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Showing 121 to 140 of 666 Records

2007 (10) TMI 606

Whether the tenant has a right of possession or whether he has merely an immunity from being dispossessed?

Held that:- Admittedly, on the date the tenancy was terminated, the tenant (Public Limited Company) was having a paid up share capital of rupees more than one crore. Under clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not applicable to the suit-premises.

The learned counsel for the respondent- landlord is also right in submitting that the appellant- tenant does not deserve equitable relief under Article 136 of the Constitution. The tenant has not paid 'rent'/'mesne profits' since more than ten years. Even after approaching this Court, it had made part payment pursuant to interim order made in April, 2005. But nothing was paid/deposited thereafter even though two years have passed. These facts have not been disputed by the appellant. We are, therefore, of the view that even on that ground, the appellant-tenant cannot ask for discretionary and equitable relief and we are not inclined to grant such relief. Appeal dismissed.
2007 (10) TMI 605

Whether the said cheques had been issued towards discharge of any existing debt?
Held that:- It is now a well-settled principle of law that this Court in exercise of its jurisdiction under Article 136 of the Constitution of India would ordinarily not interfere with the judgment of acquittal, if two views are possible. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. Appeal dismissed.
2007 (10) TMI 604

Penalty being 25 per cent of the declared value of the goods under section 79(1) of the West Bengal Value Added Tax Act, 2003 read with rule 127(5) of the West Bengal Value Added Tax Rules, 2005
Held that:- In view of the findings of the Additional Commissioner it is established that the petitioner had to despatch the goods to Ahmedabad by air without getting the way-bill endorsed as there was no competent person in the airport check-post to endorse the way-bill/transit declaration.
In the present case violation took place under circumstances beyond the control of the petitioner and created by the admitted absence of the competent person to endorse the declaration at the time of exit. Only fault committed by the petitioner is that it did not intimate the fact of exit and delivery of goods at Ahmedabad to the sales tax authorities in West Bengal. Had it done so penalty proceeding might not have been initiated at all.Application is allowed. In any event as the respondents themselves are responsible for the situation leading to the technical violation and there was no possibility of evasion of tax we set aside the impugned order of penalty passed by the Assistant Commissioner and the order passed by the Additional Commissioner.
2007 (10) TMI 603

Issues involved:
Challenge to provisional assessment order under the West Bengal Value Added Tax Act, 2003 for the quarter ended on December 31, 2006.

Analysis:
The case involved a challenge to a provisional assessment order passed by the Sales Tax Officer under the West Bengal Value Added Tax Act, 2003. The applicant, a company dealing in iron and steel goods, had failed to file the return for the quarter ending on December 31, 2006 due to financial constraints. The Sales Tax Officer issued a notice directing the applicant to submit the return, and upon submission, completed the provisional assessment, determining the gross turnover and imposing a penalty. The applicant challenged this order, arguing that the assessment was completed prematurely and without considering the request for an extension of time for tax payment. The Deputy Commissioner confirmed the order, leading to the appeal.

The applicant contended that the assessing authority should have considered only the relevant information for the quarter ending on December 31, 2006, and not the earlier returns. The applicant also argued that the assessing authority should have communicated its decision regarding the request for an extension of time for tax payment. The applicant cited judicial decisions to support the argument that when an application for extension is not rejected, the applicant can reasonably presume that the request was entertained.

The State Representative, on the other hand, argued that the applicant's request for an extension of time was not valid as it did not comply with the provisions of the VAT Act and Rules. The State Representative maintained that there was no scope for allowing any opportunity to the dealer during provisional assessment under the VAT Act.

After considering the arguments, the Tribunal found that the applicant had filed the return within the extended time and had requested an extension for tax payment. The Tribunal noted that there was no order rejecting the application for extension, and it appeared that the applicant was under the impression that the request was granted. The Tribunal also emphasized the importance of natural justice, stating that even though there was no provision for allowing opportunities during provisional assessment, the affected party should be given a chance to respond to adverse decisions. Therefore, the Tribunal set aside the orders of the Sales Tax Officer and Deputy Commissioner.

