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Showing 41 to 60 of 276 Records
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1992 (7) TMI 315
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... ... ..... of limitation for initiation of proceedings under section 16, etc. We do not propose to go into the question at this stage. This is an order by the Tribunal remitting the case back on the ground that the petitioner was not given an opportunity to represent his case. The Tribunal itself has stated that the assessment order is liable to be set aside and a chance be given to the petitioner to represent the case. In such circumstances, we are of the view that suffice it to vacate the last line of the order of the Tribunal stating However, our findings with regard to other points raised by the appellant before us would hold good. In the end the appeal is remanded. and dismiss the revision in other respects. We make it clear that it is open to the assessing authority to go into the question afresh, as he is not bound by the order of the Tribunal on facts other than the question of limitation. Accordingly, this tax revision case is partly allowed. No costs. Petition partly allowed.
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1992 (7) TMI 314
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... ... ..... g heard has been given to the dealer or other person likely to be affected by such enhancement. The matter is covered by two decisions of this Court given in the case of Karam Chand Thapar and Brothers (Coal Sales) Limited v. State of U.P. 1975 UPTC 11 and the Commissioner of Sales Tax v. India Steel Supply Company 1987 UPTC 493 wherein it has been held that in case notice under section 22 of the Act has been issued, within a period of three years, the order can be passed after the expiry of three years. Since in this case notice under section 22 had been issued within a period of three years as prescribed under that section, the assessing authority was fully competent in passing the order after expiry of three years. Thus, the Tribunal fell in error in allowing the appeal. The revision succeeds and is allowed. The impugned order dated June 6, 1987 passed by the Sales Tax Tribunal is hereby set aside. The order passed by the assessing authority is restored. Petition allowed.
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1992 (7) TMI 313
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... ... ..... ced production from January 18, 1979 and therefore is entitled to the benefits conferred under the said notification. We fail to understand how the Government could have insisted that the eligibility to obtain the concession could be only when the industrial unit could charge for and collect tax at half of the prescribed rate of tax. That is not the condition which has been imposed under the aforesaid notification. The incentive is meant for the industrial unit and we are sure that it is not for the benefit of the consumer. If the intention was to benefit the consumer, there were other and better ways by which the State Government could have extended the same. Nothing more need to be added in this context. 6.. In the result, we allow the writ petition, make the rule absolute and direct the 3rd respondent to grant incentive to the petitioner in accordance with law and in the light of the observations made herein. In the circumstances of the case, we make no order as to costs.
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1992 (7) TMI 312
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... ... ..... tomato sauce and squash, etc., were stated to be a part of the tinned food and beverages. The Tribunal seems to have lost sight of the fact that all foods and beverages are not covered by the entry. Only such of them which are contained in sealed containers, and are akin, similar or of the kind of specific goods mentioned in the latter part of the item, become taxable at the first point in a series of sales. In other words, any other goods to be covered by item has to take its colour from specific goods mentioned in the latter part. Item of articles with which we are presently concerned, cannot be said to be akin, similar or of the kind mentioned in the item itself. The articles specified in the item certainly have different use than the articles under reference. Therefore, the Tribunal was not justified in its conclusion. Reference at the instance of the Revenue is answered in its favour, and against the dealer. D.M. PATNAIK, J.-I agree. Reference answered in the negative.
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1992 (7) TMI 311
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... ... ..... been granted that he ceased to carry on the business. This section clearly mentions due notice . It can be said due notice is given to the dealer only if rule 52 has been properly complied with. In the present case, rule 52 has not been complied with as a matter of fact. Hence, the dealer, viz., the petitioner herein, did not have due notice before cancellation of his registration. Consequently, the order of cancellation is vitiated and is liable to be quashed. 6.. The writ petition is allowed and the impugned order dated 18th February, 1992 cancelling the registration of the petitioner is quashed. It is open to the respondent to issue a fresh notice if so desired, to the petitioner to show cause why his registration should not be cancelled for such reasons as may be set out in such notice and after giving sufficient opportunity to the petitioner to make his representation, the respondents shall pass appropriate orders in accordance with law. No costs. Writ petition allowed.
