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Showing 21 to 40 of 74 Records
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1971 (4) TMI 88
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... ... ..... tice. So, in our judgment, it could not be the basis of taking proceedings under section 21(1). The basis of taking proceedings under that provision is the first notice which was served on the assessee on 24th February, 1959. The use of the definite article the before notice in the first proviso supports our interpretation of the expression the notice under subsection (1) in that proviso. The definite article suggests that the notice is one which justifies the assessing authority in taking proceedings against a dealer. It cannot be a notice which is a needless repetition of the first notice. Accordingly as long as proceedings were continuing on the basis of the first notice, there was no need for another notice for taking proceedings under that section on the same facts and in the same circumstances. In the result our answer to the question, as reframed by us, is in the negative. The assessee shall get his costs which we assess at Rs. 100. Reference answered in the negative.
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1971 (4) TMI 87
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... ... ..... ea. All that is held by the Supreme Court is that a local area in entry 52 is equal to an area like the Panchayat, District Board and the like and if that local area is notified and the entry of the goods into that area is subject to levy of cess, its validity cannot be assailed merely because the entry of sugarcane into the factory was actually the point at which the cess was collected. The challenge on the validity of the levy of cess fails. The tax case and all the writ petitions except W.P. Nos. 765, 939 and 940 of 1971 are allowed in so far as they relate to the inclusion of cess in the chargeable purchase turnover and the refusal of deduction we have dealt with. W.P. Nos. 765, 939 and 940 of 1971 are dismissed. We make it clear that though the assessees have raised other points they are not covered by this judgment and they will have to seek relief in the appeals which are said to be pending. In the circumstances there will be no order as to costs. Ordered accordingly.
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1971 (4) TMI 86
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... ... ..... e. This provision is analogous to the provision regarding reference under the Income-tax Act. If the Board refuses to refer, it must record reasons for the same and against the order of refusal the assessee has a right to apply to the High Court. In this background it is, in my opinion, incumbent on the part of the Board to hear the assessee before an adverse order is passed thereon, and the Board by exercising jurisdiction under section 21(1) acts as a quasi-judicial body. It is quite possible for the assessee to satisfy the Board that the question sought to be referred to is a substantial question of law, and to deny the opportunity by the Board, which is a quasi-judicial body, it cannot be said that the Board acted in accordance with law. The Rule is therefore made absolute. The order complained of is set aside. The matter is to go back to the Board of Revenue who will now pass the order after hearing the petitioner. There will be no order as to costs. Rule made absolute.
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1971 (4) TMI 85
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... ... ..... sible to imply any separate contract of sale regarding the packing materials. The decision in Commissioner of Taxes v. Prabhat Marketing Co. Ltd. 1967 19 S.T.C. 84 (S.C.). only illustrates a case where even in spite of the fact that the price of the containers is not separately charged or fixed there can still be an express or implied agreement for the sale of such containers. 7.. The inference drawn by the Tribunal from the entry in the invoice alone cannot be sustained in view of the principle of law stated by their Lordships of the Supreme Court and in view of the proportion which the value of the packing materials bears to the goods purchased. We, therefore, set aside the decision of the Tribunal in so far as it holds that there is an implied sale in respect of the packing materials, and hold that the turnover of Rs. 26,460.19 is assessable to tax only at 2 per cent. and not at 10 per cent. The revision case is allowed. But we make no order as to costs. Petition allowed.
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1971 (4) TMI 84
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... ... ..... ales. That being the case, we do not understand how purchase tax can also be levied at the purchase point of the sales which were also the subject-matter of charge. If the purchases were made from householders or other persons who are not dealers, even so, inasmuch as the transactions were not liable to tax at all under the Act, on that ground, section 7-A could not be invoked. On the view we have taken of the scope of section 7-A as indicated earlier in this judgment, counsel for the petitioners, who initially sought to argue on the basis of articles 14, 19(1)(f) and (g) of the Constitution, did not pursue the line. The petitions are allowed. We make it clear that, wherever it is necessary, the department may reopen final assessments already completed and modify them in accordance with this judgment, and wherever there are no final assessments made, they may proceed to assess, but subject to and in the light of the observations in this judgment. No costs. Petitions allowed.
