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1969 (11) TMI 94
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... ... ..... er the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to court after the issue of the notification under Section 6(1). 10. Moreover if it was the intention of the Legislature that in cases of urgency a notification under Section 4(1) was not necessary, a suitable provision would have been made in Section 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other unforeseen emergency, the Legislature only thought it fit to by-pass the provisions of Section 5A but not those of Section 4 Sub-section (1) 11. In this view, we did not think it necessary to hear Mr. Gupte on the other points. The appeals will therefore be allowed and the judgment of the High Court set aside. There will be no order as to costs.
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1969 (11) TMI 93
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... ... ..... in filing a copy of the decree appealed from was that the appellant was an illiterate person and a copy of the decree had not been filed by him along with the memorandum of appeal through an oversight. This laconic application has not even been supported by an affidavit. It is now well settled that ignorance of law is no excuse and mistaken advice negligently given by a counsel cannot be a ground for condonation of delay. In the circumstances, the delay cannot be excused. It is also interesting to note that in neither of the aforesaid two rulings viz., AIR 1922 Lah 170 and AIR 1923 Mad 482 cited by Mr. Suri the discretion in favour of the appellant was exercised under Section 5 of the Limitation Act 9 and the delay in filing a copy of the decree excused. The Collector was, therefore, right in dismissing the appeal as time barred. 15. This appeal, therefore, fails and is hereby dismissed but in the circumstances of the case without any order as to costs. 16. Appeal dismissed.
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1969 (11) TMI 92
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... ... ..... te court does not have any opportunity of watching the demeanour of the witness it has to go by the record of the case. Of course if any comment is made by the trial Judge about the demeanour of a witness, the appellate court takes note of it. But it never guides itself entirely by such comments. The entire evidence has to be looked into and assessed as a whole. Where as here the punishing authority does not hear the evidence but goes by the record of the case the demeanour of a particular witness when giving evidence can have but little meaning and cannot influence the mind of the Disciplinary Authority in awarding punishment. We therefore hold that the High Court was not right in quashing the order of dismissal on the ground that the report of the Inquiry Committee was vitiated by the violation of any principle of natural justice as stated in the judgment. The appeal is therefore allowed and the order of the High Court set aside. There will however be no order as to costs.
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1969 (11) TMI 91
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... ... ..... ments they make, is also shown I think, by paras. 5 and 6 of the schedule under which these bills could have been admitted to proof had the acceptors become bankrupt, or would have constituted a good petitioning creditor's debt had the debtors committed an available act of bankruptcy. These observations of the House of Lords with reference to the Exchange Control Act, 1947 are equally applicable to show the purposes and object of the Foreign Exchange Regulation Act, 1947. In the context of these objects, neither the provisions of Section 21 (3) (c) of the Act, nor the principles of natural justice can be said to require that before the Reserve Bank of India giants permission to a decree-holder to execute a decree against the judgment-debtor, an opportunity of being heard should be given to the judgment-debtor. 10. For these reasons, I am of the opinion that there is no substance in the Writ Petition and the same fails and is dismissed. There will be no order as to costs.
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1969 (11) TMI 90
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... ... ..... hat was one of the purposes of the operation. In conclusion, I must mention shortly the contention under paragraph (b) in section 137. I do not see how the expense of this operation could on any ordinary use of the words be treated as an expense of maintaining the taxpayer, his family or establishment. On the other hand, the second limb of paragraph (b) is more or less automatically satisfied where paragraph (a) is satisfied, that is to say a sum which is expended in part for the purposes of a trade and in part for the purposes of a hobby is a sum expended for some other domestic or private purpose distinct from the purposes of the profession. I base this conclusion, as I hope I have made clear, on the finding that this expense was incurred to enable the taxpayer to continue to practice his hobby of playing the guitar, as well as to exploit his skill professionally by playing it. Appeal dismissed with costs. Solicitors Egerton Sandler & Co. ; Solicitor of Inland Revenue.
