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Showing 261 to 280 of 721 Records
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2010 (11) TMI 881
Issues:
1. Disputed tax liability on disclosed turnover.
2. Jurisdictional error by Tribunal in considering merits of the case.
Analysis:
1. The applicant, engaged in brick manufacturing, opted for a compounding scheme for a specific period but did not opt for it in the subsequent period, leading to a regular assessment. The assessing authority estimated the taxable turnover at Rs. 16,69,800, contrary to the applicant's claim of exemption due to turnover being below the taxable limit of Rs. 49,100. The first appellate authority dismissed the appeal for non-payment of the admitted tax, and the Tribunal upheld this decision. However, the High Court found that the tax liability on the disclosed turnover of Rs. 49,100 was disputed, and the applicant had not admitted to it. The Court concluded that the matter required adjudication and could not be considered as admitted tax, leading to the revision being allowed.
2. The High Court observed that the Tribunal had erred in considering the merits of the case while upholding the first appellate authority's decision to dismiss the appeal for non-deposit of admitted tax. The Court emphasized that once the Tribunal upheld the dismissal on procedural grounds, it should not have delved into the substantive aspects of the case. The Court directed the Tribunal to exercise caution in such matters in the future. Consequently, the orders of the Tribunal and the first appellate authority were set aside, and the case was remanded for a fresh decision on the merits in accordance with the law.
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2010 (11) TMI 880
The Tribunal should have left open the question of classification, and the applicable entry, to be examined in a more appropriate case, inasmuch as the rate of tax is only eight per cent irrespective of whether the petitioners' goods fell under entry 1 or 83 of the First Schedule, merits acceptance.
It was wholly unnecessary for the Tribunal to have examined the question of classification, whether the petitioners' goods fell within entry 1 or entry 83 of the First Schedule, and to have recorded a finding that the petitioners' goods fell under entry 1 of the First Schedule. Appeal allowed.
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2010 (11) TMI 879
Issues: Interpretation of tax liability on forfeited security amount due to non-return of bottles.
The judgment involves a dispute regarding the taxability of the security amount forfeited due to the non-return of bottles. The applicant argued that the forfeited amount should be considered as damages, not as a sale price, citing a previous Supreme Court case. The counsel for the applicant contended that the Tribunal's decision to tax the forfeited security amount was unjustified and referenced a previous case decided by the High Court. The counsel for the applicant also highlighted the absence of an assessment order following the Tribunal's decision.
The learned standing counsel raised concerns about the absence of specific references to crucial letters in the assessment order, questioning their inclusion in the assessment record and the applicant's pleadings. It was emphasized that the assessing authority should re-examine the issue in light of the High Court's previous decision, considering whether the communication regarding the security refund and forfeiture due to non-return of bottles was adequately conveyed to the customer.
Upon reviewing the impugned order and lower authorities' decisions, the judge concluded that the Tribunal's decision to tax the forfeited security amount based on the Supreme Court's ruling was to be set aside. The matter required reconsideration in accordance with the High Court's precedent, instructing the assessing authority to verify the inclusion and relevance of the letters in question, assess the applicant's pleadings, and determine if the communication about security refund and forfeiture was effectively conveyed to customers. The judge directed the assessing authority to issue a new assessment order based on these considerations and the guidance provided by the High Court's previous decision. The revision was allowed in part, with the assessing authority instructed to proceed as directed.
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2010 (11) TMI 878
Whether the Tribunal was justified in cancelling levy of tax under section 5A of the Kerala General Sales Tax Act, 1963?
Held that:- It is seen from the assessment order that the assessee is given set-off of tax levied on paddy against tax liability on rice and only net amount is allowed set-off from the exemption available in the certificate. In view of the scheme of levy stated as above, it will be perfectly in order to set off the tax liability determined under section 5A also against exemption available under certificate of exemption along with net tax determined on rice after reducing the tax levied on paddy. In other words, the total amount to be set off against exemption granted under certificate should be the tax levied on rice without granting rebate of tax on paddy. The assessing officer is directed to verify the exemption granted for all the years based on the certificate and the scheme suggested above will be applied only if the assessee continued business till full exemption available under certificate is set off as indicated above. Sales tax revision is allowed to the extent indi cated above.
