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2010 (5) TMI 784
Whether the petition is maintainable?
What is the scope of "doctrine of pleasure"?
What is the position of a Governor under the Constitution?
Whether there are any express or implied limitations/restrictions upon the power under Article 156(1) of the Constitution of India?
Whether the removal of Governors in exercise of the doctrine of pleasure is open to judicial review?
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2010 (5) TMI 783
Issues Involved:
1. Constitutional validity of the U.P. Panchayat Laws (Amendment) Ordinance, 2007 and subsequently U.P. Panchayat Laws (Amendment) Act, 2007.
2. Abolition of the offices of "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh", and "Upadhyaksha".
3. Introduction of no-confidence motion provisions and their compliance with Part IX of the Constitution.
4. Reduction of the period for bringing a no-confidence motion from two years to one year.
5. Change in the required majority for passing a no-confidence motion from "not less than two-thirds" to "more than half".
Detailed Analysis:
1. Constitutional Validity of the U.P. Panchayat Laws (Amendment) Ordinance and Act, 2007:
The Supreme Court upheld the constitutional validity of the U.P. Panchayat Laws (Amendment) Ordinance, 2007, which later became the U.P. Panchayat Laws (Amendment) Act, 2007. The Court found that the amendments were in line with the objectives of the 73rd Constitutional Amendment, which aimed to strengthen Panchayati Raj Institutions by ensuring democratic decentralization and self-governance.
2. Abolition of Offices of "Up-Pramukh", "Senior Up-Pramukh", "Junior Up-Pramukh", and "Upadhyaksha":
The abolition of these offices was challenged on the grounds that it eroded the essence of Panchayati principles and allowed for executive interference. The Court examined the historical context and the objectives of the 73rd Amendment, concluding that the abolition did not violate the constitutional principles of Panchayati Raj. The Court noted that the legislature is empowered to make laws regarding the composition and functioning of Panchayats, as provided under Article 243C(5) of the Constitution.
3. Introduction of No-Confidence Motion Provisions:
The appellants argued that the introduction of no-confidence motion provisions contravened Part IX of the Constitution, which does not explicitly mention such provisions. The Court rejected this argument, stating that the Constitution allows the State Legislature to provide details regarding the election and removal of Panchayat officials. The Court emphasized that the provision for no-confidence motions existed even before the 73rd Amendment and was consistent with democratic principles.
4. Reduction of the Period for Bringing a No-Confidence Motion:
The amendment reduced the period for bringing a no-confidence motion from two years to one year. The appellants contended that this change undermined the stability and continuity of Panchayati Raj Institutions. The Court dismissed this argument, stating that the reduction in the period did not affect the institutional stability of Panchayats, as the Chairperson could be removed but would continue as a member, ensuring the continuity of the institution.
5. Change in the Required Majority for Passing a No-Confidence Motion:
The amendment changed the required majority for passing a no-confidence motion from "not less than two-thirds" to "more than half". The Court found this change to be reasonable and consistent with democratic principles, allowing for greater accountability and transparency. The Court noted that similar provisions existed in other states and were compatible with the objectives of the 73rd Amendment.
Conclusion:
The Supreme Court upheld the constitutional validity of the U.P. Panchayat Laws (Amendment) Act, 2007, affirming the judgment of the Allahabad High Court. The Court found that the amendments were consistent with the principles of democratic decentralization and self-governance enshrined in the 73rd Constitutional Amendment. The appeals were dismissed, and all interim orders were vacated.
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2010 (5) TMI 782
Issues:
- Disallowance of sugarcane quality improvement expenses claimed by the assessee.
Analysis:
1. The Revenue challenged the deletion of the addition made on account of sugarcane quality improvement expenses by the Assessing Officer. The assessee, a society of members engaged in sugarcane production, provided subsidies on pesticides, seeds, etc., to its members. The Assessing Officer disallowed the claim stating lack of bye-law or resolution support and faulty account treatment. The claimed subsidy was spread over time and not directly related to sugarcane business, hence disallowed.
2. The Commissioner of Income-tax (Appeals) allowed the claim, emphasizing that only net sale proceeds were credited to profit and loss account as trade discount for members. The Commissioner found no justification for disallowance without proper appreciation of facts, directing deletion of the addition.
