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Case Laws
Showing 81 to 100 of 460 Records
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1997 (1) TMI 488
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... ... ..... ted to the 4th respondent for reconsideration and appropriate orders after giving an opportunity of personal hearing to the petitioner, in the light of the observations made above. It is open to the 4th respondent to consider the request of the petitioner for an opportunity to lead additional evidence, after hearing the petitioner on the basis of the merits of its claim. (iv) The petitioner shall appear before the 4th respondent on February 28, 1997 at 11.00 a.m. It is made clear that the petitioner will not be entitled for any fresh notice from the 4th respondent for his appearance. (v) All the contentions urged by the learned counsel for the parties on the merits of their respective cases are left open to be urged before the 4th respondent. (vi) The writ petition is disposed of in terms stated above. 6.. Sri Shivayogiswamy, learned High Court Government Pleader, is permitted to file his memo of appearance within four weeks from today. Writ petition disposed of accordingly.
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1997 (1) TMI 487
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... ... ..... er. That apart, the Commissioner by powers vested in him by virtue of section 40 on his own motion can call for the record of any case pending or disposed of by any Assessing Authority or appellate authority other than the Tribunal. The decision of the appellate authority that was set aside by the revisional authority as mentioned above was based upon the decision of the Tribunal, even though, therefore, the revisional authority was not reopening the case decided by the Tribunal, it virtually amounts to upsetting an order that is based upon the decision of the Tribunal. 5.. For the reasons recorded above, we answer the question in affirmative and hold that the Tribunal was right in setting aside the order of the Additional Excise and Taxation Commissioner, Haryana, dated December 12, 1983 passed under section 40 of the Haryana General Sales Tax Act, 1973. The question is, thus, answered in favour of the assessee and against the revenue. Reference answered in the affirmative.
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1997 (1) TMI 486
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... ... ..... General Manager, District Industries Centre, Ernakulam (not party before me in this proceedings) to take a decision on the petitioner s application for sales tax exemption within a stipulated time. 6.. Accordingly, I dispose of this original petition directing the General Manager, District Industries Centre, Ernakulam, to pass orders on the petitioner s application for sales tax exemption within a period of one month from the date of receipt of a copy of this judgment. Till such time orders are passed by the General Manager, District Industries Centre, Ernakulam, hearing of the appeals as evidenced by exhibits P3 and P4 will be kept in abeyance. There will be a further direction that till such time orders are passed on the application for exemption filed by the petitioner, exhibits P8 to P11 demand notices will stand stayed. The original petition is disposed of as above. Order on C.M.P. No. 1769 of 1997 in O.P. No. 1069 of 1997-B-Dismissed. Petition disposed of accordingly.
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1997 (1) TMI 485
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... ... ..... e effective. The decision of the Supreme Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer 1962 1 SCR 676 referred to in Bhaskaran v. Additional Income-tax Officer 1963 47 ITR 334 (Ker) makes the position clear. Even otherwise, it is trite law that such orders become operative only on service on the party affected. In the aforesaid view, exhibit P10 cannot be legally sustained which is accordingly quashed and there will be a direction to the respondent to pass fresh orders after adverting to exhibits P7 and P8 after affording an opportunity of being heard to the petitioner, within one month from the date of receipt of a copy of this judgment. However, I make it clear that in the event of the failure on the part of the petitioner to extend sincere co-operation to the respondent, the latter will be at liberty to pass appropriate orders on the basis of available records. 3.. The original petition is disposed of as above. Petition disposed of accordingly.
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1997 (1) TMI 484
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... ... ..... . 36.. It is correct that the petitioner did not choose to challenge the levy of import fee in the earlier years. The levy was first imposed with effect from April 1, 1992 and the petitioner carried on its business of import of beer year after year. The last notification dated March 27, 1996 whereby import fee was levied at Rs. 35.88 per box of 12 bottles, has been challenged immediately thereafter and, therefore, we restrict the challenge to that notification only. The petitioner is, therefore, not entitled to challenge the levy of import fee in respect of the earlier years inasmuch as no challenge was made against the earlier notifications and the petitioner made the payment of import fee without any grudge. 37.. In the result, notification dated March 27, 1996 (annexure P-3) is held to be unauthorized in law and also violative of articles 301 and 304(a) of the Constitution of India. The said notification is, therefore, quashed. No order as to costs. Writ petition allowed.