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2010 (11) TMI 877
Issues:
1. Interpretation of the U.P. Value Added Tax Act, 2008.
2. Validity of orders passed by assessing authority, appellate authority, and Commercial Tax Tribunal.
3. Compliance with legal precedents set by the Supreme Court and the High Court.
Analysis:
1. The case involves a challenge to an order passed under section 25(1) of the U.P. Value Added Tax Act, 2008. The revisionist contended that the assessing authority's order did not align with Schedule II of the Act, leading to an appeal before the appellate authority. An interim relief application was also filed, resulting in a partial stay of the disputed tax amount by the appellate court.
2. Subsequently, the order was challenged through a second appeal before the Commercial Tax Tribunal, which further modified the interim relief percentage. The revisionist, dissatisfied with the Tribunal's decision, filed the present revision before the High Court, questioning the legality of the Tribunal's order dated October 27, 2010, based on the interpretation of legal provisions and precedents.
3. The revisionist's counsel argued that the Tribunal's order contravened the legal principles established by the Supreme Court in the case of Pennar Industries Ltd. v. State of A.P. [2009] 39 NTN 126 and by the High Court in cases such as Kribhco Shyam Fertilizers Ltd. v. Commissioner of Commercial Taxes, Lucknow [2011] 43 VST 145 (All) and Paradeep Phospates Ltd. v. Trade Tax Tribunal [2010] 43 NTN 154. The revisionist sought relief based on the interpretations and directions provided in these legal precedents, emphasizing the need for consistency and adherence to established legal principles.
This detailed analysis highlights the core issues of interpretation, validity of orders, and compliance with legal precedents involved in the judgment delivered by the Allahabad High Court.
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2010 (11) TMI 876
Issues involved: Revision against Tribunal's order upholding remand by first appellate authority regarding set-off of tax based on allegedly non-genuine invoices.
Details of the judgment:
1. Issue 1 - Set-off of tax based on allegedly non-genuine invoices:
- The applicant filed return claiming set-off of tax based on invoices from a selling dealer.
- Assessing officer found invoices not genuine, issued notice u/s 8 and 54 of the U.P. Value Added Tax Act, 2008.
- Assessing authority passed order raising demand and levying penalty.
2. Joint Commissioner (Appeal) decision:
- Joint Commissioner remanded matter to assessing authority for further investigation.
- Directed assessing officer to verify selling dealer's status and authenticity of cheques issued by applicant.
- Applicant should have opportunity to cross-examine selling dealer.
3. Tribunal's decision:
- Tribunal dismissed appeals against Joint Commissioner's order.
4. Arguments and findings:
- Applicant argued against remand, citing precedent.
- Standing counsel stated no prejudice caused by remand, burden on applicant to prove invoice genuineness.
- Assessing authority found grounds for proceeding under sections 8 and 54.
- No error found in remand order, in interest of the assessee.
5. Conclusion:
- Both revisions dismissed, no prejudice caused by remand for fresh inquiry.
In conclusion, the High Court upheld the Tribunal's decision to dismiss the appeals, affirming the remand by the Joint Commissioner for further investigation into the authenticity of invoices and providing the applicant with an opportunity to cross-examine the selling dealer.
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2010 (11) TMI 875
Whether there is a transfer of property in the refrigerated vehicles of the petitioner to another concern, as defined in article 366(29A)(d)) of the Constitution of India and section 5E(a) of the Act?
Held that:- Reading the relevant statutory provisions, it becomes clear that the moment the petitioner sends its trucks to others for transporting the latter's goods to destinations of the latter's choice, the same amounts to transfer of the right to use the trucks, and would be sufficient to infer a taxable event under section 5E of the Act notwithstanding other incidental minor aspects of the contracts. The mere fact that the petitioner retains control over the driver, or that they pay insurance charges for the trucks, is of no consequence. In that view of the matter, we do not find any error in the orders of the learned Tribunal, because the Tribunal correctly relied on way-bills and other relevant documents produced by the petitioner and came to the correct conclusion.
