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Case Laws
Showing 81 to 100 of 472 Records
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1998 (9) TMI 617 - GAUHATI HIGH COURT
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... ... ..... alue of which is small in comparison with the value of such goods or such packing materials is essential or customary . In that case the value of the packing materials would not have been at all relevant or material. 13.. The Act nowhere specifically provides that the container or packing materials used for selling non-taxable goods shall also be liable for taxation. As stated above, there is no presumption in favour of imposition of tax and there is no room for any intendment. 14.. In view of the foregoing discussion, we are of the view that if no tax is leviable on the goods then no tax can be levied on the containers in which the said goods are contained, provided the value of such packing materials or containers is small in comparison with the value of such goods or such packing is essential or customary for the purchase or sale of such goods. As such, the appeal is allowed, the impugned judgment and order is set aside. There will be no order as to costs. Appeal allowed.
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1998 (9) TMI 616 - KERALA HIGH COURT
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... ... ..... s clarified that as the assessee is selling only battens (even if it can be qualified as planks) it cannot be treated as tea chests and the correct rate applicable is 4 per cent as general goods . The aforesaid clarification furnished by the Board of Revenue (Taxes) clinches the issue and furnishes a complete answer of the aforementioned question. Relying on the aforesaid order of the Board of Revenue, we accept the contention of the petitioner. In the result, both the revisions succeed and are allowed, with the observation that the tea chest battens will be taxed at the rate of 4 per cent as general goods. Petitions allowed.
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1998 (9) TMI 615 - KARNATAKA HIGH COURT
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... ... ..... r as defined in section 2(u-2) in substance means the aggregate turnover in all goods of purchases and sales made by an assessee in the course of inter-State trade or commerce or in the course of export of goods outside the territory of India or in the course of import of goods into the territory of India whether or not, the whole or any portion of such turnover is liable to tax . If this be so, then the turnover of purchase or sale irrespective of whether the whole or any portion of such turnover is liable to tax has to be clubbed for the purpose of levy of TOT under section 6-B. The goods which were exempt from payment of purchase tax leviable under section 6 because of the notification issued under section 8A have to be aggregated to the total turnover of sales while determining the levy of turnover tax under section 6B. 13.. For the reasons stated above, we do not find any merit in this revision petition and dismiss the same with no order as to costs. Petition dismissed.
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1998 (9) TMI 614 - KERALA HIGH COURT
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... ... ..... hen the Appellate Tribunal chose to differ from the first appellate authority, it was the duty of the former to assign cogent reasons to come to a different conclusion on the point of estimating the addition. 9.. Whereas we agree with the Appellate Tribunal that for the defects as existed, book version of the assessee was liable to be rejected, we hold that the matter has to be remitted to the Appellate Tribunal on the point of estimating the addition to the taxable turnover, inasmuch as the Appellate Tribunal let alone meeting out the reasons given by the first appellate authority has not even referred to them. In the result, the tax revision case partly succeeds and is allowed. The case is remitted to the Appellate Tribunal to refer to the reasons given by the first appellate authority, in so far as addition to the taxable turnover is concerned and then assign its own reasons to justify addition, if any, proposed to be made to the taxable turnover. Petition partly allowed.
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1998 (9) TMI 613 - KARNATAKA HIGH COURT
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... ... ..... uld not be considered as the money belonging to the defaulter. The bank is under no obligation to make payment to the commercial tax department. It is only when the bank or the other person holds any money on behalf of the defaulter or may be found subsequently holding. If at any particular point of time the bank overdraft limits are availed, it cannot be considered that the money which is being drawn from the bank belong to the defaulter. The bank does not owe the money to the defaulter. Sanction of overdraft facility creates an agreement between the bank and the borrower and it cannot be considered that the bank is owing the money with the borrower simply because overdraft facility has been given. 5.. Accordingly, annexures D and E, are quashed. It is clarified that the facility gives to the customer is not the amount owned by the said customer or due and payable to him and as such the interpretation is not in accordance with law. The petition is allowed. Petition allowed.
