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Case Laws
Showing 81 to 100 of 624 Records
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2004 (2) TMI 662 - KERALA HIGH COURT
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... ... ..... ness in action which will result in quashing the assessment orders as without jurisdiction. The attitude of the assessing authorities will only lead to delay in the collection of tax legitimately due to the Government. Consequently the very purpose for which instructions are issued by the Commissioner of Commercial Taxes or the Government will frustrate. 9.. In the circumstances, it is high time that the Commissioner of Commercial Taxes, Trivandrum, issues instructions under section 3(1A)(c) of the Kerala General Sales Tax Act, 1963 to all the assessing authorities regarding the need for completing assessments strictly complying with the procedural safeguards in the manner stated earlier diligently to take care of the interest of both the assessee and the Revenue. 10.. Writ petition is disposed of as above. Office is directed to forward a copy of this judgment to the Commissioner of Commercial Taxes, Thiruvanathapuram for appropriate action. Petition disposed of accordingly.
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2004 (2) TMI 661 - DELHI HIGH COURT
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... ... ..... icer and there was no information with the assessing officer nor is there anything to show that the assessee concealed some material from the assessing officer so as to enable him to reopen the case. In view of the law which we have discussed above and other decisions it is clear that, merely because the assessing officer has changed his opinion, the assessing officer cannot call upon the assessee for reassessment and cannot issue coercive notice. 45.. In view of the above discussions, all the petitions are allowed. It is directed that in 29 petitions wherein reassessment orders have been made by the assessing officers, are quashed. In the second group of ten matters, during the pendency of the proceedings reassessments have been completed by the assessing officer and the same are hereby quashed. As regards the third group of nine matters wherein assessment have been reopened, the said proceedings are also quashed. All the petitions are allowed with costs. Petitions allowed.
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2004 (2) TMI 660 - MADRAS HIGH COURT
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... ... ..... er, learned counsel, appearing for the petitioner, would draw the attention of this Court to a ruling of this Court in Karthik Roller Flour Mills Pvt. Ltd. v. State of Tamil Nadu (Writ Petition Nos. 6777 and 6778 of 2001, dated 14-08-2002), where, a division Bench of this Court, after pointing out the subsequent rulings of the Supreme Court in the case of J.K. Synthetics 1994 94 STC 422 and in the case of India Carbon Ltd. 1997 106 STC 460, held that the ruling reported in Deputy Commissioner (C.T.) v. M. Murugesan and Bros. 1985 58 STC 143 (Mad.) is no longer a good law. We find considerable force in the submission made by the learned counsel for the petitioner. The levy of penalty on surcharge cannot be sustained. 14.. In the light of the foregoing discussion, this Court holds that levy of penalty on the additional tax and surcharge cannot be sustained. 15.. Writ petition is allowed to the extent indicated above. Connected W.P. M.P. stands closed. Petition allowed in part.
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2004 (2) TMI 659 - MADHYA PRADESH HIGH COURT
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... ... ..... down in the case of Babulal Banwarilal (1984) 17 VKN 63 (MP) has to be overruled and accordingly we do so and further declare that the law laid down by the case of Uma Medical Stores (1993) 10 TLD 398 (1993) 26 VKN 9 (MP) correctly enunciates the law in the field. 12.. In view of the aforesaid, the order passed by the learned single Judge has to be set aside and accordingly we so direct. The Commissioner shall proceed from the stage of show cause and it would be open to the respondent-assessee to raise all the contentions as permissible in law before the said authority. 13.. We place on record the valuable assistance rendered to the Full Bench by Mr. Sumit Nema, Advocate. He has brought to our notice the judgment of the Supreme Court reported in Food Corporation of India v. Commissioner of Sales Tax, M.P. 1998 109 STC 131 which clinches the issue and the assistance rendered to the court by Mr. Jha. 14.. The Letters Patent Appeals are accordingly disposed of. Appeals allowed.
