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1964 (7) TMI 40
... ... ... ... ..... of Civil Procedure, and the service was not a service according to law. That being the position there was no service of the notice upon the petitioner at the Basirhat address and on the basis of that type of service of notice, the order for revision cannot be sustained. The position does not become better if one relies upon the service effected upon the petitioner at Badasar at Rajasthan. There notice was served upon her on May 8, 1963, calling upon her to appear before the Commissioner of Income-tax on the very next day to show cause why her assessment for the years 1953-54 to 1961-62 should not be revised. That was too short a notice for anybody to comply with. For the reasons stated above, I have to uphold the argument of Mr. Mitter that the petitioner was not given a reasonable opportunity to show cause against the proposal for revision of the assessment order. I, therefore, quash the order of revision. Let a writ of certiorari issue. There will be no order as to costs.
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1964 (7) TMI 39
... ... ... ... ..... f the Rules and on the basis of that rule he argued that the amount of interest is added only after the net amount as tax has been determined by the Income-tax Officer, and this shows that the amount of interest is not tax. It is difficult to accept the suggestion made by Mr. Joshi that the provisions of the Act should be construed with the aid of rules framed under the Act. For the reasons stated above, in our opinion, the answer to the fourth question will also have to be in favour of the assessee. We accordingly answer the fourth question in the affirmative. In the result, the first question is now academic and it is not necessary to answer that question, the second question is answered in the negative and in favour of the assessee, the third question is answered in the negative and in favour of the assessee, and the fourth question is answered in the affirmative and in favour of the assessee. In the circumstances, the department shall bear half the costs of the assessee.
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1964 (7) TMI 38
... ... ... ... ..... the probate proceeding. It is not necessary for me, in this case, to go so far as the Mysore High Court did. What probate duty is payable or has been paid can never be made part of the estate duty records, unless the probate duty has been assessed and paid and the evidence of payment has been put on the record of the estate duty proceedings. If the estate duty be assessed very quickly and the probate duty be assessed and paid later on, an assessee never can get advantage of section 50 of the Estate Duty Act, because at the time of assessment of estate duty, he may not be able to put in evidence of probate duty paid by him. This seems to me a lacuna, which requires consideration. It is not necessary for me, however, to go into that question because, as I have already found, the application for rectification or refund must fail on the ground of limitation and on the ground of other defects noticed by me. In the view, I take, I discharge this rule but make no order as to costs.
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1964 (7) TMI 37
... ... ... ... ..... d the turnover at Rs. 71,000. 2.. This procedure, it seems to me, is unwarranted. Rule 15 of the General Sales Tax Rules requires that if, for any reason, the return submitted by an assessee is not acceptable to the Sales Tax Officer, he should give notice to the assessee to produce his account books to substantiate the return submitted by him. This rule has not been complied with by the Sales Tax Officer. The procedure adopted, it seems to me, is arbitrary. I do not wish to say anything more at present as the Sales Tax Officer can rectify the mistake while passing the final order of assessment. Pursuant to the direction given by this Court in C.M.P. 5378, 1 1/3rd of the tax fixed by the order exhibit P-4 has been paid by the petitioner. No attempt will therefore be made to collect the balance of tax due from the petitioner pending finalisation of the assessment. This writ application is disposed of on the above terms. There will be no order as to costs. Ordered accordingly.
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1964 (7) TMI 36
... ... ... ... ..... t was granted to the petitioners cannot for a moment be accepted. If the Government granted the ex gratia relief, they were certainly acting outside the ambit of the Act. It was not, therefore, necessary that the assessment itself should be revised. On the other hand, the order of the Government, which is virtually the recommendation made by the Board directed the revision of the assessment. A revision of the assessment by the assessing authority under the directions of the statutory authority is necessitated as a consequence of an order made in the exercise of the appellate or revisional power. The fact that the assessments in these cases were revised under the directions of the Board of Revenue clearly emphasises the position that it was not the grant of an ex gratia relief but a relief within the four corners of the Act. As we agree with the learned Judge in his interpretation of section 12(3) of the Act, these appeals fail and are dismissed with costs. Appeals dismissed.
