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Case Laws
Showing 61 to 80 of 354 Records
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1991 (2) TMI 369
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... ... ..... riod of limitation which is prescribed. Section 20(3), however, does not specify any limitation period for the exercise of revisional jurisdiction. It cannot be that in the garb of revising the order of the subordinate authority, namely, the assessing authority, the turnover which has escaped the assessment, can be taxed after a number of years even though the period of limitation under section 11-A may have expired. It appears to us, therefore, that the decision of the Financial Commissioner to the effect that in the present case jurisdiction could only have been exercised under section 11-A and not under section 20(3) was correct. He, therefore, rightly came to the conclusion that the Assistant Commissioner could not have exercised any powers under section 20(3) of the Act. In view of the aforesaid, the question of law referred to us is answered in the affirmative and against the department. The petition stands disposed of accordingly. Question answered in the affirmative.
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1991 (2) TMI 368
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... ... ..... ernment Order is not available to the dealer in that case. The question about the description of the declared goods in section 14 and the effect of any inconsistency between the description in section 14 of the Central Act and the description in the State Act and the effect of section 15 of the Central Act did not arise and was not considered. As the relief of refund is based on the provisions of section 15(b) of the Central Act, as a condition for the imposition of sales tax by the States in respect of the declared goods mentioned in section 14 of the Central Act the description of declared goods in the Central Act will apply irrespective of the fact whether those goods could be treated as different commodities under the State sales tax law and may even be different commodities. The earlier decisions of our High Court referred to above have also taken a similar view. We, therefore, do not find any merit in this revision and it is, accordingly, dismissed. Petition dismissed.
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1991 (2) TMI 367
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... ... ..... the bills produced for showing the second purchase by the respondent were false bills. The Deputy Commissioner also found that the respondent had sought to claim exemption by knowingly producing false bills. The Tribunal, on appeal, found that there is no material to show that the respondent-assessee had knowingly produced false bills. The assessee submitted that the purchases were supported by purchase bills and that they were effected through brokers and that the assessee did not know that the bills given were false documents. The Tribunal accepted the plea of the assessee that the Revenue had failed to establish that the assessee knowingly produced false bills. On the material produced, we have no reason to differ from the conclusion arrived at by the Tribunal that the assessee could not be fixed with the knowledge of production of false bills knowingly and on that ground the penalty could not be levied. The tax revision case is accordingly dismissed. Petition dismissed.
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1991 (2) TMI 366
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... ... ..... materials included in their certificate of registration. Notwithstanding the above findings, however, the Tribunal has said We are of the view and opinion that an amount equivalent to tax which would have been levied under sub-section (2) of section 8 may be levied as penalty under section 10-A(1) of the Central Sales Tax Act which we consider will meet the ends of justice. This Court has held in more than one case that for imposition of penalty, it is necessary to find that the act or omission of the assessee was intentional and in a certain sense whether mens rea was present. The findings aforequoted clearly show that there was no intentional omission on the part of the petitioner inviting penalty under section 10-A(1) of the Act. For the reason aforesaid, we are of the opinion that the respondent has committed an error in imposing the penalty. The levy of penalty is accordingly set aside. The revision, to the extent indicated above, is allowed. No costs. Petition allowed.
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1991 (2) TMI 365
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... ... ..... to the registered dealer. Moreover, the Supreme Court in that case was not concerned with the applicability of proviso or the question with which we are concerned in this reference. Therefore, that decision cannot be of any help to the applicant. On plain reading of the proviso and on consideration of the admitted facts of this case it will have to be held that necessary forms were obtained and could have been obtained from the authorities in the State of Maharashtra and that State alone has right to levy and collect the sales tax in respect of the sales in question. The Tribunal was, therefore, right in holding that the levy of tax of Rs. 29,239.88 and the imposition of penalty by the Sales Tax Officer in Gujarat was without jurisdiction, and therefore illegal. The question referred to us is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the applicantdepartment. There shall be no order as to costs. Reference answered in the affirmative.
