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Case Laws
Showing 161 to 180 of 705 Records
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1964 (10) TMI 82 - SUPREME COURT
Whether a provision in a statute is mandatory or directory
Held that:- No serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to tax-payers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131(3) is mandatory
The manner of publication provided by s. 94(3) which we have called the second part of s. 131(3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in s. 131(3) is directory.
In the present case the mandatory part of s. 131(3) has been complied with and its directory part has been substantially complied with and so s. 135(3) will apply and the objection that the tax is not validly imposed must fail. Appeal dismissed.
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1964 (10) TMI 81 - MADHYA PRADESH HIGH COURT
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... ... ..... of Andhra Pradesh v. Kajjam Ramachandraiah(1), where the Andhra Pradesh High Court has held that the term oil-seeds as used in item No. 3 of Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957, means oil-seeds which in common parlance would be taken as oil-seeds, but not every seed from which by some process or other oil can be extracted . The learned Judges of the Andhra Pradesh High Court held that coriander, ajwan and sompu are used as spices and are not known as oil-seeds and consequently they did not fall within the definition of oil-seeds mentioned in item No. 3 of Schedule IV. 5. For these reasons, our answer to the question stated for our decision is that cocoanut, groundnut kernel and jira are not oil-seeds falling under item No. 3 of Part II of Schedule I of the Act, and consequently sales tax at the rate of three pies in a rupee cannot be levied on them. In the circumstances of the case, there will be no order as to costs. Reference answered accordingly.
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1964 (10) TMI 80 - PUNJAB HIGH COURT
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... ... ..... , 1964 . No steps were taken within three years for assessment under section 11(4) of the Act. Therefore no best judgment assessment can be resorted to and the one that has been effected would be wholly without jurisdiction. Since reported at page 107 supra. However, the assessment proceedings were started within three years. There is no limitation to start those assessment proceedings. In view of the setting aside of the impugned order there would be no assessment order in this case. The department can therefore proceed to assess the petitioner under section 11(3) in accordance with law. Mr. Nehra contends that in this case the assessment in fact is under section 11(3). I am, however, unable to accept this contention. One has simply to read the order to come to the conclusion that in fact the assessment is under section 11(4). For the reasons given above, both these writ petitions are allowed and the impugned orders are quashed, with no order as to costs. Petitions allowed.
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1964 (10) TMI 79 - MADHYA PRADESH HIGH COURT
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... ... ..... icant has taken exception to this addition because, in his opinion, it is speculative. We do not agree. It is now well established that, where a dealer has not maintained any account of his sales, it is open to the taxing authority exercising its judgment reasonably and judicially to compute the profit by applying a flat rate of a certain percentage to the admitted figure of total purchases. In this view, the answer to the second question also is in the affirmative. But the question at what rate the profit should have been calculated is essentially a question of fact depending upon the nature and extent of the business and the surrounding circumstances and does not raise any question of law Feroz Shah v. Income-tax Commissioner 1933 1 I.T.R. 219 (P.C.). 5.. In the result, we answer the two questions in the manner indicated above and direct that the applicant shall bear his own costs and pay those incurred by the department. Hearing fee Rs. 50. Reference answered accordingly.
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1964 (10) TMI 78 - MADRAS HIGH COURT
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... ... ..... rse of the hearing our attention was also drawn to the details of the sales of the machinery and parts thereof sold by the assessee during the years 1958-59. On a perusal of the same we are clearly of the opinion that it is impossible to hold that the sale of the arc furnaces was either ingrained in the business activity of the assessee or would constitute its normal business activity. Judged by any test, test of frequency, volume, regularity and continuity or the existence of profit motive or test of reasonable connection with the normal business activity of the assessee, it is impossible to hold that an isolated sale of a capital asset as in the instant case would amount to a sale in the course of the business which the assessee carries on. For all these reasons we hold that the turnover in question is not liable to sales tax and we allow the revision petition and reverse and set aside the decisions of the Tribunal and the assessing authorities. No costs. Petition allowed.
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1964 (10) TMI 77 - PUNJAB HIGH COURT
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... ... ..... to present its case. The order of 26th of June, 1961, did not stand obliterated by the appeal being allowed and it cannot be controverted that the Assessing Authority had actually proceeded to assess and the subsequent order passed by the appellate authority only resulted in the issue of a fresh notice. The proceedings for reassessment had actually started within a period of three years and the issue of a second notice was merely a continuation of the proceedings for reassessment which had actually commenced with a notice which had been served on the petitioner on 13th of March, 1961. In my judgment, this Court cannot declare the proceedings to be invalid on the ground of limitation and according to the decision of the Full Bench of this Court, I would hold that the Assessing Authority had proceeded with the assessment within the requisite period of limitation. This petition fails and is dismissed. In the circumstances, I would make no order as to costs. Petition dismissed.