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1964 (7) TMI 35
... ... ... ... ..... ccording to certain specifications, and, therefore, the appellant had to bestow a certain amount of skill and labour in the manufacture of the bricks, does not affect the question. That was not the essence of the contract. The object of the contract none the less remained the delivery of bricks. Regarding the clause land will be given free, the Supreme Court observed that it only meant that the property in the earth to be dug out for making the bricks would be transferred to the appellant, and that it might be presumed that it was understood that in quoting his rate for the bricks, the appellant could take into account the free supply of earth for making the bricks. It would not make any difference to the transaction being a sale. We are of the opinion on the facts of the case that the transaction amounted to a sale and that it had been rightly assessed. The revision case is dismissed. In the circumstances of the case, there will be no orders as to costs. Petition dismissed.
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1964 (7) TMI 34
... ... ... ... ..... authority by having recourse to rule 32 or by the revisional authority under section 15. See the decision of this Court in The Coffee Board v. Commissioner of Commercial Taxes M.A. Nos. 60, 61, 114 and 115 of 1959. It is now well settled that the power to assess an escaped turnover is an independent jurisdiction as well as an original jurisdiction, whereas the power to revise an order made is purely a revisional jurisdiction. This position is well settled by the decisions of the Supreme Court as well as that of the High Courts. See State of Kerala v. M. Appukutty 1963 14 S.T.C. 242., State of Orissa v. Debaki Debi and Others 1964 15 S.T.C. 153. and State of Andhra Pradesh v. Varre Pothuraju and Ghanta Simhachalam 1964 15 S.T.C. 222. For the reasons mentioned above, it is clear that the order appealed against was made without jurisdiction and hence it cannot be sustained. In the result this appeal is allowed and the order appealed against set aside. No costs. Appeal allowed.
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1964 (7) TMI 33
... ... ... ... ..... ourt, in the case in Chowringhee Sales Bureau Ltd. v. State of West Bengal 1961 12 S.T.C. 535. that if this aspect of the matter is borne in mind, it will not be necessary to go so far as to declare Explanation 2 to section 2(g) itself as ultra vires the State Legislature in so far as it includes auctioneers. We have referred in detail to the facts of this case earlier in this judgment. They clearly show that the auctioneers functioned only as an agent to secure the most advantageous bid for the principal in the auction, and thereafter, it was the principal s agent, Messrs Prynne, Abbott and Davis, who accepted the offer of the highest bidder and completed the contract. The subsequent part played by the agent in recovering the money from the highest bidder will not constitute him a dealer for the purpose of sales tax liability. We, therefore, allow the revision case and set aside the assessment on the assessee on the disputed turnover. No order as to costs. Petition allowed.
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1964 (7) TMI 32
... ... ... ... ..... overnment Pleader has also invited our attention to section 12-A of the Madras General Sales Tax Act, 1939, which contains a specific provision that in the event of the Appellate Tribunal holding that an excess amount was collected from any dealer, the said excess shall be refunded to the dealer without interest. This is a specific provision meeting the case of any modification in respect of tax due from a dealer ordered by an Appellate Tribunal. On the same analogy the learned Government Pleader argued that where a dealer had to be refunded any amount collected from him as sales tax, the amount should be refunded without interest. We need not rest the decision in this case on this analogy, as we have answered the main pleas on which the claim was rested by the appellant, against him. For all these reasons, we do not find any reason to differ from the decision of our learned brother. We, therefore, dismiss this appeal but there will be no order as to costs. Appeal dismissed.
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1964 (7) TMI 31
... ... ... ... ..... and section 10A. I think here there is an error of law apparent on the face of the record. There is a clear distinction between a representation which is negligent and one which is fraudulent. The section, as I have already said, requires that the representation must have been made falsely, viz., without any belief in its truth. A representation, however negligent, is not fraudulent. In Derry v. Peek14 App. Cas. 337 at 375. Lord Herschell said In my opinion making a false statement through want of care falls far short of, and is a very different thing from, fraud, and the same may be said of a false representation honestly believed though on insufficient grounds. 7.. There is no finding that the representations made by the petitioner were false, namely, that the C Form declarations were issued without the belief that the goods purchased were covered by exhibit P-1. I therefore quash exhibit P-4 order and allow the writ petition. I make no order as to costs. Petition allowed.