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1992 (7) TMI 310
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... ... ..... do not apply to the controversy in question which has to be seen in the light of charging section, namely, sections 3 and 3-A of the Act. The Tribunal did refer to the said two decisions (Commissioner of Sales Tax v. S.S. Adarsh Paper and Board Manufacturing Company 1987 65 STC 243 (All.) 1985 UPTC 15 and Viny Pap Sales Depot v. State of Tamil Nadu 1977 40 STC 317), but it held them inapplicable or of no help to the applicant on one or the other flimsy grounds which need not be mentioned. The result is that the bitumenised packing paper which is also known as waterproof packing paper is covered by entry No. 68 of the Notification No. 332, dated 15th November, 1971 and entry No. 36 of Notification No. 5785, dated 7th September, 1981 and the said paper is to be taxed at 5 per cent and 6 per cent for the periods to which these two notifications relate. The order of the Sales Tax Tribunal is set aside and the revisions are allowed accordingly. Petitions allowed. Here italicised.
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1992 (7) TMI 309
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... ... ..... , which is the rate charged in the present case. Shri Ray further submits that to charge distilled water to any rate of tax, a specific entry for distilled water must have found place in the Act. We do not think so, as under the Act all sales are taxable unless exempted. As sale of distilled water is not exempted, its sale price has to find out in the return to be submitted by a dealer, who carries on business of this commodity. 9.. In view of the above, we are not in a position to interfere with the impugned order and, accordingly, the writ petition is dismissed. R.K. PATRA, J.-I agree. B.L. HANSARIA, C.J.-Shri Ray orally prays for certificate for appeal to the Supreme Court on the ground that the case involves substantial question of law of general importance which needs decision of the Supreme Court. We are not satisfied if any decision of the Supreme Court is needed on the point at hand. The prayer is, therefore, rejected. R.K. PATRA, J.-I agree. Writ petition dismissed.
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1992 (7) TMI 308
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... ... ..... ttled that when the Joint Commissioner, exercising the power under section 34 of the Act, 1959, he has to look at the question in an objective manner. In this case, the Joint Commissioner has proceeded with the question on mere surmises and conjectures. So we are of the view that the order of the Joint Commissioner has to be set aside and accordingly it is set aside. 6.. In so far as the other question, whether the appellant/assessee is a dealer or not is concerned, it is submitted by the learned counsel for the petitioner that it is decided by this Court in 1985 59 STC 95 (Deputy Commissioner v. Cheran Transport Corporation Limited) followed by another decision in Deputy Commissioner v. Anamallais Bus Transport (P) Ltd. 1992 84 STC 436 to which one of us (Raju, J.) is a party . In the view we take, the tax case (appeal) shall stand allowed and the order of the Appellate Assistant Commissioner shall stand restored. However, there will be no order as to costs. Appeal allowed.
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1992 (7) TMI 307
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... ... ..... al, reported in A.R. Brothers v. Government of Tamil Nadu 1979 44 STC 500 (Mad.) turned upon the facts of that case. In that case, the Division Bench came to the conclusion that with regard to the nature of transaction the Division Bench found that neither the conditions of the tender nor the correspondence that passed between the department and the assessee disclosed any obligation on the part of the assessee to fix the chairs on the ground to make it as part of the building itself. So, the Division Bench came to the conclusion with regard to the facts of the particular case. As the apex Court has already held every case in such transaction has to be decided on particular facts and no inflexible rule can be laid down. As we have already held the transaction before us cannot be treated as a contract of sale and it has to be held only as a works contract. On the view we take, the order of the Tribunal is set aside. The tax revision case is allowed. No costs. Petition allowed.
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1992 (7) TMI 306
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... ... ..... x Rules, 1963, service on a dealer could be effected by giving or tendering the summons or order to such dealer or manager or agent also. Since section 21A(3) of the KGST Act not only makes the members of the firm jointly and severally liable for the amount of tax due from a dissolved firm but also provides that the provision of the Act would apply to such assessment or direction for payment or penalty, etc., it would be enough, in the circumstance, that notice as contemplated under the KGST Act is served. Inasmuch as the appellant had no case that such service of notice was not effected, we are of the view that steps taken are not vitiated. The learned single Judge dismissed the original petition without prejudice to statutory right, if any, of the appellant. We do not find anything to interfere in the judgment of the learned single Judge and therefore the writ appeal is liable to be dismissed. In the result the appeal fails and the same is dismissed. Writ appeal dismissed.