In the result, the tax revision case is accordingly dismissed.
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2010 (11) TMI 874
Whether there is a transfer of property in the refrigerated vehicles of the petitioner to another concern, as defined in article 366(29A)(d)) of the Constitution of India and section 5E(a) of the Act?
Held that:- The argument that the delayed refund would attract interest at 12 per cent per annum is no answer if one appreciates the fact that no businessman or merchant would like the money to be locked up just for the sake of 12 per cent return on the refund, which might come long after the requirement for money is over. Keeping this in view, we direct the Government to pass appropriate orders in all pending refund matters within a period of six weeks.
In the result, for the above reasons, the writ petition is allowed as prayed for. The respondents shall consider refunding the amount of ₹ 2,87,14,114 (rupees two crores eighty seven lakhs fourteen thousand one hundred and fourteen only) within a period of four weeks from the date of receipt of a copy of this order
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2010 (11) TMI 873
Issues Involved:
1. Legality and validity of the penalty imposed.
2. Rate of tax applicable to the seized goods.
3. Classification of seized goods as "plant" or "machinery."
Issue-wise Detailed Analysis:
1. Legality and Validity of the Penalty Imposed:
The petitioner, a company registered under the Companies Act, 1956, and dealing in measuring machines, imported goods into West Bengal without an endorsed way-bill. The Sales Tax Officer seized these goods and initiated penalty proceedings under Section 73 of the VAT Act, resulting in a penalty of 50% of the assessed value, treating the goods as taxable at 12.5%. The petitioner challenged the rate of penalty but not the seizure's legality. The Tribunal scrutinized the orders from the Assistant Commissioner, Deputy Commissioner, and Additional Commissioner, noting that the penalty rate of 50% was consistently maintained. The Tribunal concluded that the penalty was imposed following the VAT Act's provisions, but the rate of tax on the goods needed reassessment.
2. Rate of Tax Applicable to the Seized Goods:
The petitioner contended that the seized goods, being measuring machines or survey machines, should be taxed at 4% under serial No. 54B of Schedule C, Part I of the West Bengal VAT Act, 2003, as "plant." The respondents argued that the goods were not covered under the specified items in serial No. 54B and were taxable at 12.5%. The Tribunal examined the nature of the goods and relevant legal precedents, including definitions and judicial interpretations of "plant." It found merit in the petitioner's argument that the goods should be classified as "plant" and thus taxable at 4%.
3. Classification of Seized Goods as "Plant" or "Machinery":
The petitioner argued that the seized goods should be classified as "plant" rather than "machinery," citing judicial definitions and decisions, including those from the Supreme Court and High Courts. The Tribunal noted that "plant" is not defined in the VAT Act but is broadly interpreted in tax law to include any apparatus used by a businessman for carrying on his business, provided it has some degree of durability. The Tribunal considered the functional aspects of the goods and certificates from purchasing dealers, which confirmed the goods' essential role in their business. The Tribunal concluded that the seized goods met the criteria for "plant" and should be taxed at 4%.
Conclusion:
The Tribunal held that the seized goods were exigible to tax at 4% as "plant" under serial No. 54B of Schedule C, Part I of the West Bengal VAT Act, 2003. Consequently, the penalty orders required modification to reflect the correct tax rate. The Tribunal directed the respondent to modify the penalty order and issue a revised notice of demand. The application was disposed of with no order as to costs.
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2010 (11) TMI 872
Whether battery charger sold in a package along with the cell phone without any extra charges is covered by entry of cell phone to which concessional rate of tax was applicable?
Held that:- In the present case, the battery charger is sold as composite package along with cell phone. Compared to the value of the cell phone, value of the charger is insignificant. Cell phone cannot be used without the charger. On these undisputed facts, the charger cannot be excluded from the entry for concessional rate of tax which applies to cell phones and parts thereof.
