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1994 (5) TMI 251
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... ... ..... solution is available on the terms of the statute itself. 6.. As I am only inclined to grant the liberty, I find it wholly unnecessary to examine the merits of the matter. 7.. I, therefore, dispose of this petition by refusing the reliefs as claimed, but by granting liberty to the petitioner to have recourse to appropriate remedy against the order of assessment as also against the eligibility certificate. The petitioner may, thus, approach the appropriate authority by May 16, 1994 and may elect to obtain interim orders from the authority. The authority is left free to consider the prayer and pass orders on its own discretion, without feeling fettered by the order passed in this petition. 8.. In the interest of justice, as prayed and as not objected to, the interim order of stay passed by this Court is made operative till May 16, 1994. 9.. This petition thus, stands finally disposed of with liberty as above, but without any order as to costs. Petition disposed of accordingly.
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1994 (5) TMI 250
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... ... ..... eal, make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be. Rule 51 provides notice to person likely to be adversely affected. It is prescribed that before an order is passed on appeal, if such order is likely to affect any person other than the appellant adversely, such other person shall be given a reasonable opportunity of being heard. Undisputedly port trust has to ultimately bear the tax burden. Even if the Assistant Commissioner or the Tribunal was of the view that the prayer to summon certain officials was not acceptable, they could have heard port trust, the other party to the contract which is required to reimburse the tax, if any payable by the assessee. In any view of the matter, the assessee has not got fair opportunity to place its case. The reference applications and the writ application are, accordingly, disposed of. D.M. PATNAIK, J.-I agree. Case remitted.
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1994 (5) TMI 249
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... ... ..... it be made clear that we have not entered into the merits of the case. The main application is thus disposed of. No order is made for costs. 20-5-1994 The record is placed after the matter was mentioned by Mrs. Swapna Das, learned Advocate for the applicant. She submits that unless there is an order for issuance of transit permit, there may be difficulty to carry goods out of the State of West Bengal to Gauhati. Mr. J.K. Goswami, learned State Representative, has no objection, but he submits that an application should be filed by the applicant for issuance of the permit. After hearing both sides, the order dated May 18, 1994 is modified by addition of the following direction Upon deposit of a further sum of Rs. 10,000 in cash as security and furnishing evidence to that effect, as already directed, applicant No. 1 will apply for issuance of transit permit for transportation of the impugned goods out of the State of West Bengal to its destination, Gauhati. Ordered accordingly.
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1994 (5) TMI 248
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... ... ..... sides and on perusal of the materials on record and on the basis of the decisions cited by me earlier, I hereby allow this writ application with the following directions (i) Annexures III and V dated June 4, 1988 and July 2, 1988, issued by the respondent No. 5, the Superintendent of Taxes Unit A , Panbazar, Gauhati, are quashed. (ii) No question can arise regarding quashing of annexure VIII, the letter dated March 23, 1988, written by the Deputy Commissioner of Taxes, Assam, Gauhati, as it is rather departmental communication giving certain clarifications by the superior officer, it is also not known how this annexure was obtained by the petitioner. (iii) The authority is not entitled to take the corrugated iron sheets made out of plain iron sheets purchased locally after paying first point tax under the Assam Finance (Sales Tax) Act, 1956, again at 4 per cent under the Assam Finance (Sales Tax) Act, 1956. I leave the parties to bear their own costs. Writ petition allowed.
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1994 (5) TMI 247
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... ... ..... ads of labour and service charges enumerated by the Supreme Court in Gannon Dunkerley and Co. v. State of Rajasthan 1993 88 STC 204 and all these items are liable to be deducted from the value of the contract in determining the value of the goods involved in the execution of the works contract. The limitation contained in the expression not incurred in relation to the goods involved in the execution of the works contract occurring in this rule is unconstitutional and void and the rule will be read without this expression in it. 44.. I am not dealing with the facts of each individual case. I have only laid down the principles governing the assessment of works contracts. The assessing authorities in these cases may complete the assessments in accordance with this judgment, and if any assessments have already been made on any of the petitioners, which are not in accord with this judgment, modify the same within a reasonable time. The original petitions are disposed of as above.