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1997 (1) TMI 483
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... ... ..... cent of the amount of sales tax so raised in terms of the impugned order. 5.. In the above view of the matter, we set aside the impugned orders in all the writ applications and remand the matter back to the assessing authority being the Assistant Commissioner of Commercial Taxes (respondent No. 5) for him to consider the matter afresh after examining the relevant records of the petitioner and after giving the petitioner full opportunity and then arriving at a specific findings if there was any sale as per stock transfer of coal from one colliery to another of the petitioner. 6.. The writ applications are, therefore, allowed to the above extent and the impugned orders of the Assistant Commissioner of Commercial Taxes in all the writ applications are set aside. The petitioner shall appear before the Assistant Commissioner of Commercial Taxes (respondent No. 5) on January 27, 1997. In the circumstances of the case, there shall be no order as to costs. Writ applications allowed.
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1997 (1) TMI 482
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... ... ..... given that the vessel did not operate in international waters, the same would be immaterial since article 9 is not applicable and, therefore, the matter is required to be studied in the light of article 7 of the Double Taxation Avoidance Agreement. The Department is seized of the fact that the non-resident has no office in India and in the assessment of the non-resident itself, the learned Commissioner of Income-tax, Delhi-I, in proceedings under section 263 has held that the income is not taxable in India, there being no office of the nonresident in India. In view of the above, I agree with the view taken by the learned Accountant Member and hold that the order of the Tribunal dated September 30, 1994, contains no mistake apparent from the record capable of being rectified under section 254(2). The miscellaneous application is accordingly dismissed. The matter should now be placed before the regular Bench for passing an appropriate order in accordance with the majority view.
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1997 (1) TMI 481
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... ... ..... cepting the claim of the assessee for bad debts of Rs. 28,77,420 and the explanation offered by the assessee for advancing the loan of Rs. 8,35,000 to his wife without making proper and necessary enquiries. I am, therefore, of the considered view that the learned Commissioner of Income-tax was justified in holding that the order of the Assessing Officer was erroneous in so far as it was prejudicial to the interests of the Revenue, for want of proper enquiry on the part of the Assessing Officer in respect of the claim of the assessee with regard to bad debts amounting to Rs. 28,77,420 and the advancing of the loan of Rs. 8,35,000 to his wife. I accordingly agree with the findings given by the learned Accountant Member, Shri Pradeep Parikh, and with utmost respect I am unable to find myself in agreement with the findings given by the learned Judicial Member. The case will now go back to the regular Bench for disposal of the appeal in accordance with the opinion of the majority.
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1997 (1) TMI 480
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... ... ..... ent of the Vice Chairman and, therefore, under Section 20(4), the Court can appoint arbitrator of its choice. The reasoning of the Court runs counter to the arbitration agreement and the law, germane on the point of arbitration. 11. If the dispute is referred to the Vice Chairman of the GDA as per the arbitration agreement and if he fails to act upon and if he refuses to discharge the dutics as arbitratior, then another arbitrator could be appointed with the consent of the parties and if no consent is given by them, then only the Court would be justified to exercise the power under Section 20(4) of the Act to appoint arbitrator of its choice. 12. For the reasons the appeal succeeds and is allowed. The impugned order dt. 10-12-1996 passed by the Judge. Small Cause Court, Ghaziabad is set aside and the matter is remitted to the Court below to refer the dispute to the Vice Chairman of the GDA, who is named as the sole arbitrator in the arbitration agreement. 13. Appeal allowed.
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1997 (1) TMI 479
Procurement services did not involve imparting of any information concerning industrial, commercial or scientific experience and hence were not FTS or royalty.
