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Case Laws
Showing 61 to 80 of 472 Records
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1998 (9) TMI 637 - PATNA HIGH COURT
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... ... ..... te registration certificate is granted with respect to the cement division of the petitioner-company, its application for grant of benefit of the deferred payment of sales tax shall be considered on merit afresh. So that the matter is considered afresh from the very beginning on a clean slate, it would be appropriate to quash the two orders impugned in the writ petition as well as the order dated May 21, 1994 by which the application for registration oh behalf of M/s. TISCO Ltd. (Cement Division) under section 14 of the Bihar Finance Act had been rejected. 16.. In the result, this writ petition is allowed, the orders as contained in annexure 20 dated April 22, 1998, annexure 22 dated August 26, 1994 and annexure 25 dated May 21, 1994 are quashed. The respondents are directed to consider the matter afresh in the light of the observations made hereinabove and in accordance with law at the earliest. I will make no order as to cost. AFTER ALAM, J.-I agree. Writ petition allowed.
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1998 (9) TMI 636 - BOMBAY HIGH COURT
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... ... ..... r as entry 10 is concerned, it has relevance for the purpose of present cases which pertain to the period much prior to the date of insertion of that entry, i.e., April 1, 1994. In any event, according to him, the instruments fitted in a studio for recording of songs, etc., do not fall under that item because they are not music system. We have carefully considered the rival submissions. However, in view of the fact that we have already held that in the instant case there is no hiring of the instruments or equipments but it is a hiring of the studio with all the facilities available therein including the equipments embedded or installed therein, we do not think it necessary to examine and decide this aspect of the controversy. 12.. In the result, all the three questions referred to us are answered in the affirmative, i.e., in favour of the assessee and against Revenue. This reference is disposed of accordingly with no orders as to costs. Reference answered in the affirmative.
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1998 (9) TMI 635 - BOMBAY HIGH COURT
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... ... ..... printed, he also gets ink either as ink or in any other form. There is thus no transfer of ink involved in execution of a works contract of printing. It may be pertinent to observe that what is taxable under the Act is the value of the goods which get transferred to the customer in execution of works contract either as goods or in any other form and not the value of goods used or consumed in the execution of the works contract, if such user or consumption does not result in transfer of property in those goods in any form to the customer. That being so, in our opinion, the Tribunal was right in holding that there is no transfer of property in ink involved in the execution of contract of printing, either as ink or in any other form. 6.. In view of the above, we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the Revenue. This reference is disposed of accordingly with no order as to costs. Reference answered in the affirmative.
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1998 (9) TMI 634 - BOMBAY HIGH COURT
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... ... ..... bstance used as food. Similarly, in Random House Dictionary of the English language, food has been described as any nourishing substance that is eaten or otherwise taken into the body to sustain life, provide energy, provide growth. Foodstuff has been described as a substance used or eatable of being used as a nutriment. Food provisions also conveys similar meaning. 7. It is clear from the above, that gulkand which is normally used as a mouth freshner or for good taste cannot be regarded as foodstuff or food provision within the meaning of entry 27 of Schedule C, Part II to the Act. The Tribunal was not correct in holding to the contrary. That being so, it would fall under the residuary entry 102 of Schedule C, Part II to the Act. 8.. In view of the above, the question referred to us is answered in the negative, i.e., in favour of the Revenue and against the assessee. 9.. This reference is disposed of accordingly with no order as to costs. Reference answered in the negative.
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1998 (9) TMI 633 - BOMBAY HIGH COURT
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... ... ..... g the transferee to use the same in the manner required by the law as has been done in the present case. The right to use the trade mark can be transferred simultaneously to any number of persons. The decision of the Andhra Pradesh High Court in Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer 1990 77 STC 182 thus has no application to the transfer of right to use a trade mark. 8.. In the instant case, there is no dispute about the fact that trade mark is specifically included in, the Schedule of goods to the 1985 Act in entry No. 7. The amount received by the assessee on the transfer of the right to use the same is, therefore, liable to be taxed under the said Act. The Tribunal was, therefore, not correct in holding to the contrary. 9.. In view of the above, we answer the question referred to us in the negative, i.e., in favour of the Revenue and against the assessee. This reference is disposed of accordingly with no order as to costs. Reference disposed of accordingly.