3. The Tribunal upheld the Commissioner's order, citing the principle of consistency in allowing similar claims in previous and subsequent assessment years. Referring to legal precedents, the Tribunal emphasized that unless new facts or grave errors exist, the Revenue cannot change its stance. The Tribunal found the claim justified as the subsidies were provided to support sugarcane production, directly connected to business purpose.
4. The Tribunal noted the cooperative nature of the assessee, selling items at reduced prices to farmers for sugarcane growth. It rejected the Revenue's argument of lack of business connection, stating the sale at reduced prices was a business decision benefiting sugarcane purchase. The Tribunal upheld the Commissioner's order, dismissing the Revenue's appeal and emphasizing the business purpose behind the claimed subsidies.
In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the order allowing the sugarcane quality improvement expenses claimed by the assessee, emphasizing the business nexus and consistency in previous assessments.
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2010 (5) TMI 781
Supply of goods to Ministry of defence - N/N. 63/95-C.E., dated 16-3-1995 - denial of benefit on the ground that the notification exempts the goods when they are supplied directly to the Ministry of Defence by the companies named therein and in the notification, the appellant’s name was not included in the names of the companies - Held that: - the Tribunal while deciding in favor of the appellant, took note of the circular issued by the Board in respect of N/N. 184/86, which is precedent notification to N/N. 63/95. In Circular vide F. No. 213/18/91-C.Ex.6, Circular No. 5/92, dated 19-5-1992 and another letter from Ministry of Finance F. No. IV/16/4/2003, dated 7-11-2003, it has been clarified that the exemption will be extended to all job workers and vendors supplying inputs required by BEML for manufacture of finished goods supplied to Ministry of Defence - the appellant is eligible for benefit of this notification - appeal allowed - decided in favor of appellant.
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2010 (5) TMI 780
Whether prayers for declaring section 17B of the Kerala General Sales Tax Act, 1963 inserted by the Kerala Finance Act, 2005 as unconstitutional and ultra vires?
Held that:- Section 17B of the KGST Act introduced through the Finance Act, 2005 does not suffers from any infirmity nor it is ultra vires of the Constitution and other provisions. Hence the prayer in this regard is liable to be rejected. Consequently no reason to interfere with exhibit P3 assessment invoking jurisdiction under article 226 of the Constitution of India. However, it is made clear that the petitioner has got liberty to approach the statutory appellate authority by taking all factual contentions against such assessment, apart from the contention regarding validity of section 17B on the factual matrix of the case. It is also made clear that the question regarding liability for payment of interest under section 23 of the KGST Act also can be agitated by the petitioner in such appeal. If such appeal is filed, the appellate authority shall consider the same untrammeled by any observations made herein. It is further made clear that if the petitioner has not filed any statutory appeals so far, the petitioner will be given liberty to file appeal against exhibit P3, within a period of one month from today along with petition seeking condonation of delay. The appellate authority shall consider the time spent before this court for getting the writ petition disposed as a valid ground for condonation of delay. Needless to say that the petitioner is at liberty to seek appropriate interim relief from the statutory authority if any such appeal is filed.
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2010 (5) TMI 779
Issues:
1. Rejection of account books for not being shown at the time of survey
2. Justification of adverse view due to lack of information about brick kiln closure
3. Validity of the rate fixed by the Trade Tax Tribunal
Analysis:
1. The first issue pertains to the rejection of account books due to non-disclosure at the time of survey. The counsel for the revisionist conceded that this issue is settled against the assessee by a previous apex court decision. Therefore, the court did not adjudicate on this question, and it stands answered against the assessee.
2. Regarding the second issue, the court considered whether the Trade Tax Tribunal was justified in drawing an adverse view against the applicant for not providing information about the closure of a brick kiln. The revisionist claimed to have informed about the closure through a registered post. However, the court emphasized that despite no legal obligation to provide such information, when a survey shows otherwise, it becomes necessary for the revisionist to rebut the survey report with evidence of closure. Since no such evidence was presented, the Tribunal's decision based on the survey report was upheld.