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1971 (4) TMI 83
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... ... ..... ed within the usual 90 days after the last order passed in revision and hence those petitions should be rejected on the ground of delay. Since we have come to the conclusion that the assessment of penalty was wholly without jurisdiction, we do not agree that those petitions should be dismissed merely on the ground of delay. There is no limitation prescribed for filing a writ petition and imposition of a large amount of penalty certainly affects the fundamental rights of the petitioner. 10.. The result, therefore, is that all the four writ petitions are allowed, the assessment of penalty under section 17(3) in all these cases is quashed and we direct that the amount of penalty so assessed shall not be realised from the petitioner in any of these four cases. The petitioner will get his costs from the respondents in all these cases. Counsel s fee Rs. 100, if certified. The amount of security for costs shall be refunded to the petitioner in all the four cases. Petitions allowed.
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1971 (4) TMI 82
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... ... ..... Schedule of the Madras General Sales Tax Act, 1959, will take in nylon and is therefore exempt from sales tax. It is no doubt true that the decision interpreted the expression artificial silk fabrics in item 4 of the Third Schedule of the Madras Act. But the said decision discusses the nature of nylon . In view of the discussion in that decision, the learned Government Pleader did not very seriously dispute the proposition that nylon yarn is artificial silk yarn coming within the meaning of the said notification. If so, the claim of the assessee has only to be upheld. We, therefore, hold that the turnover of the nylon yarn of the petitioner has to be assessed for the assessment year 1966-67 at the reduced rate of 2 per cent. on the basis of the Government notification No. G.O. Ms. 361/64/Rev. dated 4th June, 1964, issued under section 10 of the Kerala General Sales Tax Act, 1963. The revision case is allowed to that extent. But we make no order as to costs. Petition allowed.
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1971 (4) TMI 81
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... ... ..... evenue, dated 27th April, 1959, and this advantage having been denied by the revenue as well as the authorities functioning as quasi-judicial tribunals under the Act and ultimately the benefit having been denied by the very executive who passed the above G.O., the entire process of assessment projects errors apparent on the record. Besides, at every stage when the petitioner was subjected to the levy, it was beyond the jurisdiction of the authorities so to act, as it was in the teeth of the clear exemption envisaged in the G.O. I have already expressed the view that the absence of form in the sense that there was no notification under section 17 in this particular regard will not make any difference whatsoever. As the petitioner has failed to obtain justice in the hands of the appropriate authorities functioning within and without the Madras General Sales Tax Act, I, in my discretion, make the rule nisi absolute, and this writ petition is allowed. No costs. Petition allowed.
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1971 (4) TMI 80
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... ... ..... ements to the effect that every attempt was made to serve the petitioner and that the Commercial Tax Officer got the impression that the petitioner was trying to evade service. 22.. Assuming for purposes of argument that the Commercial Tax Officer s observations were factually incorrect, the petitioner cannot get rid of the fact that he was in fact served with a notice of demand before 16th December, 1957, on which date his lawyer addressed a notice to the Commercial Tax Officer, Calcutta, the first respondent. He had no excuse therefore for not taking steps available to him under the Bengal Act to get rid of the order if he thought that it was wrong or lacked jurisdiction. 23.. Not having done so, he cannot now ask this court under article 226 of the Constitution to quash the said order. 24.. The writ petition is, therefore, dismissed. The petitioner will pay the costs of the first respondent, the Commercial Tax Officer, Calcutta. Advocate s fee Rs. 150. Petition dismissed.
