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Showing 41 to 60 of 305 Records
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1994 (12) TMI 314
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... ... ..... cluded. We therefore, think that in such a case, i.e., where appeal before the Tribunal is actually pending and the revision was already initiated, the period of pendency of the appeal will have to be excluded from the ultimate calculation of four years period. It is brought to our notice now that in Indo National Ltd. v. State of Andhra Pradesh 1987 64 STC 382 1986 3 APSTJ 200 it has been held by this Court that the dry cell batteries would fall under entry No. 38 till the date of coming into force of entry No. 152. Entry No. 152 is subsequently added entry. The court held that dry battery cells did not fall in any event, under entry No. 137. This decision renders the view on the merits by the S.T.A.T. futile. For the reasons given above, we are of the opinion that the view taken by the Tribunal is in consonance with the consistent view taken by this Court. We affirm the same and as a result dismiss the T.R.Cs. Nos. 70, 80, 96 and 130 of 1987. No costs. Petitions dismissed.
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1994 (12) TMI 313
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... ... ..... case at hand also there is nothing to suggest that there is any statutory provision indicating the date from which the entry in the certificate should come into effect. Therefore, we direct that the entry in the registration certificate will be effective from the date of the application. It may also be mentioned that section 13(1)(b)(ii) of the Act has since been omitted as per Act 2 of 1990. This is only by way of information. 22.. For all these reasons, we hold that the Division Bench judgment of this Court in 1970 26 STC 30 (Tata Iron and Steel Company Ltd. v. State of Bihar) does not call for any reconsideration and the petitioner is entitled to succeed in the writ petition. Accordingly, the writ petition is allowed and the goods in question will be entered in the registration certificate from the date of application by the petitioner, namely, October 14, 1985. There will be no order as to costs. B.N. AGRAWAL, J.-I agree. A.K. GANGULY, J.-I agree. Writ petition allowed.
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1994 (12) TMI 312
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... ... ..... would not fall within the second limb of section 5(1) of the Central Sales Tax Act it was a case in which the State Trading Corporation was an Indian buyer and an exporter and to constitute an export sale , the goods must have a foreign destination and a foreign importer and there must be an Indian exporter and the contract of export must be between an Indian exporter and a foreign buyer. From the above discussion it follows that neither the second limb of section 5(1) nor the first limb of section 5(1) is attracted so as to label the sale as export sale . It is a clear case of the State Trading Corporation being the Indian buyer and it being the exporter of the goods, the petitioner cannot claim the turnover of the sale which was made in favour of the State Trading Corporation for export of goods to a foreign buyer, is an export sale. We find no merit in the T.R.C. It is accordingly dismissed but in the circumstances, there shall be no order as to costs. Petition dismissed.
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1994 (12) TMI 311
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... ... ..... r and servant, if any food is supplied and deductions are made out from the wages of the servant towards the food supplied, the same must be treated as part of wages and not a separate contract of sale of food. Indeed, the Tribunal noticed this very position In the course of its order it is stated that if wages are paid in kind the salary would have been fixed at a rate with condition as free meals. If wages are paid and as part of wages free meals are provided, the same would not amount to sale. In the event when meals are provided, definitely wages would be reduced by a substantial sum. If wages are reduced by any particular figure, that figure cannot be taken to be equivalent to the value of the food provided to the employee to attract levy under the Karnataka Sales Tax Act. This reasoning would certainly knock out the approach of the department. In that view of the matter, we allow these petitions and set aside the orders made by the authorities below. Petitions allowed.
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1994 (12) TMI 310
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... ... ..... ble or severable and the other part can be given effect to, then alone it would be correct to say that in spite of the issue of amendment of the law, the notification would survive. In the present case, if there is alteration as to the rate of tax and if there is, as stated earlier, a prescription of a lower rate of tax in respect of a class of dealers and that got altered by reason of the amendment of the law as interpreted by us, the notification in question cannot survive. In that view of the matter, we must hold that the authorities were justified in bringing to tax the turnover of the petitioner at 5 per cent. 7.. We have not referred to the view taken either by the assessing authority or the appellate authority or by the Tribunal because the whole matter was presented to us for a fresh consideration by the learned counsel appearing in the case and that was not the approach of any one of the authorities. 8.. In the result, this petition is dismissed. Petition dismissed.
