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Showing 21 to 40 of 130 Records
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1976 (2) TMI 169 - ANDHRA PRADESH HIGH COURT
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... ... ..... x under section 10 of Act No. 28 of 1969 got the benefit of refund under section 15 of the Central Act but those, who did not collect the tax under the State Act in view of Yaddalam case 1965 16 S.T.C. 231 (S.C.)., are denied the benefit. We are unable to say that there is any discrimination between those who collected and those who did not collect they form two separate classes. The benefit of refund or exemption is sought to be given only to those who had collected the taxes under both the Acts. The object of section 15 of the Central Act is not to exempt any dealer from the operation of the provisions of both the Acts. That being the case, we see no discrimination. For the reasons recorded, we see no merit in any of the tax revision cases and writ petitions and they are accordingly dismissed with costs. Advocate s fee is fixed at Rs. 100 in each. The petitioners in the writ petitions will be at liberty to raise the other questions before the Tribunal. Petitions dismissed.
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1976 (2) TMI 168 - ALLAHABAD HIGH COURT
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... ... ..... notice on a servant cannot be equated with service of notice on an agent. To hold that service of notice on a servant is sufficient compliance with rule 77 would be to obliterate the distinction in law which exists between a servant and an agent. Reliance on behalf of the assessee was placed on rule 77-A of the Rules. It was urged that before a person can be treated to be an agent for the purposes of service, he must be appointed by the dealer in writing in this behalf. It is not necessary to decide whether rule 77-A applies to cases of service of notice, for we have held that Jagannath Prasad was not the agent of the dealer for the purposes of receiving notice. For the reasons given above, we answer the first question in the negative, in favour of the assessee and against the department. We return the second question unanswered. The assessee is entitled to his costs, which is assessed at Rs. 100. Counsel s fee is assessed at the same figure. Reference answered accordingly.
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1976 (2) TMI 167 - ALLAHABAD HIGH COURT
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... ... ..... the assessee did not enter these transactions later. In fact, the assessee in his explanation before the Sales Tax Officer stated that the amount represented purchases made by the munim of the assessee, who had on a day earlier been advanced an amount of Rs. 1,000 and Rs. 10 for making purchases from Kanpur. In these circumstances and in the absence of any finding to this effect, it cannot be contended that no entries in respect of these transactions were made at all in the account books. The Judge (Revisions), Sales Tax, is the last fact-finding authority and it was open to him to accept the book version after considering the evidence. It cannot also be said that the finding recorded by him in these circumstances is based on no material or is arbitrary. We, accordingly, answer the question referred in the affirmative, against the department and in favour of the assessee. The assessee is entitled to his costs which we assess at Rs. 200. Reference answered in the affirmative.
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1976 (2) TMI 166 - BOMBAY HIGH COURT
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... ... ..... o rule 41A of the said Rules is concerned, there is, for the purpose of the present reference, no such material difference or variation as would necessitate a separate examination of the scheme of the explanation to that rule and that the construction which we have placed upon the explanation to rule 41 would also govern the explanation to rule 41A of the said Rules. For the reasons set out above, we answer both the questions submitted to us by the Tribunal in the case stated by it in the negative. In computing the actual amount of drawback, set-off or refund, as the case may be, to be granted to the respondents, the Tribunal will do so applying the principles laid down by us in this judgment and in our judgment in Commissioner of Sales Tax v. Jai Hind Oil Mills Co. 1977 40 S.T.C. 60. (Sales Tax Reference No. 20 of 1972 decided on February 11/12, 1976). The respondents will pay to the applicant the costs of this reference fixed at Rs. 250. Reference answered in the negative.
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1976 (2) TMI 165 - CALCUTTA HIGH COURT
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... ... ..... Act, 1961, does not make the certificate bad. Section 2 of the said Act provides as follows 2. Notwithstanding any decision of any court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as the said Act), or in the rules made or forms prescribed thereunder, no certificate filed under section 4 or section 6 of the said Act and no notice served under section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect, error or irregularity in the form thereof. In that view of the matter, the third objection to the certificate cannot be accepted. In the view, however, I have taken on the first objection this certificate must be quashed and set aside. But this will not prevent the respondents from proceeding afresh in accordance with law. The rule is made absolute to the extent indicated above. There will be no order as to costs. Rule made absolute.