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1971 (4) TMI 79
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... ... ..... the supplementary statement of fact from the Commercial Taxes Tribunal was its finding as to whether on the materials on record, the assessee had transported the goods out of the territory of India under an obligation to export, as was its case. The supplementary statement of the case clearly mentions that the assessee had connection with the transport of the goods across the border of India and that its transport to Nepal was under an obligation placed on the assessee. Therefore, on the facts and circumstances of the case the answer to the question of law referred for opinion of this court must be that the sales amounting to Rs. 26,454.99 and Rs. 43,255.44 should be treated as sales in the course of export out of the territory of India. Thus, the assessee is entitled to the exemptions claimed and the references must be answered in its favour. The assessee is entitled to its costs of this court which is assessed at Rs. 250. SINGH, J.-I agree. References answered accordingly.
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1971 (4) TMI 78
Vires and constitutionality of sections 2, 5, 8 and 9 of the Andhra Pradesh General Sales Tax (Amendment) Act, 1970 challenged - Held that:- Appeal allowed. The mere fact that in many cases it was not collected because the assessment could not be completed cannot be a valid ground nor can it even now be made in regard to those assessments which are now pending (a matter upon which we do not pronounce) cannot be valid grounds to declare the classification as arbitrary or unreasonable, which reason seems to have weighed with the High Court. We think not only the classification reasonable but there is an intelligible differentia furnishing a nexus with the object, the Amendment Act seeks to achieve. In this view we set aside the judgment of the High Court declaring section 9 as unconstitutional and allow the appeal, but in the circumstances without costs.
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1971 (4) TMI 68
Oppression and Mismanagement, Composite petition, Cost and expenses payable out of assets in a winding-up by Court
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1971 (4) TMI 59
Amalgamation ... ... ... ... ..... der the second proviso to section 394(1) of the Companies Act in which he states that he had obtained a report from M/s. Kalyaniwalla and Mistry, chartered accountants, and on the basis of the said report he was of the opinion that the affairs of the petitioner-company have not been conducted in a manner prejudicial to the interests of its members or public interest. In the result, I grant the petition in terms of prayers (a ) to (i). The petition has been opposed only by the Central Government on a notice issued to them under section 394A of the Companies Act. I have taken into consideration the representations made by the Central Government and I have ultimately granted the petition. The Central Government are not a party to these proceedings. There will, therefore, be no order as to costs in their favour or against them. The costs of the official liquidator and of the petitioner-company will come out of the assets of the companies which have been ordered to be amalgamated.
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1971 (4) TMI 49
Winding up – Power to order public examination of promoters directors, etc. ... ... ... ... ..... ants, M. U. Krishna Iyer and V.D.M.R.M.M. Muthiah Chettiar, it is seen that they were merely directors of the company without taking part in the management of the company and they are said to have passed resolutions brought in by the managing agents. As already stated, that will not form the basis of a charge of fraud and there is no material available in the official liquidator s report to show that they passed the resolutions with any fraudulent intention. Hence I cannot agree with the lower court that a charge of fraud has been made out against them. The order for their public examination cannot, therefore, be sustained. In the result, C.M.A. 302 of 1970 is allowed in part in so far as it relates to the third appellant (M.U. Krishna Iyer) and in other respects the order of the lower court is affirmed. C.M.A. 347 of 1970 filed by V.D.M.R.M.M. Muthiah Chettiar is allowed. No costs. The respondent in both the appeals is entitled to a sum of Rs. 250 to come out of the company.
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1971 (4) TMI 40
Aluminium cans or torch bodies ... ... ... ... ..... d are not capable of being bought and sold in the market. It is, therefore, obvious that the aluminium cans or torch bodies do not satisfy the description of goods as contemplated by the Act. That being so, the aluminium cans or torch bodies produced by the petitioner as an intermediate product in the manufacture of flashlights are not excisable goods as contemplated by section 3 of the Act, and they are not excisable to excise duty. 10.The writ petition is accordingly allowed and a writ of mandamus is issued to the respondents, restraining them from levying of collecting excise duty on the aluminium cans or torch bodies produced by the petitioner in the manufacture of aluminium flashlights. Any excise duty already collected on this produce will either be refunded by the respondents to the petitioner or adjusted against the levy of excise duty in respect of other excisable goods produced by the petitioner. The respondents will pay the costs to the petitioner of this petition.