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1994 (12) TMI 309
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... ... ..... cannot exceed 4 per cent of the turnover and that it shall not be levied at more than one stage. In this view of the matter it may not be necessary to strike down the said entry. For the aforementioned reasons, question No. 2 is answered accordingly. Consequently the order under revision is modified holding the contention of the State that rexine is taxable under entry 174 of Schedule I to the APGST Act at the rate specified therein as untenable and further holding that equally untenable is the contention of the assessee that as rexine falls within the meaning of cotton fabrics in item 5 of Schedule IV, so the turnover of sales of rexine is exempt. Subject to the aforesaid modification the T.R.Cs. are liable to be dismissed. In the result, the writ petition is allowed as indicated above and subject to modification of the order of the Tribunal under revision the tax revision cases are dismissed. There shall be no order as to costs. Writ petition allowed and T.R.Cs. dismissed.
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1994 (12) TMI 308
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... ... ..... n about retrospectivity and, therefore, the petitioners could not rely on the new definition since their cases pertain to the earlier period. One of the factors which was pressed before us for not considering it retrospectively is the serious consequences of the heavy burden which may be put on the State as a result thereof. We fail to see how that consideration will determine the question about the retrospectivity of the definition clause. It may be mentioned that the circumstances in which form I-B was amended retrospectively have also not been explained by the State. 13.. In the ultimate analysis, we conclude that Savitri Industries case (O.J.C. No. 1269 of 1990 decided on May 2, 1991) does not lay down the correct legal position. 14.. The question referred is answered as indicated above. The petitions be remitted back for decision in accordance with law on their own merits in the light of what is held in this reference. D.P. MOHAPATRA, J.-I agree. R.K. PATRA, J.-I agree.
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1994 (12) TMI 307
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... ... ..... disposed of the appeal and now when a second appeal was filed before the Tribunal, surprisingly enough the latter has ignored the same material on the basis of which the earlier direction was given and the petitioner has been directed to deposit fifty per cent of the balance amount within a period of one month from the date of the order. Be that as it may, we are satisfied that the Tribunal has not adverted to the relevant considerations in terms of the proviso to section 39(5) of the Act and, therefore, the impugned order cannot be sustained. In the result, the writ petition is allowed and the impugned order as communicated to the petitioner on August 17, 1994 (annexure P6 with the writ petition) quashed. The Sales Tax Tribunal, Haryana, is directed to dispose of on merits the appeal filed by the petitioner without requiring it to deposit any further amount as it has already deposited a sum of Rs. 50,000 under the directions of the Tribunal. No costs. Writ petition allowed.
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1994 (12) TMI 306
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... ... ..... idering this aspect, this Court in Madras Aluminium Co. Ltd. v. State of Tamil Nadu 1982 49 STC 259 (Mad.) held that section 3(2) proceeds on the footing that goods must be mentioned in the First Schedule in order to be brought within the single point levy. 6.. In Commissioner of Sales Tax v. Mohd. Ayub and Sons 1982 50 STC 187 (All) it was held that glasswares are different from glass sheets. Thus, considering the facts arising in this case in the light of the judicial pronouncement cited supra, we hold that the Tribunal was correct in coming to the conclusion that the sale turnover of PVC sheets is liable for tax at 4 per cent multi-point instead of 8 per cent single point. Accordingly, there is no infirmity in the order passed by the Tribunal in holding that the PVC sheets cannot be brought under entry 145 of the First Schedule to the Act. In that view of the matter, the revision filed by the department is dismissed. There will be no order as to costs. Petition dismissed.
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1994 (12) TMI 305
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... ... ..... kla v. Union of India) it is held that the principles of natural justice are required to be followed. It is thus clear that no order adverse to the party, should normally be passed without affording reasonable opportunity of hearing to that party. 9.. Applying the aforesaid principles of law I am satisfied that the order annexure P11 cannot be sustained in law. 10.. In the circumstances, I dispose of this petition with directions as under (a) The order dated February 22, 1986 (annexure P11) passed by respondent No. 1 is hereby quashed. (b) Sequel to this, the application (annexure P10) is brought back to life and respondent No. 1 is directed to consider and decide the same after giving reasonable opportunity of hearing to the petitioner within a period of 6 months from today. 11. This petition is thus allowed in part in terms indicated above with no order as to costs. Security amount, if any shall be refunded to the petitioner after due verification. Petition partly allowed.
