... ... ... ... ..... ed that the dealer is unable to pay the tax assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax or penalty or both having been paid or after part payment of such tax or penalty or both. This Ordinance was replaced by the Punjab General Sales Tax (Amendment and Validation) Act (7 of 1967) and the same provision exists in subsection (5) of section 20 as enacted by the Amendment Act. It is thus clear that in 1964, when the petitioner filed the appeal, it was not necessary under the proviso to section 20 of the Act to pay the amount of penalty before the appeal could be entertained. The order of the Deputy Excise and Taxation Commissioner is, therefore, against the statute and is liable to be quashed. For the reasons given above, this petition is allowed with costs and the appellate authority is directed to decide the appeal on merits without the payment of the penalty amount. Counsel s fee Rs. 100.
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1973 (4) TMI 98
... ... ... ... ..... the provisions for exemption in relation to excise duty should be deemed to be not in the statute from 5th January, 1957. The learned counsel for the respondent then contends that, by withdrawing the exemption with retrospective effect, the assessee will be put to considerable hardship as he fixed the sale price of the goods on the basis that the excise duty paid on the goods will be allowed as deduction in his assessment proceedings. But we cannot take note of the hardship pointed out by the learned counsel while construing the effect of the statutory provisions. If, as stated by the learned counsel for the respondent, there are any executive instructions giving benefit to such dealers who are affected by the retrospective effect being given to the statutory provisions, it is open to him to claim the benefit, if any, under those instructions. The order of the Tribunal is, therefore, set aside and the tax case is allowed. There will be no order as to costs. Petition allowed.
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1973 (4) TMI 97
... ... ... ... ..... aid condemned articles cannot be treated as scrap. But the court rejected that contention and held that any condemned article made of iron which is of no further use can be regarded as iron scrap and that iron scrap in any form wherever it comes from is of special importance to the industry in the country. The court observed thus In our view, the condemned articles fall within the description of iron scrap in item 4 of the Second Schedule. It appears to us also impossible to hold that condemned articles come within the purview of item 23 in the First Schedule which relates to machinery including hardware, iron and steel. Hardware, iron and steel referred to there must be in the form of machinery. Iron scrap consisting of condemned articles can hardly be described as machinery under item 23 of the First Schedule. We have therefore to uphold the view taken by the Tribunal in this case. The tax case is, therefore, dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1973 (4) TMI 96
... ... ... ... ..... cultural implements as such. Had it been the intention of the Legislature to exempt accessories, spare parts and components of agricultural implements, there would have been an express provision in the entry. In this connection reference may be made to the amendment introduced in item No. 13 of Schedule I of the Act by the Bengal Finance (Sales Tax) (Amendment) Act, 1970 (West Bengal Act XII of 1970). As a result of the said amendment, in item No. 13, in column 2, the following entry has been inserted, namely, except tractors and power tillers and spare parts, accessories and component parts thereof . If the spare parts of tractors and power tillers can be treated as tractors and power tillers, there was no necessity for separately including them in the exception. Spare parts by themselves cannot be treated as agricultural implements. For the reasons stated above, this rule is discharged. Interim order, if any, is vacated. There will be no order as to costs. Rule discharged.
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1973 (4) TMI 95
... ... ... ... ..... contention of the learned counsel for the respondent is correct. If the word processed is to be construed in a general way requiring only continuous and regular action leading to the accomplishment of some result, I see no reason why black pepper and turmeric when converted into its powdered form does not involve an act of processing. It is not necessary, in my opinion, that in order to be a process within the meaning of section 2(b) of the Act, as a result of that process, the raw material should be converted into any other form. The word processed in its ordinary connotation would embrace within its scope the conversion of black pepper and turmeric into its powdered form. In my view, the sale of such powdered black pepper and turmeric would make the petitioner a dealer within the meaning of section 2(b) of the Act. For these reasons, this application fails. The rule is discharged. Interim order, if any, is vacated. There will be no order as to costs. Application dismissed.
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1973 (4) TMI 94
... ... ... ... ..... ready initiated criminal proceedings and have produced the records, which were seized by the Sales Tax Officer, before the District Magistrate s Court (judicial), Tellicherry, and Sales Tax Cases 31, 32 and 33 of 1970 are pending before that court. It may not be proper on our part to make any direction regarding return of the books in these circumstances, without that court dealing with the question as regards the necessity for retaining them. It will be open to the petitioners to move that court for return of these books and papers if they are required by the petitioners before the termination of the criminal proceedings and we are sure that the matter will be carefully considered and appropriate orders passed by that court in the light of the observations made above. That court will also expedite the hearing of that case. In the result, with the above observations, we dismiss the original petition. But in the circumstances, we make no order as to costs. Petition dismissed.
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1973 (4) TMI 93
... ... ... ... ..... nd in the circumstances of this case, the Deputy Commissioner could exercise his power under section 30(5)(a)(ii) and if he failed to do so, whether the Tribunal, in exercise of its power under section 31, could do the same thing either by sending back the case to the assessing authority itself or by directing the appellate authority to do so. In either view of the matter, it is plain that the Tribunal has not approached the case from a correct angle and law. I, therefore, answer the second question in favour of the assessee and hold that, on the facts and in the circumstances of this case, the Deputy Commissioner or, as a matter of fact, the Commercial Taxes Tribunal could set aside the assessment and direct the assessing authority to make further enquiry on the basis of the declaration filed in form IX before the appellate authority and pass a fresh assessment order. There will be no order as to costs in this reference. S.K. JHA, J.-I agree. Reference answered accordingly.
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1973 (4) TMI 92
... ... ... ... ..... 12 S.T.C. 286 (S.C.). Carpet is a generic word. In Orissa carpets are understood to include sataranjis. It appears from Vrajlal Bhukhandas v. State of Gujarat 1964 15 S.T.C. 437. that sataranjis are understood as carpets even in Gujarat. Relying on the principle indicated therein the learned standing counsel contends that we must hold that woollen kambals other than hand-made kambals come under entry 46 and are liable to tax. We find no scope for taking a different view. The Tribunal took a wrong view in holding that woollen kambals come within entry 33 of the tax-free list. Our answer to the second question referred to us, therefore, shall be In the facts and in the circumstances of the case, the Tribunal was not right in holding that the mill-made woollen blankets come under serial No. 33 of the schedule of tax-free goods. We make no order as to costs as the assessee was not represented before us in spite of the notice. B.K. RAY, J.-I agree. Reference answered accordingly.
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