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Showing 61 to 80 of 460 Records
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1997 (1) TMI 508
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... ... ..... his Tribunal in the Jindal (India) Ltd. case 1990 76 STC 367, the application must succeed. 16.. The order of the West Bengal Commercial Taxes Appellate and Revisional Board dated December 22, 1995 in Case No. 611 of 1990-91 is set aside. The orders of the respondents levying and collecting purchase taxes are also set aside and the respondents are directed to refund the said purchase tax which was inadvertently deposited with the sales tax authority by the petitioner within 6 months from date. There shall be no order as to cost. After the judgment is delivered Mr. K.K. Saha, learned advocate for the respondents, orally prays for stay of operation thereof for eight weeks. No one is present on behalf of the applicant. We see no reason to grant the stay of operation of the judgment. Moreover, already six months time has been allowed to make the refund. Hence, the prayer for stay is rejected. L.N. Ray (Chairman).-I agree. J. Gupta (Judicial Member).-I agree. Application allowed.
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1997 (1) TMI 507
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... ... ..... mporanea expositio as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement. 10.. In view of what we have noticed hereinabove it is evident that the learned single Judge was not right in relying upon the judgment in Alladi Venkateswarlu s case 1978 41 STC 394 (SC) and ignoring the verdict ic Rajasthan Roller Flour Mills s case 1993 91 STC 408 (SC). The facts of the present case were identical as were noticed in Rajasthan Roller Flour Mills case 1993 91 STC 408 (SC). We are satisfied that the law laid down in Rajasthan Roller Flour Mills case 1993 91 STC 408 (SC) was fully applicable in the case. As the judgment of learned single Judge is based on wrong assumptions of the provisions of law, the same is liable to be set aside. 11.. Accordingly the appeals are allowed by setting aside the judgment of learned single Judge. The writ petitions filed by the respondents shall stand dismissed with costs. Appeals allowed.
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1997 (1) TMI 506
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... ... ..... y has to initiate the proceeding within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case. (Emphasis added). 6.. Thus it is clear that even according to the apex Court, any unreasonable delay in exercise of the revisional power vitiates the proceedings. On the facts of this case, there is a delay of 13 years. It cannot be said that the exercise of the revisional power after lapse of 13 years is within a reasonable time. Reasonable time will never extend to a long period of 13 years. In this view of the matter, I am of the view that the order of the Assistant Excise and Taxation Commissioner, Bathinda, invoking his revisional power suo motu for reopening the assessment order for the assessment year 1967-68 is liable to be quashed. Resultantly, the writ petition is allowed and the impugned order is hereby set aside. There will be no order as to costs. Writ petition allowed.
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1997 (1) TMI 505
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... ... ..... sub-section (6). Since there was also no appeal or other proceeding pending in respect of the same subject-matter from which the refund had arisen, there was again no fulfilment of the requirement of sub-section (6). Thus, both the requirements of sub-section (6) of section 12 of the Act had not been fulfilled. 12.. In the result, the intimation, withholding the amount of refund of Rs. 33,558 due in favour of and payable to the petitioner, is held to be illegal and invalid and contrary to the provisions of section 12(6) of the Act. Since the petitioner wanted adjustment of the refund amount towards the tax demand relating to the assessment year 1976-77, that shall be allowed. Consequently, no penalty or interest is liable to be levied for non-payment of the balance tax relating to assessment year 1976-77, because the balance tax was paid by adjustment of refund amount of the preceding year. The writ petition stands allowed in the above terms. No costs. Writ petition allowed.
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1997 (1) TMI 504
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... ... ..... l not be able to seek nullification of the levy of purchase tax, the learned counsel prayed that the petitioner may be given liberty to challenge the levy of interest and imposition of penalty by filing appeal under section 39 of the Act of 1973. 6.. The learned Advocate-General fairly submits that the petitioner may be given liberty to file appeal and avail other alternative remedies available to it under the statute. 7. Consequently the writ petition is dismissed subject to the liberty to the petitioner to file appeal against the levy of interest and penalty. We make it clear that in case the petitioner files appeal within 30 days from today against the order levying interest and penalty, then the same shall be heard and decided by the appellate authority on merits and shall not be dismissed on the ground of limitation. However, entertainability of the appeal will be subject to the fulfilment of the conditions specified in section 39(5) of the Act. Writ petition dismissed.