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1997 (1) TMI 478
Assessee's Appeal, Assessment Year, Tribunal's Order ... ... ... ... ..... edgement slip evidencing the receipt of the notice and the acknowledgement card evidencing the receipt of the Tribunal s order have both been signed by the same person as we have found from a comparison of the signatures. This factual position has not been denied. The company s rubber stamp does not appear in either of them. However, the company denies the receipt of the notice of hearing, but admits the receipt of the Tribunal s order. We are at a loss to appreciate as to how the claim can be accepted in the above state of affairs. Though both in the affidavit and in the course of the hearing before us the director of the assessee-company Mr. Arvind Kumar Sinha more than once denied the receipt of the notice of hearing by the company, in view of the clear evidence on record we are unable to accept the same. Under the circumstances, we have no option except to reject the miscellaneous application which we hereby do. 9. In the result, the miscellaneous application is dismissed
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1997 (1) TMI 477
On the basis of the information contained in the letter of Shri Bagai and the documents annexed to it, the ITO could have had reason to believe that the fair market value of the shares was far more than the sale price and the market quotations from the Calcutta Stock Association shown by the assessee at the time of original assessment were manipulated ones and as a result income chargeable to tax had escaped assessment - ITO was justified in taking action u/s 147(b)
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1997 (1) TMI 476
Valuation - Price list - Quantity discount ... ... ... ... ..... that discount was not offered to all buyers who satisfied the particular condition. The disallowance of this discount is justified. 6. emsp The orders in these appeals are set aside in part. The impugned order in Appeal 923/88-A is set aside to the extent it deletes foot-note 7 to the price list effective from 8-8-83 and the order impugned in Appeal 922/88-A is set aside to the extent it deletes foot-notes Nos. 7 and 10 to the same price list. The question will have to be decided afresh and for that purpose the cases are remanded to the jurisdictional adjudicating authority. The direction in the order impugned in Appeal 922/88-A disallowing the quantity discount allowed to M/s. J.K. Industries Ltd. for purchase of Capolyte CP is set aside. In other respects, we do not interfere with the impugned orders. The cases are remanded to the jurisdictional adjudicating authority for decision afresh after giving an opportunity of personal hearing to the appellant. Appeals are allowed.
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1997 (1) TMI 475
Cenvat/Modvat ... ... ... ... ..... t. We find that the order-in-original passed by the Assistant Collector records the submission of the appellants, that this aquagraph 77 is sprayed on castor rolls. Therefore, we agree with the learned Counsel for the appellants that this item is not in the nature of an appliance or device and is also not a part of machinery even though parts of machinery have been entitled to the benefit of Modvat credit by the Larger Bench of the Tribunal in the case of Union Carbide India Ltd. 1996 (86) E.L.T 613 (Tri. - LB) against which the reference application filed by the Revenue has already been allowed to the various jurisdictional High Courts. In these circumstances, we hold that Aquagraph 77 is also an input used in relation to the manufacture of the final product viz. aluminium and extend the benefit of Modvat to this item also. In the result, the impugned orders are set aside and the appeals allowed with consequential relief, if any, due to the appellants in accordance with law.
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1997 (1) TMI 474
Smuggling - Gold ... ... ... ... ..... hat confessional statements need independent corroboration. In the instant cases, the voluntary character of the statements themselves being in doubt, the same cannot be the basis of holding the guilt against the appellants. Further, the circumstances as narrated by the Commissioner (Appeals) in his above paragraph, are not in the nature of such a substantial evidence which would point out to the appellants rsquo guilts. We also find that the purity of the gold is ranging between 96 to 81 . It is an established law that circumstantial evidence must be compatible with the guilt of the accused. We find that the evidence on record does not conclusively establish the culpability of the appellants herein. Hence, we do not find any legal or cogent reasons to uphold the charges against the appellants in the absence of any independent corroborative evidence. Accordingly, we set aside the impugned Orders and allow the appeals filed by the appellants with consequential reliefs, if any.
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1997 (1) TMI 473
Order - Appealable order ... ... ... ... ..... -8-87 from the Inspector of Central Excise has to be treated as an appealable order. 4.2 emsp Further, Supdt. rsquo s letter dated 31-7-87 or Inspector rsquo s letter dated 10-8-87, if it is to be treated as an appealable order, has been issued without following the principle of natural justice. Therefore, it is not an order in the eyes of law. That letter cannot be invested with the status of an appealable order. The appellants is sought to be deprived of his lawful dues merely on the ground of technicalities. 4.3 emsp I, therefore, set aside the impugned order and direct the Superintendent of Central Excise to decide the case de novo in the light of the evidence to be adduced by the appellants before him. Needless to say that the matter in de novo proceedings is to be decided in accordance with the principles of natural justice. Since the matter is almost a decade old, it should be decided by the Superintendent within a month of production of the evidence by the appellants.