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1964 (7) TMI 30
... ... ... ... ..... und it more advantageous to keep his projectors with him for long periods for the purpose of exhibiting films for a profit, and select a proper time for disposing of the used projectors. The learned counsel for the assessee referred to the fact that the Income-tax Authorities had treated them as capital stock and allowed depreciation. The learned Government Pleader submitted that this fact would not have any bearing on the question whether the sales of such commodities were effected for the purpose of earning profit and whether they were in the course of the dealer s business activity of buying and selling. These latter factors will be germane for the purpose of levy of sales tax. The circumstances of the case clearly show that the essential ingredients of sale in the course of the business activity existed in respect of these transactions and their assessment to sales tax must be upheld. The revision case is dismissed. There will be no order as to costs. Petition dismissed.
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1964 (7) TMI 29
... ... ... ... ..... he Supreme Court came to the conclusion that the State Legislatures have no legislative competence to convert into tax what is not really a tax. In view of that decision, these petitions have to be allowed. We hold that the amended section 18(3) of the Act is unconstitutional as the Legislature had no competence to enact the same. As a consequence of that decision, we have to further hold that the impost made in pursuance of that provisions is also invalid. Further, the demands made in that connection are also illegal demands. The impost made, if any, under section 18(3) or the demands made under that provision (that will not include any sales tax validly levied) and impugned in these proceedings are hereby quashed. If any of the petitioners have paid any money in pursuance of any demand made under amended section 18(3), and challenged in these proceedings the State shall refund the same. The petitioners are entitled to their costs. Advocate s fee Rs. 100. Petitions allowed.
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1964 (7) TMI 28
... ... ... ... ..... r disputed at any stage of the proceedings that, whether delivery was inside the State or outside the State, the sale was for the purpose of consumption outside the State. We are not therefore called upon to decide the question now being raised by the department in the manner indicated above. We have therefore come to the conclusion that the answer to question No. (3), which was the only question that required to be answered, is in the negative. The answer is that there was no justification in law for the Tribunal to come to the conclusion that the goods were not actually delivered outside the State as a direct result of sale for the purpose of consumption in that State within the meaning of Article 286(1)(a) of the Constitution. As the assessee succeeds, we order that the department shall pay the costs of the assessee. The assessee will be entitled to the refund of the deposit in all the three cases before the Tribunal. Only one set of costs. Reference answered accordingly.
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1964 (7) TMI 27
... ... ... ... ..... ms as section 14(1) of the Act. It is not necessary for us to deal minutely with the reasoning of the learned Judges underlying the principle enunciated by them. Suffice it to say that for the reasons mentioned above, we feel that the terms of sub-section (4) of section 14 do not seem to warrant the construction that is put upon that section. We therefore express our respectful dissent from the principle embodied in Commissioner of Sales Tax v. Kunte Brothers (1). It is unnecessary to labour this point any further as we feel that the conclusion is inescapable from the language of sub-section (4) of section 14 that best judgment assessment is confined to situations envisaged in sub-sections (1) and (3) and cannot be extended to sub-section (4). For these reasons, we feel that the order under revision cannot be interfered with. In the result the tax revision cases are dismissed with costs in T.R.C. Nos. 26 and 27 of 1963. Advocates fee in each case Rs. 50. Petitions dismissed.
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1964 (7) TMI 26
... ... ... ... ..... en the necessary documents have been placed before the authority before whom it should be placed there can be a preferring of an appeal only when all those documents were placed before that authority. If that was not done within the period provided, the question will always arise whether the appeal should be admitted or not. This will depend upon the question as to whether there was sufficient cause for excusing the delay in preferring the appeal. I think therefore that this question must be considered by the second respondent. I, therefore, set aside exhibit P-2 and direct the petitioner to move a petition before the second respondent stating the grounds for excusing the delay in preferring the appeal. The second respondent will consider that petition on the merits and pass appropriate order under the first proviso to section 14(1) of the General Sales Tax Act, 1125. 12.. This writ application is disposed of as above. There will be no order as to costs. Ordered accordingly.