3. The final issue concerns the validity of the rate fixed by the Trade Tax Tribunal for bricks. The revisionist had initially shown the rate as Rs. 235 per thousand, which was later increased to Rs. 380 per thousand by the Tribunal. The counsel argued that since the rate was reduced to Rs. 300 per thousand by the first appellate authority without any appeal from the Department, the Tribunal exceeded its jurisdiction by further enhancing it to Rs. 380 per thousand. The court agreed with this argument, stating that the Tribunal had no authority to revisit the rate once determined by the first appellate authority without any appeal. Consequently, the Tribunal's increase of the rate to Rs. 380 per thousand was deemed unsustainable in law.
In conclusion, the court partly allowed the revision by modifying the Tribunal's order to reflect the correct rate of bricks at Rs. 300 per thousand, in line with the decision of the first appellate authority.
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2010 (5) TMI 778
Issues:
Challenge to initiation of proceedings under section 21 for assessment year 1995-96.
Analysis:
The petitioner, engaged in the business of purchasing and selling mustard oil, contested the initiation of proceedings under section 21 for the assessment year 1995-96. The petitioner claimed exemption on the sales of mustard oil, asserting that the purchases were made within the State of U.P. and the petitioner was neither a manufacturer nor an importer. The assessing authority initially granted exemption on the sales of mustard oil after examining the books of account and purchase list. However, proceedings under section 21 were later initiated based on the assumption that since certain purchases were found non-verifiable in the assessment year 1997-98, the purchases for the year under consideration were also not verifiable. The petitioner's counsel argued that there was no material for the year under consideration to support the claim that the purchases were not verifiable.
Upon review, the court found that the initiation of proceedings under section 21 lacked any substantial material for the assessment year 1995-96. The court emphasized that each assessment year should be treated independently, and unless there was specific material for the year under consideration indicating non-verifiability of purchases, drawing inferences from a different assessment year was unjustified. The court noted that the belief forming the basis for initiating proceedings was unfounded and lacked a valid rationale.
Consequently, the court allowed the writ petition, quashing the proceedings under section 21 for the assessment year 1995-96. The court did not impose any costs in this matter.
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2010 (5) TMI 777
Whether no privity of contract with the subscriber directly and whatever the contract is with the LCO is misconceived in view of the clear provisions of the Act read with the Rules, particularly section 6B(1) of the Act?
Held that:- Though the rules may be different, but the basic idea with regard to the method of functioning for providing entertainment through cable network would remain the same, and it is the same system of MSO and LCO and it is in that context the observations have been made making MSO like the petitioners also liable, rejecting the very same submissions and contentions raised in the present petitions.
Therefore, we do not find any substance in the submissions made both with regard to violation of principles of natural justice or even the submissions made before this court referring to the provisions of the Act and the Rules that they are not liable at all as "proprietor".
In the result, the present petitions deserve to be rejected and accordingly stand rejected. Rule is discharged. Interim relief granted earlier shall stand vacated.
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2010 (5) TMI 776
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the opposite partydealer is a commission agent despite the dealer has failed to submit any evidence or contract to prove it?
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the inward freight is not part of the turnover, on the basis that it was separately charged in the bills, without verifying as to whether the dealer had paid freight in own account or not?
Held that:- The questions of law raised in these revisions are answered in favour of the Revenue and against the assessee and it is held that in the absence of any positive evidence to establish that the assessee was working on commission, the freight even if charged separately is not liable to be excluded from his turnover.
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2010 (5) TMI 775
Addition of incentive received by the petitioner from the manufacturer in the form of credit notes as turnover under Explanation VII to section 2(lii) of the Kerala Value Added Tax Act, 2003
Held that:- Nothing stops the manufacturer from recouping the loss sustained by the distributor and besides recouping loss the manufacturer can even provide for margin also to dealer which is done subsequent to the sales by issuing credit notes as is done in this case. On facts found by the lower authorities, we have no doubt in our mind that credit notes issued by the manufacturer to the petitioner towards recoupment of additional sale price is for the goods sold by the petitioner. So much so Explanation VII is clearly attracted in this case and the Tribunal therefore rightly upheld the order of the first appellate authority sustaining the assessment of credit amount paid by the manufacturer to the petitioner who is the distributor of their products. Revision dismissed.
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2010 (5) TMI 774
Whether the respondentState has first charge over the property in question for taking steps under section 151 of the BLR Code?