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1991 (2) TMI 364
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... ... ..... rt some amounts have been paid by way of tax during the pendency of these writ petitions. Since the writ petitions are allowed, it is more appropriate that the respondents should refund the same. However, the respondents are granted three months time to refund the amounts paid during the pendency of these writ petitions or in furtherance of the impugned orders. 14-2-1991 For being spoken to While disposing of this batch of writ petitions we omitted to refer to another contention pertaining to the taxability of the entry of the beedi leaves under entry 16B of the Schedule. Several contentions have been urged by the learned counsel for the petitioners since these questions are most appropriately to be decided by the assessing authorities, having regard to the factual aspects, we have not expressed any opinion. Assessing authorities are directed to consider the question in the light of the contentions raised by the petitioners. It is ordered accordingly. Writ petitions allowed.
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1991 (2) TMI 363
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... ... ..... noticed earlier. Though the Tribunal has held that the G.O. to be not applicable, as there has been a subsequent change of the taxability from section 5(1) to section 5(2) of the Act, the circumstance that the Government have rescinded it after the appeal is disposed of also indicates that there was an assumption that the benefit of the G.O. was still available. Without going into the aforesaid controversy about the rescinding of G.O. in 1988 it has to be held that taxation on ravva made from rice after introduction of item 144(b) by Act 49 of 1976 was only 1 per cent, if the rice or paddy had suffered tax and the subsequent legislations are only clarificatory in nature. The conclusion of the Tribunal is, therefore, correct and the T.R.C. No. 26 of 1990 is dismissed. For the same reasons the other T.R.C. Nos. 59, 111, 113 and 119 of 1990 which relate to different assessees for different assessment years but raise the same controversy are also dismissed. Petitions dismissed.
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1991 (2) TMI 362
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... ... ..... petitioner filed an application for rectification and an appropriate order was passed rectifying the mistake. It is only thereafter that an application under section 45(1) could 1. the date when the order of reassessment was passed. -Ed. 2. reassessment order .-Ed. be filed. In our opinion, therefore, the period of limitation should have been counted with effect from May 13, 1988. If this is so then it is not in dispute that the application was within time. As the petitioner s application under section 45(1) has been dismissed only on the ground of limitation and as we are not in agreement with the finding of the Tribunal that the application is barred by time we, therefore, issue a writ of certiorari quashing the order dated November 16, 1988 and direct the Tribunal to hear the application of the petitioner under section 45(1) on merits. Petition is disposed of. Petitioner to appear before the Tribunal for further orders on March 11, 1991. Petition disposed of accordingly.
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1991 (2) TMI 361
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... ... ..... vance in the writ petition is that the Presiding Officer, Sales Tax Tribunal, Punjab, has exceeded his jurisdiction in the abovesaid matter whatsoever in rectifying his predecessor s order dated 24th August, 1987. I am of the considered view that under section 21-A of the Act, a mistake apparent from record can be rectified within the stipulated period. The mistake should be clear from record without elaborate arguments. No apparent mistake from the record has been pointed out, and only the Presiding Officer has substituted his own views on the views of his predecessor which are not covered by the expression mistake apparent from record. I am of the view that the condition precedent for assuming jurisdiction has not been satisfied under section 21-A of the Act. At best it is a case of change of opinion. In view of foregoing reasons the impugned orders of rectification of the Presiding Officer of the Tribunal is quashed. Parties to bear their own costs. Writ petition allowed.
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1991 (2) TMI 360
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... ... ..... le of the Act and are not exempt from tax. We are of the opinion that mere exclusion or inclusion is by way of description of the goods and not a condition or exception and that the insertion of the expression other than cakes, pastries, biscuits and sweetmeats in the first column of item No. 7 of Schedule I of the Act is not ultra vires section 6(1) of the Act. The notice dated September 3, 1981 cannot thus be set aside. The application, thus, fails. The authorities concerned may proceed against the applicants on the basis of the notice dated September 3, 1981 in accordance with law, after giving the applicants an opportunity of being heard. Interim order, if any, is vacated. We make no order as to costs. Mr. Roy Chowdhury, the learned Advocate for the applicants, prays for stay of operation of this order. Heard Mr. Roy Chowdhury and the learned State Representative. Let the operation of this order be stayed for a period of eight weeks from this date. Application dismissed.