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1976 (2) TMI 164 - BOMBAY HIGH COURT
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... ... ..... We, accordingly, reframe the question submitted to us as follows Whether, having regard to the facts and circumstances of the case and on a true and correct interpretation of rule 41 of the Bombay Sales Tax Rules, 1959, the Tribunal was correct in law in holding that the reduction under clause (iii) of the first proviso to the explanation to rule 41 is to be made only from the drawback, set-off or refund, as the case may be, due to a dealer in respect of the purchase of goods used in the manufacture of taxable goods for sale or as packing materials or containers for such manufactured goods in cases where such manufactured goods have been sold in the manner provided for in the explanation to the said rule 41 read along with clauses (i) and (ii) of the said proviso? For the reasons stated above, we answer the question as so reframed by us in the affirmative. The applicant will pay to the respondents the costs of this reference fixed at Rs. 250. Reference answered accordingly.
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1976 (2) TMI 163 - BOMBAY HIGH COURT
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... ... ..... ods in this country ought not to suffer unfair competition from outsiders. Moreover, even in that case, the items concerned, viz., lenses and object glasses, were entirely made of glass. In our view, the magnifying glasses sold by the respondents cannot be regarded as glasswares and, hence, are not covered by entry 44 of Schedule C of the said Act as it stood at the relevant time. In the view, which we have taken, we do not feel it necessary to decide the question as framed by the Tribunal, and we reframe the question as follows Whether, on the facts and in the circumstances of the case, the magnifying glasses (optical appliances) sold by the respondents are glasswares for the purpose of entry 44 of Schedule C to the Bombay Sales Tax Act, 1959? For the reasons, which we have already given earlier, the question as reframed by us must be answered in the negative. As the respondents have not appeared before us, there will be no order as to costs. Reference answered accordingly.
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1976 (2) TMI 162 - BOMBAY HIGH COURT
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... ... ..... ws that even if an invalid notice under section 15 of the said Act or section 34 of the Income-tax Act, 1922, is complied with by the assessee, yet the defect cannot be said to have been waived and the proceedings taken pursuant to such a notice would be invalid. In view of this, it must follow that the defect in the said notice could not be cured by reason of the subsequent letter dated 18th April, 1956. Quite apart from this, and what is even more important, is that the letter dated 18th April, 1956, was admittedly written and served on the assessees after the period of five years prescribed under section 15 of the said Act in the case of concealed income had already expired, and hence such an attempted correction could have no legal effect. In the result, the questions referred to us are answered as follows (1) In the affirmative. (2) In the negative. (3) In the affirmative. The applicant to pay the costs of this reference fixed at Rs. 250. Reference answered accordingly.
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1976 (2) TMI 161 - MADRAS HIGH COURT
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... ... ..... sessment) Rules, 1939, corresponding to rule 6(c) of the Tamil Nadu General Sales Tax Rules, 1959. Therefore, it could not be said that the respondent-assessees had specified and charged for separately the freight without including the same in the price of the goods sold. Yet another argument of the learned counsel for the assessees is that freight is a discount coming under paragraph (iii) to explanation (2) to section 2(r) read with rule 5-A(a). Certainly, the assessees are not giving any discount of freight to the purchaser. On the other hand, they collect the full amount and only give credit to the same in the invoices prepared by them. This is not a case of discount from the sale price which the assessees are entitled to deduct from the taxable turnover. We are, therefore, of the opinion that the Tribunal went wrong in deleting the disputed turnover from the taxable turnover. We accordingly allow the tax revision case with costs. Counsel s fee Rs. 250. Petition allowed.
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1976 (2) TMI 160 - BOMBAY HIGH COURT
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... ... ..... t of the sale price of any goods manufactured or processed . In fact, clause (ii) of sub-section (2), which talks about adding the amount of purchase tax payable by a dealer to the tax collected from him in order to make up the aggregate of sums in respect of which drawback, set-off or refund is to be granted to the dealer, states payable as purchase tax under clause (a) of section 10 on the purchase of goods by such dealer . It does not use the loose and careless phraseology of clause (iii) of rule 11(1A), namely, payable as purchase tax under clause (a) of section 10 on the purchase of such goods by the dealer . Therefore, even the arguments advanced before us based on the use of the words such goods in clause (iii) of rule 11(1A) do not apply to the construction of section 18B(2). In the result, we answer the question submitted to us in the negative. The respondents will pay to the applicant the costs of this reference fixed at Rs. 250. Reference answered in the negative.
