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Showing 101 to 120 of 632 Records
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2006 (1) TMI 573 - ALLAHABAD HIGH COURT
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... ... ..... y made in the year 1997, after the lapse of 12 years had not been confronted to the dealer and the opportunity of cross-examination has not been given and thus, held that the reliance cannot be placed on such enquiry. Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order upheld the order of the first appellate authority. Heard learned counsel for the parties. The learned Standing Counsel is not able to show any error in the order of the Tribunal. Finding of the Tribunal that the purchases were made for and on behalf of ex-U. P. principal and the same had been despatched to the destination of ex-U. P. principal in the course of inter-State purchases, is finding of fact, based on the material on record. Issue involved is covered by the decision of the apex Court in the case of Commissioner of Sales Tax v. Bakhtawar Lal Kailash Chand Arhti reported in 1992 87 STC 196 1992 UPTC 971. In the result, revision fails and is accordingly, dismissed.
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2006 (1) TMI 572 - ALLAHABAD HIGH COURT
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... ... ..... . I find substance in the argument of the learned counsel for the applicant. In T. T. R. No. 285 of 1999 (Balak Coal Depot, Chandausi, Varanasi v. Commissioner of Trade Tax) decided on November 11, 2005, this court held that merely because rokar and khata have not been maintained, books of account cannot be rejected in case the applicant maintains other books of account and from such books of account, purchases and sales are verifiable. Thus, Tribunal is directed to examine whether the purchases and sales are verifiable from other books of account. The Tribunal may also consider the explanation of the applicant in respect of the various objections raised by the assessing authority and decide the appeal afresh. In the circumstances, the order of the Tribunal is set aside. In the result, both the revisions are allowed. The order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeals afresh in the light of the observations made above.
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2006 (1) TMI 571 - CESTAT MUMBAI
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... ... ..... e petitioner and the department, therefore section 17 of the Limitation Act, 1963 should be applicable. Section 17 provides that where a suit or application is based upon a mistake, the period of limitation would not begin to run until the plaintiff or the applicant has discovered the mistake or could have, with reasonable diligence, discovered it. On the question of limitation, finally the High Court concluded that since the claim was based on discovery of mistake, the period of limitation would not commence from the date of reversal of Modvat Credit, but from the date when the mistake committed mutually of wrong reversal of credit by the parties was discovered in November, 1995. The refund claim, therefore, was to be held to be within time. In light of the aforesaid decision, it is felt quite expedient to remand the matter back to the Commissioner (A) for fresh disposal after considering the above principles. Accordingly, the appeal is allowed in remand in the above terms.
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2006 (1) TMI 570 - ALLAHABAD HIGH COURT
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... ... ..... , the case was remanded for direction to decide it afresh, after the remand, jurisdiction of the assessing authority was confined only to the subject-matter which was remanded to it and has no jurisdiction to reopen the issue which had become final. In the present case, in the appellate order dated August 26, 2002, rejection of the books of account has been upheld by the appellate authority. The applicant has not challenged the said finding of the appellate authority in appeal and this part of the order of the first appellate authority has become final. Thus, it was not open to the assessing authority to examine the question with regard to the rejection of books of account after the remand. Tribunal has rightly held that the issue of the rejection of the books of account once has become final it could not be reagitated after the remand. For the reasons stated above, I do not find any merit in the present revision. In the result, revision fails and is, accordingly, dismissed.
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2006 (1) TMI 569 - ALLAHABAD HIGH COURT
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... ... ..... e of the goods involved in the execution of works contract is liable to tax. Section 3-F(2) provides deduction from the gross amount. Sub-clause (iii) of clause (b) of section 3-F(2) provides that the amount representing the value of the goods on the sale or purchase whereof tax has been levied or is leviable under this Act at some earlier stage is only liable to be deducted. Thus, dealer has to establish that on the value of the goods tax has been levied or is leviable under this Act. In the present case, dealer failed to prove that the tax on the value of the cement, sariya and bricks have been levied. Thus, the deduction allowed by the first appellate authority and Tribunal on the turnover of cement, sariya and bricks on the ground that in respect of these items dealer was not manufacturer or importer, is erroneous. In the result, revision is allowed. Order of the Tribunal is set aside and the appeal filed by the Commissioner of Trade Tax No. 101 of 1998 has been allowed.
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2006 (1) TMI 568 - KERALA HIGH COURT
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... ... ..... orwarding note to few major commodities have been accepted by the Railway Ministry in principle. (d) The State Government and the Ministry of Railways are therefore directed to identify the major commodities so that such details could be directed to be furnished in the forwarding note of such major commodities. This process will be completed within a period of six months from the date of receipt of a copy of this judgment. (e) Committee in its report has also made various other suggestions so that there will be uniformity in practice throughout India. Different States are following their own practices and procedures. In order to have a uniform procedure throughout the country we are inclined to direct the Ministry of Railways to lay down appropriate procedures so that the suggestion made in the report could be implemented. (f) The Ministry of Railways would take a final decision in this regard within a period of six months from the date of receipt of a copy of this judgment.