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1991 (2) TMI 359
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... ... ..... wipe off or take away the characteristic or operative force of the orders of original assessment. Therefore, it would be a travesty of law to hold that the orders made under section 16(1)(a) of the Act had set aside the original orders of assessment, which were not even under consideration referred to or included in the order under section 16(1)(a) of the Act. The order of refund of tax, already paid on the basis of the original order of assessment is, therefore, erroneous and cannot be sustained. The learned single Judge did not advert to, much less consider and discuss the facts and circumstances of this case while ordering the writ petitions and for what we have said above, we cannot agree with the judgment of the learned single Judge in the three writ petitions. Consequently, these judgments are set aside and the writ petitions filed by the respondent-assessee would stand dismissed. In the result, the writ appeals succeed and are allowed. No costs. Writ appeals allowed.
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1991 (2) TMI 358
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... ... ..... ermissible to extend those grounds beyond what has been clearly and specifically provided by the Legislature in the section itself. A review petition cannot be converted into an appeal in disguise. Power of review has to be exercised sparingly and strictly in accordance with the statute authorising review within the parameters set out by the statute itself. Considered in this light, it becomes apparent that the Tribunal did not exercise the power of review in accordance with the parameters and limitations set out in section 36(6)(a) of the Act. The conclusion is, therefore, irresistible that the Tribunal fell in error in reviewing its earlier order only on the basis of a later judgment of a High Court being brought to its notice. The order of the Tribunal dated 20th August, 1980, therefore cannot be sustained. It is hereby set aside. The revision petition consequently succeeds and is allowed. The order of the Tribunal dated 21st of March, 1980, is restored. Petition allowed.
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1991 (2) TMI 357
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... ... ..... of material facts etc. were alleged on the part of the importer, had already come into force. The show cause notice could not have been issued by the Assistant Collector on 17-2-1986. The earliest show cause notice in these proceedings was issued on 13-7-1985. The imports were all of 1982, 1983 and 1984 and, therefore, in any view of the matter, the demand notices were hopelessly barred by limitation under Section 28. 20. Another point made by Shri Narasimhan is that the Collector had improperly quantified the duty. For the purpose of calculating the duty liability, he should have taken the relevant dates of import and the rates of duty in force at the material times in stead of which he has averaged the value and averaged the duty element. Such course is impermissible. We agree. 21. In the light of the foregoing discussion, we hold that the Collector rsquo s order is not supportable. Hence it is set aside. The appeals are allowed with consequential relief to the appellants.
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1991 (2) TMI 356
Developement Rebate, Transfer ... ... ... ... ..... hat these two decisions have been specifically approved by the Supreme Court in the case of Sunil Siddharthbhai 1985 156 ITR 509 in the following terms (p. 520) Accordingly, we hold that when the assessee brought the shares of the limited companies into the partnership firm as his contribution to its capital, there was a transfer of a capital asset within the meaning of the terms of section 45 of the Income-tax Act. In this view of the matter, we agree with the conclusion reached by the Kerala High Court in A. Abdul Rahim, Travancore Confectionery Works v. CIT 1977 110 ITR 595 FB , the Karnataka High Court in Addl. CIT v. M. A. J. Vasanaik 1979 116 ITR 110 and by the Gujarat High Court in the judgment under appeal. In the circumstances, the view taken by the Tribunal appears to us to be in conformity with the view subsequently taken by the Supreme Court. Both the questions of law are, accordingly, answered in the affirmative and in favour of the Revenue. No order as to costs.