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1964 (10) TMI 76 - MADRAS HIGH COURT
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... ... ..... s Tax at the higher rate was therefore not unlawfully collected at the time the transaction was put through. This feature also saves to distinguish the present case from the decisions referred to. It is not however denied that the petitioners have already refunded a sum of Rs. 2,791-71. Accordingly, the net collection by way of tax in the hands of the petitioners is the sum demanded less the amount specified above. On whatever footing the petitioners might have collected the tax they have refunded the amount to the buyers, and that amount is no longer available with them. The department must take note of the entire set of circumstances and not only the initial collection and refuse to recognise a proved fact, viz., that of refund. It would follow that the demand must be restricted only to the difference between the two amounts. The petition is allowed to this extent only. There will be no order as to costs. C.M.P. No. 6028 OF 1964. The petition is allowed. Petitions allowed.
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1964 (10) TMI 75 - MADRAS HIGH COURT
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... ... ..... arrear of tax which was due on the date of the commencement of Act of 1959, and that it is not a levy, which can be related to the process of recovery. Learned counsel for the petitioner referred to the decision in Mathew v. Second Additional Income-tax Officer 1956 29 I.T.R. 456., where there is an observation at page 459-no doubt in some other context under the Indian Income-tax Act, It is impossible to consider that the imposition of penalty is also a mode of recovery of tax. In my opinion, no authority is really necessary for the clear position that the penalty levied in this case, which the new Act alone contemplates but not the old Act, cannot be imposed retrospectively in respect of an arrear of sales tax, which became due before the new Act, and that nothing in the transitory provision in section 61 will justify its levy. The writ petition is therefore allowed and the impugned order is quashed by a writ of certiorari. The rule nisi is made absolute. Petition allowed.
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1964 (10) TMI 74 - PUNJAB HIGH COURT
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... ... ..... filed along with the petition. No attempt has been made by the State to contradict its authenticity. No affidavit from any responsible officer of the State Trading Corporation has been filed to show that the real nature of the transaction was different from what the document in fact discloses. This letter really clinches the matter in favour of the petitioner. Mr. Nehra further contended that I should not decide the matter but send back the case to the authority for re-decision. I see no merit in this contention. The entire material has been placed before me and the same was also before the Assessing Authority. In these circumstances no useful purpose would be served by remanding the case to the Assessing Authority, for it had arrived at a decision on its basis. For the reasons given above, this petition is allowed. The order of the Assessing Authority is quashed. In view of the difficult nature of the question involved, there will be no order as to costs. Petition allowed.
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1964 (10) TMI 73 - PUNJAB HIGH COURT
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... ... ..... r, to a foreign buyer resulting in the export of the cotton sold, the petitioner is entitled to deduct the purchase price thereof from the gross turnover under sub-clause (vi) of clause (a) of sub-section (2) of section 5 of the Act. It is not necessary for us to determine what that amount would be because that shall have to be determined by the Assessing Authority after taking into consideration all the facts established before it. For the reasons given above, therefore, the rule is made absolute and the order of the Assessing Authority is quashed to the extent to which it runs counter to the observations made above. The Assessing Authority will reconsider the whole matter and proceed in accordance with law after hearing the petitioner. In view of the fact that the points involved, particularly the one with regard to the cotton seeds extracted out of unginned cotton, were far from clear, the parties are left to bear their own costs. JINDRA LAL, J.-I agree. Petition allowed.
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1964 (10) TMI 72 - SUPREME COURT
Whether the certificate which the appellant-company gave to the local dealers was complied with or not?
Whether the proviso to section 5(2)(a)(ii) of the Orissa Sales Tax Act, applied?
Held that:- Appeal dismissed. Section 5(2)(a)(ii) as enacted by the 1950 amendment with that enacted in 1951 which came into force from November 25, 1951. He pointed out that the words "in Orissa" were added in the operative part after the quarter involved in this case and, therefore, the export of the sleepers and timber outside the State did not affect the company as prior to the 1951 amendment exemption was available if the goods were for resale irrespective of the place of sale. This is not correct. The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the company when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that condition was not fulfilled, the tax became payable even under section 5(2)(a)(ii) before the 1951 amendment
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1964 (10) TMI 64 - SUPREME COURT
Whether the Deputy Commissioner of Commercial Taxes has jurisdiction under section 12(2)(i) of the Madras General Sales Tax Act, 1939, read with the relevant rule, rule 14-A, to make the order he did?
Whether the revisional jurisdiction conferred under section 12 of the Act enables the authority concerned to make a fresh enquiry after issuing notice to the dealer concerned and determine the question of assessment on merits?
Held that:- Appeal allowed and case remanded. In accordance with the opinion of the majority, the order of the High Court declaring rule 14-A to be ultra vires is set aside and the proceedings are remanded to the High Court to be dealt with according to law.The High Court will have to make enquiry whether in the circumstances of the case the Deputy Commissioner, Coimbatore Division, was competent to proceed in the manner he has done and to pass the order which was impugned before the Sales Tax Appellate Tribunal. The order passed by the High Court declaring rule 14-A to be ultra vires is set aside, and the proceedings are remand- ed to the High Court to be dealt with according to law.
