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Showing 21 to 40 of 112 Records
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1970 (4) TMI 149
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... ... ..... y expenses towards anything done at the time of or before delivery of the harida. The purchaser himself was to pluck the harida, collect, transport and crush the same. None of these things was done by the seller and was accordingly not to be included in the purchase price. 6.. The taxing authorities therefore exercised their jurisdiction wrongly and acted contrary to law in holding that the purchase price included collection, transport and crushing charges incurred by the petitioner. 7.. The writ application is allowed. A writ of certiorari be issued quashing the assessment orders and the order of the first appellate authority. The Sales Tax Officer, Koraput Circle-I (opposite party No. 1) is directed to re-compute the tax in accordance with law in the light of the observations made above. After re-computation, the petitioner would be entitled to refund of the excess amount, if already paid by him. There will be no order as to costs. ACHARYA, J.-I agree. Application allowed.
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1970 (4) TMI 148
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... ... ..... its turnover would be taxable at the rate of 2 per cent. under section 3 of the Act. As regards the special appeal, precisely the same question was mooted before a learned Single judge of this court. Reliance was placed on behalf of the department on the case of British India Corporation 1962 13 S.T.C. 459., where it was held that woollen carpet yarn would be included in the entry woollen goods and knitting wool . The learned Single judge merely followed that ruling with the observation that he was bound by the decision of another Single judge. We have already observed that the decision in British India Corporation is not correct. We would, therefore, allow this special appeal. In the end, the assessee is entitled to the costs of the two references which we assess at Rs. 100 in each case. The fee of the learned counsel in the references is assessed at Rs. 100 in each case. Similarly the assessee is entitled to the costs of the special appeal. References answered accordingly.
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1970 (4) TMI 147
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... ... ..... e orders. So rule 70 would not exclude the applicability of rule 77. Sub-section (3-B) of section 10 uses the words service of the order in the phrase within one year from the date of service of the order . Thus, it is the service of the order which is material. Rule 70 expressly does not deal with service, but communication to the parties concerned of the orders in appeal or revision, whereas rule 77 specifically deals with modes of service. To determine the date of service within the meaning of sub-section (3-B) of section 10, rule 77 cannot be ignored. Rule 77 being applicable, service on the counsel was sufficient to make the period of limitation commence to run. We would answer the question in the affirmative, against the assessee and in favour of the department. The Commissioner of Sales Tax would be entitled to costs which we assess at Rs. 100. The fee of the learned counsel for the department is also assessed at the same figure. Reference answered in the affirmative.
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1970 (4) TMI 146
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... ... ..... to the application of the goods for the purpose for which it was represented that the goods were intended to be used. This decision of the Supreme Court is of no assistance in resolving the question which we have been called upon to answer in the instant case. That question is as to whether an unregistered dealer can also be given a concessional rate of tax as provided in section 8 of the Central Sales Tax Act, if the sales are made to a registered dealer outside the State and the unregistered dealer procures C forms from the purchasers. In view of the conclusions arrived at by us, we are clearly of opinion that the unregistered dealer in such a case is entitled to the concessional rate. We accordingly answer the question in the affirmative in favour of the assessee and against the department. The assessee is entitled to the costs of this reference which we assess at Rs. 100. The fee of the learned counsel is also assessed at the same figure. Reference answered accordingly.
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1970 (4) TMI 145
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... ... ..... ractors under the written agreements do not amount to sales and are not liable to sales tax. Similarly, the questions referred in the reference made at the instance of the assessee-company (Miscellaneous Civil Case No. 271 of 1968) are answered in the negative as follows (1) Under the facts and circumstances of the case, the supply of building material to the contractors for getting the construction completed without written agreements did not amount to sales within the meaning of the C. P. and Berar Sales Tax Act, 1947. (2) The assessee-company is not a dealer within the meaning of section 4 of the C. P. and Berar Sales Tax Act, 1947, in respect of the supply of building material to its own contractors without written agreements for the purpose of execution of the contracts of constructions for and on behalf of the assessee. 8.. The assessee-company will be entitled to its costs in both the references which we assess at Rs. 200 in each case. References answered accordingly.
