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Showing 21 to 40 of 103 Records
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1973 (3) TMI 132
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... ... ..... n) royalty has been defined as a pro rata payment to a grantor or lessor, on the working of the property leased, or otherwise on the profits of the grant or lease. The word is especially used In reference to mines, patents and copyrights . It, therefore, appears that royalties are payments which the Government may demand for the appropriation of minerals, timber or other property belonging to the Government. The same view has been taken in Bherulal v. State of Rajasthan and AnotherA.I.R. 1956 Raj. 161. and S.M.S. Industries v. State of RajasthanA.I.R. 1958 Raj. 140. All these decisions support our conclusion that on payment of royalty the opposite party acquired title to the chips and stones extracted from the quarries. 21.. We would accordingly answer the second question by saying that the supply under the contract in question constituted sale. The references are accordingly answered. There would be no order as to costs. ACHARYA, J.-I agree. References answered accordingly.
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1973 (3) TMI 131
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... ... ..... takes some portion of the bhog and gives the remainder to the worshipper. The question arose whether there was a sale of bhog and the turnover of such sales was liable to sales tax. The learned Judges held that there was no sale of bhog because there was no bargaining between the worshipper and the temple. Alternatively, they stated that the temple could not be said to be carrying on the business of selling bhog and in support of that reasoning, they relied on the decision under appeal. We do not wish to say anything about the first part of the decision, but about the alternative reasoning, we must respectfully differ if it implies that the criterion of profit is not relevant at all and if the decision intended to lay down that the destination of the profit has any relevance. In the result, we allow the appeals, set aside the order of the learned Judge and dismiss the writ petitions filed by the assessee. The parties will bear their costs in both the courts. Appeals allowed.
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1973 (3) TMI 130
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... ... ..... v. Excise and Taxation Officer 1972 29 S.T.C. 585., that The differentiation between the two classes of dealers (mentioned in section 10 of the Amendment Act) is founded on a justifiable ground and has been devised to achieve one of the objects of the Act. There does exist nexus between the object of the Amendment Act and the classification engendered by section 10 of the Act. Our concluded opinion, therefore, is that the impugned portion of section 10 of the Act is not ultra vires of article 14 of the Constitution. It follows that it is unnecessary to consider whether the impugned portion of that section is severable from the rest of the section. The other contentions raised in the writ petition can be conveniently urged before the appellate authority where admittedly the appeal is still pending. No arguments, therefore, were advanced before us on any other point. For the foregoing reasons, we dismiss the writ petition with costs. Advocate s fee Rs. 200. Petition dismissed.
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1973 (3) TMI 129
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... ... ..... ficer suffer from this patent infirmity. Learned counsel for the petitioner raised other arguments relating to the absence of mens rea, the miscalculation of the penalty and the Revenue Board s order in dismissing the special appeal as not maintainable and the jurisdiction of the Board of Revenue to hear the revision. They need not detain us in view of the conclusion we have already reached. The result is that this writ petition is allowed, the order of the assessing authority dated 19th November, 1962, exhibit 7, the order of the Deputy Commissioner, Excise and Taxation, dated 5th February, 1963, exhibit 8, and the order of the Board of Revenue dated 17th January, 1967, exhibit 9, are quashed. The department will be at liberty to proceed against the petitioner under section 10A in accordance with law. In view of our conclusion the Sales Tax Reference No. 30 of 1967 is not pressed and is dismissed. There will be no order as to costs. Petition allowed and Reference dismissed.
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1973 (3) TMI 128
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... ... ..... induce a reasonable belief in the mind of the Sales Tax Officer that a part of the turnover has been suppressed and a notice may be issued under section 21. But that circumstance by itself is not enough to support a supplementary assessment under section 21. This proposition has been laid down by this court in Laxmi Oil Mills, Varanasi v. Commissioner of Sales Tax1972 U.P.T.C. 363. That apart an assessment under section 21 must be based upon some material and cannot be arbitrary or capricious depending upon the ipse dixit of the Sales Tax Officer. The estimate of the escaped turnover at Rs. 6,00,000.00 appears to be based upon no material at all. It is a sheer guess and, as such, the assessment order cannot be sustained. The petition is allowed. The impugned assessment order dated 24th February, 1972 (annexure 3 to the writ petition), and the notice of demand issued in pursuance thereof are quashed. The petitioner is entitled to the costs of this petition. Petition allowed.
