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Showing 161 to 180 of 739 Records
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2008 (12) TMI 692
Writ of mandamus issued directing the respondents to make the earlier exemption granted to the petitioners by the certificates issued by respondent No. 2 under the provisions of the Gujarat Sales Tax Act, 1969 - also prayed to quash and set aside Notification No. (GHN-27) GST2006 (section 49)(404)TH dated March 31, 2006 and Notification No. (GHN-27) GST-2006 (section 49)(405) dated March 31, 2006 - Writ of mandamus directing the respondents to grant exemption or to make available to the petitioners the exemption under the newly substituted VAT Act -
Held that:- The petitioner may make a representation directly or through the Commission under the KVIC Act or the Board for issuance of such exemption under the VAT Act inasmuch as there is already a provision for exercise of such discretion for grant of exemption under the newly substituted VAT Act. Therefore, in light of the discussion made hereinabove, the present petitions are hereby allowed partly. Prayer in terms of para 7(c) in Special Civil Application No. 23720 of 2006 is granted. The impugned notifications dated March 31, 2006, by which the earlier notifications dated April 29, 1970 and April 1, 1992 have been rescinded, are hereby quashed and set aside in all these petitions and the original certificate at annexure G granting exemption for the period from December 1, 2005 to November 30, 2008 would remain in force till it expires.
As the issue regarding grant of benefit of exemption under the newly substituted VAT Act would be either a legislative function by issuance of notification in exercise of power conferred under the statute, or it would be a matter of policy to be decided by the respondent-Government as to how the benefit of exemption should be extended, for which, while substituting the VAT Act, the entries have been deleted and some of the entries are specified, it may not be proper for this court to issue directions granting the reliefs as prayed for regarding the exemption under the newly substituted VAT Act. However, it will be open for the petitioners to apply to the respondent-Government by making a representation highlighting the fact that the industries are established under the KVIC Act and also the new scheme also has the same object of development and therefore the core idea remains the same for which the benefit of exemption granted earlier should also continue and it will be for the respondent-Government to decide it afresh in accordance with law.
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2008 (12) TMI 691
Annulment of the seizure and the imposition of penalty - Held that:- The records produced before this court do not contain either the documents/records seized from the petitioner on July 10, 2003 or the railway receipts or the form B in question. In fact, the learned Standing Counsel for the Revenue in course of the arguments conceded that the form B involved is presently untraceable. The observation of the revisional authority that the seized exhibits included the RRs is not borne out by the records produced before this court. As it is, it has been contended on behalf of the petitioner that the RRs could not have been seized as the same along with the copy of form B duly countersigned by the concerned Revenue authority have been produced before the railway authority for release of the consignment. Be that as it may, the records do not contain any material to support the findings recorded by the revisional authority.
Thus Remand the issue to the Commissioner of Taxes, Assam, for a fresh disposal thereof on the merits after affording due opportunity of hearing to the parties. Ordered accordingly. The recovery proceeding initiated against the petitioner would remain stayed till the disposal of the matter as directed.
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2008 (12) TMI 690
Whether, in the facts and in the circumstances of the case, the Sales Tax Tribunal is justified to hold that the respondent is engaged in the distribution of electricity so as to be entitled to purchase goods at concessional rate of tax on the strength of "C" forms?
Whether the respondentdealer (works contractor) was entitled to the use of form IV for concessional purchase of goods?
Whether a series of sales can be postulated to apply to the provisions under section 8 of the OST Act, even after the tax is paid while purchasing the goods?
Held that:- The issue as to whether the respondent-Sidhartha Engineering (P) Ltd. (works contractor) was entitled to purchase goods at concessional rate of tax on the strength of "C" forms, is no longer res integra in view of the judgment rendered by the Full Bench of this court in the case of Kalinga Builders (P) Ltd. v. Commissioner of Commercial Taxes, Orissa [1999 (1) TMI 501 - ORISSA HIGH COURT] been answered in favour of the dealer and against the State.