Accordingly, we answer the question in favour of the assessee and against the Revenue. The appeal is allowed.
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2010 (11) TMI 871
Determination of the turnover - Held that:- The Tribunal has exceeded to its jurisdiction in the absence of any appeal by the Commissioner of Trade Tax in recording the findings that the assessee had not manufactured glass bangles during the year under consideration and under the garb of manufacturing of bangles and sales of glasswares had been suppressed.
In view of the above, the order of the Tribunal is not sustainable and is liable to be set aside. In the result, the revision is allowed. The order of the Tribunal dated October 18, 2010 is set aside and the matter is remanded back to the Tribunal to decide the appeal of the assessee afresh on the issue involved in the appeal of the applicant only in accordance to law.
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2010 (11) TMI 870
Whether the agreement between the petitioner and the assignee-company is in respect of the transfer of the right to use the petitioner’s trademark and logo by the assignee.?
Held that:- Indisputably the petitioner retained the right to use the “Nutrine” trademark and “bunny” logo for its own operations. This itself does not remove the transaction under the agreement outside the purview of section 5E. As rightly pointed out by the special counsel, a trademark or logo which is incorporeal or intangible, can always be assigned by the proprietor while retaining the right to use for itself.
Furthermore, as pointed by majority in Bharat Sanchar Nigam Ltd. [2006 (3) TMI 1 - Supreme court] he determination whether a transaction amounts to transfer of right to use the goods, “. . . would depend ultimately upon the intention of the parties” and therefore, by reading one clause of the agreement, the intention cannot be gathered. On reading of the agreement between the petitioner and the assignee, the learned Tribunal correctly came to the conclusion that the consideration received as royalty for allowing the assignee the use of trademark and logo, is realized in respect of the transfer of the right to use the goods. This does not call for any interference. Appeal dismissed.
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2010 (11) TMI 869
Issues involved: Penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 for non-accompaniment of declaration form ST-18A with goods during checking of vehicle.
Summary:
The case involved a penalty imposed under section 78(5) of the Act for not having the declaration form ST-18A accompanied with the goods during a vehicle check. The assessing officer imposed a penalty, which was later set aside by the Deputy Commissioner (Appeals) and the Rajasthan Tax Board. The main contention was whether the non-accompaniment of the declaration form warranted the penalty.
The petitioner argued that the penalty was rightly imposed as the declaration form was not with the goods during the check. On the other hand, the respondent relied on the judgment in State of Rajasthan v. D.P. Metals, which emphasized granting an opportunity if documents were not readily available due to a mistake. The respondent contended that since the declaration form was submitted with the reply to the show-cause notice before the assessing officer, there was compliance with the relevant provisions and the apex court's judgment.
After considering the arguments and the apex court's judgment, the court noted that while the declaration form was not initially with the goods during the check, it was produced along with the reply to the show-cause notice before the assessing officer. Citing the apex court's stance on natural justice principles, the court found that there was sufficient compliance with the Act's provisions and the apex court's judgment. Consequently, the court dismissed the revision petition, upholding the decisions to set aside the penalty orders.
In conclusion, the court found no merit in the revision petition and dismissed it without any costs.
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2010 (11) TMI 868
Whether the "pest control services" are not liable to sales tax?
Held that:- Special drive is required to train officers in passing quasi-judicial orders keeping in view various principles laid down by the Supreme Court and this court or at least the principles adumbrated in Order XX of Code of Civil Procedure, 1908. We do hope that better sense would prevail in the Commissionerate and the Government to give due attention to this aspect of the matter or else the assessing officers, the Appellate Deputy Commissioners and Revisional Commissioners instead of discharging the duties under the VAT Act in aid of the State would be acting detrimental to the interest of the State and its revenue. As the impugned orders are bereft of objectivity and adequate reasons and it is not possible for this court which factors weighed with the assessing officer, we set aside the impugned orders in these writ petitions and remit the matters to the Assistant Commissioner for passing appropriate orders afresh keeping in view the principles hereinabove
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2010 (11) TMI 867
Whether use/consumption of HSD and cement is integrally connected in the process of mining activities undertaken by the petitioner?