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1973 (3) TMI 127
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... ... ..... king that into consideration it cannot be said that betel leaves are vegetables within the meaning of the Act. Similarly also, in Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer 1961 12 S.T.C. 286 (S.C.)., the Supreme Court held that vegetables must be construed not in any technical sense nor from the botanical point of view. In my opinion even in common parlance, the dressed chicken is nothing but white meat and as such it is meat in the wider connotation of the word. In the circumstances as aforesaid, the petitioned is entitled to the exemption for the dressed chicken as the same, in my opinion, comes within the mischief of item No. 4 of Schedule I read with section 6 of the Bengal Finance (Sales Tax) Act, 1941. In the circumstances, therefore, the impugned assessment in so far as the dressed chicken is concerned, must be quashed and the matter should go back to the Commercial Tax Officer for the modification of the assessment order accordingly. Petition allowed.
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1973 (3) TMI 126
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... ... ..... ssessment was made in respect thereof. We are, therefore, satisfied that even if no notice had been issued to the dealer under section 12(5) or no assessment had been made, yet it is open to the taxing authority to proceed under section 12(8). 7.. The State has taken the stand that in fact notice under section 12(5) had been issued and the assessment had been made, though it is said to have been annulled. We express no view on this factual aspect as it is not necessary for answering the questions referred to us. Even on the assumption that there was no such notice, still the turnover could be assessed under section 12(8). 8.. We, therefore, answer the second question also in the negative by saying that the assessment under section 12(8) is maintainable even if no notice had been issued or no assessment had been made under section 12(5). In the result, the references are accepted with costs. Hearing fee rupees two hundred. ACHARYA, J.-I agree. References answered accordingly.
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1973 (3) TMI 125
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... ... ..... ly on the surmise based on the best judgment assessment made by the Agricultural Income-tax Officer. To rely upon the orders made by the Agricultural Income-tax Officer in his best judgment assessment and to assess the petitioners under the Sales Tax Act would create disastrous consequences. The Tribunal has rightly observed that the entire burden in the circumstances of the case is on the department to establish that the assessee did sell cardamom within the Kerala State. The assessees satisfactorily established that the entire cardamom produced within the State by them was transported by valid permit under section 77-A. The method adopted by the Sales Tax Officers to fix the balance of cardamom liable for sales tax is wrong and cannot be sustained. We, therefore, hold that the order of the Tribunal was right in setting aside the orders of the sales tax authorities. In the result, the tax revision cases are dismissed. There will be no order as to costs. Petitions dismissed.
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1973 (3) TMI 124
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... ... ..... yment of or retaining amounts recovered by a registered dealer but which are not due as sales tax to the State. In Orient Paper Mills case(1), the constitutionality of section 9-B(3) was not examined. That case cannot be regarded as an authority for the proposition that section 9-B(3) and section 14-A are intra vires. 8.. On the aforesaid analysis, the Orissa State Legislature had no legislative competence to enact sections 9-B(3) and 14-A of the Act. Both the sections are ultra vires. 9. It follows that the petitioner is entitled to the refund of the amount deposited as directed in the notice of demand which we have already indicated while narrating the facts. 10.. In the result, the writ applications are allowed. Writs of mandamus be issued directing the opposite parties to refund the amount deposited by the petitioner in pursuance of the direction in the notice of demand. In the circumstances, there would be no order as to costs. ACHARYA, J.-I agree. Applications allowed.
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1973 (3) TMI 123
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... ... ..... nt of tax deposited by him in the treasury, but that information obviously is required to enable the Sales Tax Officer to 4etermine the tax actually payable by the assessee after the final assessment order and to enable him to make a provisional assessment under rule 41(3) in case the assessee has not deposited the admitted tax. If an assessee omits to give this information or the information given by him is wrong it does not affect the validity of the return. A wrong return does not cease to be a return filed in the prescribed manner. We are satisfied that the furnishing of the return is one thing and the deposit of tax is another. The non-deposit of tax does not invalidate the return nor does it render the return to be not in the prescribed manner. We, accordingly, answer the question in the negative in favour of the assessee and against the department. As no one has appeared on behalf of the assessee, there will be no order as to costs. Reference answered in the negative.