In conclusion, the Tribunal disposed of the application, setting aside the provisional assessment orders and emphasizing the importance of providing opportunities for affected parties to respond to adverse decisions, even in the absence of specific provisions in the Act.
2007 (10) TMI 602

Issues:
Challenge to penalty orders under Kerala General Sales Tax Act; Competency of first respondent to disagree with Appellate Tribunal; Petitioner's failure to avail statutory remedies before filing writ petition.

Analysis:
The judgment addresses a writ petition seeking to quash penalty orders (exhibits P15 to P18) imposed on the petitioner for violating the Kerala General Sales Tax Act. The petitioner did not avail of the statutory remedies provided against the penalty orders, instead opting for the writ petition. The contention raised was that the first respondent, in issuing order exhibit P14, disagreed with the findings of the Appellate Tribunal, which the petitioner argued was beyond the first respondent's competence. The court held that the petitioner should pursue the statutory remedies against the penalty orders and that the question of the first respondent's competency could be examined during that process. The court noted that the petitioner had not challenged order exhibit P14, which had become final, and expressed reluctance to allow arguments on its merits due to the delay. However, the court refrained from making a conclusive finding on this issue to avoid prejudicing the petitioner in future proceedings against the penalty orders.

The judgment emphasized the importance of challenging objectionable parts of orders in a timely manner, even if the order is one of remand like exhibit P14. The court concluded that the petitioner should pursue the statutory remedy and dismissed the writ petition, leaving open the contentions raised for consideration in any future proceedings against the penalty orders. The decision highlights the significance of following proper legal procedures and exhausting statutory remedies before seeking judicial intervention through a writ petition.
2007 (10) TMI 601

Issues: Disallowance of exemption under section 6A of the Central Sales Tax Act, 1956 based on failure to prove purchases on behalf of ex.-U.P. principals.

Analysis:
The High Court of Allahabad heard the revision against the Trade Tax Tribunal's order disallowing the claim for exemption under section 6A of the Central Sales Tax Act, 1956. The Tribunal found that the revisionist failed to establish that goods purchased against form 6R were on behalf of ex.-U.P. principals, as the form indicated the purchaser as "Sanjeev," seemingly the revisionist himself. The Tribunal concluded that the burden of proof under section 6A was not discharged, as the revisionist could not provide details like the date of sending goods, means of sending, or date of purchase from farmers. The revisionists claimed to act as commission agents for ex.-U.P. principals, but failed to prove when telephonic orders were received. Subsequently, form 9R was produced with ex.-U.P. principals' names, but the Tribunal deemed it an afterthought, asserting that purchases were made by the revisionist for himself, attracting Central sales tax.

The High Court concurred with the Tribunal's decision, supported by the argument that the revisionist made purchases under form 6 for himself, not ex.-U.P. principals, thus ineligible for section 6A exemption. The Court agreed that the naming of ex.-U.P. principals in form 9R was insufficient for granting exemption. Consequently, the Court upheld the Tribunal's finding that the revisionist failed to prove purchases were on behalf of ex.-U.P. principals, justifying the disallowance of exemption under section 6A. The Court noted that denial of exemption under section 6A would lead to the application of section 6 of the Central Sales Tax Act, 1956.

In the absence of any legal questions, the High Court dismissed the revision, affirming the Tribunal's decision to disallow the exemption under section 6A of the Central Sales Tax Act, 1956.
2007 (10) TMI 600

Issues:
1. Validity of the order non-suiting the petitioner for relief of certiorarified mandamus.
2. Interpretation of the waiver of sales tax granted to the petitioner.
3. Authority to collect and appropriate sales tax by the appellant.
4. Rejection of the writ petition by the learned single judge.
5. Contentions regarding the specific covenant forbearing the appellant from collecting tax.

Analysis:
1. The writ appeal challenged the order of the learned single judge non-suiting the petitioner for the relief of certiorarified mandamus. The order directed the quashing of an impugned order issued to the appellant for repayment of sales tax collected contrary to the waiver scheme. The learned single judge dismissed the writ petition based on the rejection of the contention that the district industries centre's order allowing tax collection was against the spirit of the Government Order. The court upheld the dismissal, emphasizing the need for tax collection based on law.