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1970 (4) TMI 144
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... ... ..... gainst the assessment order dated the 20th October, 1956. In that order the assessee was described as Mohammad Shafiq, namely the petitioner. In the body of the order it was stated that Mohammad Shafiq obtained the licence of tobacco in his own name for manufacturing biri. He had been carrying on business in the name of Mazdoor Biri Parishad, Rae Bareli. On these findings it is clear that the assessee is Mohammad Shaflq and not the Mazdoor Biri Parishad. That being so, Mohammad Shafiq is liable to pay the sales tax demanded as he is the assessee. If he had a grievance he should have agitated the matter in revision or in appeal against the assessment order. He cannot agitate this question in recovery proceedings. The present writ petition is not directed against the assessment order. It is not open to the petitioner to challenge the finding that he was the assessee in the proceedings for recovery. The petition fails and is accordingly dismissed with costs. Petition dismissed.
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1970 (4) TMI 143
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... ... ..... s purchased would come within the entry. So far as gasoline is concerned, Mr. Patnaik s contention is that during the relevant period gasoline was exempt from payment of Central sales tax, under section 8(2A), in Orissa and West Bengal. The Sales Tax Officer would examine this question also. 7.. Mr. Patnaik also advanced an argument that section 10A(1) is ultra vires, as it contravened article 14 of the Constitution. But, as already stated, we do not express any view on this matter as he wanted that it may be left open. 8.. In the result, the impugned order dated 9th November, 1966, and the demand notice dated 9th December, 1966, issued in pursuance of the order are quashed. The case would go back to the Sales Tax Officer who would re-examine the entire matter in accordance with law and in the light of the observations made in this judgment. The writ application is allowed, but in the circumstances there will be no order as to costs. ACHARYA, J.-I agree. Application allowed.
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1970 (4) TMI 142
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... ... ..... the assessing authorities to split up the agreement and spell out a case of sale. This is the confusion into which the Tribunal fell. We are satisfied, on a perusal of the terms of the agreement and the findings recorded by the Tribunal, that there was no sale of goods. The fact that the petitioner was being paid a major part of the consideration soon after the assembling of the movable goods does not also lead to the conclusion that there was a sale of those goods. Under the agreement such payments were made by way of advances. 8.. We would accordingly answer the question by saying that there are no two contracts (one for labour and another for sale of goods) in the P.W.D. F-2 agreement. It follows that there was no supply of materials for money consideration and they are not liable to sales tax. 9.. In the result the references are accepted, but without costs. The petitioner will be entitled to refund of reference fees. ACHARYA, J.-I agree. Reference answered accordingly.
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1970 (4) TMI 141
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... ... ..... d upon a decision of this court in Maheshwari Devi Jute Mills Ltd. v. The Commissioner of Sales Tax, U.P. (Sales Tax Reference No. 435 of 1967 decided on 15th December, 1969)(1). That case is clearly distinguishable on facts and the distinction has been pointed out by the Bench in the following words Further, it is pertinent to point out that whereas the contract between the parties in those cases contemplated an obligation on the part of the dealer to despatch the goods to any place indicated by the buyer, there is no such obligation under the contract between the assessee and the Kanpur buyers. Paragraph 1 of the contract is couched in entirely different terms. We accordingly answer the question by saying that the two lots of sales in dispute were inter-State sales and not intra-State sales. The assessee is entitled to the costs which we assess at Rs. 100, one set of costs only. The counsel s fee is assessed at the same figure in each case. References answered accordingly.