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2006 (1) TMI 567 - DELHI HIGH COURT
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... ... ..... ales tax on tobacco, cotton and sugar may be an expression relevant only in cases the States have not levied any sales tax on the sale of such goods, for in that event the States concerned may be entitled to an appropriate share out of the collection in the Central kitty out of the additional excise duties. 15.. In the light of what is stated above, the challenge to the impugned notification fails and the petition is to that extent dismissed. This would not however, prevent the petitioners from assailing the orders of reassessment on merits in appropriate appeals as we consider it unnecessary to examine the validity of the reassessment orders in view of the equally efficacious alternative remedy available to them. 16.. In the result, these writ petitions fail and are hereby dismissed with liberty to the petitioners to assail the impugned reassessment orders by way of an appeal before the appropriate appellate authority, if so advised. 17.. No costs. Writ petitions dismissed.
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2006 (1) TMI 566 - KERALA HIGH COURT
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... ... ..... Income-tax and Sales Tax Appellate Tribunal would attract additional court fees under the Court Fees and Suits Valuation Act, 1959. It is for the said purpose the abovementioned circular dated February 12, 2004 was issued by the Chairman of the Tribunal. The purpose and object of such additional fee has been specifically stated in the statutory rules. Needless to say, in order to achieve the above purpose fees have to be levied. Going by the service sought to be rendered to people of the State for an efficient legal service and to provide social security measures we are not prepared to say that the levy is disproportionately high. 9.. In any view, this Court under article 226 of the Constitution of India is not justified in holding so, when we consider the object and purpose of the constitution of the legal benefit fund. Under such circumstance we find no merit in the writ appeal and writ petitions and the same would stand dismissed. Writ appeal and writ petitions dismissed.
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2006 (1) TMI 565 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... dia. Consequently the suo motu revisional orders passed by respondent No. 1, dated September 7, 1999 and the orders of West Bengal Commercial Taxes Appellate and Revisional Board, dated October 7, 2002 concerning the assessment period under challenge, are bad in law. I am also of the view that rule 27C(2) of the Bengal Sales Tax Rules, 1941 is inconsistent and requires to be struck down. 19.. In view of above this application made under section 8 of the West Bengal Taxation Tribunal Act, 1987 is allowed. We make no order for costs. 20.. B.K. MAJUMDAR (Technical Member). - I agree. 21.. After the judgment is delivered in open court, Mr. P. Mondal, learned State Representative, submits that the operative portion of this judgment may be stayed so that they can move the higher court. But since we have allowed the petition striking down certain provisions of law, we are not inclined to stay operative portion of this judgment. The prayer is accordingly refused. Application allowed.
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2006 (1) TMI 564 - MADRAS HIGH COURT
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... ... ..... t, which is a formal party. 4.. Heard both sides. Admittedly, the first respondent is taking proceedings for collection of arrears of sales tax from M/s. C.M.R. Knitwear and the petitioner-firm has no connection with it and both the firms are separate legal entities. Learned Government Advocate fairly admits that the bank account of the petitioner-firm cannot be attached for the liability of M/s. C.M.R. Knitwear to pay the arrears of sales tax. Hence, the impugned B6 notice dated November 14, 2005 is liable to be quashed and the attachment of bank account of the petitioner has to be lifted. The petitioner is entitled to the prayer sought for in the writ petition. 5.. The writ petition is allowed and B6 notice dated November 14, 2005 issued by the first respondent is quashed and the attachment of bank account of the petitioner with the second respondent is ordered to be lifted with immediate effect. No costs. Consequently, connected W.P.M.Ps are closed. Writ petition allowed.
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2006 (1) TMI 563 - GUJARAT HIGH COURT
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... ... ..... owever, be noted that section 3A of the Act does not fix situs of such specified sale by creating legal fiction. In our opinion, therefore, as held by the honourable Supreme Court in the above referred matter of 20th Century Finance Corpn. Ltd. 2000 119 STC 182, the incidence of taxability arises at a places where the property in goods is actually passed. In the present case, it is not in dispute that deed of assignment and the deed of sale in question were executed at Mumbai in the State of Maharashtra. In other words, the property in the goods was transferred in the State of Maharashtra. 8.. In view of the above discussion, the petition is allowed. The impugned notices dated April 12, 2001, February 1, 2002 and September 21, 2002 are quashed and set aside. The amount of tax and interest recovered shall be refunded to the petitioner within six months from the date of the receipt of the writ of this Court. Rule is made absolute in the above terms with cost. Petition allowed.