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1994 (5) TMI 246
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... ... ..... 987 66 STC 34 1987 1 KLT 161, (paragraph 5) which was affirmed by the Supreme Court in Deputy Commissioner v. Thomas Stephen and Co. Ltd. 1988 69 STC 320 (at pages 324-325) (1988) 1 KLT 568 (paragraph 12). 3.. The chemicals are being used by the petitioner only in aid of the work undertaken by it, as a cleaning agent for cleaning the boilers in the plant and they are extinguished in the process. They are not transferred to the awarder in any form, either as goods or otherwise. The work is more or less a labour contract, in which the petitioner utilises the chemicals just as it uses any other item of its machinery or fuel or power in the performance of the work. There is no transfer of property in goods and no sale liable for tax under Explanation 3(A). The writ petition is therefore allowed with the declaration that the works undertaken by the petitioner as above mentioned are not liable to levy of tax under the Act. There will be no order as to costs. Writ petition allowed.
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1994 (5) TMI 245
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... ... ..... a return and the prescribed authority under that rule had no jurisdiction to make any enquiry with regard to the correctness or otherwise of the return filed. The same is the position here. The petitioner must succeed in this application. The observations in the said case have much relevance herein. 9.. I hold that annexure 5 is illegal and infirm. It is quashed or annulled. The 2nd respondent is directed to consider the matter afresh in accordance with law. In order to enable the petitioner to carry on its business, respondent No. 2 shall supply form No. XXVIII-B under rule 45 of the Bihar Sales Tax Rules, 1983, till the final disposal of the matter afresh. By way of interim order, a similar direction has been given by this Court on December 9, 1992. It is only proper to continue the said direction till the final disposal of the matter by the second respondent in accordance with law. Final orders shall be passed within two months from today. Naresh Kumar Sinha, J.-I agree.
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1994 (5) TMI 244
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... ... ..... attempt to proportion the payment to capacity to pay and thus bring about a real and factual equality cannot be ruled out as irrelevant in levy of tax on the sale or purchase of goods. The object of a tax is not only to raise revenue but also to regulate the economic life of the society. Further, the principle laid down, as above, does not appear to have undergone any change, by subsequent pronouncement of the Supreme Court. 26.. In this view of the matter, I do not think that there is any force in the second bone of contention that the differential levy of tax on the sole basis of registration or otherwise under the TMM Act is nothing but discrimination offending article 14 of the Constitution of India. 27.. For all the above reasons, I am of the view that all these writ petitions are devoid of merits and therefore, they are dismissed. Consequently, all W.M.Ps. are also dismissed. There shall, however, be no order as to costs, in the circumstances. Writ petitions dismissed.
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1994 (5) TMI 243
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... ... ..... arily over the Kollam area from initiating proceedings against the petitioner and imposing penalty, if warranted, under section 45A of the Act. I also make it clear that the materials and records seized at the search on September 24, 1987 need not be eschewed from consideration in such proceedings having regard to the observations made by me in paragraph 18 supra. O.P. No. 5084 of 1989 is therefore allowed subject to the observations contained in this judgment. Exhibits P11 and P12 are quashed. O.P. No. 8422 of 1990 is disposed of directing the respondents to keep in abeyance the recovery of the amounts demanded pursuant to the order of assessment exhibit P2 pending disposal of the appeal exhibit P3 by the Appellate Assistant Commissioner, subject to the petitioner keeping the bank guarantee and the security furnished as per the interim order of this Court dated September 18, 1990 in force pending the said appeal. There will be no order as to costs. O.P. No. 8422 disposed of
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1994 (5) TMI 242
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... ... ..... to the dealer and decide the same, after hearing the petitioner, as first point, deferring till then the question of reassessment, by a reasoned order. (c) The taxing authority shall have freedom to proceed further to reassess, fix tax and penalty in terms of section 19(1) of the Act, if answer recorded on the question of jurisdiction, is in affirmative. 21.. The aforesaid course, intended to subserve the interests of justice, is also in accord with the position of law laid down under order 14, rule 2 of the Code of Civil Procedure, 1908, which provided that issue relating to jurisdiction when one of law, is triable and determinable as preliminary one leaving the main lis to be dealt with in accordance with the decision on that issue. On the basis of material, as available, the question of jurisdiction was raised before me as an issue of law. 22. The petition is, thus, disposed of finally in terms indicated above with no orders as to costs. Petition disposed of accordingly.
