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Case Laws
Showing 21 to 40 of 164 Records
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1980 (10) TMI 192
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... ... ..... on. In the absence of such a letter it cannot be said that the order of the Board passed on 31st July, 1974, suffers from any illegality. The cases relied upon by Mr. Mehta in this regard are beside the point and can render no help. If the application under section 17, in the facts and circumstances of the case, was not maintainable and the order dated 31st July, 1974, which had become final, there is certainly a failure of justice and we are bound to quash the order dated 16th October, 1976, which, in our opinion, was clearly without jurisdiction and erroneous. As the order dated 16th October, 1976, is quashed, the order dated 19th September, 1977, automatically fails and is set aside. In the result, we allow this writ petition, set aside the orders of the Board of Revenue dated 16th October, 1976, and 19th September, 1977, and restore its order dated 31st July, 1974. In the facts and circumstances of the case, the parties are left to bear their own costs. Petition allowed.
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1980 (10) TMI 191
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... ... ..... t, part of whose task it is to put a correct interpretation on the expression in question for the purpose of running their departments. In the present case, the departmental practice as well as the position assumed by the Central Government only underlines what seems to us to be a legitimate conception of what artificial silk is and includes, both under trade practice and under technical jargon. We have, therefore, no doubt whatever that high density polyethylene must be regarded as falling within the generic term artificial silk . It follows that fabrics made out of this substance, either wholly or in part, whether they are hundred per cent pure or not, must qualify for exemption from sales tax as goods falling within the description set out in item 4 of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959. In the result, we uphold the decision of the Tribunal and dismiss this revision. The assessee will have its costs. Counsel s fee Rs. 250. Petition dismissed.
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1980 (10) TMI 190
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... ... ..... he judgment/decree of the lower court, the Full Bench held that the decree of the original court merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under section 152 of the Code, except in cases to which section 153-A of the C.P.C. applies, namely, where the appeal had been disposed of by the appellate court in limine. In coming to that decision the Full Bench has relied on the decision of the Privy Council in Brij Narain v. Tejbal Bikram Bahadur 1910 I.L.R. 32 All. 295 (P.C.). the dictum in which has been subsequently approved and followed by the Supreme Court in Gojer Brothers (P.) Ltd. v. Ratan Lal SinghA.I.R. 1974 S.C. 1380. In the light of the aforesaid pronouncement by the Full Bench, we have no hesitation in upholding the correctness of the view taken by the Sales Tax Appellate Tribunal in these two cases. The tax revision cases are accordingly dismissed. There will be no direction as to costs. Petitions dismissed.
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1980 (10) TMI 189
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... ... ..... sale or an intra-State sale does not depend upon the circumstance as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale. What is really decisive is whether the sale is one which has occasioned the movement of goods from one State to another. In the case before us there has been an inter-State movement of goods from Calicut to Bombay as an incident of the contract of sale. The sales in question were neither outside sales nor local sales as wrongly thought by the two members of the Tribunal constituting the majority. We hold that the turnover in dispute related to transaction of inter-State sales and was rightly brought to tax under the Central Sales Tax Act by the assessing authority and the Deputy Commissioner. We accordingly allow this revision petition, set aside the order of the Tribunal and restore the order of the assessing authority. The parties will bear their respective costs. Petition allowed.
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1980 (10) TMI 188
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... ... ..... he Sales Tax Act resort should be had not to the scientific or the technical meaning of the terms but to their popular meaning or the meaning attached to them by those dealing in them. By applying this yardstick the court held that coal did not refer only to a mineral product but also to charcoal which was prepared from wood and other articles by human agencies. In paragraph 8 of the judgment their Lordships considered this issue from one more angle and it was that both these items were used as fuel and since firewood was also charged to tax at the rate of 2 per cent, the intention of the legislature was to charge tax at the rate of 2 per cent only on charcoal. By analogy we can apply this reasoning to this item of nalidar coal as well. We, therefore, hold that nalidar coal is coal and will be covered by entry No. 1 of Part III of Schedule II to the Act. 5.. We answer the question in the affirmative. There shall be no order as to costs. Reference answered in the affirmative.