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1998 (9) TMI 612 - ALLAHABAD HIGH COURT
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... ... ..... n the judgment in the case of Commissioner of Income-tax v. Dhadi Sahu 1993 199 ITR 610 where it is said that the forum of appeal or proceedings is a vested right in the matter of procedural law, but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or court of first instance and unless the Legislature has, by express words or by necessary implication, clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums. 3.. In that view of the matter the orders of the Tribunal passed by a single member is set aside. The Tribunal is directed to hear the appeal of the applicant by a Division Bench. With these observation this revision is disposed of. Petition disposed of accordingly.
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1998 (9) TMI 611 - PATNA HIGH COURT
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... ... ..... redients of a sale depended upon the intention of the selling and the buying parties and these were essentially questions of fact. What was said in paragraph 16 of the judgment in Raj Sheel v. State of Andhra Pradesh 1989 74 STC 379 (SC) applies with full force to the impugned order. Following those observations and directions I am compelled to hold that this case must go back to the assessing authority for determining the true nature and ingredients of the transactions of sale of cement made by the petitioner during the relevant period on a consideration of all the material facts and circumstances as indicated in paragraphs 7 and 9 of the decision (pages 384 and 387 of STC) in Raj Sheel v. State of Andhra Pradesh 1989 74 STC 379 (SC). 19.. In the result, the impugned order as contained in annexure 3 is set aside and this writ petition is allowed to the extent indicated above. There will be, however, no order as to costs. SACHCHIDANAND JHA, J.-I agree. Writ petition allowed.
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1998 (9) TMI 610 - ALLAHABAD HIGH COURT
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... ... ..... where the delicate balance has clearly been separated on who may tax whom and with what immunity, including exemptions. The Supreme Court, in re New Delhi Municipal Committee AIR 1997 SC 2847, in no uncertain terms, has held that the Union of India enjoys immunity from state taxation. The State of the Union are protected by exemptions referred to in Article 289 of the Constitution of India. The delicate balance of the Constitution of India was violated by the State of U.P. In these circumstances, the court is of the opinion that a copy of this decision ought to be marked to learned Advocate General, State of U.P. So much time of the court was observed in hearing and considering submissions on behalf of the Trade Tax Department, submissions which were an antithesis to the provisions of the Constitution of India which provide a clear balance that the Union may not be taxed and in what circumstances the State may be taxed The petitions are allowed with costs. Petitions allowed.
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1998 (9) TMI 609 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... , had they applied their mind properly, they should have treated the sale only as inter-State sale. But simply relying upon form F declaration, they have treated the sale as local sale and has assessed the tax under the impugned orders for the payment of the sales tax, surcharge, additional surcharge, etc. The first respondent had no jurisdiction to levy tax for these transactions as they were not local sales, but inter-State sales. Therefore the impugned orders are liable to be quashed. 5.. In fine, the assessment orders for 1989-90 and 1990-91 are accordingly quashed, the result of which compels the first respondent, to refund the entire tax collected by him for the petitioners. The T.Ps. are disposed of accordingly. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 22nd day of September, 1998. Petitions disposed of accordingly.
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1998 (9) TMI 608 - KARNATAKA HIGH COURT
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... ... ..... 10.. We are not discussing in detail the judgments cited by the counsel for the petitioner, i.e., Commissioner of Income-tax, Bombay City, Bombay v. Elphinstone Spinning and Weaving Mills Co. Ltd. 1960 40 ITR 142 (SC) AIR 1960 SC 1016, Commissioner of Income-tax, Bombay City(1) v. Jalgaon Electric Supply Co. Ltd., Bombay 1960 40 ITR 184 (SC) AIR 1960 SC 1182, Commissioner of Income-tax, Patiala v. Shahzada Nand and Sons 1966 60 ITR 392 (SC) AIR 1966 SC 1342, Northern India Caterers (Private) Ltd. v. State of Punjab AIR 1967 SC 1581, Swadeshi Polytex Ltd. v. Collector of Central Excise AIR 1990 SC 301 and Bellad Automobile Engineers v. K.A.T. ILR 1998 Kar 1460, as they are not relevant to the point in issue. These judgments do not cover the field which is before us. 11.. For the reasons stated above, and following the judgment of the Full Bench in Shaw Wallace and Co. Ltd. 1993 91 STC 37 (Kar) we dismiss these revision petitions with no order as to costs. Petitions dismissed.