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2006 (1) TMI 562 - CALCUTTA HIGH COURT
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... ... ..... cts of the case did not properly exercise his discretion by maintaining a reduced quantum of penalty. This court holds that since there is no attempt on the part of the petitioner to evade the payment of taxes and in view of the finding of the Tribunal that there may be a bona fide mistake, the imposition of penalty cannot be sustained and is set aside. The amount of penalty which was realised from the petitioner is to be refunded by the respondents to the petitioner within a period of six weeks from today. But if the amount is not so refunded by the respondents to the petitioner within a period of six weeks from today in that case such refund will have to be made along with an interest of 9 per cent per annum to be levied from the date of expiry of six weeks from today and till the date of actual refund. The writ petition thus succeeds. The impugned order of the Tribunal dated September 26, 2003 and the order of the Commercial Tax Officer dated January 21, 2004 are quashed.
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2006 (1) TMI 561 - ALLAHABAD HIGH COURT
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... ... ..... 0(b) is more strong word which require an overt act with an element of mens rea. There being finding of both the authorities that action of purchase of the aforesaid goods was bona fide act of assessee under bona fide belief that said goods are covered by registration certificate, the provisions of penalty under section 10(b) of the Act are not attracted. No case has been made out for imposing penalty on the assessee. The first appellate authority has considered the entire materials on record and has come to the conclusion which are fully supported from materials on record. The findings recorded by both the appellate authorities that the purchase by the assessee was under bona fide belief, the present was not a case for imposition of any penalty. No infirmity could be pointed out in the orders passed by both the appellate authorities which may warrant interference by this Court in its revisional jurisdiction. I do not find any merit in the revision and the same is dismissed.
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2006 (1) TMI 560 - ANDHRA PRADESH HIGH COURT
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... ... ..... and as such, they would fall within entry 19 of the First Schedule to the Act. The Tribunal relied on a judgment of the Supreme Court reported in G. Claridge and Company Ltd. v. Collector of Central Excise 1991 52 ELT 341, by which the Supreme Court held that egg trays fall within the meaning of expression of container . In this view of the matter, we do not think there is any scope for revising the order passed by the Tribunal. The tax revision case is liable to be dismissed and is accordingly dismissed.
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2006 (1) TMI 559 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... of transportation where West Bengal is used as corridor mandating scrutiny and verification of the goods with the document at the last check-post in West Bengal, we hold that the concerned authoritys act of detention and imposition of penalty cannot but be sustained. The application, therefore, fails. The petitioner is not entitled to get the relief prayed for. The application is dismissed without any order as to costs. The judgment is ready and delivered in open court and kept in separate sheets along with the record of this case. After delivery of this judgment, the learned advocate for the petitioner prays for staying of the operation of the order and for restraining the respondents from encashing the bank guarantee. The learned State Representative vehemently objects to the said prayer. We have considered the submissions of both the sides. We are not in favour of granting of stay. Accordingly, the prayer for stay stands rejected. B.K. MAJUMDAR (Techinacal Member)I agree.
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2006 (1) TMI 558 - KARNATAKA HIGH COURT
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... ... ..... ase, it is nothing but sheer callousness and the lukewarm attitude on the part of the respondents, which has made it inevitable to declare the law as unconstitutional. It is hoped, at least henceforth, when enacting such laws due attention is paid by the respondent-State not only before ushering in such law but also while defending the validity of such laws before courts. In the result, this writ petition has to be allowed. A writ in the nature of declaration is issued, declaring that Act No. 5 of 2001 insofar as it relates to introduction of entry No. 17-A in Part C of the Second Schedule to the Act is unconstitutional being discriminatory and violative of article 14 of the Constitution of India. As the petitioner has sought for only the relief of declaration in this writ petition and has not placed any further material nor any other aspect being in challenge in this writ petition, the writ petition is disposed of with such declaration and nothing beyond. Rule made absolute.
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2006 (1) TMI 557 - ALLAHABAD HIGH COURT
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... ... ..... fees or other dues paid in excess of the amount due from him under the Act. Till such time assessment is not made, any amount due under the Act shall be referable to the admitted tax liability only. Any amount which is deposited in excess of admitted tax liability upon interim orders passed by the appellate authority or by this court, in the absence of determination of the liability either by virtue of an assessment or otherwise, cannot be said to be an amount due under the Act. In view of the foregoing discussion, we allow both the writ petition and direct the Deputy Commissioner (Assessment)-5, Trade Tax, Noida, Gautambudh Nagar, respondent No. 3 to forthwith refund Rs. 6,73,264 after verification of the deposit, to the petitioner within seven days from the date a certified copy of this order is filed before the said respondent. The office is directed to issue a certified copy of this order to the learned counsel for the parties on payment of usual charges within 24 hours.