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1969 (11) TMI 89
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... ... ..... ritten upon, its utility as paper is lost; but such paper which is printed upon, drawn upon, or written upon is not a product of paper, though it may be said that it is no more paper and it has acquired a new characteristic or utility the characteristic or utility of a book or picture. This is what has been said by the American Supreme Court in James Pott's case already cited "no man of literary culture would call a book, paper or a manufacture of paper" A book is neither paper nor a product of paper that is how it is commonly understood too. 6. In the case before us, the position is therefore quite simple. The printed material supplied by the petitioner using even his own paper is neither paper nor a product of paper. It cannot then come within item 42 of schedule I of the Sales-tax Act and the State has no other claim to tax the petitioner. The revision case is allowed and the assessment is set aside. The petitioner will also get his costs before us. Allowed.
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1969 (11) TMI 88
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... ... ..... n. (3) After noting that a technical breach of rules had been committed the Board or the Chairman may have decided not to take any action. (4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases. (5) The Board could have given an authoritative interpretation of the words 'lectures given' in clause (iii) of regulation 5 of chapter XII and decided whether the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason." But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage. In the result the appeal fails and is dismissed. As the petitioner (now respondent) is not represented there will be no order as to costs. Appeal dismissed.
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1969 (11) TMI 87
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... ... ..... . The taxpayers sought to refute the Crown's method by the argument that it did not make allowance for overhead expenditure ; but they did not contend, as I understand, even as an alternative, that the Crown's method would be correct, provided it made such allowance. Hence, if the Crown's method is wrong, the consequence is, not that the taxpayers' method is right, but that there is here no scope for the alternative of market value at all. So the taxpayers would be left simply with the stock being taken at cost. I confess that, for myself, with all respect, I do not see any really acceptable or logical basis for a differentiation being drawn between the salesmen's commission and the other overhead expenses. The latter, I think, were rightly disregarded. But the Crown has made this concession. I agree that the appeal should be dismissed. Appeal dismissed with costs. Leave to appeal granted. Solicitors Titmuss, Sainer and Webb ; Solicitor of Inland Revenue.
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1969 (11) TMI 86
Whether the appropriate Government has disposed of the case as expeditiously as possible?
Held that:- In the present case, the State of West Bengal is guilty of infraction of the constitutional provision not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional, obligation by inactivity and lack of independent judgment. Appeal allowed.
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1969 (11) TMI 85
Whether the Sea Customs Act, 1878 applies?
Whether the Bihar Regulation I of 1951 is in excess of the Governor's powers?
Whether the Land Customs Act, 1924 applied on the relevant date of occurrence namely 13 December, J961 to the Santhal Parganas?
Whether the Inspectors Uma Shankar and B. N. Jha were acting in the discharge of public duties?
Whether they could arrest the appellants, and thirdly, whether they could seize the cloves?
Held that:- In the present case, the provisions of the Sea Customs Act, 1878 are attracted by reason of the provisions contained in section 3 of the Imports and Exports Control Act, 1947 and all that can be said is that if section 19 of the Sea Customs Act, 1878 were repealed then the Sea Customs Act, 1878 would not be attracted. Section 19 of the Sea Customs Act, 1878 has not been repealed and was extant and is now reenacted as section 11 in the Sea Customs Act, 1962 and there has been corresponding change in the Imports and Exports Control Act, 1947 by reference to the Sea Customs Act, 1962 and section 11 thereof.
The Bihar Regulation I of 1951 is an instance of a valid piece of legislation emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation.
It will appear in volume 7 page 5792 of the Bihar Local Acts (1793 to 1963) published by Bharat Law House, Allahabad in the year 1966 that the Indian Tariff Act, 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872 and the Indian Tariff Act, 1894 which was repealed by the' Indian Tariff Act, 1934 was similarly declared to be in force in the Santhal Parganas.
Cloves are goods the import of which is prohibited by the Imports and Exports Control Act, 1947 and they are dutiable goods by reason of that meaning of cloves in column 3 item No. 9 (3) of the First,-,Schedule to the Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955. Cloves are, prohibited goods within the Imports and Exports Control Act, 1947A and are, therefore, deemed to be prohibited under section 19 of the Sea Customs Act, 1878. The circumstances indicated a reasonable suspicion and, therefore, the Officers were justified in arresting the appellant Nazir Mian under section 173 of the Sea Customs Act, 1878. Appeal dismissed.