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1998 (9) TMI 607 - ANDHRA PRADESH HIGH COURT
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... ... ..... ody, especially the face whereas the medicine is used for treatment or prevention of a disease, especially one taken by mouth. Therefore, it is difficult to hold that after shave lotion can be treated as a cosmetic or a medicine as it is not used for beautifying the face or for treatment of a disease or prevention of a disease. Hence, it is neither a cosmetic nor a medicine . If it does not fall under item 36 or 37, viz., cosmetic or medicine, it falls only under the unclassified goods under the Seventh Schedule to the Act. It is stated by the learned counsel for the Revenue that this after shave lotion is used as an anti-septic. The fact that it is used as an anti-septic does not make it a medicine. 6.. In view of the above, it follows that the view taken by the Tribunal is correct and that the after shave lotion is to be classified as an unclassified goods under Schedule VII of the Act. The tax revision case has no merit and it is accordingly dismissed. Petition dismissed.
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1998 (9) TMI 606 - KERALA HIGH COURT
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... ... ..... order that the Government had issued orders to the effect that the sales tax on finished rubber goods had been reduced to 3 per cent. There was no justification for the State to contend that this notification had not been issued under section 10 of the Kerala General Sales Tax Act, 1963. Therefore, the liability of the petitioner was only to pay tax at 3 per cent on finished rubber products from factories in Kerala. The Government Pleader further submits that the said decision of the learned single Judge was affirmed by a division Bench on appeal. This being so, we do not see any patent illegality in the order of the Sales Tax Appellate Tribunal. These revision cases are, therefore, dismissed in limine. Petitions dismissed.
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1998 (9) TMI 605 - KARNATAKA HIGH COURT
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... ... ..... contract other than those specified in the Sixth Schedule. Thus, it may be noticed that entry 55 indicates that all such works contract which are not specified in the Sixth Schedule to the Act would be exempt from levy of tax under section 5-B of the Act. The works contract though, was given effect to from April 1, 1986 by introducing Sixth Schedule read with rule 6, clause 21, the printing and block making was not then specified. This was specified only with effect from April 1, 1992. Tax on works contract of printing and block making would thus not be taxable prior to April 1, 1992 by virtue of entry 55 of the Fifth Schedule to the Act. When examined in the light of the said provision of the Act, the impugned order becomes totally untenable. 10. For the reasons stated above, these appeals are accepted and order passed by the revisional authority under section 22-A of the Act is set aside with the result that order of first appellate authority is restored. Appeals allowed.
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1998 (9) TMI 604 - MADRAS HIGH COURT
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... ... ..... assumption that these two expressions convey different meanings. We are also fortified when looking at the amendments, which took place to this item with effect from January 1, 1985. This item has been qualified as under Entry from January 1, 1985. All varieties of PVC pipes, tubes and fittings, including flexible and rigid pipes, hoses and tubes, whether transparent, semi-transparent or non-transparent. Note 1.. Entry inserted by Act 5 of 1975 w.e.f. November 29, 1974-transferred from multi-point levy from November 29, 1974. 2.. Item 136 and the entries thereto were substituted by G.O.P. No. 1357 C.T. and R.E. dated December 19, 1984-Notification dated December 19, 1984 (Act 19 of 1985)-Notification No. 163 dated April 15, 1985-Effective from January 1, 1985. For all the above reasons we hold that the order of the Tribunal cannot be supported and it is hereby set aside. The tax revision case will stand allowed. There will be no order as to costs. Revision petition allowed.