Held that:- Considering the matter from any angle, we are of the view that HSD which is necessary to run the heavy machineries is integrally connected in the mining operation and processing of mining ore so long the said activities and the process is continuing. We are also of the view that "cement" is necessary for installation of the mining machineries and construction of benches/plates to carry on the mining operation and processing of mining ore. But the question that arises now is whether like HSD, cement is necessary so long mining operation and processing of mining ore goes on. Cement as stated above, is necessary for installation of machineries, i.e., primary stage of the mining activities and construction of benches and plates. After installation of the machineries and construction of benches/ plates, utilization of cement is almost insignificant. Therefore, we feel it proper to remit the matter to O.P. No. 2, Assistant Commissioner, so far as the use of cement is concerned to decide the extent of period for which the petitioner should be allowed to purchase cement at a concessional rate of tax for the purpose of utilizing the same in mining operation and processing of the mining ore. Writ allowed.
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2010 (11) TMI 866
Issues involved: Interpretation of penalty under section 78(5) of the Rajasthan Sales Tax Act, 1994 based on the availability of declaration form ST-18A with the goods in question.
Summary:
The case involved a dispute regarding the imposition of a penalty under section 78(5) of the Act due to the absence of declaration form ST-18A with the goods during a vehicle check. The assessing officer contended that the penalty was justified as the form should have been present with the goods. The respondent argued that the goods were not notified goods, hence no declaration form was required, but later produced the form along with a reply to the show-cause notice. The Deputy Commissioner (Appeals) and the Rajasthan Tax Board set aside the penalty order, leading to a revision petition by the petitioner.
The petitioner's counsel argued that the penalty was rightly levied as the declaration form was not with the vehicle during the check. However, it was admitted that the form was later submitted by the respondent. The respondent's counsel maintained that the submission of the form to the assessing officer fulfilled the requirements of sections 78(2) and 78(5) of the Act. Referring to a previous judgment, it was highlighted that the principles of natural justice may require an opportunity to produce missing documents.
The court considered the submissions and the previous judgment, concluding that the respondent's production of the required declaration form before the assessing officer constituted sufficient compliance with the Act. Therefore, the court found no reason to interfere with the decisions of the Deputy Commissioner (Appeals) and the Rajasthan Tax Board. Consequently, the revision petition was dismissed with no order as to costs.
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2010 (11) TMI 865
Proposal to impose penalty under section 10A(i) of the Central Sales Tax Act, 1956 challenged
Held that:- it cannot be said that even at the time of initiating the proceedings, the respondent will have to specify about the said aspect. Therefore, establishment of mens rea, being a question of fact, this court cannot go into the same, except by directing the respondent to apply the ratio laid down by the Full Bench of this court in State of Tamil Nadu v. Nu-tread Tyres [2006] 148 STC 256 (Mad) [FB], while exercising its power under section 10(a) of the Act.
It cannot be said that even at the time of initiating the proceedings, the respondent will have to specify about the said aspect. Therefore, establishment of mens rea, being a question of fact, this court cannot go into the same, except by directing the respondent to apply the ratio laid down by the Full Bench of this court in State of Tamil Nadu v. Nu-tread Tyres [2006 (7) TMI 578 - MADRAS HIGH COURT], while exercising its power under section 10(a) of the Act.Thus the writ petitions, as filed, are pre-mature at this stage.
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2010 (11) TMI 864
Interpretation of statute - officer - dealer - whether or not the clarification given by the ARA is binding under section 67(4)(ii) of the Act, in respect of goods or transactions in relation to which the clarification was sought, on dealers other than the applicant-dealer? - Held that: - the order of the ARA would be binding "in respect of the goods or trans actions in relation to which a clarification was sought" irrespective of whether such goods or transactions relate to the applicant or other dealers.
It is no doubt true that such a ruling would bind other dealers, who had not sought a clarification, without their being heard by the ARA. That, by itself, would not necessitate this court reading the words "the applicant" into clause (ii) of section 67(4). A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided.
