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VAT and Sales Tax - Case Laws
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1971 (8) TMI 204
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... ... ..... part of the business of manufacturers of machine screws. The scrap has to be disposed of and the disposal of it does not necessarily indicate that it was in the course of business. The business, as we said, of the assessee is really manufacture of machine screws and not sale of scrap. On that view the tax cases are dismissed there will be no costs. Petitions dismissed.
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1971 (8) TMI 203
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... ... ..... etitioner as disclosed in A-2 returns, the annual tax liability would come to about Rs. 18,000 or Rs. 19,000. Half of the said tax liability would be very near Rs. 9,000 or Rs. 10,000. Here, in the instant case, the demand for security for a sum of Rs. 25,000 was made by the respondent under the challenged order. This appears to be contrary to the prescription in section 25(5)(ii) of the Act. There is, therefore, an error apparent in the face of the record and is thus the main limb of challenge to the order which is sought to be enforced by the authorities. I am constrained to find that there is an error apparent in the order impugned which ought to be removed by making the rule nisi absolute. Hence this writ petition is allowed and there will be no order as to costs. The revenue is at liberty to take appropriate steps under the prescribed circumstances to call for or demand the security in accordance with law from the petitioner herein if they so deem fit. Petition allowed.
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1971 (8) TMI 202
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... ... ..... once the original order becomes merged with the appellate order, then there is a substitution of the original order in all aspects of law and, indeed, factully as well, and that any attempt to rectify the original order, which should be deemed to be non est is a futile one. In this view of the matter also the petitioner cannot succeed. For the reason that the appropriate authorities, for want of material, did not discover any error apparent on the record, which only would entitle the petitioner to reopen the assessment to cause a rectification of the assessment order under section 55 of the Act, and also for the reason that the application for rectification was directed against the original order of assessment which has become non est, I am unable to issue the rule of mandamus, for there is no public duty on the part of the second respondent to act in the manner sought by the petitioner. The writ petition is dismissed. There will be no order as to costs. Petition dismissed.
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1971 (8) TMI 201
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... ... ..... s expressly included in the dictionary meaning of coals. According to Webster, cinder is a piece of partly burnt coal, capable of further burning without flame. Another meaning given by Webster is that it is a partly burnt combustible, which no longer gives flame. That is the meaning generally found in all other dictionaries. It is also, like coal, used as fuel, though of a low grade. That being so, as understood in the ordinary and commercial sense, the entry would include coal ash. We may also add that if coal, charcoal and firewood, all used as fuel, are taxable at 2 per cent., it does not appear reasonable and could not have been intended by the Legislature that coal ash or cinder, which is also used as fuel of a low grade, should be taxed at a higher rate. 5.. In the result, our answer to the question referred to us is that the word coal in entry I of Part III of Schedule II includes coal ash. Since no one appeared to oppose this reference, we make no order about costs.
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1971 (8) TMI 200
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... ... ..... is expressly included in the dictionary meaning of coal. According to Webster, cinder is a piece of partly burnt coal, capable of further burning without flame. Another meaning given by Webster is that it is a partly burnt combustible, which no longer gives flame. That is the meaning generally found in all other dictionaries. It is also, like coal, used as fuel, though of a low grade. That being so, as understood in the ordinary and commercial sense, the entry would include coal ash. We may also add that if coal, charcoal and firewood, all used as fuel, are taxable at 2 per cent., it does not appear reasonable and could not have been intended by the Legislature that coal ash or cinder, which is also used as fuel of a low grade, should be taxed at a higher rate. 5.. In the result, our answer to the question referred to us is that the word coal in entry 1 of Part III of Schedule II includes coal ash. Since no one appeared to oppose this reference, we make no order about costs.