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1971 (4) TMI 39
Fan - Classification of goods ... ... ... ... ..... an be used as a fan. The article is not capable of being used as a fan. The decision of the Central Excise Authorities that the articles fall within the Tariff Item No. 33 is patently erroneous. By erroneously construing the said item, the Central Excise Authorities recovered the excise duty, penalty from the petitioners and had confiscated one fan. For the aforesaid reasons these orders cannot be sustained and, therefore, the said orders passed by the Central Excise Authorities, to the effect, that the petitioners are liable to pay excise duty and penalty in respect of the articles in question are quashed. The order confiscating one toy fan is also quashed. As no duty or penalty is payable in respect of the articles in question, the duty or penalty, if paid, is ordered to be refunded and it is directed that the confiscated toy fan be returned to the petitioners. The rule issued on the petition is accordingly made absolute. The respondents to pay the costs of the petitioners.
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1971 (4) TMI 38
Agricultural implements - Interpretation of statutes ... ... ... ... ..... ignificance and cannot apply to agricultural implements and tools. We are in respectful agreement. No tax can be imposed on the subject without words in the Act clearly showing an intention to lay a burden upon him. If the interpretation of a fiscal enactment is open to doubt, the construction most beneficial to the subject should be adopted. In other words, the subject cannot be taxed, unless he comes within the letter of the law. Applying these well established principles, it follows that the goods manufactured by the petitioner do not fall within the ambit of sub-item (ia) of item 26-AA in the First Schedule of the Act. 5. In the result we hold that the demand as per Exts. P3 and P4 are without authority of law, and that the petitioner is not liable to excise duty in respect of agricultural implements and hand-tools manufactured by it. Accordingly this writ petition is allowed and Exts. P3 and P4 are quashed. In the circumstances of the case, we make no order as to costs.
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1971 (4) TMI 37
Whether Section 187A of the Act is unconstitutional on the ground that it is violative of Article 14 of the Constitution?
Held that:- The power conferred by Section 187A has to be exercised for effectuating the object and purpose of the Act keeping in view the entire scheme. It cannot, therefore, be said that any unguided discretion or power has been conferred of the nature which would come within the inhibition of Article 14. The principal contention of the learned counsel for the appellant based on Article 14 must fail.
We are satisfied that the High Court rightly upheld the conviction for the offences in question but taking into consideration every aspect of the matter we consider that the sentence of imprisonment already undergone by the appellant together with the fine which has been imposed apart from the order relating to the confiscation of goods will serve the ends of justice. Appeal allowed in part
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1971 (4) TMI 36
Assessment Proceedings ... ... ... ... ..... tion of the assessee and the huge fund that he had at his disposal for earning income and his potential capacities to earn income . So the assessee is a man of consequence. Although his explanation was not believed, it appears to us that it was not a fantastic or improbable explanation in view of his good financial position. The department produced no evidence to show that the sum of Rs. 9,45,000 was in all probability the income of the assessee from other sources. Sri Gopal Behari has referred us to Commissioner of Income-tax v. Ved Nath Singh and Commissioner of Income-tax v. Indian Woollen Textile Mills in support of his arguments. Those cases proceed on their own facts and are not apparently helpful in this case. In view of the foregoing discussion, our answer to the question reframed by us is in the negative. The assessee shall get his costs from the Commissioner of Income-tax, which we assess at Rs. 200. Fee of counsel for the department is assessed at the same figure.
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1971 (4) TMI 35
By this writ petition, filed under article 226 of the Constitution of India, the petitioner seeks a writ or direction prohibiting or restraining the Income-tax Officer, Rajahmundry, from proceeding further in pursuance of notice dated December 11, 1970, issued under section 148 of Income-tax Act, 1961, proposing to reopen the assessment for the assessment year 1965-66 and requiring him to file a return of income for the said assessment year - Whether individual partner's assessment can be reopened after the discovery of concealment of income by the firm
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