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1998 (9) TMI 632 - ANDHRA PRADESH HIGH COURT
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... ... ..... he State. Therefore, they do not have to feel the pinch-of it. 33.. Sri S. Krishna Murthy, learned counsel appearing for some of the writ petitioners cited several decisions before us in his endeavour to show that the impost in question is only a tax and not a fee that the field was already occupied by the Parliament and as such, the State Legislature is denuded of its power to trench upon it, or has no legislative competence and that in any event the rate of tax prescribed is excessive. 34. In view of the recent Supreme Court decisions, for which reference is already made above, which are directly on the point and with reference to levy of cess on agricultural produce, we deem it unnecessary to refer to those decisions any more. 35.. For all the above reasons both the impugned Act as well as demand notices, issued pursuant to the impugned Act, cannot he held to be illegal. The writ petitions, therefore, fail and are accordingly dismissed. No costs. Writ petitions dismissed.
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1998 (9) TMI 631 - ANDHRA PRADESH HIGH COURT
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... ... ..... time, entry 188 read as follows High density polyethylene/polypropylene (HDPE/PP) woven sacks. 4.. Entry 186, under which the revisional authority classified Polythene bags, has no application as it deals with plastics and various polymers. Polythene bags cannot therefore be classified under entry 186. In the absence of the specific entry, and entry 198 covering HDPE/PP woven sacks, the Polythene bags are classifiable under entry 188 only. It is also pointed out that now there is a specific entry relating to packing material, namely, entry 19 under which Polythene bags is specifically mentioned. The said entry was inserted with effect from May 12, 1997. Since at the relevant time, entry 188 was the only entry relating to polythene bags, the Tribunal is right in holding that the Polythene bags are covered by entry 188. We do not see any reason to interfere with the finding of the Tribunal. The tax revision case is therefore rejected at the admission stage. Petition dismissed.
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1998 (9) TMI 630 - KERALA HIGH COURT
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... ... ..... under the Sales Tax Act, then the meaning of that term used in common parlance, is to be adopted. The question is whether school bag made of aluminium can be said to be a household utensil. The meaning of the word utensil as per the Concise Oxford Dictionary is instrument, implement, esp., one in domestic use, as kitchen, cooking or in religious use . The school bag made of aluminium is neither used as a kitchen utensil nor is it used for religious purposes. We are of the view that the school bag made of aluminium does not fall in the category of domestic kitchen utensils in any way. Entry 7 pertains to household utensils. In common parlance household utensils mean the domestic kitchen utensils. The Tribunal is, therefore, right in holding that school bag made of aluminium is nothing but an aluminium product within the meaning of entry 8. In the result the T.R.C. fails and is dismissed. Order on C.M.P. No. 1437 of 1995 in T.R.C. No. 84 of 1995 dismissed. Petition dismissed.
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1998 (9) TMI 629 - KERALA HIGH COURT
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... ... ..... in the instant case before us are entirely different. Generator sets were consigned from the State of Tamil Nadu to Kerala under form D giving the entire details of the consignment. Form D had been issued by the assessing authority. All the details regarding consignment were in the knowledge of the assessing authority. Instant is not the case in which any fact was withheld by the consignor. Consignee was fully aware of the consignment being made. The facts in the instant case and the case of Bells Controls Ltd., are entirely. different and therefore, on the analogy of Bells Controls Ltd., no penalty could be imposed on the assessee herein. But for the decision in Bells Controls Ltd., the Tribunal would not have sustained the penalty. As already pointed out, the decision in Bells Controls Ltd., is not applicable to the facts of the instant case. In the result, the revision succeeds and is allowed. The order to impose penalty under section 29A(4) is set aside. Petition allowed.
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1998 (9) TMI 628 - KERALA HIGH COURT
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... ... ..... ion. However, demand notices were issued revising the assessments and penalty. 2.. Though several grounds raised and argued by learned counsel for the petitioner, I am of the view that the matter can be disposed of on the ground of limitation. Section 43,of the Kerala General Sales Tax Act, 1963 empowers to rectify any error apparent on the face of the record at any time within three years from the date of the orders passed by the authority. Exhibit PI is a notice dated October 1, 1994 wherein the assessing officer has accepted the compounding. The same can be rectified on or before September 30, 1997. Exhibit P3 notice which is dated February 9, 1998 proposing to rectify the mistake is beyond the period prescribed and is therefore barred by limitation. In that view of the matter the impugned notices are illegal and are liable to be quashed. Accordingly the original petition is allowed. Order on C.M.P. No. 12642 of 1998 in O.P. No. 7230 of 1998 I dismissed. Petition allowed.