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1980 (10) TMI 187
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... ... ..... lance sheet and profit and loss account and the manure trading account for the year 1973-74 showed only a turnover of Rs. 1,01,072 and in the face of such clear materials available, the assessing officer went wrong in estimating it at Rs. 3,00,000 merely on the ground that he had not shown that in the original return. It was not the case of the assessing officer or the learned counsel for the petitioner that the turnover relating to the sale of manure was taxable. In these circumstances, by merely not reporting that turnover at the time of filing the return, the assessee could not be held to be guilty of any contemptuous conduct, nor could the Tribunal reject the subsequent accounts produced. The Tribunal therefore was right in accepting the records produced and determining the turnover as per the records at Rs. 1,01,072 and redetermining the total turnover at Rs. 8,46,245. The revision accordingly fails and is dismissed with costs. Counsel s fee Rs. 250. Petition dismissed.
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1980 (10) TMI 186
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... ... ..... d in the expression cooked food . Similarly, biscuits, chocolates, toffees, lozenges and peppermint drops are excluded, which shows that but for this exclusion those items would otherwise have been covered by the expression cooked food . It is thus clear that the entry in question is meant to cover those articles which are made fit for eating by a heating process as boiling, roasting or baking. In Santosh Kumar Ghosh v. Commercial Tax Officer 1965 16 S.T.C. 931., the Calcutta High Court held. that chhana , which is prepared by boiling milk and adding lactic or citric acid to it, is cooked food . In our opinion, therefore, the Board is right in holding that mawa is cooked food and is covered by entry 8 of Part I of Schedule II to the Act. 4.. Our answer to the question referred to us is, therefore, in the affirmative and in favour of the assessee. In the circumstances of the case, the parties shall bear their own costs of this reference. Reference answered in the affirmative.
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1980 (10) TMI 185
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... ... ..... on behalf of the revision petitioners made an oral prayer under article 134-A of the Constitution for the grant of certificates under article 133(1) to enable the State to carry these matters in appeal before the Supreme Court. The said matter was adjourned for consideration to this day. After hearing both sides, we are of opinion that since appeals are already pending in the Supreme Court against the decision of this Court reported in Deputy Commissioner of Agricultural Income-tax and Sales Tax (Law), Ernakulam v. Tirumbadi Rubber Co. Ltd. 1975 36 S.T.C. 492.-Civil Appeals Nos. 1325 to 1334 of 1976-which we have followed in our judgment which is now sought to be appealed against, the prayer of the State for the issuance of certificates under article 133(1) of the Constitution should be granted. We accordingly direct that certificates may issue to the revision petitioners under article 133(1) of the Constitution. Petitions dismissed. Leave to appeal to Supreme Court granted.
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1980 (10) TMI 184
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... ... ..... he Sales Tax Officer can be sustained. In the absence of any material on record regarding the proportion of the oil and oilcakes as the products of the groundnut the basis adopted by the Sales Tax Officer in computing the turnover of the groundnut oil is purely arbitrary and cannot be sustained in law. In the circumstances the assessment made by the Sales Tax Officer deserves to be set aside. The Sales Tax Officer would be at liberty to reassess the petitioners in accordance with law. 4.. As a result of the discussion aforesaid this petition is allowed. The orders dated 31st August, 1978 (annexure A), passed by the Sales Tax Officer, Indore Circle No. 3, and dated 21st July, 1979 (annexure C), passed by the Divisional Deputy Commissioner of Sales Tax, Ujjain Division, Ujjain, are quashed. In the circumstances the parties shall bear their own costs of this petition. The outstanding amount of security deposit be refunded to the petitioners after verification. Petition allowed.