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1969 (11) TMI 84
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... ... ..... in the particular commodity sold, the turnover regarding that commodity cannot be assessed to sales tax. In this case, the petitioner is a hotel-keeper and his business consists in the sale of articles of food. He is not carrying on business in cow-dung and live-stock. The sales in respect of those commodities cannot be considered to be those in the course of business and they have merely been necessitated by circumstances, namely, that the petitioner had to maintain cattle for obtaining milk which was necessary for his hotel business. In this view of the matter, we are of the opinion that the authorities below were not right in considering that the turnover relating to live-stock and cow-dung was assessable to sales tax. We direct that the sales relating to live-stock and cow-dung be excluded from the assessable turnover in respect of all the three years. The revision petitions are partly allowed. In the circumstances we make no order as to costs. Petitions partly allowed.
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1969 (11) TMI 83
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... ... ..... Legislature s intention is quite clear that it is not only the law in force when the Central Act was enacted but the State law in force from time to time. With respect, we are unable to agree with the decision in Shah and Co. v. State of Madras 1967 20 S.T.C. 146., that what has been adopted is only the law as it stood when the Act was enacted, since in our opinion, the Parliament was competent to adopt the State law not only as it existed at the time of the enactment of the Act but also as it may exist in future including amendments made from time to time, where the adoption of law is with respect to the rate of taxation and the procedural law for assessment and collection of tax. The Parliament, in our opinion, has not abdicated any of its essential legislative functions. Thus, both the grounds urged by the learned counsel for the petitioner fail. For the reasons stated above, this writ petition fails and is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1969 (11) TMI 82
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... ... ..... the distinction was made primarily for the purpose of that publication. The publication expressly speaks of sanitary wares and fittings thereof and necessarily contemplates a contradistinction between the two expressions. In the Notification No. ST-905/X dated 31st March, 1956, no such distinction has been drawn. It is not disputed that so far as cisterns, pipes and other items are concerned, these are to be treated as sanitary fittings. The dispute has arisen only in respect of major items such as wash-basins, commodes and urinals. In the view that we are taking, we are of opinion that all these commodities-major and minor items-fall within the expression sanitary fittings entered in Notification No. ST-905/X dated 31st March, 1956. We answer the question referred accordingly. The Commissioner of Sales Tax is entitled to his costs, which we assess at Rs. 100 as one set of costs in both the cases. Counsel s fee is assessed at the same figure. Reference answered accordingly.
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1969 (11) TMI 81
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... ... ..... n the basis of facts which were not before it when it passed the order . Though prima facie those words may bring in a case like the one under consideration, we are inclined to think that the power being one of review, the general principles applicable to that power, which are so well-settled by now, should be borne in mind in assessing the scope and effect of section 12-B(7)(a). Obviously, review is not intended to correct the laches or omission or negligence of the parties in not placing the relevant decision before court. On that view, the petition is dismissed. No costs. Petition dismissed.
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1969 (11) TMI 80
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... ... ..... de in this case on 18th December, 1962, which had been rendered invalid according to the view taken in the case of Firm Jagmohandas Vijaykumar(1) was validated by section 18-A of the new Act and, in view of sub-section (1a) of section 52 of that Act, it is governed, subject only to one exception which is here not relevant, by the repealed Madhya Bharat Act as if the new Act had not been passed. It is also now conceded by the learned (1) Miscellaneous Petition No. 37 of 1963 decided on 31st March, 1964. counsel for the assessee and the Government Advocate that this is so. It follows that there was in this case no right of second appeal. 7.. We have answered this reference on the assumption that it was validly made. As we have already indicated, a second appeal itself was incompetent and any order passed in such appeal could not be the basis of a valid reference. 8.. We direct the assessee to pay all costs of this reference. Hearing fee Rs. 100. Reference answered accordingly.