It, no doubt, appears harsh that the ruling of the ARA would bind dealers, other than the applicant, in respect of goods or transactions in relation to which a clarification was sought - Under section 67(4)(iii) of the Act, the order of the ARA binds officers in the Commercial Tax Department below the rank of the Commissioner of Commercial Taxes - appeal disposed off.
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2010 (11) TMI 863
Computation of the total income - HELD THAT:- We find that the assessee has adopted the total sales at Rs.14,05,30,889/- in place of Rs.16,27,36,575/- for the impugned assessment year. The sales declared in the seized document was for 5 years, whereas, the impugned assessment years involved are 4 years, therefore, the corresponding deduction in sale is necessary and we do not find any error in adopting the figure at Rs.14,05,30,889/- for the impugned assessment years. None of the parties have brought anything on record in support of their contentions as to what would be the net profit in this line of business. We however after taking into account all the records of the assessees in which additional income was offered, of the view that 6% of the total sale would be the reasonable net profit of the assessees in the impugned assessment years, because he himself has shown the profit ranging between 2.38% to 9.56% and the mean was shown to be 5.85%. According to us, this is the only mode of calculation of net profit of the assessees in the given situation.
We therefore, set aside the order of the CIT(A) and direct the A.O. to adopt the net profit at 6% in all the years. In one year, the assessee itself has shown the profit at 9.56% and in that year no addition is called for and the declared profit of the assessees is to be accepted. In rest of the years, the profit is to be estimated at 6% of the respective total sales.
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2010 (11) TMI 862
Issues:
Challenge to denial of back wages and suspension allowance, interpretation of office order dated 24.11.1954, application of office order to the case, entitlement to back wages during suspension and incarceration, relevance of previous judgments on back wages entitlement.
Analysis:
The applicant challenged the denial of back wages and suspension allowance after being reinstated following a period of suspension and incarceration. The applicant was initially appointed as a Driver with the respondent DTC in 1989 but faced legal issues when an FIR was lodged against him in 1998, leading to his arrest and subsequent suspension. Despite being released from jail in 1999 and his suspension being revoked in 2000, he was convicted in 2000 and filed an appeal. The respondent issued a show cause notice in 2004, leading to the applicant's dismissal in 2004, which was later overturned upon acquittal in 2004. The applicant sought reinstatement with back wages, leading to a series of legal proceedings culminating in the current challenge.
The central issue revolved around the interpretation and application of the office order dated 24.11.1954, which outlined procedures for cases where DTC employees are prosecuted while on duty. The applicant relied on this office order to argue that his dismissal during the pendency of his appeal was not in accordance with the respondent's own policy. However, the Tribunal found that the office order specifically pertained to cases where employees were prosecuted while on duty, not for criminal cases outside the scope of their employment. Therefore, the office order did not apply to the applicant's situation of being convicted for murder, leading to the rejection of the applicant's sole ground for challenging the denial of back wages.
Regarding the entitlement to back wages during the period of suspension and incarceration, the Tribunal referenced previous judgments, including Ranchhodji Chaturji Thakore Vs. Superintendent Engineer and Union of India Vs. Jaipal Singh. These judgments emphasized that an individual convicted of a crime, even if later acquitted, may not be entitled to back wages if their conduct led to their inability to render service during the period of conviction and incarceration. The Tribunal noted that the applicant had already been paid subsistence allowance for the suspension period and remained in jail throughout, making it impossible for him to perform any duties during that time. As the applicant failed to distinguish his case from the precedents cited, the Tribunal dismissed the case at the admission stage, following the established legal principles outlined in the previous judgments.
In conclusion, the Tribunal upheld the denial of back wages and suspension allowance to the applicant based on the inapplicability of the office order dated 24.11.1954 to his case and the precedent set by previous judgments regarding entitlement to back wages following a period of conviction and incarceration. The applicant's challenge was dismissed, emphasizing the importance of individual conduct and circumstances in determining entitlement to back wages in such cases.
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