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2004 (2) TMI 658 - PATNA HIGH COURT
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... ... ..... he matter has been remanded to the assessing authority, we are of the view that it would not be proper to express final opinion with regard to the said matter. The authorities should consider the said matter having regard to factual aspects. However, we would like to make it clear that the authority will consider the question of discount in terms of the observations made above. We have only clarified the legal position that once the excise duty becomes component/part of the sale price, then trade discount is permissible with regard to sale price and it cannot be confined to one or the other component of the sale price. It depends upon the facts of each case as to whether the trade discount is to be allowed or not and if allowed to what extent. 28.. In the result all the four writ applications are disposed of with the direction to the assessing authority to consider the question in the light of the observations made above. R.S. GARG, J.-I agree. Writ applications disposed of.
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2004 (2) TMI 657 - JHARKHAND HIGH COURT
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... ... ..... ly pronounced that it was such a self-contained charging section. That was the basis for distinguishing the earlier decisions. We feel bound by that decision. We are, therefore, of the view that in the light of the ratio in Kumar Distributors v. State of Bihar 1995 99 STC 441 (SC) (1995) 5 SCC 593, it is not possible to accede to the contention raised on behalf of the petitioner. 9.. Thus, going by the language of the industrial policy, the language of the notifications and on the basis that section 6 of the Act is a charging section and is self-contained as held by the Supreme Court, the Deputy Commissioner was justified in holding that the petitioner was not entitled to set-off additional tax paid by him against the sales tax payable on the sale of goods within or outside the State. Thus, the demand in annexure 7 is perfectly valid and is fully justified and no case is made out for interference with annexure 7. We, therefore, dismiss this writ petition. Petition dismissed.
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2004 (2) TMI 656 - ALLAHABAD HIGH COURT
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... ... ..... les Tax 1993 UPTC 212. There are various other judgments also on the same lines such as Triveni Sheets Glass Works v. Commissioner of Trade Tax (1999) 14 NTN 42 (All.). The power to levy penalty is a discretionary power. It should be exercised in a reasonable manner and penalty should not be imposed in each and every case when there is a default. Imposition of penalty under section 15-A(1)(a) of the Act mechanically is highly improper and cannot be approved. The departmental authorities are supposed to exercise the discretion in a reasonable manner so as to advance the sense of justice. Taking into consideration overall picture of the case the levy of penalty under the aforesaid section cannot be approved by this Court. 18.. In the result both the revisions are allowed and the penalty orders under section 15-A(1)(a) of the Act both under U.P. and Central for the month of February, 1992 are set aside with costs which I assess at Rs. 1,000 in both the cases. Petitions allowed.
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2004 (2) TMI 655 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... point, was not considered in the later case. In my view, the conflicting views expressed by the division Benches in Luthra Rubber Industries v. State of Punjab 1985 59 STC 198 (P and H) and State of Haryana v. Free Wheels (India) Ltd. 1997 107 STC 332 (P and H) on the scope of section 21(1) of the State Act deserves to be resolved by a larger Bench. 15.. Hence, I direct that the file of this case be placed before honourable the Chief Justice for constituting Bench of three or more Judges for deciding the following question of law Whether the Commissioner or the officer to whom the power of the Commissioner is delegated by the State Government under section 21(2) of the Punjab General Sales Tax Act, 1948 can exercise power under section 21(1) thereof if the judgment on which the order of assessment is based is overruled or set aside by the superior court or a contrary opinion is expressed by the higher adjudicating judicial/ quasi-judicial authority? Referred to larger Bench.
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2004 (2) TMI 654 - GUJARAT HIGH COURT
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... ... ..... Act and, therefore, if the respondent-authorities have any material on the basis of which the powers of cancellation under section 30-AA may be invoked against the petitioner, this judgment shall not come in the way of the authorities exercising their legitimate powers under section 30-AA. We may, however, not be understood to have expressed any opinion either way whether or not invocation of the powers under section 30-AA would be justified against the petitioner because no material is brought to our notice from the impugned order which could justify invocation of the powers under section 30-AA. 15.. Hence, subject to the aforesaid observations, this petition is allowed. The impugned order dated February 15, 2002 at annexure A to the petition and the order dated January 7, 2003 of the Gujarat Sales Tax Tribunal in Revision Application Nos. 78 and 79 of 2002 are quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to costs. Petition allowed.