2. The appellant had obtained a waiver of sales tax for a specific period, but subsequently collected sales tax for certain assessment years. The court noted that none of the relevant documents authorized the appellant to collect and appropriate sales tax for itself. Despite arguments that no specific covenant forbearing tax collection existed, the court emphasized that tax collection must be lawful, as mandated by the constitution. The court found no merit in the appellant's appeal, leading to its dismissal.

3. The rejection of the writ petition by the learned single judge was based on the finding that the district industries centre's order allowing tax collection was incorrect and against the Government Order. This rejection formed the basis of the dismissal of the petition. The court upheld this decision, highlighting the necessity of tax collection being in accordance with the law and authorized procedures.

4. The appellant's contention regarding the specific covenant forbearing them from collecting tax was considered by the court. Despite arguments that no such prohibition existed in the relevant documents, the court emphasized the requirement for tax collection to be authorized by law. The court dismissed the writ appeal, noting that the appellant could seek relief from the Industries Commissioner based on a plea of misunderstanding of Government orders, if advised to do so.

In conclusion, the High Court dismissed the writ appeal challenging the order non-suiting the petitioner for relief of certiorarified mandamus, emphasizing the need for tax collection to be lawful and in accordance with authorized procedures. The court upheld the rejection of the writ petition by the learned single judge, highlighting the importance of compliance with Government Orders and legal mandates in tax matters.
2007 (10) TMI 599

Whether the petitioner would be entitled to any interest or not? - Held that:- When the earlier writ petition was filed, the interest was not at all claimed. The earlier writ petition was confined to the relief of refund of amount and the prayer in the writ petition was, "to issue a writ or order or direction particularly one in the nature of writ of mandamus directing the first and second respondents to refund the amount of entry tax of ₹ 27,90,468 together with interest pursuant to the clarification dated May 25, 2004 issued by the fourth respondent in CCT's Ref.: No. A1 (3)/296/2004."
In this view of the matter, the writ petition is dismissed.
2007 (10) TMI 598

Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the exemption unit available up to turnover of ₹ 50,00,000 is applicable for the units of an institution separately under Notification No. 709 dated February 27, 1997?
Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the amount received for sale is not part of turnover?
Held that:- All the three revisions are allowed in part. Question No. 1 in all the three revisions are decided in favour of the Revenue and against the assessee and it is held that under the notification exemption of ₹ 50 lacs was available to the institution as a whole and not to the individual unit. So far as question No. 2 involved in the assessment year 1997-98 only is decided in favour of the assessee and the order of the Tribunal is upheld.
2007 (10) TMI 597

Whether the items manufactured by the applicant are covered under the entry "all types of passive components"?
Held that:- Though the Tribunal has accepted that the items manufactured by the applicant are electronic goods but without considering the submissions of the applicant that the items are covered under the entry "all types of passive components" under clause (i), the Tribunal has held that they are covered under the entry "all other electronic goods" under clause (iii). The clause (iii) is a residuary entry and only those electronic goods fall under this entry which do not fall under the items mentioned in clause (i). Therefore, the Tribunal should have first considered whether the items manufactured by the applicant are covered under the items mentioned in clause (i) of the entry or not. Since the Tribunal has not considered this aspect of the matter, the matter is remanded back to the Tribunal to consider whether the items manufactured by the applicant are covered under the entry "all types of passive components" which is one of the items of electronic components mentioned in clause (i) of the entry. For the assessment year under the Central Sales Tax Act the Tribunal is directed to consider the Notification No. TT-2-2473/XI-6(1)/86-Act-74/56-Order-95, dated October 10, 1995 issued under section 8(5) of the Central Sales Tax Act and decide the appeal afresh. Appeal allowed by way of remand.
2007 (10) TMI 596

Assessment challenged - supression - Held that:- As noted the seizure was made in presence of the proprietor of the petitioner-company. Pursuant to the seizure so made, the petitioner was called and it verified the relevant records including the report of the Inspector of Taxes. There is no mention in the writ petition about the show-cause notice and the reply of the petitioner thereto. Such suppression on the part of the petitioner stares on the face of it. W.P. dismissed.
2007 (10) TMI 595