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1994 (12) TMI 304
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... ... ..... hall have liberty to adduce evidence cross-examine the evidence collected by the respondents. The full opportunity is required to be given in the penalty proceedings against which a right of appeal has also been provided under the Act. The petitioner may, therefore, if not willing to sell the goods in accordance with the provisions of section 23-D of the Act, may refuse and then the Assistant Commercial Taxes Officer shall proceed to levy the penalty and shall observe the principles of natural justice. If any action of levy of penalty has been taken during the pendency of the writ, contrary to the observations made above, the respondent shall proceed again in accordance with the direction as given above. At this stage, no interference under article 226 of the Constitution is required in view of the interpretation of the provisions of section 23-D of the Act. 7.. Consequently, the writ petition having no force is dismissed with the above observations. Writ petition dismissed.
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1994 (12) TMI 303
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... ... ..... same ground which is a subject-matter of adjudication in the T.R.Cs., is illegal the further prayer is as there is no provision in the State Act enabling the Tribunal to grant stay of the recovery of tax in dispute, this Court, in exercise of the jurisdiction under article 226 of the Constitution of India, may issue appropriate writ directing the respondents not to take coercive steps for recovery of the tax. In so far as the question pending consideration in the T.R.Cs., is concerned, we have just now decided that the transactions in question cannot be treated as export sales and, therefore, the turnover of the said transaction is liable to tax. Therefore, there is no reasonable ground to issue a direction to the respondents not to take coercive steps. However, we consider it appropriate to grant 3 (three) months time to the assessee to pay the balance of the tax. Subject to the above, the writ petition is dismissed. There will be no order as to costs. Petitions dismissed.
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1994 (12) TMI 302
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... ... ..... in accordance with G.O. Ms. No. 500 dated May 14, 1990, as interpreted by this order. In such process, pursuant to G.O. Ms. No. 500 dated May 14, 1990, such of those who are entitled to deferral payments and nevertheless, the tax is recovered from them before the period of deferment is over, they are entitled to restitution or re-scheduling as may be considered just and appropriate in the facts and circumstances of the case, as and when they approach the concerned authorities. In the light of the conclusion arrived at by us, we do not consider it necessary to refer to the various decisions relied upon by both sides. 13.. Points (ii) and (iii) are answered accordingly. 14.. The writ petitions are allowed in terms of findings recorded on points (i) to (iii) and the directions issued as above. All other contentions, if any, in the individual cases of both sides are left open. However, there will be no order as to costs. The W.M.Ps. are also disposed of. Writ petitions allowed.
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1994 (12) TMI 301
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... ... ..... normally interfere in appeal. The appellate court can interfere only in very exceptional circumstances. What those exceptional circumstances would obviously depend on the facts of each case. The judicial discretion exercised by the learned single Judge is not ordinarily interfered with unless it is shown that the discretion has been exercised in a manner manifestly wrong or perverse or arbitrary. In the instant case the learned counsel representing the appellant has not succeeded in bringing out any manifest error or arbitrariness in the judgment rendered by the learned single Judge. It is also not shown that the discretionary power exercised by the learned single Judge is one contrary to any binding decision of the Supreme Court or of this Court. Reference may be made to Abraham v. Returning Officer (1993) 1 KLT 5481 . In view of what has been stated above, we find no ground to interfere with the judgment appealed against. Appeal fails. It is dismissed. Petition dismissed.
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1994 (12) TMI 300
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... ... ..... fficer will be subject to this judgment. All past and future assessments of the applicant-club will follow this judgment. If by virtue of the interim order dated March 12, 1993 passed by this Tribunal, any assessments have already been made in respect of the applicant, we direct that such assessment orders should be revised according to this judgment within four weeks from now and then respondent No. 3 may issue notice of demand, and proceed according to law. If any sum is found to have been paid by the applicant-club in excess, we direct respondent No. 3, Commercial Tax Officer, Bhowanipur Charge, to refund the same to applicant within eight weeks of any assessment order of revision thereof. No order for costs. As prayed for by learned advocate for applicant, and after hearing learned State Representative, operation of the judgment is stayed for eight weeks hence. S.P. Das Ghosh (Chairman).---I agree. M.K. Kar Gupta (Technical Member).---I agree. Application partly allowed.