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1971 (8) TMI 199
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... ... ..... s sought to be rectified were passed, there was no error in it and, therefore, the authority acting under section 55 rightly said that there was no error in the order, for it to rectify. In these circumstances, the authority has rightly exercised its jurisdiction and the writs of certiorari, therefore, cannot lie. Writ Petitions Nos. 4788 of 1968 and 3329 of 1969 are dismissed. There will be no order as to costs. In the view that I hold that this jurisdiction cannot be availed of for getting refund of moneys, may be tax, paid by an assessee to implement the lawful order of assessment, I am unable to issue writs of mandamus compelling the respondent to refund the taxes paid by the petitioners in the manner stated above. There is no public duty on the part of the respondent to act in the matter and refund the amounts claimed. Therefore, the other two writ petitions, W. P. Nos. 4789 of 1968 and 3330 of 1969 are dismissed. There will be no order as to costs. Petitions dismissed.
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1971 (8) TMI 198
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... ... ..... o decide whether any part of the turnover related to sales in the course of import nor was it called upon to do so by any argument of counsel before it at that time. In this state of affairs, I fail to see how any error at all has crept into the record and if no such error has crept into the record, there can be no apparent error either. In this view of the matter, the Tribunal was right in having dismissed the application to rectify an error which did not exist in its order. There was no public duty on the part of the Tribunal to correct an error which was not there in the order. In fact, that is the only thing they are expected to do under section 55. The application for rectification has been rightly rejected. On the only ground that the petitioner secured certain rights as a result of the decision in the KhosIa s case(1), he cannot compel a Tribunal to do a duty which is not enjoined on it by law. This writ petition is, therefore, dismissed. No costs. Petition dismissed.
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1971 (8) TMI 197
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... ... ..... do not think that the ratio in the cases cited above, which would clearly apply in a circumstance when the original order has merged with the appellate order, can be invoked in the instant case so as to avoid the payment of the lawful liability of the original dealer and which is now payable by his successor, viz., the petitioner in this writ petition. As a matter of fact, the petitioner is estopped from contending that the amount is not recoverable, for she canvassed the correctness of the order of rectification, but failed to establish that it was wrong. In this view also, she having elected one mode of relief, cannot be allowed to reprobate and take up the position that the revenue is not authorised legally to collect the amount due and claimed under the challenged order. In these circumstances, I am unable to issue, in my discretion, a writ of prohibition. The rule nisi is discharged. The writ petition is dismissed. There will be no order as to costs. Petition dismissed.
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1971 (8) TMI 196
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... ... ..... the Government for payment in instalments. So the assessee did not consider at that stage the notice of demand was vague as to the time for payment of tax. The plea is an afterthought invented with a view to escape from penalty. Counsel for the assessee submitted that as the proceeding under section 15-A is penal in nature, the burden of proof lies on the department. The construction of notice is a question of law, and not a question of fact. So the submission is not relevant. In the result we will answer the question referred to us in this manner The notice of demand sent along with the assessment order is a valid notice of demand the letter dated 14/15th July, 1961, sent after the dismissal of the writ petition is a mere reminder and not a notice of demand as contemplated by the Sales Tax Act and the Rules made thereunder. The Commissioner, Sales Tax, shall get costs which we assess at Rs. 100. Counsel s fee is assessed in the same account. Reference answered accordingly.
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1971 (8) TMI 195
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... ... ..... r was passed, whether metal polishing bars or metal polishing compositions could come within the purview of item 37. As there can be no tax by an intendment and in the absence of an express item including metal polishing bars prior to 1st of July, 1967, the attempted revision of the original order as undertaken by the respondent in exercise of its power under section 16 of the Act is not legal and is not one which could normally be said to flow from the power contemplated in section 16 of the Act. In the above view, there was no jurisdiction for the respondent to revise the order under section 16 of the Act and even otherwise it would be perverse to hold that the metal polishing composition or bar used in polishing and metal finishing activities is equatable to soaps which are primarily intended to wash and clean. In this view of the matter, the rule nisi has to be made absolute. Accordingly, the writ petition is allowed. There will be no order as to costs. Petition allowed.