In so far as isuue to whether the respondentdealer (works contractor) was entitled to the use of form IV for concessional purchase of goods also no longer subsists in view of the judgment of Kalinga Builders (P) Ltd. [supra]. Apart from this, the respondent while using form IV has deposited tax at four per cent and at the relevant point of time, a works contract dealer was liable to pay works contract tax at the same rate, i.e., four per cent. Therefore, since the respondent has admittedly deposited tax at four per cent, no difference in his tax liability would arise and, therefore, this question remains purely academic and is, therefore, also answered in favour of the dealer and against the Revenue.
So far as to whether a series of sales can be postulated to apply to the provisions under section 8 of the OST Act, even after the tax is paid while purchasing the goods, this issue is also no longer res integra and has already been answered by this court in the case of Bharat Heavy Electricals Ltd. v. Union of India [1988 (5) TMI 355 - ORISSA HIGH COURT] wherein it has been held that section 5(2)(AA)(i) of the OST Act was also subject to section 8 of the OST Act and if the goods involved in a works contract, had already been subjected to tax in a series of sales, this would have to be excluded from the taxable turnover, thus answered in favour of the dealer and against the Revenue
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2008 (12) TMI 689
Issues involved:
The issue in this case involves determining whether a transaction of supply of equipment, contrivances, and machinery made by the dealer to a company was a provincial sale or an inter-State sale, and whether it was liable to be taxed under the U.P. Trade Tax Act.
Summary:
The State filed a revision under section 11(1) of the U.P. Trade Tax Act, 1948, for the assessment year 1986-87, challenging the Trade Tax Tribunal's decision to delete the tax imposed on the assessee. The assessee, a civil contractor from Pune, entered into a contract with M/s. IFFCO Ltd. to supply equipment to its unit in U.P. Despite the State's argument that the title in goods passed to the buyer in U.P., the Tribunal found that the transaction was an inter-State sale between parties in Pune and U.P. The Tribunal considered the Central sales tax already paid by the assessee on the transactions in U.P. and concluded that no tax was due in U.P. The Tribunal's decision was supported by previous court rulings on similar matters. The court upheld the Tribunal's decision, stating that the contract was an inter-State trade, and no tax was payable in U.P. The revision was dismissed for lack of merit.
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2008 (12) TMI 688
Issues:
Challenge to cancellation of registration under Tamil Nadu Value Added Tax Act, 2006.
Analysis:
The petitioner filed a writ petition seeking to quash the cancellation of their registration under the Tamil Nadu Value Added Tax Act, 2006. The petitioner argued that their registration was canceled due to not filing an application under section 88(2) of the Act. The court referred to a previous judgment in Majri Steels v. Commercial Tax Officer, Tiruchy, emphasizing the provision of section 88(2) which allows a registered dealer to continue until a fresh certificate of registration is granted. The court highlighted that the Act did not specify the consequences of not applying for a new certificate, and the time limit for application was set by subordinate legislation, specifically Rule 4(8) of the Tamil Nadu Value Added Tax Rules, 2007.
The court noted that since neither the Act nor the subordinate legislation outlined the consequences of failing to apply within the set time limit, the cancellation of registration by the respondent was unwarranted. The court allowed the writ petition, set aside the impugned order, and directed the petitioner to submit an application within one week for processing under section 88(2) of the Act. By following the precedent set in the referenced judgment, the court quashed the respondent's order and instructed the petitioner to comply with the application process within the specified timeframe.
In conclusion, the court granted the writ petition, ruling in favor of the petitioner, and directed them to file the necessary application within a week as per the law. The judgment emphasized the importance of adhering to statutory provisions and highlighted the significance of following the prescribed procedures for registration under the Tamil Nadu Value Added Tax Act, 2006.
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2008 (12) TMI 687
Whether a dealer is entitled to be supplied with the materials intended to be used against him in the assessment proceeding for his rebuttal?