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1973 (3) TMI 122
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... ... ..... o not involve any process of assessment. The tax payable under this provision is payment in advance against the tax which is ultimately assessed by the assessing authority under rule 41(5). Such a tax cannot be said to be tax assessed. Non-payment of admitted tax may render him liable to provisional assessment under rule 41(3) or to prosecution under section 14(1)(e) (for acting in contravention of the provisions of the Act or the Rules framed thereunder), but no penalty can be imposed upon him under any of the clauses of section 15-A of the Act, which obviously makes no provision for levy of penalty for the kind of default committed by the petitioner. The impugned order is thus clearly unauthorised and without jurisdiction. Accordingly, the petition is allowed. The order dated 16th November, 1972, passed by the Sales Tax Officer, Sitapur, levying a penalty of Rs. 50,000 on the petitioner is quashed. The petitioner is entitled to the costs of this petition. Petition allowed.
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1973 (3) TMI 121
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... ... ..... thority in this case required the assessees to furnish security in order that he might consider the grant of stay. This requisition was not complied with. If that be so, we could see nothing wrong in the impugned order. In fact, the assessees before us do not dispute the fact that the Appellate Assistant Commissioner has asked for security. But what is pointed out for the assessees is that the security was asked for under the proviso to sub-section (5) of section 31. That proviso, in effect, contains a power identical with the power under sub-section (2) of section 39-A. That being the case, when the officer asked for security and it was not furnished, the appellate authority was entitled to decline stay. On that view, the petitions are dismissed. No costs. We should observe that the Appellate Assistant Commissioner concerned should be more careful in wording his order declining to grant stay, for ex facie the order it should appear why he declined stay. Petitions dismissed.
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1973 (3) TMI 120
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... ... ..... he was reasonably satisfied of the commission of the offence within the meaning of section 45(2)(d). I do not think that in the facts and circumstances of this case, there has been any excessive exercise of jurisdiction or erroneous exercise of jurisdiction or lack of jurisdiction for me to issue a writ of prohibition prohibiting the respondent from proceeding with the further action under the challenged notices. The learned counsel for the petitioners now says that the petitioners are willing to compound the offence by paying the sum demanded in the impugned notices. Though the time given by the officer has lapsed, in the interests of justice and as the petitioners were canvassing the position of law, I allow them to compound the offences by paying the amount demanded in the impugned notices within a week from this day. If the amount is not paid, the respondent would be in order to chargesheet the petitioners before a Magistrate in accordance with law. Ordered accordingly.
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1973 (3) TMI 119
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... ... ..... onymous. It will be open to the Sales Tax Officer not to pass penalty order if the assessee is able to show an appropriate cause against the imposition of penalty. It is only the final order passed by the assessing authority imposing penalty which can be the subject-matter of a revision. The revising authority has no jurisdiction to entertain it at an earlier stage. The revising authority is a creature of the U.P. Sales Tax Act and it has no inherent jurisdiction to intervene and correct the proceedings before the inferior officers except to the extent that it has been authorised to do by the statute itself. Section 10 clearly limits the powers of the revising authority to revise an order. A notice of the type involved in this case is clearly not an order. We, accordingly, answer the question in the negative in favour of the department and against the assessee. As no one appears on behalf of the assessee there will be no order as to costs. Reference answered in the negative.
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1973 (3) TMI 118
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... ... ..... either to sales tax or purchase tax. Turning now to the questions framed by the revising authority, the first question indicates that for the purposes of section 3-D the turnover as defined in section 2(i) could be taken into account. Such a question does not appear to have been raised before the judge (Revisions). All that was contended before him was that the turnover of sales for the first six months and the turnover of first purchases for the second six months of the assessment year in question had to be aggregated in order to determine as to whether the assessee s turnover exceeded the minimum taxable limit. That controversy is the subject-matter of the second question. Accordingly, we return no answer to question No. (1), as the same does not arise out of the revisional order and answer question No. (2) in the negative in favour of the assessee and against the department. The assessee is entitled to the costs which we assess at Rs. 100. Reference answered accordingly.