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2004 (2) TMI 653 - SUPREME COURT
Whether order dated 31.8.1995 passed by the Competent Authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short ’the SAFEMA’) against respondent nos. 1 and 2 was not sustainable in law?
Whether the order of detention could be challenged subsequent to the disposal of the earlier writ petition on the ground that it had become unfructuous?
Held that:- SAFEMA applies when the revocation is based on the report of the Advisory Board. As the factual position noted above goes to show, the revocation was only in terms of Section 11(1)(b) of COFEPOSA. Such revocation when is done by the Central Government as in this case is really unrelated to a report of the Advisory Board. On the factual position, none of the three situations indicated in the first sub-clause of the said proviso are applicable. The inevitable position is, therefore, crystal clear that the proviso to clause (b) of sub-section (2) of Section 2 SAFEMA had no application to the facts of the case as held by the High Court. To that extent the judgment of the High Court is indefensible and is set aside.
According to learned counsel for appellants position has been settled beyond doubt that it is impermissible in view of what has been stated in Attorney General’s case [1994 (5) TMI 235 - SUPREME COURT] . This submission deserves no serious consideration, being one made in disregard of the view taken already by this Court. We find that the effect of said decision was considered in the two decisions relied upon by learned counsel for respondent nos. 1 and 2. The view taken in Amritlal Chandmal Jain’s case (1998 (4) TMI 530 - SUPREME COURT) and Karimaben K. Bagad’s case (1998 (7) TMI 680 - SUPREME COURT OF INDIA) does not call for any further or fresh look or consideration – the same being not only just and reasonable but quite in conformity with the basic tenets of Rule of Law but commends for our respectful acceptance, as well - Appeal allowed - remit the matter back to the High Court for fresh adjudication on merits as to the legality and validity of the orders of detention, for the purpose of applying the provisions of SAFEMA against the respondents or the properties concerned.
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2004 (2) TMI 652 - SUPREME COURT
Whether the High Court of Delhi has the jurisdiction under Section 62(2) of the Copyright Act, 1957 to entertain a suit filed by the appellants and one other?
Held that:- The object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench, it is evident not only from the cause title but also from the body of the plaint that the appellant No. 2 carries on business within the jurisdiction of the Delhi High Court. The appellant No. 2 is certainly "a person instituting the suit".
a 'cease and desist' notice in a copyright action cannot, particularly in view of Section 60 of the Act, be termed to be a 'mere' notice. Such a threat may give rise to the right to institute a suit to counter such threat and to ask for relief on the ground that the alleged infringement to which the threat related was not in fact an infringement of any legal right of the person making such threat. As we have seen, the Division Bench disposed of the appeals solely on the issue of jurisdiction. Its conclusion on the issue is insupportable. The impugned decision is accordingly set aside and the matter is remanded back to the Division Bench for disposal of the appeals filed by the respondents and appellants on merits. Pending the decision of the Division Bench, the order passed by the learned Single Judge which we have quoted earlier will continue. The appeals are accordingly allowed with costs.
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2004 (2) TMI 651 - HIGH COURT OF GUJARAT
Refund - Interest on refund ... ... ... ... ..... ts are directed to pay the petitioners interest at the rates applicable in accordance with the notifications issued under Section27A of the Customs Act, 1962, on the amount of Rs. 5,21,99/- for theperiod from the date of expiry of three months from the date on which the petitioners made the refund application till the date of payment of refund of the said amount i.e. for the period from 31.1.199 till30.6.2001. The amount of interest shall be calculated within onemonth from the date of receipt of the writ of this Court and the actual payment of interest so calculated shall be made within one month thereafter i.e. within two months from the date of receipt ofthe writ of this Court. If the respondent authorities fail to comply with the aforesaiddirection regarding payment of interest within the aforesaid time limit, it will be open to the petitioners to move this Court for claiming interest on interest. 13. Rule is made absolute to the aforesaid extent with no order asto costs.