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1997 (1) TMI 503
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... ... ..... ibunal requiring the Tribunal to refer to the High Court any question of law arising out of the order of the Tribunal. If the petitioner herein feels aggrieved from the Tribunal s order and a question of law arises therefrom, the petitioner may take recourse to that remedy and there appears no justification for filing the present writ petition. 5.. In the result, the writ petition is dismissed. However, the petitioner shall be at liberty to file an application under section 22(1) of the Act before the Sales Tax Tribunal, Punjab, within thirty days from the date of this order. Since the period of limitation has already expired on account of the filing of the present writ petition, it would be appropriate, in the interest of justice, to exclude the period during which the present writ petition remained pending in this Court and hence the petitioner is being allowed 30 days time to file the application under section 22(1) of the Act before the Tribunal. Writ petition dismissed.
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1997 (1) TMI 502
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... ... ..... dent for entertaining the appeal cannot be a ground to ignore the well-settle principle of law against the entertaining of the writ petition in such like matters. 5.. In our opinion, the principles laid down in the above referred decisions deserve to be applied to this case and the petition deserves to be dismissed only on the ground of the failure of the petitioner to avail of the statutory alternative remedy of appeal available to it. 6.. For the reasons mentioned above, the writ petition is dismissed. The interim order passed by the court on October 19, 1989 stands vacated automatically. The respondents shall now take appropriate steps, in accordance with law, for recovery of tax from the petitioner and also take proceedings for levy of interest and penalty. This direction shall be subject to any stay order which may have been passed by any other in favour of the petitioners. The respondents shall also get costs of Rs. 500.... from the petitioner. Writ petition dismissed.
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1997 (1) TMI 501
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... ... ..... s before the assessing authority. There is no suppression or anything on the part of the assessee nor the order of assessing authority can be said to be incorrect. 9.. Learned counsel for the petitioner submitted that simply because different view was taken subsequently on the same facts it would not justify reopening of the assessment. He has placed reliance upon a decision 1997 107 STC 98 (All.) 1994 UPTC 1041 (Harbans Lal Malhotra v. Assistant Commissioner, Sales Tax, Ghaziabad). There can be no doubt about the proposition that change of opinion on same facts would not give valid ground to reopen an assessment. Though this case is slightly different, yet we have observed in the present case as well that there was no occasion to issue notice under section 21 of the U.P. Trade Tax Act. 10.. In the result writ petition is allowed with costs and notice under section 21 of the U.P. Trade Tax Act as contained in annexure 2 to the writ petition is quashed. Writ petition allowed.
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1997 (1) TMI 500
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... ... ..... f, however, he comes to the conclusion that no incorrect particulars have been furnished, he will pass an appropriate order discharging the notice. Needless to say that in respect of both proceedings, the petitioner will have an opportunity of hearing and it will be open to the petitioner to urge all contentions in defence. This is without prejudice to the contention of the petitioner that even an exemption claimed if disallowed, will not attract the imposition of penalty. It is needless to say that it is always open to the aggrieved party to challenge the order that may be passed in accordance with law before the appropriate forum. 6.. Thus it would be seen that now once assessment orders have been passed under the provisions of the Central Sales Tax Act, 1956 and under the Bihar Finance Act, 1981, the remedy of the petitioner is either to file an appeal or revision under the Bihar Finance Act. This writ application, therefore, fails and is dismissed. Application dismissed.
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1997 (1) TMI 499
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... ... ..... rnataka Sales Tax Act. Accordingly, we do not find our way to agree with the learned single Judge and in reversal of the same, we hold that section 19-A of the Karnataka Sales Tax Act is constitutionally invalid and liable to be struck down. As stated earlier, the power of the State Legislature for making a provision for collection of tax in advance cannot be doubted but in so far as section 19-A is concerned, it directs deduction of tax at a flat rate from the total amount of the contract amount which is impermissible. The invalidity of the above section goes to the root of the imposition of the advance tax and in the absence of the said provision, advance tax cannot be levied. 19.. In view of what is stated above, these appeals are allowed. The judgment of the learned single Judge is set aside and it is declared that section 19-A of the Karnataka Sales Tax Act is unconstitutional and void. 20.. The parties are directed to bear their costs in these appeals. Appeals allowed.