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1970 (4) TMI 140
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... ... ..... That rule lays down in clearest terms that the period of limitation shall be 12 months from the date on which the tax was paid on the sale of such goods in the course of inter-State trade and commerce. As we are of opinion that the conditions prescribed would take within their sweep the question of limitation also, the impugned rule is not ultra vires the Orissa Sales Tax Act. On the statement made by Mr. Roy that the application for refund was made beyond the period of 12 months, it is barred by limitation. 4.. Reliance was placed by Mr. Roy on Tirumurthi Chettiar v. State of Madras and Another 1968 21 S.T.C. 489., a single Judge decision of the Madras High Court, where, on similar language, a different view was taken. For reasons already discussed, we are unable to accept the Madras view as laying down the correct law. 5.. The application has no merit and is dismissed, but in the circumstances there will be no order as to costs. ACHARYA, J.-I agree. Application dismissed.
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1970 (4) TMI 139
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... ... ..... .T.C. 180 at 184 (S.C.) There can be no estoppel against a statute. If the law requires that a certain tax be collected, it cannot be given up, and any assurance that it would not be collected, would not bind the State Government, whenever it chose to collect it. and of Chandra Reddy, C.J., in Venkateswara Oil Mills v. State of Andhra Pradesh 1960 11 S.T.C. 555. It is now well settled that there could be no estoppel against a statute. Here, the Hyderabad General Sales Tax Act imposes a duty on every dealer to pay tax on the goods sold or purchased by him as required by the provisions of the Act. That being so, the dealer was under a liability to pay tax on his turnover and it was not competent for any official of the department to release any dealer from payment of such tax. Such a release will be null and void and cannot be relied upon by any dealer to evade payment of tax. In the result, the writ petition is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1970 (4) TMI 138
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... ... ..... als were chemicals. There seems to be no doubt that Tinopal is generally used for washing textiles and clothes. This use by cloth manufacturers, by laundrymen and even in homes is for washing purposes of clothes and textiles. Washing purposes thereof would include the whitening of the clothes after or along with the cleaning of its dirt and impurity. In our opinion, Tinopal would be a material used for washing purposes within the meaning of entry No. 32 which is the special entry and consequently it will be outside the purview of the original general entry chemicals of all kinds . We would answer the question by saying that Tinopal is taxable at 4 per cent. as washing material under item No. 32 of the notification dated 1st December, 1962, and not as a chemical under item No. 4 thereof. As no one has appeared on behalf of the assessee, there will be no order as to costs. The fee of the learned counsel for the department is assessed at Rs. 100. Reference answered accordingly.
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1970 (4) TMI 137
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... ... ..... 27-A(ii), we have no doubt in our mind that the provisions of rule 27-A(ii) are directory and in case the assessing authority is satisfied that the selling dealer has refused to furnish a certificate to the purchasing dealer in form S.T. XXX, it is open to the assessing authority to satisfy itself about the genuineness of the claim being made from the best evidence which may be available or even from the source of the selling dealer or in any other manner which the assessing authority may think proper in the circumstances of the case. This rule must be substantially complied with in order to enable the assessing authority to come to a correct finding of fact as to whether the dealer concerned is entitled to the deduction because of the provisions of sub-section (3) of section 5 of the Act. With these observations, this writ petition fails and the same is dismissed. However, keeping in view the circumstances of the case, there will be no order as to costs. Petition dismissed.
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1970 (4) TMI 136
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... ... ..... has been found and not in a case where the tax has been imposed on the basis of best judgment assessment. We are, therefore, unable to agree with the opinion of the Board of Revenue and are of the view that the first question must be answered in the affirmative (against the assessee). 3.. As regards the second question, on the data given, it is not possible to say that the assessment of the turnover at Rs. 1,00,000 was so unreasonable as to call for interference. The assessee himself had shown his turnover at more than Rs. 50,000. Only one detected item indicated that he had concealed the turnover worth about Rs. 25,000. In such a case, increasing the turnover by a total amount of Rs. 50,000 from what had been returned by the assessee cannot be said to be excessive. The second question also must, therefore, be answered in the affirmative (against the assessee). 4.. The assessee will pay the costs of the Commissioner which are fixed at Rs. 100. Reference answered accordingly.