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1980 (10) TMI 183
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... ... ..... e have necessarily to hold that the movement of the goods were occasioned under the contract of sale entered into in July, 1968, before the movement of the goods especially when the amount deposited is accepted to be the exact market price of 76 bales of cotton despatched. We are unable to agree with the finding of the Board of Revenue that the sale transaction should be deemed to have taken place on the date when the forfeiture took place and not on the date when the goods actually moved from Bombay to Coimbatore. We may also state that there is no evidence of any subsequent agreement of sale and that was not even the case of the revenue. We, accordingly, hold that the transaction is not liable to tax under the Tamil Nadu General Sales Tax Act either on the basis that it is on a loan transaction or on the basis that it is an inter-State sale. The appeal is accordingly allowed and the order of the Board of Revenue is set aside with costs. Counsel fee Rs. 250. Appeal allowed.
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1980 (10) TMI 182
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... ... ..... ops . At page 32 of the same book it has been said that, fish manure processed by drying non-edible fish or wastes from fish industry is a well-recognised balanced organic manure containing both nitrogen and phosphorus in significant quantities. These publications from the Government of India and other authorities indicate that fish meal is understood as manure. Nothing has been brought to notice which may indicate that popular use of fish meal is that of poultry feed. By mere sale to the Poultry Officer the nature of commodity or its commercial and popular meaning could not change. It has also been seen that it is described as organic fertiliser. The revising authority therefore rightly held it to be covered in Notification No. 3470 of 1956. In the result both these revisions fail and are dismissed. The question of law raised by the Commissioner of Sales Tax is decided by saying that fish meal is manure and is therefore exempt from payment of sales tax. Petitions dismissed.
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1980 (10) TMI 181
Whether the expression "registered dealer" in section 8(ii) of the Bombay Sales Tax Act, 1959, as applicable to the State of Gujarat means only a dealer registered under section 22 of that Act or it also comprises a dealer registered under the Central Sales Tax Act, 1956?
Held that:- Appeal allowed. The legal fiction in sub-section (2) of section 4 is created for a limited purpose, namely, to make section 4 a self-contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty. The legal fiction contained in sub-section (2) of section 4 of the Act cannot be stretched any further.
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1980 (10) TMI 172
Winding up – Suits stayed on winding-up order ... ... ... ... ..... to section 457 of the Companies Act, 1956 of the Companies Act, 1913, which can be construed as restricting the powers of the court to take cognisance of an offence or the powers of the police to initiate prosecution or even of a private citizen to move the machinery of the criminal courts to bring an offender like the managing director of a company to justice and, for a prosecution for breach of trust even by a director of a company, no such condition precedent as the previous sanction of any authority is contemplated by law, unless it is a prosecution in the name and on behalf of the company by the official liquidator, who has to incur expenses out of the funds of the company, and section 179 does not control the general law of the land. In that view of the matter, therefore, I do not think that any leave is necessary under section 446(1) to continue the prosecutions against the erstwhile directors and officers of the aforesaid company. Summons is, accordingly, disposed of.
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1980 (10) TMI 165
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... ... ..... hed the same. Of course for practical purposes in the present case, it makes no difference because as already indicated, the respondent has become registrable and has actually got itself registered. A feeble effort was made by Mr. Jaggi to urge that as only a show-cause notice was issued the writ petition was not maintainable. The learned judge has dealt with the matter in detail and in our opinion has correctly come to the conclusion that the threatened prosecution was sufficient justification for the respondent to invoke the jurisdiction of the court. If the respondent was being proceeded against by misconstruing the provision of law which could result in the prosecution, the action of the appellant being unsupportable in law, the remedy by way of mandamus was the appropriate remedy and the learned judge rightly granted it. Though, therefore, we would dismiss the appeal, yet the same is disposed of subject to the observations on some of the points mentioned above. No costs.
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1980 (10) TMI 156
Whether the High Court was right in the circumstances of the case in finding the appellant guilty of the offence in question?
Held that:- Appeal is allowed and the conviction of the appellant and the sentence imposed on him by the High Court are set aside. The order of acquittal passed by the Magistrate is restored.
Even the charge framed against the appellant did not state that the order imposing penalty on him had been communicated to him on August 7, 1970, and that he was being tried for an offence punishable under section 23 F for non-compliance with the order so communicated on August 7, 1970. The charge only contained the gist of what was stated in the complaint on November 13, 1969. The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of.