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1971 (8) TMI 194
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... ... ..... ppeal was filed. Hence he held that the appeal was in order and should not have been rejected as incompetent. Against this order the Commissioner of Sales Tax has come up in reference. Now, when the judge (Revisions) had accepted the contention of the assessee that the cheque in question was deposited towards the admitted tax for the year 1962-63, there is no reason why that sum should not be deemed to have been deposited towards the admitted tax for the year 1962-63. It was open to the judge (Revisions) to have accepted the explanation of the assessee and to have permitted him to rectify the mistake. Learned counsel for the Commissioner has not been able to show us as to why the amount in question could not be deemed to have been deposited towards the year 1962-63. We accordingly answer the question in the affirmative in favour of the assessee and against the department. The assessee is entitled to its costs which we assess at Rs. 100. Reference answered in the affirmative.
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1971 (8) TMI 193
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... ... ..... d been validated by Act No. 14 of 1964. Coming now to question No. (2), it appears that the reference to the entire assessment year 1958-59 is incorrect. The dispute only relates to the turnover of the period 1st August, 1958, to 31st March, 1959. We are not concerned with the rate applicable for the period of assessment year 1958-59 from 1st April, 1958, to 31st July, 1958. We would, therefore, reframe question No. (2) as below In either case what would be the rate of tax on yarn for the period 1st August, 1958, to 31st March, 1959, falling in the assessment year 1958-59. The notification of 1st August, 1958, had fixed the rate of tax at. 2 per cent. That notification having been validated, the rate of tax for that period would be 2 per cent. We accordingly answer question No. (2) as reframed by us by saying that the proper rate of tax on yarn would be 2 per cent. The Commissioner of Sales Tax is entitled to costs, which we assess at Rs. 100. Reference answered accordingly.
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1971 (8) TMI 192
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... ... ..... trade, that is to say, it has something to do with trade or has the incidence or elements of trade or commerce, it will not be within the definition of business in the Madras General Sales Tax Act, 1959, as amended by Act 15 of 1964. The words in connection with or incidental or ancillary to in the second part of the definition of business still preserve or retain the requisite that the transaction should be in the course of business understood in a commercial sense. The intention of Madras Act 15 of 1964 is not to bring into the tax net a transaction of sale or purchase which is not of a commercial character. A fortiori in the instant case, when the Devasthanam, whose laudable objects have already been enumerated by me, disposed of their articles of silverware etc., deposited in the Hundis, then, it cannot be said that the Devasthanam was indulging in business in a commercial sense. This writ petition is therefore allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1971 (8) TMI 191
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... ... ..... their objections by the end of the working day in question notwithstanding the fact that an hour, a minute or a second of the day is noted in that order. In the instant case, therefore, the normal presumption is that the petitioner would be entitled to file his objections on or before 25th March, 1967, itself and therefore there is a violation of the principles of natural justice, in that the petitioner did not have a real opportunity to state his case, as the assessment order was made on that day itself. On this only ground, the rule nisi is made absolute and the writ petition is allowed. The subject-matter is remitted to the file of the respondent for him to proceed with the enquiry into the notice after taking into consideration the objections filed already by the petitioner and such other representations as may be made at the hearing excepting the plea of limitation as to the making of the order of assessment itself, if one has to be passed ultimately. Petition allowed.
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1971 (8) TMI 190
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... ... ..... nvolve any process of manufacture. Distillation is a process by which impurities from water are removed so that it can safely be used for diluting medicines while preparing mixtures and for certain injections. By itself the distilled water has no pharmaceutical or medicinal properties. Its use in medicines and pharmaceutical preparations does not make it a medicinal or pharmaceutical preparation. In fact distilled water is used in many other ways, such as in motor car batteries. We are clearly of opinion that distilled water is neither a medicine nor a pharmaceutical preparation, nor, indeed, is it prepared through any manufacturing process. The notification in question has no application whatsoever. This petition is accordingly allowed. The supplementary assessment order passed under section 21 of the U.P. Sales Tax Act for the year 1967-68 is quashed, so far as it seeks to impose tax on the turnover of distilled water. The petitioner is entitled to costs. Petition allowed.
