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Showing 21 to 40 of 222 Records
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1989 (11) TMI 308 - SUPREME COURT
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... ... ..... ion. The leave application was filed within the limitation from the date of original order of dismissal of the revision or on a later date dismissing the review application. It is true that the writ petition was filed against the order in revision, but it does not preclude the appellant to contest its invalidity in the appeal under Art. 136. The decree was executed pending the special leave petition. This Court would relieve the party from injustice in exercise of power under Art. 136 of the Constitution when this Court notice grave miscarriage of justice. It is always open to the appellant to take aid of Sec. 144 C.P.C. for restitution. Therefore, merely because the decree has been executed, on the facts when we find that decree is a nullity, we cannot decline to exercise our power under Art. 136 to set at nought illegal orders under a decree of nullity. The appeal is accordingly allowed. But in the circumstances parties are directed to bear their own costs. Appeal allowed.
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1989 (11) TMI 307 - SUPREME COURT
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... ... ..... joins a duty on the court to award the amount in every case and that mandate of the legislature could not be ignored. The decision of this Court in Bhag Singh appears to be the single motive force guiding the approach and reaching the conclusion. But it may be noted that the aforesaid phraseology used in Section 30 sub-section (1) is quite similar to that used in Section 30 sub-section (2). The scope of those words has already been examined and no more need to be stated in that regard since Bhag Singh has been overruled in Raghubir Singh. The view taken by the High Courts of Karnataka and Bombay therefore, could no longer be cosidered as good law and the said decisions are accordingly overruled. In the result, the appeal is allowed in part. The judg- ment of the High Court is modified and the compensation award under Section 23(IA) is deleted. The judgment and decree in other respects are kept undisturbed. ' In the circumstances of the case, we make no order as to costs.
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1989 (11) TMI 306 - SUPREME COURT
whether the Bank was negligent in opening the account in the name of Sethurarman, as proprietor, Industrial Chain Concern?
Held that:- In the instant case there was no question of a reference inasmuch as the Manager himself knew Sethuraman and gave the introduction. The account was not opened by depositing any cheque but by depositing case of ₹ 100. The first cheque was paid into the account later and there is nothing to show that it formed part of the same transaction. No particulars have been proved as to the tenor of that cheque. The Manager made several inquiries which in the facts and circumstances of the case, in our view, were sufficient, for it is an accepted rule that the banker may refrain from "making inquiries which it is improbable will lead to detection of the potential customer's purpose if he is dishonest and which are calculated to offend him and may drive away his customer if he is honest.
Sethuraman was believed when he said that he was the proprietor of Industrial Chain Concern which he recently started. He showed some orders and references in proof of his business. The banker believed in existence of his business but did not meticulously examine the addresses. Sethuraman was asked as to why he wanted to come to that branch and his reply was that he expected there to have overdraft facility and when that was refused he expressed that after his business improved he would expect to be granted overdraft facilities after one year. There is no doubt that Sethuraman was a rogue, but he prepared the plan intelligently and the banker in good faith believed in his statements. We, therefore, find it difficult to hold that the Bank was negligent in opening the account accepting the deposit of cash by a person known to the Manager of the Bank under the above circumstances. Appeal allowed.
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1989 (11) TMI 305 - KERALA HIGH COURT
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... ... ..... le is contrary to the provisions of the Act. The rejection of the petitioner s appeals at the threshold as not maintainable was not legal and was an abdication of his jurisdiction by the Appellate Assistant Commissioner. Exhibit P7 has, therefore, to be quashed. 7.. Since exhibit P2, in so far as it deals with the assessment years 1981-82 and 1982-83, is one passed without affording the opportunity envisaged by exhibit P1, it has also to be quashed to that extent. 8.. I, therefore, quash exhibit P2 in so far is it relates to the assessment years 1981-82 and 1982-83, as also exhibit P7. The assessing authority, namely, the first respondent, shall afford opportunity to the petitioner to prove his claim for non-liability of single point goods as envisaged in paragraph 12 of exhibit PI, and complete the reassessment for these two years within a period of three months from the date of receipt of a copy of this judgment. The original petition is allowed as above. Petition allowed.