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1976 (2) TMI 159 - BOMBAY HIGH COURT
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... ... ..... statement of facts referred to the K and N forms executed by the firm of M/s. Beharilal Dewanchand at Bombay and also referred to some of the contents of the returns filed by the respondents. But, in considering the aforesaid question, the Tribunal has given no weight or consideration to these documents at all. In our opinion, as we have already observed, these are the most material documents on record from the point of view of determining the question before us, and as the Tribunal has in effect ignored these documents, we are entitled to examine for ourselves the correctness of the conclusion reached by the Tribunal. Such a conclusion reached by the Tribunal without having regard to the material documents on record can, in our opinion, be challenged in a reference under section 34(1) of the said Act. In the result, the question raised before us must be answered in the negative. The respondents to pay the costs of this reference fixed at Reference answered in the negative.
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1976 (2) TMI 158 - ALLAHABAD HIGH COURT
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... ... ..... usiness in the assessment year in question. Each assessment year is a unit by itself, and there cannot be any legal presumption that the business carried on by an assessee in one year has necessarily been carried on in the succeeding year. The additions in the assessee s turnover had been made on the assumption that the old business was carried on in the year in question. In order to draw such an inference, some objective fact apart from the past conduct of the assessee must exist in the assessment year in question to indicate that the assessee had been conducting the old business. In the present case, no such circumstance exists. There does not appear to be any legal, relevant or admissible material on the basis of which the account books of the assessee were rejected. We, therefore, answer the question in the negative, against the department and in favour of the assessee. The assessee is entitled to its costs, which we assess at Rs. 100. Reference answered in the negative.
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1976 (2) TMI 157 - BOMBAY HIGH COURT
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... ... ..... this section and stated that since under the 1953 Act the penalty was due from the said Parikh, his legal representative, by virtue of the provisions of section 34, became liable in the same manner as the said Parikh was. We find the construction sought to be placed upon section 34 to be fallacious. Section 34 is only attracted where under section 19 of the 1959 Act some person other than the dealer from whom tax, including penalty, is due becomes liable for the payment of such tax and penalty As we have seen, under the provisions of clause (a) of section 19(1) of the 1959 Act the legal representative of the said Parikh did not become liable for penalty, though she became liable for tax, and, accordingly, the provisions of section 34 of the 1959 Act were never attracted to this case. In the result, we answer the question as reframed by us in the affirmative. The applicant will pay to the respondents the costs of the reference fixed at Rs. 250. Reference answered accordingly.
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1976 (2) TMI 156 - ALLAHABAD HIGH COURT
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... ... ..... e assessing authority and the manner must be such as to create confidence regarding its authenticity. None of the authorities cited by the counsel for the assessee lay down that the account books cannot be rejected even when they are not maintained in such a manner that they cannot be verified. The courts below have further found that there is discrepancy in the return version and the book version. It has not been pointed out to us that this is incorrect. In our opinion, all these circumstances were sufficient for rejection of the assessee s account books. For the reasons stated above, we are of the opinion that the question referred to us should be answered in the affirmative against the assessee and in favour of the department. Our answer is that, in the facts and circumstances of the case, there was relevant material for rejecting the assessee s account books. The department shall be entitled to its costs, which we assess at Rs. 100. Reference answered in the affirmative.
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1976 (2) TMI 155 - MADRAS HIGH COURT
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... ... ..... mbers. The Supreme Court pointed out that in spite of the definition of sale in section 2(n) read with explanation I of the Madras General Sales Tax Act, 1959, if there was no transfer of property from one to another, there was no sale, which would be exigible to tax under the Act. In the case of a members club even though it was a distinct legal entity, it was held that it was acting only as an agent for its members in the matter of the supply of various preparations and articles to them so that no sale would be involved. It was pointed out that there was no element of transfer. Applying this decision of the Supreme Court, it has to be held that there is no sale of any refreshments by the society. The result would be that there is no liability to tax with reference to the transactions with which we are now concerned. It is not necessary to go into any other aspect. The tax revision petitions are, therefore, dismissed. There will be no order as to costs. Petitions dismissed.