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1971 (8) TMI 189
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... ... ..... en used in the sense of enactments like the Indian Penal Code. If both these phrases in the context are read to indicate a criminal prosecution, the exception under clause (a) will not cover an enquiry in the election petition. To our mind, this exception under clause (a) cannot be read so widely as contended for by learned counsel for respondent No. 2. There would have been no meaning in prohibiting all courts from taking into evidence any of the documents filed under the Sales Tax Act if the exception had been so wide as to cover all possible investigations. Reading the whole provision together, we are satisfied that sub-section (3), clause (a), applies only to criminal investigations and prosecutions for offences. 4.. The writ petition is, therefore, allowed. We direct respondent No. 1 not to take the documents of the sales tax department into evidence. Parties will bear their own costs. The amount of security deposit shall be refunded to the petitioner. Petition allowed.
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1971 (8) TMI 188
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... ... ..... tion 12-A before it was amended by Act 9 of 1970. In view of the fiction introduced by section 9 of the amending Act, we have to hold that section 12-A as it now stands was in existence at all material times, and, that being so, the Deputy Commissioner had no jurisdiction to make the assessment order dated 25th March, 1966, on the escaped turnover of the petitioner and levy tax. Therefore, the levy of tax demanded is one without jurisdiction. Article 265 of the Constitution states that no tax shall be levied or collected except by authority of law. In the instant case, the tax is not levied by authority of law. Therefore, the first respondent is not entitled to recover the amount demanded from the petitioner. For the reasons stated above, we allow this writ petition and issue a direction to the first respondent to forbear from enforcing the recovery of the tax amount demanded pursuant to the order of the Deputy Commissioner dated 25th March, 1966. No costs. Petition allowed.
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1971 (8) TMI 187
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... ... ..... onsistent provision in the statute. It is not a case of repugnancy but is one of not invoking the implied power after conferment of express power on a particular functionary. That apart, as has already been stated, section 13(5), proviso, is inconsistent with the exercise of implied power. If implied power is invoked, the proviso would be rendered nugatory. 21.. On the aforesaid analysis, we are clearly of opinion that after the introduction of section 13(5), proviso, the Tribunal cannot invoke the implied power in the matter of granting stay during the pendency of the second appeal. With regard to other matters for which there is no express provision in the statute, it is still open to the Tribunal to exercise implied power. 22.. In the result, the writ application is allowed. A writ of certiorari be issued quashing the impugned order passed by the Tribunal on 30th of March, 1970. In the circumstances, parties to bear their own costs. PATRA, J.-I agree. Application allowed.
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1971 (8) TMI 186
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... ... ..... 1). For the reasons recorded above, we answer the third and the fourth questions in the negative, namely that there is no sale of liquor and consequently of the packing material, that is, the bottle. Question No. (5).-This question was not pressed by the learned counsel for the assessee. We answer this question in the affirmative, that is, in favour of the department and against the assessee. The net result, therefore, is that the first question is answered against the department with regard to the assessments for the years 1956-57 and 1957-58 and in its favour for the assessment year 1958-59. The second question is answered in favour of the department but its answer would be of no material consequence in view of our answer to questions Nos. (3) and (4). Those questions have been answered against the department. Question No. (5) has been answered in favour of the department. In the circumstances of the case, there will be no order as to costs. Reference answered accordingly.
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1971 (8) TMI 185
Whether a dealer can elect assessment year basis from previous year basis under rule 39 in a case in which section 18(4) applies warranting assessment on previous year basis?
Whether the election so made and the resultant original assessment on assessment year basis would operate as a bar warranting the subsequent assessment to be completed on assessment year basis?
Held that:- Appeal dismissed. Matter is concluded by the decision of this court in Commissioner of Sales Tax, Lucknow v. Madan Lal Dayal Chand [1967 (4) TMI 175 - SUPREME COURT OF INDIA] wherein follows that an assessment in contravention of section 18(4) of the Act though in conformity with rule 39 is an invalid assessment.
Section 18(4) applies to assessments under section 21 as well. No separate procedure is prescribed by the Act for assessments under section 21. Further there can be no estoppel against statute. While dealing with question No. 2, it is not necessary for us to decide as to the validity of the original assessment.
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