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1997 (1) TMI 466
Whether the notification dated 1st July, 1958, under the State Act gave unconditional exemption to textiles?
Held that:- Appeal dismissed. The contention must be rejected having regard to the terms of the three notifications issued under the provisions of the Central Act. It will be noted that the phrase used is "all the notifications". The phrase, using the plural, covers not only the notification dated 12th August, 1980, but also the only other notification that meets the requirements, being the said notification dated 14th December, 1957. The State Government, therefore, acted upon the basis that the said notification dated 14th December, 1957, issued under section 8(5) of the Central Act, was in force on 2nd January, 1981. The appellant, its officer, cannot be heard to contend that the terms of the notification dated 2nd January, 1981, were the result of non-application of mind and that the said notification dated 14th December, 1957, had stood impliedly rescinded long before 2nd January, 1981.
Amendment of the writ petition to challenge the final assessment orders wrongly rejected
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1997 (1) TMI 459
Whether the Food Corporation of India is liable to pay sales/purchase tax to the States while purchasing foodgrains or in distributing fertilizers pursuant to orders issued under section 3 of the Essential Commodities Act, 1955?
Held that:- Levy procurement is a sale/purchase and therefore, falls within the purview of entry No. 54 of List II of Seventh Schedule to the Constitution. The States were competent to levy sales/purchase tax on such transactions. In the light of the rulings of this Court referred to above in detail, we are unable to agree with the submission of the learned Senior Counsel for the appellants that there was no area left for consensual agreement in the parties to the procurement transactions. The view taken by the Full Bench of the Allahabad High Court in Ram Bilas Ram Gopal case [1969 (2) TMI 163 - ALLAHABAD HIGH COURT] is the correct view, and the High Court of Allahabad (Lucknow Bench) was right in applying the same in the judgment under appeal.
The transactions in question are all sale and exigible to tax under the State Sales Tax Act. The contention that the Explanation newly added was ultra vires entry No. 54, List II of the Seventh Schedule to the Constitution, on the assumption that the disputed transactions are not sales and, therefore, by a fiction the impugned Explanation cannot deem a sale which is not a sale, is without substance. The learned counsel fairly concedes that it is open to the State Legislature to shape a point at which tax is levied, if may be equally permissible to the Legislature to treat a particular sale or purchase as the first sale or purchase, but it cannot by legislative device or fiction of law make something as a sale/purchase which in fact is not. This argument has to fail in view of our answer to proposition No. 1 in favour of the Revenue.
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1997 (1) TMI 452
Whether rule 12(3)(ii) of the Central Sales Tax (Andhra Pradesh) Rules was directory and not mandatory and if held to be mandatory the said Rule was ultra vires the Central Sales Tax Act, 1956?
Held that:-Appeal dismissed. In agreement with the High Court that rule 12(3)(ii) of the State Rules is not ultra vires the Act or the Central Rules.
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1997 (1) TMI 451
Whether in the present case the Commissioner is seeking to revise any appellate order passed by the Assistant Commissioner of Sales Tax within the meaning of rule 80?
Held that:- Appeal allowed. In the context of section 23(4) where the words "any order other than an appellate order" are absent, the prohibition against revising an appellate order in rule 80 should be taken as applying only to an appellate order in its full sense, i.e., an order which is passed after considering any issue arising in appeal. It would not cover an order of rejection under rule 49(1), when the appeal is not entertained at the threshold for consideration.
From the facts as set out, it is apparent that the respondent was served with a notice of proposed revision on 21st March, 1975. The reasons for such revision were communicated to the respondent on 2nd May, 1975. The respondent had furnished written submissions to the Commissioner which were considered at the hearing of the case. After furnishing the grounds of revision the hearing of the case was fixed on 7th May, 1975. There is nothing on record to show that the respondent wanted more time or had asked for more time. The respondent appeared through his advocate on 7th May, 1975 and submitted his written arguments. Thereafter the Commissioner has passed a detailed order on 26th May, 1975. Looking to these facts it cannot be said that a reasonable opportunity of hearing was not given to the respondent.
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