Whether, on the facts and in the circumstances of the case, the assessing officer is justified in insisting upon production of books of account for verification before issuing certified copies of the seized documents, i.e., three written slips and thirty-six written pages of the diary seized from the business premises of the petitioner during surprise inspection?
Held that:- A dealer is entitled to be supplied with the materials intended to be used against him in assessment proceeding for rebuttal and the dealer's explanation with regard to those materials is bound to be considered by the assessing officer in the assessment order either accepting or rejecting the same.
We make it clear that where in the course of inspection the inspecting officer seizes incriminating materials as well as regular books of account from the business premises of a dealer, the assessing officer or the inspecting officer shall supply copies of the seized regular books of account and incriminating material(s) to the dealer if he asks for the same before asking the dealer for furnishing his explanation in connection with any proceeding under the OVAT Act.Since the learned counsel for the petitioner submits that he has already appeared before the assessing officer with books of account, we direct the assessing officer to verify the books of account of the relevant years with reference to the seized materials and the report. While doing so he will confront the report and the seized materials to the petitioner and record a preliminary statement with regard to such verification.
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2008 (12) TMI 686
Difference in the goods exported by Chettinad Granites and the goods exported by Apex Exports - Held that:- The Joint Commissioner has erred under the misconception that the exporters sold granite slabs. We find from the bills of lading that Apex Exports exported dressed granite blocks. A random comparison of the assessee's invoices and the bills of lading showed that even the number of blocks is the same. We are informed that dressing only means that the blocks are cleaned and the rough edges are smoothened. Therefore, the finding of the Joint Commissioner with regard to the sale to Apex Exports is not correct, and hence, that this sale to Apex Exports is covered by section 5(3) of the CST Act deserves to be accepted.
In view of the factual finding that what was exported to Chettinad Granites was a different commodity, viz., granite slabs and not rough granite blocks, the order of the Tribunal deserves to be set aside and Writ Petition No. 22939 of 2004 filed challenging the order passed by the Tamil Nadu Sales Tax Appellate Tribunal must be allowed and it is accordingly allowed
Also as found on facts that what was exported to Apex Exports were only granite blocks though dressed, and the nature and identity of the rough granite sold by the assessee to Apex Exports did not undergo a change, the order of the Joint Commissioner dated September 8, 1998 is hereby set aside and Writ Petition No. 10390 of 1999 is allowed.
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2008 (12) TMI 685
Liability to pay entertainment duty in respect of the cable television network in the premises of the hospital - Held that:- The provision of television exhibition by means of cable television network in the hospital constitutes "entertainment" as defined under section 2(a).
Having observed that the activity of exhibition on television by means of a cable network amounts to entertainment, we see no reason why petitioner No. 1 ought not be treated as a proprietor in relation to it. It is obvious that the petitioners are responsible for management of the entertainment and, in any case, are connected to some degree with the organisation of entertainment and are charged with and are responsible for or for the time being are in-charge of the management of entertainment as contemplated by clauses (i) to (iv) of sub-section (c) of section 2. We, therefore, reject this contention. Appeal dismissed.
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2008 (12) TMI 684
Stay of pre-deposit - Cement cleared in 50 Kgs. packs to Govt. companies, construction companies and other industrial/institutional consumers during the relevant period - N/N. 4/2006-CE dated 1.3.2006 - holding that the benefit of notification is available to the appellants.
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2008 (12) TMI 683
Issues involved: Application for waiver of predeposit, duty demand confirmed, benefit of Notification No.4/2006-CE denied, penalty imposed, interpretation of Notification provisions.
Application for waiver of predeposit: After hearing both sides, the Tribunal decided to proceed with the appeal itself as the issue was covered by a previous decision. The duty demand was confirmed against the assessees by denying the benefit of Notification No.4/2006-CE, and a penalty of equal amount was imposed.