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1998 (9) TMI 603 - ITAT MUMBAI
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... ... ..... must have a human face. Whereas one can have no quarrel with his suggestion, it is also necessary to bear in mind that the benefits available to the assessee must be sought in accordance with law. The Revenue cannot be blamed for the assessee not having been properly advised. The assessee, perhaps, could have got the benefit if appropriate remedy which perhaps was by way of a revision to the Commissioner of Income-tax under section 264, had been filed. The application under section 154 filed with the Assessing Officer was well within the time when a revision under section 264 could have been filed. Though I feel sorry for the assessee, one cannot travel beyond the four corners of law. I therefore agree with the learned Accountant Member that relief under section 154 is not warranted with regard to donation of Rs. 1,00,000 and that the Commissioner of Income tax (Appeals) was right in upholding the order of the Assessing Officer in rejecting the application under section 154.
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1998 (9) TMI 602 - SUPREME COURT
Condonation of delay - Held that:- Allow the appeal. In this case, explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. fifty thousand from the delinquent-advocate through the Consumer Disputes Redressal Forum
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1998 (9) TMI 601 - CEGAT, KOLKATA
Penalty on dealer - Imposition of - Order - Operative part delivery prior to issue of reasoned order - Validity - Evidence - Statement - Reliance upon - Penalty - Imposition of - Adjudication - Investigation
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1998 (9) TMI 600 - CEGAT, NEW DELHI
Cenvat/Modvat - Capital goods - Credit ... ... ... ... ..... allowed subject to the satisfaction of the jurisdictional Assistant Commissioner that the goods were duty paid (d) credit of Rs. 8,06,796/- is disallowed under Rule 57U (e) Central Excise credit amounting to Rs. 40,07,308/- need not be reversed (f) demand of Modvat credit of Rs. 8,06,796/- out of the credit of Rs. 11,40,096/- reversed under protest is confirmed and (g) penalty of Rs. 3 lakhs imposed on M/s. Simbhaoli Sugar Mills Ltd. is set aside. 20. emsp The modification of the impugned order referred to above, will be subject to our findings in paragraphs 12 to 14 particularly in relation to admissibility of Modvat credit as capital goods on M.S. Bars, TOR steel used in erection of cooling tower, molasses pump, forged key, SIJ and chain spares. Since we have held that these items would not be includible items for purposes of Modvat credit on capital goods, credit taken on the said items will have to be reversed. 21. emsp The two Appeals are disposed of in the above terms.
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1998 (9) TMI 599 - CEGAT, KOLKATA
Waste and scrap - Test report - Brass waste and scrap - Import ... ... ... ... ..... the Defence Science Service, is to the effect that the material in question is process waste containing brass particles, silicous material, graphite and other non-metallic dust and this brass waste contains high percentage of impurities. The same can only be used for remelting to recover brass metal. Sieve Test was also got conducted from Inspection Survey and Surveillance (India) Pvt. Ltd. and found to be not conforming to the definition of powder in Note 6 of Section XV. M/s. The East India Metals rsquo Association have also certified the material as waste and scrap and fit for recovery of metal only. In view of this forthcoming evidences produced by the appellants and in view of the technical aspect that metallic powders are different than the brass waste and scrap in powdered form, we are of the view that the goods in question were brass waste and scrap. Accordingly, we set aside the impugned Order and allow the appeal of the appellants with consequential reliefs, if any.
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1998 (9) TMI 598 - CEGAT, NEW DELHI
Clandestine removal - Interest and penalty - Valuation - Remand - Confiscation - Cenvat/Modvat - Stay/Dispensation of pre-deposit - Removal - Deposit on remand - Appeal
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