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1989 (11) TMI 304 - ANDHRA PRADESH HIGH COURT
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... ... ..... ading of subsection (1) shows that clause (a) is attracted only where the offence consists of the failure to pay, or evasion of tax due. In other cases, it is clause (b) that applies. In this case, as stated above, the composition amount was levied not on the ground that there was failure to pay the tax due or that there was any evasion of tax due, but on the ground that the petitioner had issued spurious sale bills in order to hoodwink the department without actually transporting 50 drums of ground-nut oil. Evidently, the case falls under clause (b) it cannot fall under clause (a). If so, the amount of composition could not have exceeded Rs. 1,000. For the above reasons, the writ petition is allowed in part. The State is entitled to retain only a sum of Rs. 1,000 (rupees one thousand only) out of the amount of composition. The balance of Rs. 16,568 shall be refunded to the petitioner. There shall be no order as to costs. Advocate s fee Rs. 200. Writ petition partly allowed.
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1989 (11) TMI 303 - MADHYA PRADESH HIGH COURT
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... ... ..... goods have been returned by the purchasers after a period of about a year and without intimating to the applicant that the same have been rejected. The dealer, i.e., the applicant, could, therefore, well have contested the return of the goods to him. We are, therefore, of the opinion that the dealer, in the circumstances of the present case, was not entitled to deduction of a sum of Rs. 21,699 from its taxable turnover. We, therefore, hold that in the facts and circumstances of the case, the sale price of Rs. 21,699 could be included in the taxable turnover of the applicant (dealer) when the goods were returned by the purchaser on the ground that they were not according to the specifications stipulated by the purchaser after six months as stipulated in section 8A(1)(b)(ii) of the Central Sales Tax Act. 5.. The question is, therefore, answered against the applicant-dealer and in favour of the Revenue. There shall be no order as to costs. Reference answered in the affirmative.
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1989 (11) TMI 302 - ANDHRA PRADESH HIGH COURT
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... ... ..... ration or distribution of electricity or any other form of power. In this case, the petitioner says, the goods are meant for resale. The certificate of registration also shows that the said goods are meant for resale. Learned counsel also points out-and rightly in our opinion-that after the Forty-sixth Amendment to the Constitution, the goods used in executing work contracts are deemed to be sold and therefore there is a sale of the material used in execution of the works contracts. Be that as it may, as stated above, the question whether a particular C form has been issued rightly or wrongly is not a question which is relevant at this stage. We are concerned at this stage only with the supply of C forms to the petitioner by the commercial tax authorities. Accordingly the writ petition is allowed. The authorities shall supply the requisite number of C forms according to the Rules, as and when applied by the petitioner. No costs. Advocate s fee Rs. 150. Writ petition allowed.
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1989 (11) TMI 301 - KARNATAKA HIGH COURT
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... ... ..... ame reasons. Besides, the question of levying tax under section 6 arises only when the goods in question are taxable under section 5(1) as already stated. It may be noticed that the assessing authority had taken the correct view in the assessment order while exempting the purchase turnover of dry fish from purchase tax. His reason for exemption was that the fish was exempt from tax under section 8 of the Act. This view taken by the assessing authority is correct and needed no interference. I am, therefore, unable to uphold the reasons given in the notice issued under section 12-A proposing to levy purchase tax on the purchase turnover. The reasons given for quashing the proposition notice in W.P. No. 2367 of 1988 hold good for allowing this writ petition also. The writ petitions are accordingly allowed and the proposition notice issued in form 31-A in W.P. No. 2367 of 1988 and the notice issued in W.P. No. 6316 of 1989 under section 12-A, are quashed. Writ petitions allowed.
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1989 (11) TMI 300 - ANDHRA PRADESH HIGH COURT
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... ... ..... case of the petitioner that he opted to be governed by section 5 on and from 1st January, 1984, or, at any time till 23rd March, 1984. If so, he is liable to pay tax under section 4, that is, the normal mode of taxation. The authorities say that instead of paying under section 4 (amended section 4) the petitioner continued to pay tax under section 4-C even after 1st January, 1984 up to 23rd March, 1984. On that basis, they have demanded the said differential tax. In our opinion, the correct legal position is that from 1st January, 1984 to 22nd March, 1984 (both days inclusive) the petitioner is liable to pay tax under amended section 4. Since both the authorities have merely affirmed the said position, we see no reason to interfere with the said demand. For the above reasons, this revision is allowed in part. The demand to the extent of Rs. 40,880 is quashed. The demand in respect of the remaining amount shall stand. No costs. Advocate s fee Rs. 200. Petition partly allowed.