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1976 (2) TMI 154 - MADRAS HIGH COURT
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... ... ..... eller is relevant for the purpose of considering whether the freight charges are to be included in the taxable turnover or not. Since the purchaser is not the person who prepares the invoice, rule 6(c) could not apply to the purchaser. We are, therefore, unable to agree with the Tribunal that by reason of the assessees paying the transport charges separately to the cane-growers, they are entitled to deduct the amount from the taxable turnover. The order of the Tribunal, in so far as it related to a sum of Rs. 37,104.34 on account of transport charges is, therefore, liable to be set aside and it is accordingly set aside. In the result, we hold that the transport charges to the extent of Rs. 37,104.34 and the turnovers relating to sale of press-mud, bagasse and standard mixture are liable to be included in the taxable turnover. The revision petition is accordingly allowed to that extent. The revenue will be entitled to its costs. Counsel s fee Rs. 250. Petition partly allowed.
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1976 (2) TMI 153 - KERALA HIGH COURT
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... ... ..... nary, would take in the meaning preserve meat, etc., by refrigeration . Therefore, meat kept in the cold storage where the temperature would come to a minimum of 0 ordm C for the purpose of preserving the same by refrigeration would certainly come within the expression, meat , which is frozen. Therefore, I do not find anything illegal in the matter of the assessment made on the turnover regarding meat regarding which section 19 notice had been issued to the petitioner. I see no reason to reject the contention of the department that meat preserved by refrigeration will also come under the term frozen meat . In view of the conclusion I have arrived at, I would direct the second respondent to reassess the turnover regarding meat afresh in the light of what I have stated above. Turnover regarding fish and rental of the cold storage cannot be made the subject of fresh assessment. I would dispose of the O.P. in the above manner but I make no order as to costs. Ordered accordingly.
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1976 (2) TMI 152 - ANDHRA PRADESH HIGH COURT
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... ... ..... , in the decision of Chinnappa Reddy, J., in Bodhan Co-operative Marketing Society Ltd. v. State of Andhra PradeshWrit Petition No. 2018 of 1974 decided on 13th November, 1975-(Andhra Pradesh High Court)., the latest decision of the Supreme Court in Salar Jung Sugar Mills Ltd. v. State of Mysore 1972 29 S.T.C. 246 (S.C.). is referred to but, the learned Judge found, after examining the provisions of the Andhra Pradesh Paddy Procurement (Levy) Order, 1972, that there is no freedom of contract of the slightest degree given to the parties. However, as we have pointed out above, there is room for mutual agreement and contract on some aspects of the transactions, and since the mutuality is not totally excluded, the said transactions amount to sales . We must, therefore, hold that W.P. No. 2018 of 1974 was not correctly decided. The result, therefore, is that these T.R.Cs. are dismissed but, in the circumstances, without costs. Advocate s fee, Rs. 100 in each. Petitions dismissed.
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1976 (2) TMI 151 - KERALA HIGH COURT
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... ... ..... from the firm. But under section 25, notice can be issued only if the money is due to the dealer and to nobody else. A partner of a firm no doubt will not be the dealer. The dealer is the firm and the firm itself. Hence no assets of the partner of a firm can be proceeded against under the further mode of recovery provided for by section 25 of the Act. Admittedly, the notice in question is issued to proceed against monies due to the petitioner, who is only a partner of the firm. As a partner is not the dealer under the Act, no such notice under section 25 of the Act can be issued. Hence, I hold that the steps taken by the 1st respondent under section 25 of the Act to proceed against the salary due to the petitioner from the firm M/s. Kanji Morarji cannot be sustained. In view of the above conclusions, I am not considering the other contentions of the learned counsel for the petitioner. 5.. The original petition is allowed. There will be no order as to costs. Petition allowed.
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1976 (2) TMI 150 - BOMBAY HIGH COURT
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... ... ..... e above case have raised some doubt as to whether an order imposing penalty can be regarded as an order affecting the liability to pay tax on the ground that a penalty is in the nature of an additional tax, but that question has not been determined nor are there any observations in the judgment which would suggest as to what was the view of the Division Bench regarding that question. Hence, this decision also is of no assistance to Mr. Bhabha in his contention before us. In our view, for the reasons which we have already given, the present reference is not maintainable under the provisions of section 34(1) of the said Act under which it purports to have been made. We accordingly decline to answer the question referred to us and return the reference to the Tribunal. In view of the fact that the assessees had not raised this point before the Tribunal, on which point they have succeeded before us, there will be no order as to the costs of this reference. Reference not answered.
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