Seizure order under section 13A(6) of the U. P. Trade Tax Act, 1948 - Held that:- On the application under the proviso of section 13A(6) of the Act, the seizures were held illegal and the goods have been directed to be released without any security. Thus the seizure of the goods is patently illegal and without jurisdiction and liable to be set aside. We are of the view that the respondent is repeatedly seizing the goods contrary to the provision of the Act to harass the petitioner. W.P.allowed.
2007 (10) TMI 594

Whether on facts and in the circumstances of the case, any nexus exists between the alleged suppression and enhancement made by the authorities?
Whether on facts and in the circumstances of the case, levy of penalty under section 12(8) of the Orissa Sales Tax Act, 1947 to the extent of ₹ 10,000 was justified?
Held that:- rom the operative portion of the re-assessment order under section 12(8) of the Act, it clearly reveals that penalty has been levied in a mechanical manner and no reason whatsoever has been stated in the order for the levy of such penalty. From Slip No. 2 and Slip No. 3 which were detected by the Inspector of Vigilance, the total suppression has been determined to ₹ 928.50 paise. Therefore, one we have come to a finding that the petitioner has, in fact, suppressed the sales, then in terms of the judgment in the case of Hindustan Steel Ltd. [1969 (8) TMI 31 - SUPREME Court] we are of the view that the petitioner has failed to discharge its statutory obligation and the act of suppression on its part amounts to a deliberate defiance of law and/or establishes the petitioner's dishonest conduct and also establishes its conscious disregard of its statutory obligation and therefore, levy of penalty in the present case is wholly justified. But since we have determined the suppression of sales at ₹ 928.50 paise and further, answer the question No. 1 by directing enhancement of turnover to ₹ 18,570 and levy of tax thereon, we, therefore, answer question No. 2 framed above, in favour of the Revenue and hold that in the facts and circumstances of the case, levy of penalty under section 12(8) of the Act is justified but should be limited to an amount would extent equal to the tax amount that would be determined on the basis of the answer to question No. 1 framed above. Revision allowed.
2007 (10) TMI 593

Misuse of the eligibility certificate - Penalty under section 13A(4) of the U.P. Trade Tax Act, 1948 - Held that:- Merely on the ground that the goods were found packed in a packing material in which the name of M/s. Grossav Industries, Noida was mentioned from such isolated case, it has been inferred that the applicant was found selling goods manufactured by M/s. Grossav Industries, Noida on the garb of the eligibility certificate does not appear to be justified. It was explained that both the applicant as well as M/s. Grossav Industries, Noida were purchasing packing material from M/s. Kriti Krafts, Delhi and inadvertently M/s. Kriti Krafts, Delhi had dispatched such packing material of M/s. Grossav Industries, Delhi to the applicant. Certificate of M/s. Kriti Krafts, Delhi in this regard was filed. In the certificate issued by M/s. Grossav Industries, Noida they have denied the ownership of the impugned goods.
The possibility of dispatch of the goods manufactured by the applicant in the packing material in which the name of M/s. Grossav Industries, Noida was printed inadvertently cannot be overruled.There is no material on record that the impugned goods was not the manufactured goods of the applicant and was the manufactured goods of M/s. Grossav Industries, Noida.The entire allegation is merely based on surmises, conjuncture and suspicion. Revision allowed. In favour of assessee.
2007 (10) TMI 592

Difference between the documents exhibited - cash amount of ₹ 5,000 was found with the manager of the assessee which was accounted in the sundry/petty cash register
Held that:- As the assessing officer has himself recorded that the purchases of the mentha oil which were made by the assessee were in order. The first appellate authority has accepted the contention of the assessee but the Tribunal has enhanced the entire turnover of the petitioner without taking into consideration the fact that purchases of the raw material was found to be in order. Therefore the computation of enhancement made by the Tribunal stands vitiated. Therefore the Tribunal ought to have taken this fact into consideration while computing the enhancement, if any, for the assessment year in question.
In so far as the second ground is concerned the said petty cash could not have led the Tribunal to believe that the assessee had indulged in suppression of sales of this amount in order to evade tax and escape the assessment. Such an assumption could not have been drawn by the Tribunal unless there is any cogent evidence to believe that such petty cash being used to suppress sales. The matter is remanded to the Tribunal for reconsideration.
2007 (10) TMI 591