Whether the State can recover its dues of tax under section 47A of the Gujarat Sales Tax Act, 1969 and the dues of the workmen under section 33C of the Industrial Disputes Act, 1947, as arrears of land revenue under section 137 of the BLR Code.
Held that:- It has already been noticed that arrears of land revenue can be recovered under section 137 of the BLR Code which is restricted to the current year under section 151 of the said Code.
As section 137 has been declared void, we hold that the State Government cannot recover the dues under section 137 of the BLR Code. Thus answer the issue in favour of the appellants-petitioners
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2010 (5) TMI 773
Cancelling the assessment under section 5(2) of the Kerala General Sales Tax Act, 1963 on the products sold under brand name "Sansui" that was confirmed in first appeal seeked
Held that:- If the respondent’s margins are unusually high, then, certainly, first sales cannot be treated as sales under brand name and assessment has to be made on the respondent under section 5(2). We, therefore, allow the revision by setting aside the order of the Tribunal and that of the lower authorities with direction to the assessing officer to collect the purchase turnover and other details required and make fresh assessment, in accordance with law. If assessment is again made afresh under section 5(2) on the respondent, then there will be direction to the assessing officer to give credit for the tax collected and remitted by Videocon International Ltd., on the purchases made by respondent in terms of rule 30(2)B of the KGST Rules. The assessing officer is directed to complete the assessment afresh within a period of two months from the date of receipt of a copy of this judgment, after giving opportunity to the respondent also
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2010 (5) TMI 772
Whether the non-payment of arrears of tax and penalty would disentitle the petitioner from getting the C form licence?
Held that:- Though normally show-cause notice cannot be challenged by filing a writ petition under article 226 of the Constitution of India, in view of the fact that there is an unjust denial to issue C form licence to the petitioner and that too, when the respondent has no jurisdiction to do so, thus inclined to hold that though the impugned communication is a show-cause notice, this court can entertain the present writ petition.
In view of the above facts and circumstances, there shall be an order of interim direction directing the respondent to issue C form licence to the petitioner pending disposal of the writ petition.
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2010 (5) TMI 771
Order passed under section 48(7) of the U.P. Value Added Tax Act, 2008 passed by respondent No. 2, annexure 9 to the writ petition, and further direction for the release of the seized goods challenged
Held that:- The order-sheet reveals that the learned counsel for the petitioner appeared on April 23, 2010 and argued the matter. His submission was duly recorded in the order-sheet. The contention of the petitioner that there is difference in the signature and the seal available in the order provided to the petitioner and in the copy of the order available in the record has also no substance. Several copies of the judgements are being prepared, which are being signed and seal are affixed separately. Variation in the place of signature and seal is obvious. It is not the case of the petitioner that the contents of the order available in the file and the order provided to the petitioner are different. Therefore, the submission is baseless and without any substance.
Against the impugned order the petitioner has an alternative remedy by way of appeal under section 57 of the U.P. Value Added Tax Act before the Tribunal. Thus the writ petition is dismissed with cost of ₹ 5,000 which the petitioner shall pay within 30 days.
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2010 (5) TMI 770
Whether the conditions of notification S.R.O. No. 1090 of 1999 are satisfied in petitioner’s case?
Held that:- Use in manufacture is accepted as consumption in manufacture and so much so, use of sand in the manufacture of concrete poles by the petitioner for supply to Kerala State Electricity Board. is nothing but consumption in manufacture. The only other condition under the notification is that such consumption in manufacture should take place within the State on which there is no controversy. The purpose of exemption, in our view, is essentially to promote the construction industry in the State. We, therefore, allow the revision by vacating the orders of the Tribunal and that of the lower authorities and by quashing revised assessment on this issue.
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2010 (5) TMI 769
Since no notice was issued to the assessee, so, the order (annexure P2) passed by the revisional authority after more than five years is time-barred, illegal and not binding on it (assessee), is not only devoid of merit but misplaced as well?
Held that:- There is no illegality in the impugned order of the revisional authority because notice was issued and Sanjiv Kumar, accountant of the assessee, was duly served on May 6, 1998, i.e., within five years of passing the assessment order. Consequently, the questions of law are accordingly answered against the assessee and in favour of the Revenue. Appeal dismissed.