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1973 (3) TMI 117
The Scheme of gratuitty applicable to the appellant Estate provided that a dispute regarding a claim for payment of gratuity of a workman who had been dismissed for misconduct shall be referred to the Labour Court for decision. One of workmen of the appellant was chargesheeted in respect of riotous and disorderly behaviour for having assaulted a tea-maker inside the factory of the appellant. A departmental enquiry was held and being found guilty of misconduct he was dismissed. As a dispute arose about the payment of gratuity the matter was referred to the Labour Court. Before the Labour Court it was not disputed that the dismissal of the workman was on account of misconduct consisting of riotous and disorderly behaviour and assaulting a tea-maker. The Labour Court, relying upon the decision of this Court in State of Punjab v. Suraj Prakash Kapur, [1962] 2 S.C.R. 711 decided the question in favour of the workman. Appeal by special leave, was filed in this Court. Allowing the appeal.
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1973 (3) TMI 116
Whether the assessee had collected sales tax on the turnovers in question and consequently he could not take any assistance from rule 38 of the Mysore Sales Tax Rules, 1957?
Held that:- Allow these appeals, set aside the orders of the High Court as the legislative intention is clear and beyond doubt. The law gives a further opportunity to the assessees whose assessments are sought to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 38 of the Mysore Sales Tax Rules must be read with section 10 of the Amendment Act. If so read, it is clear that the assessing authorities before reassessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax.
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1973 (3) TMI 113
Whether the High Court was justified in coming to the conclusion that the Sales Tax Officer, Ghaziabad, had no jurisdiction to impose penalty on the assessee?
Held that:- Appeal allowed. If the Sales Tax Officer was competent to levy sales tax on the assessee in respect of those assessment years, he was equally competent to levy penalty on the assessee in respect of the offences committed during those years. In our opinion, the High Court did not properly appreciate the legal position in this case. The High Court was wrong in thinking that the proceedings initiated on January 8, 1960, stood terminated as a result of the subsequent notices issued by the Sales Tax Officer. The notices issued by him are not statutory notices. Under section 10-A of the Act, the Sales Tax Officer was only required to give reasonable opportunity to the assessee to show cause why penalty should not be imposed on him.
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1973 (3) TMI 97
Oppression and mismanagement, Winding up - Appeals from orders ... ... ... ... ..... fect that respondent No. 1-company should submit to the orders of the court. In this view of the matter, we feel that Appeals Nos. 154/69 and 153/69 deserve to be dismissed with costs. We accordingly pass the following order Appeal No. 154/69 is hereby dismissed with costs. Two counsel certified. Costs of the appeal of the Union of India will be paid by the shareholders of the company. The costs of the company represented by the board of directors who were allowed to intervene should come out of the assets of the company. Attorneys for respondent No. 1 in appeal (Union of India) to withdraw the sum of Rs. 500 deposited by the appellants towards the costs. Appeal No. 153/69 is hereby dismissed with costs. Costs of respondents Nos. 1 and 2 in appeal (Union of India and Bennet Coleman and Co. Ltd.) should be paid by the appellants (original respondents Nos, 8 and 10). Attorneys for respondents Nos. 1 and 2 in appeal to withdraw the sums deposited by the appellants towards costs.
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1973 (3) TMI 88
Amalgamation ... ... ... ... ..... o a contract of guarantee with the plaintiff, and a decree has been obtained by the plaintiff against him and the company jointly and severally, there is no legal embargo against the decree-holder executing the decree against the second judgment debtor. The scheme, which was sanctioned by the company court, does not release the second judgment-debtor, who is a co-debtor of the company from his obligation under the decree to pay the decretal amount. Consequently, I reverse the order of the Subordinate Judge and hold that the decree is executable against the second judgment-debtor who figured as the second petitioner in E. A. No. 546 of 1970. I direct the court below to restore the Execution Petition No. 95 of 1970 to its file and proceed with execution against the second judgment-debtor. I may note that though the judgment-debtors have been served, they have not appeared either in person or by counsel. In the circumstances, the appellant will get half the costs of this appeal.
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