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1964 (7) TMI 25
... ... ... ... ..... a dealer who is residing in the Madras State, after the import of the said goods into the State of Madras. But it is well established that for the purpose of defining a dealer residing in the Madras State within the meaning of the proviso, the fictional conception of a dealer introduced by section 14-A of the Act, should not be applied vide Jain Jari Stores v. State of Madras 1962 13 S.T.C. 220. In the present case, the petitioners have been construed as dealers only for the purpose of section 14-A. Apart from that section, there is nothing to show that they could be construed as dealers in regard to these transactions. The learned Government Pleader appearing for the State does not seriously dispute this position so far as the petitioners are concerned. We, therefore, allow the revision case so far as the additional levy of tax on the petitioners under section 3(2) of the Act is concerned and dismiss the revision in other respects. No order as to costs. Ordered accordingly.
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1964 (7) TMI 24
... ... ... ... ..... iew of the Supreme Court, if a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer but unless the money so collected is due as tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer, nor can the State Legislature under the guise of incidental or ancillary power, do indirectly what it cannot do directly. Therefore apart from the question whether the assessee did in fact collect the amount by way of sales tax, it is clear that in accordance with the decision of the Supreme Court, the State Legislature has no power to enact that the amount collected by way of sales tax, when no sales tax is payable, should be paid over to the State Government. We therefore reject the revision case. The respondent is not represented. There will be no order as to costs. Petition dismissed.
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1964 (7) TMI 23
... ... ... ... ..... ns serial No. 20 of the First Schedule under which, according to the petitioner, it would fall. That serial number deals with vegetable oil. The word vegetable has been defined in the Shorter Oxford Dictionary as meaning (I) a living organism belonging to the vegetable kingdom or the lower of the two series of organic beings a growth devoid of animal life plant and (2) a plant cultivated for food especially an edible herb or root used for human consumption and commonly eaten. Sandalwood will certainly fall within the first of the meanings above, and therefore there appears to be no difficulty in classifying it as a vegetable oil falling within serial No. 20 of the First Schedule of the Sales Tax Act and excluding it from both serial No. 51 of the First Schedule and serial No. 6(a) of the Second Schedule. The revision case is allowed and the assessing authority will revise the assessment in the light of our findings above. There will be no order as to costs. Petition allowed.
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1964 (7) TMI 22
... ... ... ... ..... rnment collects tax from its purchasers under section 19, there is no quantification as such. If the State Government collects more tax than it is entitled to, then, the aggrieved parties must seek such remedies as are open to them under law. Similar is the position when a dealer reimburses tax under section 18(3). There is no distinction between the power conferred on a registered dealer under section 18(3) and that conferred on the State Government under section 19. We do not think that sub-section (2) of section 6-A of the Mysore Act IX of 1964 either bears on the point under consideration or is relevant for our present purpose, nor do we think that the decisions of this Court in M. Kuppuswami Naicker v. Commercial Tax Officer 1962 13 S.T.C. 322. and Kuppuswamy Naicker v. Commercial Tax Officer 1963 14 S.T.C. 894. have any relevance for our present purpose. In the result, this petition fails and the same is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1964 (7) TMI 21
... ... ... ... ..... ny of the matters enumerated in the State List or the Concurrent List. 12.. For the foregoing reasons, our conclusion is that Article 286 applied to Part C States. The first question is, therefore, answered in the affirmative. On this answer, the second question, which relates to the assessment of sales tax on bidis of the value of Rs. 31,059-12-0 delivered at places outside the former State of Vindhya Pradesh as a direct result of sale transactions for the purpose of consumption in those places must be answered in the negative. The third question must also be answered in the negative, whether the despatches of bidis of the value of Rs. 4,01,255-4-0 are regarded as merely transfer of goods from the assessee-firm s head office at Maihar to its branches outside Vindhya Pradesh or whether they constituted sales falling under the Explanation to Article 286(1). 13.. The assessee shall have costs of this reference. Counsel s fee is fixed at Rs. 150. Reference answered accordingly.
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