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1964 (10) TMI 57 - SUPREME COURT
Jurisdiction on the revising date on which the revising authority passed his order - Held that:- Appeal dismissed. Power could be exercised under the first proviso within a further period of one year if a notice under sub-section (2) was served within four years of the end of the year of assessment and without limit of time when it was made in consequence of, or to give effect to, any finding or direction contained in an order of the appellate or revisional authority or under an order of the High Court under section 11. In initiating proceeding for assessment, pursuant to the direction of the revising authority, the Sales Tax Officer was, by virtue of section 21 as amended, subject to no restrictions as to the period within which the order of assessment could be made. The order passed by the High Court must therefore be confirmed.
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1964 (10) TMI 56 - SUPREME COURT
Whether the present sales are outside sales?
Held that:- Appeal allowed. Carefully considering all the rules under which sales in question have been held by public auction, and we are satisfied that title to the goods passed to the buyer under section 64(2) of the Act as soon as the sale was completed by the auctioneer announcing its completion by the fall of the hammer. The initial auction cannot, be treated as an executory contract which became a conditional contract on the fall of the hammer. The auction was an auction sale in respect of ascertained goods and it was concluded in every case on the fall of the hammer. On that view of the matter, we must hold that the High Court was in error in coming to the conclusion that the Sales Tax Authorities were justified in imposing sales tax against the appellants in regard to the transactions which have given rise to the present appeals.
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1964 (10) TMI 53 - SUPREME COURT
Whether the sale was made in the course of inter-State trade, the case must be remitted to the High Court. Although Mr. Tewari has opposed the raising of the question at this stage whether the supply of coal amounted to sale, we are inclined to allow this point to be raised because the question is one of law which can be decided on the material on the records of the case, in the light of the decision of this Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [1962 (11) TMI 21 - SUPREME COURT OF INDIA] which was decided after the judgment of the High Court in this case. We express no opinion whether the said decision covers the present case or not.
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1964 (10) TMI 45 - SUPREME COURT
Whether the company complied with the Punjab General Sales Tax Act, 1948 and the Rules in the present case?
Held that:- Appeal dismissed. The contention that the charging section is incomplete without the prescription of the proper Form for the certificate of registration need not detain us. We have already shown that the old Form must be deemed to be modified and even otherwise the section and the Rules did not depend on the new Form. They were complete and effective. The registration certificate was only the evidence that the company was registered dealer for purposes of certain commodities to be used in manufacture, one of them being cotton. The omission to prescribe the new Form or to issue it did not render section 5 and the Rules ineffective.
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1964 (10) TMI 43 - SUPREME COURT
Whether the principle of constructive res judicata can be invoked against a writ petition filed by the appellant, Devilal Modi, who is the proprietor of M/s. Daluram Pannalal Modi, under Article 226 of the Constitution?
Held that:- Appeal dismissed. We are, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata
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1964 (10) TMI 41 - SUPREME COURT
Inclusion in certificate of registration - Held that:- Appeal partly allowed. The order passed by the High Court will therefore be modified. Items (i), (ii) and (vi), laboratory fittings out of item (iii) used for sampling and analysis of the ore and other raw materials in the mining operations and in the process of manufacture for sale and cane baskets out of item (vii) used for carrying ore and other materials used in the course of manufacture, will be specified in the certificate of registration. Household, hospital equipment with furnishings and fittings [part of item (iii)], medical supplies [item (iv)], stationery [item (v)] and cane baskets used for collecting refuse to protect the health and cleanliness in the colony of workmen [part of item (vii)] will not be included in the certificate of registration.
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1964 (10) TMI 21 - SUPREME COURT
Whether the assessee was properly assessed on ₹ 4,25,050 as profits under the proviso to section 10(2)(vii) of the Act?
Whether there were materials for the Tribunal estimating the sale value of the buildings at ₹ 2,32,963 ?
Held that:- By the fiction, if the business must be deemed to be in existence during the previous year and that the buildings sold must be deemed to have been used for the business during that year, the amendment was not necessary. If it existed, there could not have been a cessation of it during the previous year. If the argument was correct, there would be no time-limit for the assessment of the surplus. Whenever a building was sold, whatever might be the time lag, by fiction, the business, as well as the user of the building in that business would be in the previous year by the year of assessment. We cannot accept a contention yielding such a result unless it is so clearly expressed. Indeed, the expressed intention of the legislature is the other way. We therefore hold that the amendment only removed one of the conditions for the exigibility of the said surplus to tax, namely, the cessation of the business and in other respects, the construction put upon the proviso by the earlier decisions of this court is still good law. In our view, the answers given by the High Court to the questions propounded are correct. Appeal dismissed.
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1964 (10) TMI 20 - SUPREME COURT
Whether the loss claimed in the present case was a trading loss which is deductible in computing the profits of the company?
Held that:- Find no difficulty in holding that the said debt which had become irrecoverable was a trading loss deductible in computing the profit of the appellant-company in the assessment year. It was a loss incidental to the appellant's business and is certainly sanctioned by commercial practice and trading principles. We, therefore, hold that the High Court went wrong in holding that the said amount represented loss incurred by the appellant dehors its business. Appeal allowed.
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