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1994 (5) TMI 241
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... ... ..... e sale proceeds cannot be included in the turnover as defined under the Act and if it cannot be included in the turnover the question of realisation of tax under the Act does not arise. The language used in the definitions is very clear and specific and there is no ambiguity in the expression given in the definitions. Therefore, unless the petitioner manufactures, makes or processes any taxable goods or brings any taxable goods from outside Assam for sale in Assam, the petitioner is not liable to pay tax under the Act as demanded in respect of the excess M.S. rounds as aforesaid. 18.. In view of the above, I allow the petitions and set aside the annexures I, II, III and V orders and annexure VI notices in the above civil rules and hold that the petitioner is not liable to pay tax under the Act in respect of the excess M.S. rounds for the said period mentioned in the aforesaid civil rules. 19.. Under the facts and circumstances, I make no order as to costs. Petitions allowed.
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1994 (5) TMI 240
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... ... ..... or the appellate authorities, or before this Court in revision. I do find considerable force in this submission, but having heard the cases in detail, I do not think I should leave the question unanswered. 19.. But one case requires special mention and that is O.P. No. 17814 of 1993. In that case, the petitioner states that it had its head office in Bombay and a branch office at Kochi. The petitioner purchased REP licence from three persons and sold then to different persons in Bombay and in Rajasthan. According to the petitioner, the sales took place outside Kochi where the REP licences were not even brought. It is therefore stated that this State had no nexus with the transaction of sale, except that the petitioner issued C forms from Kochi, which resulted in the levy of tax. I decline to go into these matters which should properly be urged in statutory appeal. The original petitions are therefore without any merit. They are accordingly dismissed. Writ petitions dismissed.
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1994 (5) TMI 239
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... ... ..... w, sub-section (3) of section 23 should bear a construction which avoids anomalies, accords with justice and does not lead to any unreasonable consequences. 12.. I, therefore, hold that the petitioner is not liable for penal interest on the balance amount of tax demanded of him during the period September 9, 1987 to March 9, 1989 when the decision of the Appellate Tribunal setting aside the levy of tax at 10 per cent on kattymore under the order, exhibit P1, held the field. In the view that I have taken, it is unnecessary for me to rely on the decision of the Division Bench in Income-tax Officer v. A.V. Thomas and Company 1986 160 ITR 818 1984 KLT 803, though that appears to be very much in point. The writ petition is therefore allowed in part. The first respondent is directed to limit the demand for penal interest for the period from April 28, 1983 to September 8, 1987 and from March 10, 1989 till date of payment. There will be no order as to costs. Petition partly allowed.
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1994 (5) TMI 238
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... ... ..... ed form cannot be permitted to be raised in writ jurisdiction. After all, if a few rupees as court fee on the petition filed before the Assistant Commissioner were to be collected for treating it as appeal, the Assistant Commissioner could do so. An appeal is a remedy resorted to by an affected party to an appellate body, by whatever name the appeal is described. Hence the petition to the Assistant Commissioner was indeed an appeal. The condition that the further appeal to the Tribunal by the dealer was also not maintainable depends again on the same question whether the first appeal before the Assistant Commissioner, by way of a petition, was proper. We are of the view that if the petition before the Assistant Commissioner was to be treated as an appeal, the appeal therefrom to the Tribunal was also maintainable and hence we need not interfere on the technicality of the form. We, therefore, find no merit in this writ petition. The same is dismissed. Writ petition dismissed.
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1994 (5) TMI 237
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... ... ..... to entertain its appeal. As noted above, admittedly, the validity of the order dated September 30, 1993, was not questioned by the petitioner in any appeal nor was any extension of time for making the requisite deposit sought. Thus the order dated September 30, 1993, requiring the petitioner to deposit Rs. 2.5 lakhs by October 18, 1993, attained finality. From a plain reading of section 43(5) of the Act it is evident that it is mandatory in nature and, therefore, on petitioner s failure to make the requisite deposit as directed under proviso to the said sub-section on or before October 18, 1993, its appeal was rendered incompetent and could not be entertained by the appellate authority. No fault could, therefore, be found with the order of the first appellate authority dismissing the appeal of the petitioner in limine and the Tribunal rightly held so vide its order dated March 25, 1994. There is no ground for us to interfere in the matter. Dismissed. Writ petition dismissed.
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1994 (5) TMI 236
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... ... ..... ly considered by the Tribunal while deciding its appeal on August 11, 1989, which was beyond the scope of review. Accordingly petitioner s review application was dismissed. We have heard Mr. Balram Sangal, learned counsel for the petitioner and have perused the aforesaid orders. Admittedly the petitioner had an efficacious alternative remedy under section 45 of the Act by way of a reference to this Court if it was at all aggrieved of the Tribunal s order dated August 11, 1989, but for unknown reasons it did not avail of the said remedy. It is now too late in the day for the petitioner to contend that the said orders suffered from some infirmity. The scope of review being limited, no fault can either be found with the order of the Tribunal dated April 28, 1992, dismissing petitioner s review application. Apart from the fact that the petition is highly belated, even otherwise there is no ground for us to interfere with the orders of the Tribunal. Dismissed. Petition dismissed.