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1994 (12) TMI 299
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... ... ..... of an alternate remedy even if the same be equally efficacious as the remedy chosen by the petitioner would not by itself be a bar to the issue of a writ. The present is in my opinion one such case where the statutory authority has issued the notice impugned in disregard of the principles governing the proceedings under the Act. I therefore see no reason to refuse relief to the petitioner only because it is a notice of proposal and not a final order. 11.. In the result, this petition is allowed. The impugned notice dated September 12, 1994 issued by the respondent in so far as the same proposes to tax packing charges is hereby quashed. The respondent is however at liberty to take such other recourse as may be legally permissible to it in case it is of the opinion that the allowance of the exemption by the appellate authority on the packing charges was either impermissible or improper. In the circumstances, I direct the parties to bear their own costs. Writ petition allowed.
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1994 (12) TMI 298
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... ... ..... ouble the amount of tax likely to be evaded. 3.. The defect noted by the Sales Tax Check-post Inspector was that the pro forma invoice dated April 28, 1989 was not in the prescribed form under the Kerala General Sales Tax Act and is not assigned any number. Thus the officer in-charge of the Sales Tax Check-post suspected the genuineness of the documents. The goods transported were not accompanied by proper documents as prescribed by the Act. In view of the above facts and circumstances of the case, the security deposit of Rs. 21,200 collected was found justified and the conversion of the security deposit collected into penalty was also in accordance with law. This finding entered by the authorities below is purely finding of fact and no question of law arises therefrom. The result therefore is this petition fails. In view of what has been stated above, we dismiss this petition summarily as contemplated by section 41(3) of the Kerala General Sales Tax Act. Petition dismissed.
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1994 (12) TMI 297
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... ... ..... nnot be once again assessed under the Central Sales Tax Act. It remains to be seen that the assessee himself filed a return disclosing the turnover for the purpose of assessing the same under the Central Sales Tax Act. In such a case, it is not open to the assessee to contend that once the turnover was assessed under the Tamil Nadu General Sales Tax Act, the same turnover cannot be assessed under the Central Sales Tax Act. This was the reason given by the Tribunal for accepting the order passed by the Appellate Assistant Commissioner in respect of the assessment made under the Central Sales Tax Act. We consider that there is no infirmity in the order passed by the Tribunal in accepting the order passed by the Appellate Assistant Commissioner in respect of both the assessments under the abovesaid Acts. Accordingly, we are not inclined to interfere with the order passed by the Tribunal. 6. The revisions, therefore, fail and shall stand dismissed. No costs. Petitions dismissed.
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1994 (12) TMI 296
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... ... ..... between the principal and his agent, pro forma invoice is issued and not regular invoice or cash memo or bill as there is no sale of goods in-between them. In view of this, it is very difficult to endorse the views of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer. 5.. It is clear from the aforesaid discussion that the revision petitioner involved question of law, namely, whether under the above noted facts and circumstances the transfer of 140 bags of tea from Ahmedabad to Pilibhanga involved sale as defined in section 2(o) of the Act or was simply transactions in-between the principals and commission agent involving no sale in-between them. The revision petition is perfectly maintainable. 6.. Accordingly, revision petition is allowed. The order of the learned Member, Rajasthan Sales Tax Tribunal, Ajmer, dated June 1, 1992, is set aside. Penalty, if covered, will be refunded to the petitioner with interest at the prescribed rate within two months. Petition allowed.
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1994 (12) TMI 295
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... ... ..... unded and a rate of interest shall be calculated on the deposit at the rate of 12 per cent or 15 per cent, as the case may be, irrespective of the period for which the amount remains in deposit. The circulars issued vide annexures 3 and 4 are not in accordance with law, that is, not in conformity of sub-section (2) of section 23 of the Act and as such are not enforceable. The respondent No. 2 has committed an error while directing the interest to be calculated from August 9, 1990 and only for a full period of one year. The order dated July 13, 1994 (annexure 2) and the circulars dated February 4, 1992 (annexure 3), and dated April 30, 1991 (annexure 4) are not in accordance with law, are hereby quashed. The matter is remanded back to the respondent No. 2 for fresh decision in accordance with law. The petitioner is directed to remain present before the respondent No. 2, Commercial Taxes Officer (Anti-Evasion), Udaipur, on January 15, 1995. There shall be no order as to costs.
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