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2004 (2) TMI 650 - ITAT MUMBAI
Bad debts, Business expenditure ... ... ... ... ..... nvestment and Consultancy Pvt. Ltd. 7. After hearing both the parties, we find that the expenditure incurred by the assessee on the facts and in the circumstances of the case, is in the nature of revenue. The anti-virus software is for the efficient working of the computer. It is for the production data existing in the computer otherwise also after expiry it loses its validity. Similarly, in respect of payment made to M/s. R.P.K. Investment regarding up-gradation of software, it was pointed out before the CIT(A) that the said Software is required to be updated each year. This submission of the assessee is also not controverted by any material brought on record. In this view of the factual position, the payment made by the assessee was not incurred to acquire enduring benefit or an asset. Therefore, it has to be treated as revenue expenditure. Accordingly, we direct the Assessing Officer to delete the disallowance. 8. In the result, the appeal filed by the assessee is allowed.
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2004 (2) TMI 649 - ITAT DELHI
Income from house property ... ... ... ... ..... of the assessment year and was not a property lying vacant. The assessee has actually received rent at the rate of Rs. 60,000 per year from the beginning of the year. That being so, the property which already was under tenancy at the beginning of the assessment year cannot be expected to let from year to year at any figure higher than the rent which is being produced actually by the property in question when the property was actually let out then the expectation of its letting out becomes an actual reality. Under such circumstances the actual rent received becomes the yardstick in taking the ALV and the yardstick of municipal valuation does not remain relevant. Such a view has been entertained by the Hon rsquo ble Calcutta High Court in Kishanlal and Sons (Udyog) (P.) Ltd. rsquo s case (supra) from which view we are inclined to accept particularly when the revenue has not placed any contrary material on record. 8. In the result, both the appeals of the assessee stand allowed.
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2004 (2) TMI 648 - ITAT RAJKOT
Cash credits ... ... ... ... ..... sh credits. 5. We have duly considered the rival contentions and the material on record. The only dispute for our resolution is whether peak credit method applied in the facts of the case is rightly applied or not. It is well established that no income can be taxed twice. It is also not in dispute that these deposits include refunds of the subscriptions made from the deposits. Thus, by aggregating all deposits, they tend to get taxed twice which is against the principles of taxation the decisions cited by the ld. counsel lend support to the case of the assessee and hence we decline to interfere with the decision of the CIT(A). 6. Next ground in the appeal relates to the admission of additional evidence by the CIT(A). It was neither pointed out by the ld. DR as to what constituted additional evidence, nor do we find any from the perusal of the order of the CIT(A) and hence this ground also stands rejected. 7. In the result, all the four appeals of the department are dismissed.
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2004 (2) TMI 647 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs, removal as such ... ... ... ... ..... vailed credit on such inputs. 6. emsp We find that in this case undisputed facts are that appellants were clearing the inputs received from TISCO, on which the credit was taken on the strength of their own invoice to other customers regarding which Revenue is not taken any objection. The Revenue is only denying the credit in respect of the inputs which were as per pleading purchased by the appellants from TISCO. When the inputs received in the factory, the credit was taken. Therefore, inputs cannot be removed without payment of proper duty. As the appellants were purchasing the inputs from the TISCO, the appellants had already availed the credit and they were clearing the same on payment of duty and were availing the credit as they were using the same in the manufacture of their final product. In these circumstances, as inputs were cleared on payment of duty on which the appellants were taking credit, the impugned order is not sustainable and set aside. The appeal is allowed.