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1998 (9) TMI 627 - ANDHRA PRADESH HIGH COURT
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... ... ..... nnot, but, be in the negative. Taxing statute cannot have any retrospective element, more so, in the event of there being an indirect tax. On this score, therefore, we record our concurrence with the submissions of the petitioners and as such these writ petitions succeed. We do deem it fit to pass an order directing the respondents to give effect to the notification in G.O. Ms. No. 304 to be effective prospectively and not from April 15, 1997. 13.. It is, however, made clear that by reason of specific intimation to the Federation, we hereby direct the petitioners to deposit the differential duty during the interregnum in the event of collection of the same from the customers, and in that perspective, the Sales Tax Officers would be at liberty to check and scrutinize the books, and in the event of any collection, demand tax as may have been collected from the customers. The writ petitions stand disposed of as above. No order as to costs. Writ petition disposed of accordingly.
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1998 (9) TMI 626 - GAUHATI HIGH COURT
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... ... ..... tion certificate under the Tripura Sales Tax Act, 1976, will not make the petitioners liable to sales tax on the transaction in question under the said Act. 8.. For the aforesaid reasons, I dispose of this writ petition with a direction that in case the petitioners apply for registration under the Tripura Sales Tax Act, 1976 and are granted registration certificates and on the strength of the said registration certificate the petitioners apply for form No. XVIII and are granted the same for transportation of the goods to the project sites of the respondents Nos. 6 to 10 under the three contracts in question, such conduct of the petitioners will not make them liable to sales tax under the Tripura Sales Tax Act, 1976 and that the question as to whether or not they will be liable under the said Act for tax will only be decided in an appropriate proceeding for assessment if any initiated against the petitioners under the said Act and Rules and not otherwise. Ordered accordingly.
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1998 (9) TMI 625 - KERALA HIGH COURT
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... ... ..... nt of the proceedings it cannot be said that the petitioner was guilty of suppressing anything or withholding the relevant materials from the notice of the sales tax authorities. On the other hand petitioner s filing voluntarily a revised return well before the commencement of the proceedings would only show that the claim of the petitioner that when it filed the return in form No. 8 for the first time some bona fide mistakes crept in must be true. 5.. I carefully perused the counter-affidavit filed by the respondents. I do not find any material in the counter-affidavit to show that the petitioner committed any act in the nature of violating the provisions of the Act which would attract the authorities to invoke section 45A of the Kerala General Sales Tax Act. In this view of the matter this Court is inclined to allow the original petition. Accordingly the original petition is allowed. Order on C.M.P. No. 21493 of 1993 in O.P. No. 11832 of 1993-H dismissed. Petition allowed.
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1998 (9) TMI 624 - ALLAHABAD HIGH COURT
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... ... ..... arate billing. The other charges claimed on account of insurance or maintenance of depot or forwarding charges shall be included while computing the total turnover. In this connection I refer to a decision of the honourable Supreme Court reported in 1989 73 STC 317 1988 UPTC 218 (Vinod Coal Syndicate v. Commissioner of Sales Tax, U.P., Lucknow) and also decision of this Court reported in 1987 UPTC 1628 (Shyam Engineering Works v. Commissioner of Sales Tax) I hold that the aforesaid two decisions are applicable in this case and further hold that the cost of freight or delivery or cost of installation charges should be excluded from the total turnover. In that view of the matter, the order passed by the Tribunal as well as authorities below are modified to this extent as observed above. The assessing authorities are directed to pass an appropriate order. In the result, the revision application is partly allowed. There shall be no order as to costs. Application allowed in part.
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1998 (9) TMI 623 - KERALA HIGH COURT
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... ... ..... 1994 in G.O. (P) No. 47/94/TD/TX dated March 30, 1994 the exclusion of the purchase turnover of old gold is in order. The dealers in gold and silver who have opted for composition with regard to their turnover are exempted relating to the purchase of old ornaments. From the impugned orders it could be seen that the rectification is by way of inclusion of purchase turnover of all gold ornaments which is clearly excluded as per the exemption notification. Therefore, the objection of the petitioner is to be sustained. The impugned orders are accordingly set aside. The original petition is allowed. Order on C.M.P. No. 23250 of 1998 in O.P. No. 13276 of 1998E dismissed. Petition allowed.