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1980 (10) TMI 155
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... bank is entitled to succeed in this petition for a winding-up order by this court. Accordingly, respondent No. 1 company shall be wound up and the provisional liquidator shall be the liquidator of the company. In the result, this court directs that the petitioner do advertise the winding-up order in the Deccan Herald within 14 days from to-day. The petitioner to serve a certified copy of this order on the Registrar of Companies not later than one month from this date. Respondents Nos. 3 to 6 do file the statement of affairs with the official liquidator as required under section 454 of the Act. The official liquidator shall take all steps to recover the debts and other amounts due to the company and shall exercise all the powers under the Act and Rules thereunder to discharge his duties as official liquidator. The official liquidator shall also cause a sealed copy of this order to be served on the company or its directors by pre-paid registered post. It is accordingly ordered.
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1980 (10) TMI 138
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... ... ..... said author expressed the view that in extreme cases, amount of goodwill has been ascertained by capitalising super profits of 5 to 10 years. The ld. counsel for the accountable person, however, urged that the firm mentioned at (2) above was carrying on business as commission agents and was operating in the Agricultural Market Yard and had no special advantage and that more than 200 firms were operating in the said yard and according to him, there was no goodwill attached to any shop as grain was a standard item in which different commission agents were dealing and there was nothing personal nor any reputation of any commission agent nor of place nor were the shops owned by the commission agents who were only licences. Having carefully considered the submissions of both sides, we feel that Appl. CED was justified in directing that the multiplier factor of two years purchase be taken instead of 3 years in respect of firm (No. 2) above. 5. The departmental appeal is dismissed.
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1980 (10) TMI 135
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... ... ..... 144B (4) of the said Act. The Supreme Court in 40 ITR 298 stated that in such a situation, the order of the lower authorities could be restored back to the stage where the illegality supervened. In the present case, the illegality supervened when the ITO failed to refer to the IAC the draft assessment order along with the objection of the assessee. In the aforesaid order of the Tribunal for the detailed reasons mentioned therein the order passed by the ITO was restored to the stage for sending the same for the objection of the assessee and, therefore, for reference to the IAC under s. 144B of the said Act. In the present case before us, the order passed by the ITO is restored to the stage for referring the objection of the assessee along with the draft assessment order to the IAC under s. 144B of the said Act. We, therefore, set aside the order of the AAC and restore the order of the ITO as mentioned above. 8. In the result, the appeal is allowed on the lines indicated above.
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1980 (10) TMI 134
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... ... ..... f other Shakhas cannot constitute income of the assessee and cannot be taken into account while computing the total income of the assessee for purpose of income-tax. (5) The correct status of the assessee is body of individuals but which is constituted of individual Swayamsevaks forming assessee-RSS at Nagpur and not the body of individuals constituting other Shakhas in the country. In the result, the assessee s appeal is partly allowed. 9. If the finding of the aforesaid order is taken into consideration, it is clear that Rastriya Swayamsevak Sangh is a taxable entity. Further, Guru-Dakshina from Swayamsevaks on the ground of mutuality cannot be subjected to tax in the hands of the assessee. Further, Guru-Dakshina or contributions by the persons other than Swayamsevaks as well cannot be assessed interest in the hands of the assessee. Therefore, following the aforesaid finding of the Tribunal, the finding of the AAC is maintained. 10. In the result, the appeals are dismissed.
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1980 (10) TMI 131
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... ... ..... on of income or loss returned by the Department and can never cover the issue of non-allowance of interest on delayed refund. The mere accident that on an oral plea raised by the assessee the IAC gave his view in his written instructions under s. 144B would not entitle assessee to treat such finding as the IAC s direction under s. 144B which can fall within the scope of the appeal provided in s. 246(2)(f). The assessee s further plea that the ITO has failed in his duty cast on him by s. 141A and hence we should interfere is also not tenable. Where no appeal is provided on the assessee rsquo s cause of grievance the Appl. authority has no power to entertain such grievance or interfere even if the assessee s grievance is established. As we have stated earlier the assessee will have to seek redress elsewhere. The assessee s ground is hence rejected. 11. In the result, the appeals are dismissed and the assessee s cross objections are treated as dismissed for statistical purposes.
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