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1989 (11) TMI 299 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... an indent from a foreign buyer. In the present cases before us, there was no agreement between the applicants and the foreign buyer and no order from the foreign buyer on the applicants for the sale of tea. There was no indent or request from the foreign buyer to the applicants for such sale. There was no obligation on the part of the applicants to export the goods arising from an agreement with or order from a foreign buyer. That being the case, there was no sale by the applicants to the foreign buyer and their purchases at the tea auctions or elsewhere for performing the agreement with STC was not entitled to exemption under sub-section (3) of section 5 of the CST Act. 13.. Accordingly, the two writ petitions which have been registered as RN-119(T) and RN-120(T) of 1989 upon transfer from the High Court are dismissed without costs. The interim orders stand vacated. B.C. CHAKRABARTI (Chairman).-I agree. P.C. BANERJI (Technical Member).-I agree. Writ applications dismissed.
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1989 (11) TMI 298 - ANDHRA PRADESH HIGH COURT
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... ... ..... icle 304(a) had no application. The learned counsel also referred us to the earlier decision of this Court reported in Anand Commercial Agencies v. Commercial Tax Officer, VI Circle, Hyderabad 1988 71 STC 45. However, in view of the latest pronouncement of the Supreme Court in the aforesaid case of Indian Cement Ltd. v. State of A.P. 1988 69 STC 305 (SC) AIR 1988 SC 567, we have no option but to hold that the impugned Notification dated February 13, 1986, is violative of article 304(a) of the Constitution. Having regard to the facts and circumstances of the case, Notification No. II in the aforesaid G.O. Ms. No. 172, Revenue (S) Department, dated February 13, 1986, is quashed. All concerned parties will pay tax at the uniform higher rate. In view of the facts and circumstances of the case and in view of this order, the past transactions will not be affected. The writ petition is disposed of accordingly. No costs. Advocate s fee Rs. 150. Writ petition disposed of accordingly.
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1989 (11) TMI 297 - ORISSA HIGH COURT
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... ... ..... reported in 1953 4 STC 271 Recols (India) Ltd. In re where it was held that as soon as there is a taxable turnover, the tax is due. We find the ratio of the said decision has no application to the facts of the present case. In fact in the said decision also it was observed as a general principle that where a tax has to be assessed, it does not become either due or payable till at least an assessment is made. That was also the view expressed by the Judicial Committee in the case of Pratt Re Ex parte Inland Revenue Commissioners v. Phillips 1950 2 All ER 540 at page 548. In view of the unambiguous language used and in view of the analysis made above, the contention is not acceptable. 12.. In the result, the writ applications are allowed and the orders and the demand notices as contained in annexures 1, 1(a), 2, 2(a), 3, 3(a), 4, 10, 10(a), 11, 11(a), 12 and 12(a) are quashed. We direct the parties to bear their respective costs. L. RATH, J.-I agree. Writ applications allowed.
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1989 (11) TMI 296 - KARNATAKA HIGH COURT
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... ... ..... he term trade and commerce put across by the learned counsel for the appellant, cannot have any bearing on the concept of business because the expression business has been defined and explained under the statute and such expression has been subject of scrutiny by the Supreme Court. Even though the activities carried on by the Appellant may be one of service which may not involve buying and selling as such, by no stretch of imagination can it be said that the activities carried on by the appellant in salvaging the damaged goods in respect of which it had entered into contracts and then recover as much money as possible by sale of the same is not business. Therefore, one of the incidental activities of the appellant being to sell salvaged goods and that activity being incidental to the main business of the appellant, it is clear that it is a dealer under the Act. 8.. In the circumstances, we affirm the order of the learned single Judge and dismiss the appeal. Appeal dismissed.
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1989 (11) TMI 295 - MADHYA PRADESH HIGH COURT
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... ... ..... to time? 2.. The reference has been made in connection with the assessment year 1971-72. It is not necessary for us to go into any detail in this case as the question referred to us stands fully answered by a Division Bench decision of this Court in the case of Commissioner of Sales Tax v. Bhopal Sugar Industries Ltd. 1981 48 STC 45 1981 MPLJ 395 wherein similar question had been referred to this court. It will be seen that that case also related to the present assessee with regard to identical transactions in relation to assessment for an earlier year. For the same reasons and following that decision, we answer the question in favour of the assessee and against the Revenue and hold that the assessee is not liable for sales tax in respect of gunny bags when sugar was sold by the assessee and which were in conformity with the standard prescribed by the sugar packing order as prescribed from time to time. There shall be no order as to costs. Reference answered in the negative.