Certificate of eligibility - validity - Held that:- The revisional authority in the present case found that the assessing authority didn't make the requisite application of mind or made the necessary enquiry as to whether the petitioner was a "new industrial unit" which is eligible to obtain a certificate of authorisation under the Concession Act, which is not available to an old industrial unit and disregarding the said obligation, passed assessment order giving benefit of tax exemption to the old industrial unit of the petitioner. The law can't be so helpless to undo an apparent jurisdictional error and revisional powers are clearly available to correct such error which is also prejudicial to the interest of the revenue of the State.
Accordingly, the order of assessment passed on February 4, 1994 suffers from a jurisdictional error which is amenable to revisional powers of the revisional authority under the provisions of section 36 of the Assam General Sales Tax Act, 1993.
2007 (10) TMI 590

Method of service of notice - Held that:- The notice has not been properly served and ex parte order has been passed without giving proper opportunity of hearing. Thus, the order of the Tribunal is liable to be set side and the matter is remanded back to the Tribunal to decide the appeals afresh after giving proper opportunity of hearing to the applicantdealer.
In the result, revision is allowed in part. The order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh after giving proper opportunity of hearing to the applicant-dealer.
2007 (10) TMI 589

Penalty levied under section 8D(6) of the U.P. Trade Tax Act deleted by Tribunal - Held that:- On the facts and circumstances of the case, the Tribunal has held that the dealer had purchased the body and got it mounted over the chassis and it is not a case of works contract, placing reliance on the decision of the apex court in the case of T.V. Sundram Iyengar & Sons v. State of Madras reported in [1974 (10) TMI 81 - SUPREME COURT OF INDIA]. Finding of the Tribunal is finding of fact. In any view of the matter whether the contract was works contract or the contract for sale was highly debatable and, therefore, if under the bona fide belief that the contract was for sale of body and not works contract the tax has not been deducted under section 8D(1), penalty could not be levied under section 8D(6) of the Act, as there was no deliberate or wilful defiance on the part of the dealer.
Thus the penalty proceedings are of quasi-criminal nature and in the absence of any deliberate and wilful defiance, penalty should not be levied. Revision dismissed.
2007 (10) TMI 588

Use of Form C - Penalty imposed - Held that:- Having regard to the fact that the applicant from time to time informed the assessing authority about the use of form C for the coal and still the form C have been issued to the applicant the amount of penalty is reduced to minimum. It will be equal to the tax which is four per cent on the amount of ₹ 25,50,111 in the assessment year 1997-98 which comes to ₹ 1,02,004.44 and four per cent on the amount of ₹ 16,98,286 in the assessment year 1996-97 which comes to ₹ 67,931.44.
In the result, both the revisions are allowed in part. The amount of penalty is reduced to ₹ 1,02,004.44 and ₹ 67,931.44 for the assessment years 1996-97 and 1997-98 respectively.
2007 (10) TMI 587

Whether the purchase of lottery tickets by the Department of Small Savings and State Lotteries, which is employed in the activity of conducting the lottery amounts to use of the lottery tickets by the department as contemplated under the notification dated March 30, 1996 and whether the words 'for use by them' would restrict the personal use of the office?
Held that:- The assessing officer has not doubted the certificate issued by the Department of Small Savings and State Lotteries. But, considering the nature of goods, he has held that the lottery tickets cannot be "for official use" of the department. Therefore, we are of the opinion that all the authorities were justified in overruling the contentions urged by the petitioner and that there is no substantial question of law arises in this petition as the words "used by them" in the notification dated March 30, 1996 and the words "for official use" in the declaration form has to be meant only for the official use of the department and not for the commercial venture. Appeal dismissed.