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1994 (5) TMI 235
Whether Parliament was not competent to enact COFEPOSA and SAFEMA?
Whether an order of detention under Section 3 read with Section 12-A of COFEPOSA made during the period of emergency proclaimed under Article 352(1) of the Constitution of India, with the consequent 'suspension' of Article 19 and during which period the right to move the court to enforce the rights conferred by Articles 14, 21 and 22 was suspended can form the foundation for taking action under Section 6 of SAFEMA against the detenu, his relatives and associates?
Whether the application of SAFEMA to the relatives and associates of detenus is violative of Articles 14, 19 and 21? Whether the inclusion of the said Act in the Ninth Schedule cures such violation, if any?
Whether Section 5-A of COFEPOSA is violative of clause (5) of Article 22?
Held that:- Appeal dismissed. Parliament was perfectly competent to enact both the COFEPOSA and the SAFEMA.
No opinion on the validity of the 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule as assume them to be good and valid. No arguments have also been addressed with respect to the validity of 42nd Amendment Act to the Constitution either.
An order of detention made under Section 3 of COFEPOSA, which was governed by Section 12-A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. An order of detention to which Section 12-A is applicable as well as an order of detention to which Section 12-A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub-clauses in the proviso to Section 2(2)(b).
The definition of "illegally acquired properties" in clause (c) of Section 3 of SAFEMA is not invalid or ineffective.
The application of SAFEMA to the relatives and associates [in clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the case may be, wherever they are, howsoever they are held and by whomsoever they are held.
Section 5-A of COFEPOSA is not invalid or void. It is not violative of clause (5) of Article 22.
Petitioners have failed to establish that any of the provisions of SAFEMA are violative of Articles 14, 19 or 21 apart from the protection they enjoy by virtue of the inclusion of the Act in the Ninth Schedule to the Constitution.
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1994 (5) TMI 234
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... ... ..... ould be made at the level of the Tribunal to cover up the inefficiency of the Department. These matters are pure questions of fact which have to be decided with reference to the material available on record and the solutions to them are not to be gathered from the various High Court’s decisions, which turn on their peculiar facts. Nor a principle of law involved in these appeals. It is only a matter of appreciation of the evidence and material on record. Having said so much about the aspects which I felt are necessary and relevant and having given my reasons, I am of the opinion that the learned Judicial Member is correct in law in holding that in the absence of any material brought on record, the assessee's version of household expenses could not be discarded and, therefore, the additions made must be held to be without material and should be deleted. I agree with his view. The matter will now go before the regular Bench for decision according to majority opinion.
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1994 (5) TMI 233
Whether the appellant is required to pay interest on the additional sales tax which had to be paid on the inclusion of the freight amount in calculating the sale price?
Whether the assessee owed a ’debt’ on the valuation day within the meaning of Section 2(m) to be deductible in computing the net wealth of the assessee?
Held that:- The appeals/writ petitions are allowed and the amount of interest levied and collected from the appellants/petitioners by virtue of Section 11-B of the Act as well as Central Act shall be refunded to the appellants/ petitioners within 3 months from today with interest at 12% per annum from the date of actual recovery from the appellants till payment. There will, however, be no order as to costs in the facts and circumstances of the case.
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1994 (5) TMI 232
Offences against the act to be cognizable only on complaints by registrar, etc. ... ... ... ... ..... category of offences enumerated under section 545 of the Companies Act. Considering the facts of the case that the complaint has been filed just to harass the petitioner-company and is a frivolous complaint, the same has no force. Even on a specific query whether under any law or any section of the Companies Act the complainant is competent to file the complaint, when he is not a shareholder and when there is no dispute regarding payment of the money by the company, counsel for the complainant failed to point out any provision where under such complaint can be entertained. If such proceedings are allowed to continue, then it will be an abuse of the process of the court. In such circumstances and in view of the provisions of section 621 of the Companies Act, 1956, the proceeding in Case No. 59 of 1993, Arun Bansal v. Herdillia Unimers Ltd., before the Special Court of Judicial Magistrate (Economic Offences) Rajasthan, Jaipur, is quashed. Consequently, this petition is allowed.
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