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1992 (7) TMI 305
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... ... ..... . However in Ganesh v. State of Tamil Nadu 1988 68 STC 84 a Division Bench of this Court, while considering the scope of amendment with regard to section 38 of the Tamil Nadu General Sales Tax Act read with Limitation Act, 1963, came to the conclusion that the proviso to section 38(1) of the Tamil Nadu General Sales Tax Act, restricting the power to excuse the delay in filing revision petition under section 38 only up to a period of 45 days, is an express exclusion of section 5 of the Limitation Act. The Division Bench, in our view, has not considered this aspect of the matter, which we have considered supra, following the dicta laid down by the apex Court in 1953 4 STC 114 Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh . 4.. In the result, the revision will stand allowed and the order of the Tribunal is set aside. The matter is remitted to the Deputy Commissioner for fresh disposal according to law, after due notice to the petitioner. No costs. Petition allowed.
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1992 (7) TMI 304
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... ... ..... 1992, passed by the Commercial Tax Officer, Malda Charge, rejecting an application for declaration forms is quashed. Respondent No. 1, Commercial Tax Officer, Malda Charge, is directed to dispose of the application for declaration forms afresh in the light of this judgment. Respondents Nos. 1 and 4, Commercial Tax Officer, Malda Charge, and the Commissioner of Commercial Taxes, West Bengal, are directed to refund the sum of Rs. 10,000 which was deposited as security by the applicant in terms of interim order dated April 22, 1992, passed by this Tribunal. The interim order is vacated. After the judgment is dictated, Mr. D. Majumdar, the learned State Representative, submits that stay for ten weeks may be granted. There is no opposition to the prayer. Let operation of the judgment and order be stayed for ten weeks. In the meantime, the interim order dated April 22, 1992, will remain in force for the said ten weeks. P.C. BANERJI (Technical Member).-I agree. Application allowed.
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1992 (7) TMI 303
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... ... ..... would be the sale price agreed to in the contracts and if the assessees gave remissions and therefore received lest than what was receivable by them under the contracts, they would not be entitled to have their turnover calculated on the basis of the contract price less the remissions permitted by them to their purchasers.......... In our view, the decision of the Division Bench of the Gujarat High Court, cited supra, will not apply to the facts of the case because the definition of turnover under section 2(20) of the Bombay Sales Tax Act, 1953, is wider than the definition of turnover which occurs in section 2(r) of the Tamil Nadu General Sales Tax Act, 1959. In the view we take that the special rebate is not includible in the turnover of the assessee and is entitled to have a deduction under section 2(r) of the Act read with rule 5(A)(a) of the Rules, the order of the Tribunal is set aside and the tax cases (revision) are partly allowed. No costs. Petition partly allowed.
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1992 (7) TMI 302
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... ... ..... bunal in so far as it affirms the order of the Appellate Assistant Commissioner with regard to the assessment made on the last purchase of raw hides and skins under item 7(a) of the Second Schedule. As regards the disputed item of first sales of dressed hides and skins assessed under item 7(b) the Tribunal had remanded the matter to the Appellate Assistant Commissioner. Since a finding on facts has to be given in the light of the declaration of law by this Court, and the satisfaction of the norms and conditions fixed to consider the claim of the assessee under section 5(3) of the Central Sales Tax Act, afresh and in accordance with law, the Appellate Assistant Commissioner is expected to remit the entire matter to the assessing authority for fresh consideration and disposal. In the result, the revision is allowed and the matter in its entirety is remitted back to the Appellate Assistant Commissioner to carry out the directions given in this order. No costs. Petition allowed.
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1992 (7) TMI 301
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... ... ..... fficer 1979 44 STC 1 nor to dissent from the conclusion reached by a Division Bench of this Court in State of Kerala v. Sankaran Nair 1986 63 STC 225, and I hold that on the facts of this case the petitioners ale not entitled to claim exemption or non-liability to sales tax under section 5(3) of the Central Sales Tax Act. I agree with my Lord the Chief Justice that these two cases are to be dismissed. ORDER OF THE COURT In view of the conclusions reached in the abovesaid judgments, the petitions are dismissed. Learned counsel for the petitioners has made an oral application to grant a certificate under article 134-A read with article 133 of the Constitution of India. All three of us are of the view that the cases involve substantial questions of law of general importance which, in our opinion, need to be decided by the Supreme Court of India. The certificate shall issue accordingly. Order on C.M.P. No. 34495 of 1989 in O.P. No. 10598 of 1989-J dismissed. Petitions dismissed.