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1991 (2) TMI 355
‘Alcohol all sorts’ ... ... ... ... ..... 4-1983 wherein it had been held that Amyl alcohol was excluded from Item 68. The Board had issued the Circular No. 4/84-CX in F. No. 13/61/82-CX. 1, dated 1-10-1984 in which it had been stated ldquo Alcohol of all sorts rdquo excluded from the scope of Tariff Item 68 refers to alcohol of all sorts whether partly or otherwise. In this circular, the decision of this Tribunal in the case of Aceto Chemicals was also referred. It follows from the reading of the decision of the Aceto Chemicals case and that of the Bombay High Court in the case of Raman Kantilal Bhandari that items in question are not excisable and excluded from Tariff Item 68. The Government of India has also accepted the same position as is evident from the Board rsquo s Circular and letter dated 12-12-1990 which is reproduced above. 5. In view of this clear position of the law, the impugned order is set aside and the appeal is allowed. There is no delay in filing the appeal and the COD is disposed of accordingly.
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1991 (2) TMI 348
Failure to pay the taxes along with the return as required by section 4-B of Punjab General Sales Tax Act, 1948 - Held that:- Appeal allowed. Once it is found that the Revenue was not entitled to levy the tax which it purported to levy as purchase tax on the raw material, there can be no question of imposition of penalty or interest on the unpaid amount of tax. Therefore, the action taken in exercise of power under section 10(6) and section 11-D of the Act cannot be allowed to stand and must be set aside.
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1991 (2) TMI 341
Classification ... ... ... ... ..... he consignment should be treated as one of wool waste as wool content predominates. Reliance is placed in this connection on the order of the Tribunal in the case of Oswal Woollen Mills Limited v. Collector of Customs 1990 (46) E.L.T. 495 in which a heterogeneous mixture of fibres and yarns in the nature of waste material having a woollen content of less than 50 was held to fall for classification under heading 56.01/04 of the Customs Tariff Act, 1975. We have gone through the order supra and find force in the contention of the appellants that it applies squarely to the facts herein - in this case also we are concerned with waste which is a heterogeneous mixture - we see no reason to take a view different from the earlier one. The predominance of the wool content determines the classification of the imports as wool waste. 5. emsp In the result, following the above ratio, we set aside the impugned order and allow the appeal with consequential relief, if any, to the appellants.
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1991 (2) TMI 332
Company when deemed unable to pay its debts ... ... ... ... ..... ring of the petition to a date to be fixed by him and direct such amendments of the petition as may be necessary. Such creditor or contributory shall, within seven days from the making of the order, amend the petition accordingly, and file two clean copies thereof together with an affidavit in duplicate setting out the grounds on which he supports the petition. The amended petition shall be treated as the petition for the winding up of the company and shall be deemed to have been presented on the date on which the original petition was presented. In view of the said rule, the amended petition shall be treated as a petition for the winding up of the company and shall be deemed to have been presented on the date on which the original petition was presented. This rule further requires that the amended petition will be filed together with an affidavit in duplicate setting out the grounds on which he supports the petition. Consequently, the appeal fails and is dismissed in limine.
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1991 (2) TMI 331
What is the ambit of the State's claim to priority in relation to revenues, taxes, cesses and rates, due from a company in liquidation?
Held that:- Allow the appeal of the company in liquidation and direct the liquidator to re-examine the claim for priority in accordance with the interpretation of the provision, that is to say, he must first ascertain whether the liability to sales tax belongs to and is founded within the period of 12 months next before June 26, 1967, and as such due and payable but preserving, however, the order of the Division Bench in relation to the view it has taken about penalties.
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1991 (2) TMI 330
Whether the offence under section 630 (1) (b) of the Companies Act is a continuing offence for the purpose of limitation?
Held that:- Appeal allowed. The impugned orders are set aside and the cases are remanded to the trial court for disposal in accordance with law.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so, sub-section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under section 630 of the Companies Act is not a one-time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent, upon his retirement, failed to vacate and deliver possession of the company's quarter to the company, the offence must be presumed to have been complete, has, therefore, to be rejected.
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