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1998 (9) TMI 622 - ALLAHABAD HIGH COURT
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... ... ..... his Court in revision. Under section 11 of the U.P. Trade Tax Act, the revision lies against an order passed by the Tribunal under section 10 of the Act. No revision before the High Court is maintainable if an order is passed under section 11(8) of the Act. As such, the present revision application is not maintainable and the same stands dismissed. 2.. However, in passing I must add that from the revision application filed before this Court it appears that the department has already gone in special leave petition before the Honourable Supreme Court against the order of this Court. I fail to understand that if the department has chosen to go before the honourable Supreme Court, why this frivolous and unnecessary application before this Court has been filed which on the fact of it is not maintainable. This is sheer wastage of public money and the Department should be made aware that no such unnecessary and frivolous revision application are filed in future. Petition dismissed.
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1998 (9) TMI 621 - KARNATAKA HIGH COURT
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... ... ..... hat it could be considered to be unreasonable. In this regard various decisions of the apex Court were considered in the case of Tirupati Steels v. State of Karnataka (W.P. No. 22441 of 1998 dated July 28, 1998) reported in 1999 113 STC 273 (Kar) . It may be observed that the body corporate constitute a class by themselves and if the Legislature considers that the burden of tax should be more on them, then the Legislature is competent to do so. In the case of Banashankary Leasing Co. Ltd. v. State of Karnataka 1990 79 STC 87 (Kar), while challenging the provisions of the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976, it was observed by the apex Court that the classification is a reasonable one. 4.. In these circumstances, I do not feel that any case is made out to consider the provisions of the Act or the notification issued thereunder as ultra vires to article 14 of the Constitution of India. Writ petitions are dismissed. Writ petitions dismissed.
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1998 (9) TMI 620 - ANDHRA PRADESH HIGH COURT
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... ... ..... f the Tribunal as provided under rule 43 of the Rules, the assessee is entitled for interest under section 33-F of the Act. Section 33-F of the Act provides that where a refund is due to the assessee in pursuance of an order referred to in section 33-B and the assessing authority does not grant refund within a period of six months from the date of such order, the State Government shall pay to the assessee simple interest at twelve per cent per annum. 7.. Since there is a failure on the part of the assessing authority to refund the amount as provided under rule 43 of the Rules, the respondents are directed to refund the amount together with interest at the rate of 12 per cent per annum from March 1, 1994 till the date of payment as provided under section 33-F of the Act. The abovesaid refund shall be made to the addressee mentioned in the counter-affidavit, within two weeks from the date of receipt of this order. The writ petition is allowed with costs. Writ petition allowed.
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1998 (9) TMI 619 - ALLAHABAD HIGH COURT
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... ... ..... more than a particular strength is meant for industrial purposes. Rectified or denatured spirit is unfit for use in manufacture of Indianmade foreign liquor though by diluting the same by mixing water it becomes a country liquor and a different commodity. The same is exigible to tax under the State law whereas the rectified spirit is taxable under the Central Act AIR 1997 SC 1208 (Bihar Distillery v. Union of India) . The nature character and use of a particular item is changed by mixing the same with water and a new product is born. The same cannot be said to be the same old undiluted product. Dilution of product makes it altogether different. As such taxable liability of the petitioner s product will fall under the heading as unclassified item and not under the heading of methyl alcohol . 7.. In the result, the revision succeeds and is allowed. The order passed by the Tribunal dated March 29, 1990 is hereby set aside. There will be no orders as to costs. Petition allowed.
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1998 (9) TMI 618 - KARNATAKA HIGH COURT
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... ... ..... less it is satisfied that such amount of tax as the appellant himself admits to be due from him has been paid. In matters of stay of recovery of revenue the Legislature is rather stringent because an unfettered power of stay can bring the wheels of the Government to a halt. But it does not mean that in a proper case the Appellate Tribunal cannot grant stay on terms. 7.. It is clear from the above decisions and the scheme of the Act of 1957, that there is no power vested in this Court to stay the impugned order while exercising its appellate jurisdiction under section 24 of the Act of 1957. The arguments similar to the one raised in Vijay Prakash D. Mehta s case 1989 72 STC 324 (SC) of extreme hardship resulting in a given case was also raised but they cannot be sustained in view of the observations of the Supreme Court in the case referred to above. In the circumstances, the applications for stay of the impugned order in these appeals stand dismissed. Applications dismissed.
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