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2006 (1) TMI 556 - ALLAHABAD HIGH COURT
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... ... ..... years 1990-91 and 1991-92, which is apparent from annexure 4 (letter dated April 1, 2002 of the then Sales Tax Officer). In the result we hold that the petitioner is entitled to get the refund of Rs. 3,37,500 and Rs. 19,700 deposited by and/or on behalf of the petitioner for the assessment years 1990-91 and 1991-92 at Lucknow through challans Nos. 73 and 4 with interest at the rate of 18 per cent as per section 29(2) of the Act. The said amount shall be refunded to the petitioner within a period of one month from the date of production of certified copy of this order. In case of failure, the respondents shall also be liable to pay interest upon the interest amount as ordered by this court in the case of Assam Roadways (Delhi) 2005 UPTC 1106. By moulding the relief we quash the last paragraph of the order dated April 1, 2001 (annexure 4) and the order of the Tribunal dated 16/21st August, 2001 (annexure 8 to the writ petition). Writ petition is allowed. No order as to costs.
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2006 (1) TMI 555 - KARNATAKA HIGH COURT
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... ... ..... se at all. In the result, this writ petition is allowed, the proposition notice as also the order dated November 22, 2000 is quashed by issue of a writ of certiorari without prejudice to any of the action that can be taken against the petitioner either for quantification of any escaped tax liability or for other purposes in accordance with the provisions of the Act. Liberty is reserved to the respondent to take such action. Likewise, the proceedings in CC No. 262 of 2004 pending before the court of Magistrate is also quashed by issue of a writ of certiorari. Writ petition is allowed with costs quantified at a sum of Rs. 5,000 payable by the respondents. If costs are not paid within a period of eight weeks from today, it is open to the petitioner to apply for issue of a certificate from the registry indicating that this amount could be recovered in terms of a decree passed by a civil court. However, liberty is reserved to the respondent to take such action. Rule made absolute.
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2006 (1) TMI 554 - ALLAHABAD HIGH COURT
Payment of tax under the composition scheme - provisions of section 7-D - HELD THAT:- A plain reading of section 7-D of the Act shows that an option has been given to a dealer who is covered by a scheme issued by the State Government from time to time to opt for payment of lump sum amount in lieu of the amount of tax. It excludes the applicability of other provisions of the Act which deal with the assessment and payment of tax. A non obstante clause, as observed by the apex court in the case of State of Bihar v. Bihar M. S. E. S. K. K. Mahasangh[2004 (10) TMI 579 - SUPREME COURT], is generally appended to a section with a view to give the enacting part of the section, in case of a conflict, an overriding effect over the provision in the same or other Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non obstante clause, the provision following it will have its full operation or the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment or the provision in which the non obstante clause occurs.
Once a dealer has opted to pay the tax in lump sum under section 7-D of the Act after it has been accepted by the department, any demand for that period is not relatable to the actual turnover but the sum agreed upon. In other words, the department as well as the dealer both know the amount payable and receivable by each other. The determination of lump sum amount in lieu of tax displaces the requirement of regular assessment proceedings and the quantification of tax liability is by agreement as per the term of the scheme which would bind both the parties. The object of introducing such a scheme under a taxing statute is well established as so many advantages are attached to such scheme besides being hassle-free to the dealer. It also avoids unnecessary litigation. The department in its turn receives a fixed amount of tax without undertaking the assessment work and, thus, saves a lot of time. It also facilitates the speedy recovery of tax.
There cannot be any dispute that there cannot be any estoppel against a statute. However, where the demand is being made under the terms of the contract which specifically provides that there would be no reduction or change in the composition money even if the firing has not been done in brick kiln or it has been started late or for any other reason, the petitioner is bound by the said clause and he cannot be permitted to challenge the same in view of the law laid down by the apex court in the cases of Har Shankar[1975 (1) TMI 89 - SUPREME COURT], Narain Prasad[1996 (9) TMI 599 - SUPREME COURT] and Bharathi Knitting Co.[1996 (5) TMI 415 - SUPREME COURT].
Thus, we are of the considered opinion that the division Bench in the case of Jaya Bhatta Udyog [1990 (7) TMI 368 - ALLAHABAD HIGH COURT] (Civil Misc. Writ Petition No. 858 of 1990, decided on July 17, 1990), subsequently followed by other division Benches in the cases of Sri Durga Brick Field[1991 (1) TMI 440 - ALLAHABAD HIGH COURT] and Jai Sharma Int. Udyog [1990 (7) TMI 368 - ALLAHABAD HIGH COURT], lay down the correct law.
Let the matter be placed before the appropriate Bench for further orders.
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