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1992 (7) TMI 300
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... ... ..... to take resort to section 12(8) of the Act. If the assessing officer initiates proceeding under section 12(8) of the Act in respect of an assessment which has merged with the appellate order, it would be without jurisdiction. It is not the intention of the Legislature to enable the Sales Tax Officer to reopen final decisions made against the Revenue in respect of questions that arose for decision in earlier proceedings. If that were not the legal position, it would result in placing an unrestricted power of review in the hands of the Sales Tax Officer to go behind the findings given by a hierarchy of appellate forums. On that score also the assessment was illegal. The first appellate authority and the Tribunal therefore, had rightly held that assessment under section 12(8) of the Act is indefensible. Our answer to the second question is also in favour of the dealer. The reference is accordingly disposed of. No costs. D.M. PATNAIK, J.-I agree. Reference answered accordingly.
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1992 (7) TMI 299
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... ... ..... ully acts in contravention of any of the provisions of the Act or the Rules thereunder is liable to be penalised after due prosecution. If the respondent had filed a false return, apart from the remedy available to the Revenue to rectify the assessments, section 29 also could be invoked to prosecute the respondent. Section 5(3-B) certainly is not attracted to the instant case. The Appellate Tribunal has given a different finding that synthetic resin/hardener is a chemical falling under the Second Schedule. It is unnecessary for us to go into the said question, as we are concerned only with the question whether the respondent has used formaldehyde in the manufacture of synthetic resin/hardener, which was the declared purpose in form No. 37, furnished by the respondent at the time of the purchase of formaldehyde. In view of the above, we do not find any reason to interfere with the order of the Appellate Tribunal. These petitions are accordingly dismissed. Petitions dismissed.
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1992 (7) TMI 298
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... ... ..... espective provisions in the relevant Acts empowering the sale of salvaged goods or unclaimed goods. But that should not make any distinction in the present cases. Inasmuch as in the course of business the pledgee is empowered to sell the goods of course subject to the provisions of the Act and the Rules framed thereunder, then, when the goods are sold at his instance he becomes a dealer for the purpose of the Karnataka Sales Tax Act. Consequently, he is liable to pay the taxes as provided under the Act. The arguments advanced on behalf of the petitioners that they are not owners of the goods nor do they act as agents of the pledger or that the sale effected is a statutory sale and not a sale in the empiric sense do not appeal to me. The law in the context of sales tax has travelled far from it. Even statutory sales are covered by the enactment. Hence, I do not find any substance in these petitions. Petitions are therefore dismissed. Rule discharged. Writ petitions dismissed.
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1992 (7) TMI 297
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... ... ..... l and void because the property has since been forfeited to the Central Government under section 7 of the SAFEMA. Smt. Rama Devi and Smt. Pawan Kumari, the appellants in F. P. A. No. 21/(DLI) of 1992, had not been issued notice in the proceedings in which the impugned order was passed. In F. P. A. No. 21/(DLI) of 1992 filed by them, they prayed that they may be allowed to place relevant documents on the file. The object of placing documentary evidence on the file was to prove that they have interest in the property. They were allowed to place all documentary evidence on the file which has been read in evidence. We have considered the entire evidence and we have come to the conclusion that Rama Devi and Pawan Kumari had no interest in the property in dispute at any stage. They have, therefore, no locus standi to file F. P. A. No. 21/(DLI) of 1992 and the same is liable to be dismissed on that ground as well. In view of discussion above, both the appeals fail and are dismissed.
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1992 (7) TMI 295
Arbitration application - Held that:- Appeal dismissed. As only in cases where the agreement does not specify the arbitrator and the parties cannot also agree upon an arbitrator, does the court get the jurisdiction to appointment an arbitrator. It must, accordingly, be said that in the present case, there was no occasion or warrant for the learned Subordinate Judge to call upon the parties to submit panels of arbitrators. He was bound to refer the dispute only to the arbitrator named and specified in the agreement. This aspect, however, has become academic now in view of the fact that the very application under Section 20 has been held by us to be barred by limitation.
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