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1970 (4) TMI 135
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... ... ..... d not advert itself to such contentions which could not be raised in the further appeal is, therefore, not maintainable. The Tribunal came to the correct conclusion. A fortiori, this is so in so far as the appeal relates to the additional grounds. It cannot be said that merely because the Tribunal allowed the application to amend the grounds of appeal, it is bound to consider it at the time when the main appeal comes up for hearing. No question of estoppel or election arises in such circumstances. When an amendment of the grounds of appeal is allowed, one cannot easily expect the Tribunal to advert itself to the main appeal and there is no occasion at all to do so. Therefore, when the main appeal was set for hearing, it had jurisdiction to say that the appeal before it was not maintainable in the eye of the law. The Tribunal exercised its jurisdiction which it had. There is no other error apparent on the face of the record. The writ petition is dismissed. Petition dismissed.
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1970 (4) TMI 134
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... ... ..... ses on the point, we are of the view that the goods sold by the petitioners in these cases are iron and steel as defined in entry (iv) of section 14 of the Central Act and that they cannot be taxed once over, if they had suffered tax in their raw or unmanufactured stage, that is, as iron and steel scrap. The petitioners have alleged that the iron and steel scrap, which they have used for manufacturing iron and steel sheets, bars, plates etc., had been subjected to tax, but this has to be established before the concerned authorities. In view of the fact that the factual question whether the iron and steel scrap had suffered tax at the purchase stage has to be investigated, we have to dismiss the writ petitions after expressing our view on the legal question, giving liberty to the assessing authority to ascertain the actual factual position and to proceed with the assessment, if any, in accordance with law. The above writ petitions are therefore dismissed. Petitions dismissed.
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1970 (4) TMI 133
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... ... ..... hessian must be distinguished from hessian cloth . Learned counsel reads hessian to mean a string of hessian (sutli) so that not only gunny bags (bora) were exempted for that particular period but also the jute or hemp string. Having regard to all the entries in the Schedules to the Act and the common use of the expression hessian cloth , which expression also occurs in their Lordships decision in Union of India v. Commercial Tax Officer 1956 7 S.T.C. 113 A.I.R. 1956 S.C. 202., we think that Shri V.S. Dabir is right. Hessian simpliciter is not the same thing as hessian cloth . It is remarkable that the department must be presumed to be aware of this notification, yet, it was not relied on either before the Board of Revenue or in the application for reference under section 44 of the Act. 16.. As a result of the above discussion, we answer the first question in the affirmative and, as a necessary consequence, the second question in the negative. Reference answered accordingly.
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1970 (4) TMI 132
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... ... ..... s Act, as laid down by the judgments of the Supreme Court cited above. We shall conclude by reference to the preamble of the Bengal Finance (Sales Tax) Act where it says, whereas it is necessary to make an addition to the revenues of Bengal, and for that purpose to impose a general tax on the sale of goods in Bengal. This preamble shows that it was intended to be a general tax on the sale of goods . This sale of goods must, in our view, be understood within the meaning of the Sale of Goods Act. Therefore, no interpretation should be given to the word business which will divorce it from the commercial context of business and sale of goods as understood in the Sale of Goods Act. For the reasons stated above, we answer the question in the negative in favour of the dealer-assessee and we hold that the sale proceeds of the canteen do not form part of the turnover on merits. In the circumstances, each party will bear its own costs. BASU, J.-I agree. Reference answered accordingly.
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1970 (4) TMI 131
Whether levy of the "Bale and Boja" tax was ultra vires the Municipality?
Whether a suit for refund of tax paid to the Municipality is maintainable?
Held that:- Appeal allowed. The rate of tax prescribed by the notification of 1912 alone could be enforced, subject to the limit prescribed by Article 276(2) of the Constitution. The Municipality was therefore incompetent to levy a tax at a rate exceeding Rs, 250/- for the whole year. The Municipality will pay the costs in this Court and in the High Court.
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1970 (4) TMI 130
Whether in view of section 9(3) of the Central Act, the assessee is entitled to the rebate provided in section 13(8) of the Orissa Act?
Held that:- Allow this appeal and set aside the order of the High Court and issue a direction to the respondents to grant to the appellant the rebate provided in section 13(8) of the Orissa Act.
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