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1969 (11) TMI 79
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... ... ..... be no discrimination between B and C, for, in either case, the turnover would only be Rs. 150 and the same rate would be applied. There can be no complaint also that A suffers lesser tax on a lesser turnover while B, on a higher turnover, did at the same rate. Each of A, B and C had been equally treated and no differential is evident either in the quantum or in the rate applied thereto. That is the result of applying the statutory provisions relating to unlicensed dealers. We do not think that the assessee, as an unlicensed dealer, can invoke the position under section 5 read with rule 16 and then plead discrimination because, in actual point of tax, the charge in respect of his turnover was under the multi-point scheme of taxation. On that view of the matter, we are, with due respect, unable to concur on that question with the view in Hajee Abdul Wahab and Sons v. Government of Madras 1966 17 S.T.C. 284. The appeals are therefore allowed but with no costs. Appeals allowed.
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1969 (11) TMI 78
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... ... ..... o varnish by the company. Again in Vishweshwaradass Gokuldass v. The Government of Madras 1962 13 S.T.C. 113., this court held that even a barter or exchange of goods might become a sale under the Sales Tax Act provided there is transfer of property in the goods and such transfer is in the course of trade or business. The mere fact that, instead of receiving cash, the assessee received raw materials of that value towards part-price of the finished product would not therefore make the transaction anything but a sale of the finished product. In the light of our conclusions of facts and as we are unable to agree with the interpretation put by the Tribunal on the contract in question, we set aside the order of the Tribunal and hold that the sales in question are second sales and the petitioners are entitled to the concession to which they are statutorily entitled on the basis that they are second sales. The tax case is allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1969 (11) TMI 77
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... ... ..... ual force to a case under the corresponding provisions of the U.P. Sales Tax Act. To my mind, ordinarily when an assessment case of a dealer in respect of a certain assessment year is transferred from one Sales Tax Officer to another, the latter enjoys the jurisdiction not only to make the original assessment but also, should the occasion arise, to reassess that dealer for the said assessment year, and all the proceedings so taken must be considered as proceedings in that case. In this view of the matter, the case of the assessee having been transferred from the Sales Tax Officer, Sector I, to the Sales Tax Officer, Sector VI, jurisdiction to take the proceedings under section 21 vested in the Sales Tax Officer, Sector VI, and not in the Sales Tax Officer, Sector I. I would answer the question referred accordingly. The assessee is entitled to his costs which I assess at Rs. 100. Counsel s fee is assessed in the same figure. GULATI, J.-I agree. Reference answered accordingly.
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1969 (11) TMI 76
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... ... ..... as it relates to the collection of Rs. 3,000, is made in excess of the jurisdiction conferred upon him and to that extent the impugned order is liable to be quashed. In that result since the Special Commercial Tax Officer acted within the limits of his jurisdiction in collecting a sum of Rs. 1,000 by way of composition for the offence committed by the petitioner, the impugned order to that extent is held valid. As regards the collection of Rs. 3,000 as already held by us, it is done without jurisdiction, as that amount could not have been collected invoking clause (a) of sub-section (1) of section 32 of the Act. Therefore, the order to the extent it relates to the collection of Rs. 3,000, as if it were a tax, is quashed and the Special Commercial Tax Officer is directed to refund that amount to the petitioner. This petition is allowed in part to the extent indicated above, but in the circumstances we make no order as to costs. Advocate s fee Rs. 200. Petition partly allowed.
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1969 (11) TMI 75
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... ... ..... h precision be attributed to the business of the dealer during the assessment year. It may be that he secured a profit by various other enterprises unconnected with the business from which the taxable turnover arose. The Board, after noticing the expression anamath labam in the pocket-book, came to the conclusion straightway that it is attributable to the business and on that basis multiplied such profit by 21 times and arrived at the conclusion that there was suppression of sales to the extent of Rs. 1,55,400. In our view, the conclusion has not been judiciously arrived at. It appears to be hopelessly naked and arbitrary. We are unable to appreciate that there was any acceptable basis before the Board to revise the assessment in the manner it did and refix the turnover as if it was an original assessing authority at Rs. 2,43,220. Even on merits, therefore, the appeal should be allowed. In the result, the appeal is allowed. There will be no order as to costs. Appeal allowed.
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