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1997 (1) TMI 498
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... ... ..... results simply on suspicion or conjecture. Such views have been expressed by the courts for a long time and the members of the Tribunal must have known this basic concept of tax jurisprudence. Such view were recently repeated by this Court in the case of Saurashtra Chemicals 1996 100 STC 448. It is painful that a higher judicial body like the Sales Tax Tribunal should uphold such perverse enhancement in the turnover. 8.. The approach of the Tribunal and its conclusions are patently illegal and deserve to be reversed. 9. The revision petitions are allowed with costs that I assess at Rs. 1,500 in each of the revisions and Tribunal s order dated September 19, 1996 is hereby set aside and it is ordered that the revisionist s second appeal Nos. 67 of 1996 and 23 of 1995 for assessment years 1985-86 and 1988-89 stand allowed and the dealer s declared turnover is accepted. The Tribunal shall pass an order in the aforesaid appeals in consonance with this judgment. Petitions allowed.
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1997 (1) TMI 497
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... ... ..... a mineral as it is dug but while cinder is completely burnt part of the coal which escapes into the atmosphere. It appears that cinder is a left over of the coal. The Commissioner, Trade Tax, admittedly held under section 35 of the Act that the tax on coal ash is generally chargeable at 4 per cent. The Tribunal gave a finding to the effect that cinder ash and coal ash are treated as one and the same thing in commercial parlance. This finding of fact should not be disturbed on the basis of the case law cited by the learned Standing Counsel even if cinder ash is different from coal ash. Being the burnt portion of coal, there must be no difference between the ash of cinder and the ash of coal. Their chemical constituent would be the same. Thus the second ground of challenge has also no force. The finding of the Sales Tax Tribunal about taxability of cinder ash cannot be disturbed. This revision has no force and is dismissed. Parties to bear their own costs. Petition dismissed.
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1997 (1) TMI 496
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... ... ..... s. These facts are not disputed by the respondents. No counter-affidavit has been filed by the respondents as against the claim for refund of tax illegally collected. What is abundantly established from the above facts is that the assessee was all along vigilant in prosecuting its claim for refund of the tax which was collected under invalid assessment orders. In the aforesaid premise, I do not see any justifiable reason for denying discretionary power of this Court in ordering the refund in favour of the petitioner. In that view of the matter, the claim for refund of tax made by the petitioner is allowed. 29.. In the result, all the assessment proceedings initiated against the petitioner in respect of the years 1980-81 to 1983-84 are set aside. Consequently, I direct the assessing authority to refund the tax collected from the petitioner for the above years without delay. The writ petition is allowed. In the circumstances of the case, no order as to costs. Petition allowed.
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1997 (1) TMI 495
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... ... ..... Jamana Flour and Oil Mill (P.) Ltd. v. State of Bihar 1987 65 STC 462 (SC) also such a classification was upheld by the Supreme Court. 11.. For the above reasons we hold that the impugned provision is not violative of article 14 of the Constitution of India and is constitutionally a valid piece of legislation. We may further hold following the judgment of the Supreme Court in Vasavadatta Cements case 1996 101 STC 168, that notwithstanding the phraseology of the impugned provision the assessing authority has to determine in each case the ingredients of the contract of sale or agreement for sale relating to the container and also the intention of the parties in accordance with the judgment of the Supreme Court in Raj Sheel s case 1989 74 STC 379. In this view of the matter and with regard to the above interpretation of the impugned provision, we allow these writ petitions in part but in the circumstances of the case we make no order as to costs. Writ petitions partly allowed.
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1997 (1) TMI 494
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... ... ..... tation of rules under Bombay Act is of little help for interpreting the entry 175 or resolution dated June 16, 1987 with which we are concerned. 60.. Likewise the applicability of doctrine of severability as noticed above would depend upon the fact the impugned statute deals with which category of subjects and part of which could be left out while remainder would be governed by that part of the statute does not affect by invalidity. From the report it is not ascertainable whether any such situation was there or not. Therefore, the principle laid down in Varun Polymol s case 1995 97 STC 55 (Bom) cannot be of much assistance in determining the controversy that has been raised before us in light of the provisions with which we are concerned. 61.. For the reasons aforesaid I would dismiss the petition with no order as to costs. R.K. ABICHANDANI, J.-For the reasons stated in our judgments, the petition is rejected. Rule is discharged with no order as to costs. Petition dismissed.