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2004 (2) TMI 646 - CESTAT, MUMBAI
EXIM policy - Duty Credit Pass Book Scheme ... ... ... ... ..... ere is no such requirement in the policy. The reference to the deemed import content in the Handbook makes this clear. It appears to us that this procedure is not a procedure for replenishment by import of materials used in the manufacture of export product as in the DEEC scheme and similar such scheme. It appears to be a measure to grant incentive for export by a method which can be easily administered and provides a handy incentive easily utilisable to the export in the form of credit of customs duty available for imported goods. While the object of both types of scheme would be same, to stimulate exports, the methodology of formalities seems to be significant. rdquo 18. emsp We also note that the appeal filed by the Revenue against the above order is dismissed by the Apex Court. 19. emsp In the light of the above discussion we hold that the appellants are eligible to the exemption in terms of Notification 104/95 and hence set aside the impugned order and allow the appeals.
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2004 (2) TMI 645 - CESTAT, NEW DELHI
Exemption to inputs captively consumed in factory of production ... ... ... ... ..... ected on account of numerous reasons will not mean that the goods have not been captively consumed in or in relation to the manufacture of final product specified in column 3 of the table. The decision in the case of Union Carbide was dealing with the excisability of the waste and scrap of Dry Battery Cell wherein it has been held that waste and scrap has not been specified in any of the heading of Central Excise Tariff and is not excisable. That decision is not applicable for the purpose of determining the eligibility of the Appellants in respect of components manufactured and captively consumed by them as their final product is not waste and scrap but Dry Battery Cell. Similarly, the proviso to Notification No. 67/95 will also not be applicable as the final product Dry Battery Cells are chargeable to Central Excise duty and are not exempt from payment of whole of the duty. Accordingly we set aside the impugned Order and allow all the appeals. (Pronounced in the Open Court).
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2004 (2) TMI 644 - CESTAT, NEW DELHI
Rectification of mistake application - Mistake apparent on record ... ... ... ... ..... en discussed in para 5 of the order. 5. emsp It is well settled that scope of ROM is quite limited under the law. The mistake of fact or law apparent on the record only can be corrected by the Tribunal/Courts, while dealing with the ROM of the aggrieved party and such a mistake must be obvious and patent mistake. It cannot be something which has to be established by a long drawn process of reasonings on the points on which there may be two opinions. In this context, reference may be made to the judgment of the Apex Court in the case of CCE, Calcutta v. ASCU Ltd., 2003 (151) E.L.T. 481 (S.C.) 2003 (54) RLT 607 (S.C.) . Therefore, non-appreciation of the facts, material/evidence placed on record by the Tribunal in the manner which the appellants desired cannot be taken to a mistake apparent on the face of the impugned final order so as to call for its recall and rehearing of the appeal. We do not find any merit in the ROM application of the appellants and the same is dismissed.
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2004 (2) TMI 643 - CESTAT, NEW DELHI
Classifiaction ... ... ... ... ..... ff Act, it would be clear that only lsquo Writing Ink rsquo as mentioned at (A) in notes of HSN would get classified in notes of HSN would get classified 3215.10 of CETA, 1985 and all lsquo other inks rsquo viz., Printing Ink and specialty inks as mentioned in Heading (A)(C) of notes would fall under Heading 3215.90 rdquo . 8. emsp In our view (B) in HSN only relates to lsquo ordinary writing or drawing inks rsquo and other writing or drawing inks are covered by (C). This view is strengthened from the decision in the case of Linc Pen and Plastic Ltd. v. C.C., Kolkata - 2003 (156) E.L.T. 126 (Tribunal) wherein the Tribunal has classified the Ball Point Pen Ink for the purpose of Countervailing duty under sub-heading 3215.10 of the Central Excise Tariff as Writing Ink. As we are differing from the view expressed by a Co-ordinate Bench, we request the Hon rsquo ble President to place the issue regarding classification of marker ink before the Larger Bench for settling the issue.
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