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2010 (5) TMI 768
Issues: Liability for payment of interest prior to the date of assessment
Analysis:
The judgment delivered by the High Court of Punjab and Haryana dealt with the issue of whether an assessee is liable for payment of interest for the period prior to the date of assessment. The appellant-assessee, a registered dealer under the Punjab General Sales Tax Act, 1948, filed returns of sales claiming it to be branch transfers for the assessment year 2001-02. The Assessing Authority framed an assessment, accepting the returns but levying purchase tax, penalty under section 10(6), and interest under section 11D(1) of the Act. The Tribunal held that no penalty was leviable as tax was paid as per returns, but upheld the payment of interest.
The counsel for the assessee relied on a previous judgment, "Lakhi Ram Diwan Singh v. State of Haryana," and argued that the case is similar and interest should not be payable prior to the date of assessment. The counsel cited precedents such as J.K. Synthetics Ltd. v. Commercial Taxes Officer and Frick India Limited v. State of Haryana to support the argument. It was contended that section 11D of the Act is akin to section 25(5) of the Haryana General Sales Tax Act, 1973, as discussed in the Lakhi Ram Diwan Singh case.
On the other hand, the State counsel argued that since the tax had not been paid by the assessee, interest under section 11D of the Act is applicable. However, the court, after considering the arguments, held that the present case aligns with the Lakhi Ram Diwan Singh case, where it was established that interest is payable from the date of assessment and not prior thereto. Consequently, the court ruled in favor of the assessee, setting aside the Tribunal's order and accepting the appeals.
In conclusion, the judgment clarified the liability of the assessee for payment of interest under section 11D of the Act, emphasizing that interest is payable from the date of assessment and not prior to it based on the interpretation of relevant legal provisions and precedents.
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2010 (5) TMI 767
Whether, on the facts and circumstances of the case, the assessing authority was justified in law in imposing tax on the appli- cant/revisionist treating him as manufacturer under section 2(ee) of the U.P. Trade Tax Act, where the applicant/revisionist purchased the timber/logs from the tea estates who are the registered dealers and proper sale memo were issued to the applicant/revisionist, wherein sales tax registration number was duly printed on the sale memo?
Whether, on the facts and circumstances of the case, the assessing authority was justified in law in interpreting the Government Order dated November 23, 1998 issued by the State Government where it was specifically provided that the event of tax will be deemed to have taken place at the point of sale made by the Forest Department, the U.P. Forest Corporation, or the owner of private forest?
Held that:- The following substantial questions of law posed for adjudication are answered in favour of the Revenue and against the assessee. Revision dismissed.
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2010 (5) TMI 766
Whether the said E-bike is covered by the word "bicycle", as such, the same is exigible to tax at four per cent as it falls under Schedule C, entry 14 ?
Held that:- Cycle rickshaw is cycle rickshaw as understood in common parlance. The word bicycle will take colour from the word cycle-rickshaw and the things group are belonging to same genus. Considered from this angle, one has to reach to the conclusion that the view taken by the Tribunal that e-bike or e-bicycle is not within the sweep of the word "bicycles" appears to be in consonance with the legislative intent. No fault can be found with the view taken by the Tribunal.
In view of the findings in the aforesaid paragraphs, we are of the opinion that the appellant's product cannot fall under Schedule C, entry 14 and therefore, there is no substance in the present appeal. Thus, the appeal is dismissed
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2010 (5) TMI 765
Whether in exercise of revisional jurisdiction, the Revisional Authority was competent to cancel the RC of the new firm or not?
Whether, on the facts and in the circumstances of the case, there was sufficient material for cancelling the RC of the new firm by the Revisional Authority and that the Tribunal was right in upholding the order of the Revisional Authority?
Held that:- The Revisional Authority was competent to and there was sufficient evidence of concealment of material facts for cancelling the RC of the new firm in exercise of its revisional jurisdiction under sections 65 of the VAT Act and 7(4) of the PGST Act and the Tribunal was right in upholding the order of the Revisional Authority. Thus, the questions of law raised in this petition are answered against the new firm and in favour of the Revenue. Present revision petition is dismissed
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