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1997 (1) TMI 493
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... ... ..... eans that it can include and exclude the items mentioned in the Schedule. 9.. Lastly learned counsel invited our attention to the observations made by their Lordships of the Supreme Court in the case of Sales Tax Officer, Navgaon v. Timber and Fuel Corporation 1973 31 STC 585 that Government has no power under section 12 of the M.P. General Sales Tax Act to levy tax either prospectively or retrospectively. The power of the Government was merely to exempt one or more dealers from paying tax. That power cannot be used directly or indirectly to retrospectively levy tax on someone else. These observations have hardly any relevance in the present case. We have already observed that section 10(2) of the Act confers power on the State Government to amend the Schedule and that power includes the power to include or exclude any entry. Therefore, we do not find any illegality in the notification. 10.. There is no merit in this petition. Accordingly it is dismissed. Petition dismissed.
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1997 (1) TMI 492
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... ... ..... e have not been able to understand whether the goods were purchased by the purchasing dealer after it had suffered the entry tax or not. From the order, it does not appear that such goods suffered entry tax. However, the learned counsel for the petitioners submit that the goods had suffered entry tax but no such argument appears to have been advanced before the Additional Commissioner. Thus, we are not in a position to understand as to whether the goods had really suffered entry tax or not. As per the order passed by the Additional Commissioner, it appears that the goods had not suffered entry tax and hence, the Additional Commissioner affirmed the orders of assessment officer. We therefore do not find any reason to interfere in the order passed by the Additional Commissioner. 7.. In the result, we do not find any merit in the petition. It is accordingly dismissed. There shall be no orders as to cost. Security amount if any be refunded to the petitioners. Petition dismissed.
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1997 (1) TMI 491
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... ... ..... (b) of section 11 of 1991 Act that the petitioner-industrial unit was actually exempted from payment of sales tax. With fairness to the counsel, however, suffice it to mention that he has relied upon Pournami Oil Mills v. State of Kerala 1987 65 STC 1 (SC), Union of India v. Godfrey Philips India Limited AIR 1986 SC 806, Satgur Oil Mills v. State of Haryana 1989 73 STC 341 (P and H), Shashi Kant Vohra v. State of Haryana 1991 82 STC 148 (P and H) and Motilal Padampat Sugar Mills Co. v. State of Uttar Pradesh 1979 44 STC 42 (SC) AIR 1979 SC 621 on the principle of equitable estoppel and Harish Chandra v. State of Madhya Pradesh AIR 1965 SC 932, Ratan Lal Adukia v. Union of India AIR 1990 SC 104 and Municipal Board, Bareilly v. Bharat Oil Co. AIR 1990 SC 548 on the principle of implied repeal. 11.. In view of the discussion made above, all these petitions are dismissed. However, in peculiar facts of this case, the parties are left to bear their own costs. Petitions dismissed.
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1997 (1) TMI 490
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... ... ..... dustrial unit should be made applicable to the petitioner s case. There is no dispute that it was not a case of new industrial unit but a case of diversified unit. It is, therefore, held that the petitioner fulfilled the conditions as contained in clause (d) and was, therefore, eligible to seek exemption from the payment of sales tax. 15.. In the result, the writ petition is allowed and the appellate order passed by the Secretary to Government of Haryana, Industries Department, vide endorsement dated May 14, 1996 is quashed. It is held that the petitioner s diversified unit is eligible to seek exemption from the payment of sales tax under clause (d) of sub-rule (2) of rule 28A of the Rules and fulfils all other conditions. Therefore, the Higher Level Screening Committee is directed to treat the petitioner s diversified unit as an eligible industrial unit and examine the petitioner s application for exemption afresh and decide it in accordance with law. Writ petition allowed.
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1997 (1) TMI 489
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... ... ..... 248. 10.. It is also not in dispute that the goods like cushion (uncured rubber strips), cementing materials and precured tread strips, etc., which are used in the execution of retreading contract are neither manufactured nor sold as separate goods by the petitioner. Nonetheless because of the fiction created by insertion of clause (29A) in article 366 of the Constitution by 46th Constitution Amendment, read with the definition of sale under section 2(1)(t)(ii) of the Act, all such goods being involved in execution of the retreading contracts will be deemed to have been sold to the customers. In the said view of the matter, since petitioner has sold the retreading materials which had not been manufactured in its unit, it is not entitled to the benefits of the exemptions contemplated under the exempting notifications under consideration. 11.. A similar view has been taken by a Division Bench of the Kerala High Court in A. Anthony Swamy v. State of Kerala 1994 94 STC 477 thus
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