Interpretation of Notification provisions: The department contended that cement cleared in 50 kg bags to industrial/institutional consumers was not covered under the Notification. However, the Tribunal, in a previous case, accepted the contention that the benefit of the notification applied to goods cleared to such consumers. The Tribunal found that the impugned order was liable to be set aside as the relevant clarification issued by the CBEC supported the assessee's case. By following the ratio of the previous order, the Tribunal set aside the impugned order and allowed the appeal.
Conclusion: The Tribunal found in favor of the assessee based on the interpretation of the Notification provisions and set aside the duty demand and penalty imposed.
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2008 (12) TMI 682
Whether offence punishable under Section 138 of the Act is made out against the appellant?
Held that:- Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of the view that after finding the appellant guilty under Section 138 of the Act, the judicial discretion of imposing appropriate sentence could not have been abdicated by the learned Single Judge in favour of the learned Magistrate. Having found the appellant guilty under Section 138 of the Act it was the bounden duty of the High Court to impose appropriate sentence commensurate with the facts of the case. Therefore, we do not approve or accept the procedure adopted by the High Court. Be that as it may, in this case, we have found that reversal of acquittal itself was not justified. Appeal allowed.
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2008 (12) TMI 681
Whether the Tribunal was correct in holding that the provision made by the assessee for bad and doubtful debt is an allowable deduction ?
Whether the Tribunal committed an error in holding that section 80-O deduction should be allowed on the gross income received by the assessee by ignoring the provisions of section 80AB of the Act ?
Whether, on the facts and in the circumstances of the case, the Tribunal is right in allowing the notional /hypothetical cost for ascertainment of purchase price of raw materials for deduction under section 80HH and section 80-I of the Act by ignoring the computation contemplated in the said provisions read with section 80AB of the Act ?
Held that:- Questions Nos. 1 and 2 are answered against the assessee by following the judgment of this court dated June 25, 2008, passed in 2008 (6) TMI 338 - KARNATAKA HIGH COURT.
It is an undisputed fact that the FAGP, after manufacturing the goods transfers it to its toilet soap unit and that neither octroi nor local taxes are being paid when such transfer/sale is made. However, determination sought for in terms of the Explanation to section 80-I(8) of the Income-tax Act is not the cost of the goods but the market value of the goods. The goods to be sold in the open market would naturally include not only the cost of the goods but also such additional expenses. In addition to the expenses referred to above, the notional profit to which the seller would be entitled to, could be added to arrive at the market rate of the inputs. The availability of the goods at the nearest market is a question of fact. The said market could either be next door or miles apart either way, the cost of the goods at the nearest avail- able market would have to be reckoned and to that the cost of transportation, octroi, local taxes, etc., has to be added. The figures so arrived at would in terms of the Explanation to section 80-I(8) would constitute the market value. Question No. 3 is answered against the Revenue and in favour of the assessee.
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2008 (12) TMI 680
Application under Section 8 of the Arbitration and Conciliation Act, 1996 dismissed - Held that:- As there is no arbitration agreement with reference to the subject-matter of the suit filed by the plaintiff (first respondent herein), rejection of the application filed by defendants under Section 8 of the Act, does not call for interference. The special leave petition is, therefore, dismissed
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2008 (12) TMI 679
Levy of penalty under the Tamil Nadu Additional Sales Tax Act - Held that:- In the absence of the substantive provision, in the AST Act itself, relating to levy of interest, the provisions of the TNGST Act cannot be the source of power of such levy. Similarly, unless there is a charging section for levy of penalty, there can be no automatic reading of the power to levy penalty. The levy of penalty cannot be sustained. Appeal allowed.
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2008 (12) TMI 678
Whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955?
Held that:- Admission of the appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the judgment and order of the High Court does not warrant any interference. Appeal dismissed.
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2008 (12) TMI 677
Whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act?
Held that:- Banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-ŕ-vis the provisions of the Code of Criminal Procedure.
Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh. Appeal allowed.
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2008 (12) TMI 676
Whether an appeal under Section 19(1) of the Contempt of Courts Act, 1977 was not maintainable against an ad interim order of injunction.?
Held that:- It is not a fit case wherein we should exercise our jurisdiction under Article 136 of the Constitution of India. The appeals are dismissed with costs. Counsel fee assessed at ₹ 50,000/- in each case.
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2008 (12) TMI 675
Interest on refund - Held that:- The interest which can be allowed to be paid to the petitioners is only from the final adjudication in the matter (as the decision of the High Court was not carried further in appeal), i.e. from 18-7-2005, whereas the department has already paid the amount of refund to the petitioners on 26-6-2005 and therefore, there is no question of passing any order of payment of interest to the petitioners. Otherwise also, for a substantial period, the amount was lying with the Consumer Welfare Fund and not with the department.
In the result, the petition fails. The petitioners are not entitled to receive any interest amount on the refund amount, as after the High Court dismissed the appeal of the department’s appeal on 18-7-2005, the finality was achieved by the controversy, whereas the department had already refunded the amount on 26-6-2005 and therefore, no relief can be granted to the petitioners.
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2008 (12) TMI 674
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the amounts of loans and advances outstanding written off by the appellant as not recoverable is not deductible while computing its income?
Whether, on the facts and in the circumstances of the case, the Tribunal ought to have appreciated that the appellant had properly evaluated and assessed the recoverability of the loans while arriving on the amount which in their opinion is not recoverable and hence was not right in holding that the debts written off have not become bad during the year ?
Held that:- The disallowance of the claim for write off is more on the basis of surmise and not on the basis of evidence available. Therefore, we remand the matter to the Assessing Officer who will examine whether after the assessee had taken possession of the unit, any recovery had been made.
As regards claim No. 1, “non-owner driven case”, the matter has already been remanded to the Assessing Officer to determine in which of the cases, the loans are recoverable and whether any guarantor has been proceeded against. In these circumstances, we are not answering the question of law and remanding the matter to the Assessing Officer .
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2008 (12) TMI 673
Whether the Tribunal has acted perversely and illegally by not reversing the action of the Assessing Officer and the Commissioner of Income-tax (Appeals) in treating the advance rent as the cost of acquisition of tenancy rights and by remanding the matter back to the file of the Assessing Officer, when the issue arising for its determination was squarely covered by the decision rendered by the hon'ble Supreme Court in the case of CIT v. D. P. Sandu Bros. Chembur P. Ltd. [2005 (1) TMI 13 - SUPREME Court]?
Whether, on the facts and in the circumstances of the case, the Tribunal misdirected itself in law as well on facts in remanding the case to the Assessing Officer in the case of the appellant for the assessment year 1994-95 for the recalculation of capital gains tax when the cost of acquisition of tenancy rights was not ascertainable?
Whether the impugned order passed by the Tribunal remanding back the case to the Assessing officer for de novo adjudication fulfils the requirements of a speaking order?
Held that:- The contention of learned senior counsel for the appellant to be totally misconceived. In the present case, the judgment has been referred to in the order passed by the Tribunal. Even though the Tribunal may not have discussed the same in detail in the impugned order, however, still in terms of the provisions of article 141 of the Constitution of India, the law laid down by the hon'ble Supreme Court is binding on all the courts/ authorities subordinate to it and no court or authority is expected to overlook the same even if no judgment is cited in the order remanding the case to a lower authority. In the present case, the judgment is referred to in the impugned order. There may even be a case where a judgment on the issue may be delivered subsequent to the remand of the case, even that would be binding on the lower authority. Still further the matter has only been remanded back to the Assessing Officer for fresh determination with liberty to the assessee to lead any further evidence if requires. The issue has not been finally determined. In case still the issue is determined against the assessee, it have its remedies in accordance with law. No substantial question of law arises in the present appeal.
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