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1989 (11) TMI 294 - MADRAS HIGH COURT
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... ... ..... ed of, the matter has to be remitted back to the Appellate Tribunal to dispose of the same in the light of the decision in 1980 45 STC 212 (SC) Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi . We find much force in the contention of the learned counsel for the revision petitioner in this regard. For the foregoing reasons, the impugned orders passed in both the cases by the Tribunal are set aside and the matter is remitted back to the Appellate Tribunal to consider the principle laid down in 1980 45 STC 212 (SC) Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi , with reference to the facts of each case and dispose of the same on merits accordingly. However, the Appellate Tribunal is also directed to keep in view of the decision of this Court in 1986 63 STC 18 (Mad.) (Sree Annapoorna v. State of Tamil Nadu). Both the revisions are ordered accordingly. However, in the circumstances of the case, there will be no order as to costs. Ordered accordingly.
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1989 (11) TMI 293 - MADHYA PRADESH HIGH COURT
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... ... ..... It is a law of which public notice must be taken of as being operative on the field to which it applies. The question of bar under section 39-A of the Act, therefore, does not arise and the Tribunal (Board) was perfectly justified in taking notice of the notification along with the forms appended to that notification, which, for all practical purposes, must be deemed to be a part of the notification itself. It is needless to go into the question as to whether in such circumstances, section 39-A of the Act could at all come into play or not. We, therefore, need not go into any other academic question and must answer the question referred to us in the affirmative in favour of the assessee and against the Revenue. Since no one has appeared on behalf of the assessee, and the learned counsel for the Revenue has very fairly accepted the legal position that the case must be decided against the Revenue, we shall not make any order as to costs. Reference answered in the affirmative.
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1989 (11) TMI 292 - ORISSA HIGH COURT
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... ... ..... portunity to the petitioner of being heard when he is to determine whether the applications for refund are within the period of limitation as provided under section 14, proviso of the Act whether the amount claimed to be refunded was paid by the dealer whether the amount was paid by the dealer as tax or otherwise under the Act and whether the same was not payable by him under the Act, Rules and notifications thereunder. Petitioner is directed to appear before the Commissioner with a copy of this order on December 11, 1989, on which day the Commissioner shall fix a date for hearing the petitioner and shall dispose of the same on or before January 11, 1990. 7.. In the result, the writ application is allowed. Annexure 1 is quashed. Let a writ in the nature of mandamus be issued in the light of the directions as made above. No costs. Requisites for issue of writ on the Commissioner shall be filed by the petitioner by tomorrow. K.C. JAGADEB ROY, J.-I agree. Writ petition allowed.
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1989 (11) TMI 291 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... missible to the petitioner. Accordingly, we quash annexure P.3 as being without jurisdiction with a direction to the State Government to refund the amount of sales tax and interest charged illegally from the petitioner, along with interest as provided by section 43 of the Haryana General Sales Tax Act, 1973, read with rule 35(b) framed thereunder, within a period of six weeks from today, failing which it will be open to the petitioner to move this Court for initiating contempt proceedings. The petitioner will have the costs of this petition which are quantified at Rs. 500. Petition allowed.
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1989 (11) TMI 290 - KARNATAKA HIGH COURT
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... ... ..... ia and the specification for compressed oxygen gas, issued by the Indian Standard Institute, to explain the distinctive features of medicinal oxygen . There can be no doubt about its distinctive quality in contradistinction to the industrial oxygen . The object of entry 121 is clearly to attract an industrial gas , which cannot, on the face of it include, a gas which is not considered as an industrial gas by those who deal in it. It is clear that a person requiring medicinal oxygen will not be satisfied if he is supplied with the industrial oxygen and similarly an honest trader would not sell medicinal oxygen as an industrial oxygen . The same reasoning should apply to the cases of nitrous oxide used for anaesthesia. Consequently, these revision petitions are allowed, the orders under revision are set aside and the assessing authority is directed to redo the assessments in question, in the light of the observations made in this order. No order as to costs. Petitions allowed.
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1989 (11) TMI 289 - KARNATAKA HIGH COURT
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... ... ..... he description of machine . We are aware of the decision of the Supreme Court which says that there should not be any technical approach nor should a commodity be understood in any technical sense but in the ordinary parlance of commercial context to class an item of goods in one category or another. In the present cases, considering the nature of the arrangement of the device and its functions it cannot be said that it is merely a door hinge and a simple device, not to be called a machine. Therefore, we cannot but reject the contentions raised on behalf of the respondent. The above discussion leads to the irresistible conclusion that door closers of the type sold by the respondent are machinery for the purpose of entry 20 of the Second Schedule to the Act and the decision to the contrary rendered by the Tribunal will have to be set aside restoring the orders of the assessing and appellate authorities. Ordered accordingly. Revision petitions stand allowed. Petitions allowed.
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