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Case Laws
Showing 41 to 60 of 382 Records
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1998 (1) TMI 497
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... ... ..... y be accepted as genuine and substantially correct. In such cases, the assessments are made on the basis of the accounts maintained even though the assessing officer may add back to the accounts price of items that might have been omitted to be included in the accounts. In such a case, the assessment made is not a best judgment assessment. It is primarily made on the basis of the accounts maintained by the assessee. 8.. The above principle laid down by the Supreme Court makes it clear that where the accounts are acceptable, the assessment has to be made on the basis of the accounts and not on the best judgment assessment. 9.. In the present case, the appellate authority has given cogent and convincing reasons for accepting the accounts. On the other hand, the original authority has not given the reasons. 10.. Therefore, in view of the facts and circumstances of the case, the order of the revisional authority is set aside. Appeal allowed. No order as to costs. Appeal allowed.
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1998 (1) TMI 496
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... ... ..... to do so, and the exemption must, therefore, operate for the whole year, during which it was granted. The principle laid out in the above judgment of the apex Court makes it clear that the notification is deemed to come into force from the date on which it was directed to come into force. Therefore in the present case, the notification issued on March 30, 1992 comes into effect from April 1, 1992 and not earlier. Even looking from other angles, if the first notification were to state that the specified goods deleted from entry 34 of the Fifth Schedule is liable for only 4 per cent tax there was no necessity for issuing the second notification. The issuing of second notification makes it clear that the first notification was not intended to convey 4 per cent tax for the specified goods when they are sold through canteen stores only. In view of the above circumstances, petition has to be allowed. Accordingly, petition is allowed. Impugned orders are quashed. Petition allowed.
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1998 (1) TMI 495
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... ... ..... vedic licence issued under the Drugs and Cosmetics Act. The Indian Standards Institution had also taken the view that vicco vajradanti is an ayurvedic medicinal preparation and not a cosmetic. The assessee had placed materials before the Tribunal that vicco vajradanti paste or powder are used as medicine for tooth decay, pyorrhoea, swollen gums, bleeding gums and periodontal disorders. The finding of the Tribunal is that it is sold in the market not as tooth paste or tooth powder, but as ayurvedic medicine. If that be so, it cannot be brought under entry 79. We are of the view that in the case of vicco vajradanti also the product shall come under item 75. 10.. In the result, we hold that the Tribunal was right in holding that vicco vajradanti and vicco turmeric vanishing cream sold by the assessee are ayurvedic medicines falling under entry 95/116 of the First Schedule to the Kerala General Sales Tax Act. The tax revision cases therefore stand dismissed. Petitions dismissed.
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1998 (1) TMI 494
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... ... ..... dustrial unit and the unit has been set up on or after December 1, 1989, the S.R.O. in question should not be read in such a narrow term that even after the scheduled period only the medium/large industrial units will be entitled to the benefit of deferment of payment of tax and not the S.S.I. units on expansion to medium units. This argument is not acceptable to this Court. 7.. Regard being had to the materials on record, we are of the view that since the Sales Tax Officer has unequivocally held after taking into consideration all the necessary documents that by expansion the petitioner-dealer has become a medium industrial unit and thus entitled to the I.P.R. benefits, the said benefits include deferment of payment of tax. On this score, we quash the impugned orders and allow the writ petition directing the sales tax authorities to take steps to allow deferment of payment of tax as one of the benefits available to the petitioner. D.M. Patnaik, J.-I agree. Petition allowed.
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1998 (1) TMI 493
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... ... ..... t their relevance and genuineness. The benefit of this presumption, under the peculiar facts and circumstances of the case, should go in favour of the assessee. The Revenue has failed to rebut the presumption. 8.. In the result, the application is allowed. The revisional order dated August 5, 1996 in Revision Case No. 495 of 1990-91 by the West Bengal Commercial Taxes Appellate and Revisional Board is set aside. The assessing officer is directed to allow the claims under section 5(2)(a)(ii) for a sum of Rs. 81,32,276.28 on the basis of 868 XXIV forms referred to in the judgment of the West Bengal Commercial Taxes Tribunal in their order in the Revision Case No. 472 of 1975-76. There shall be no order as to cost. 9. After the judgment is pronounced Mr. J.K. Goswami, learned State Representative, prays for stay of operation of the judgment and order. After considering the argument advanced by him the prayer is rejected. J. GUPTA (Judicial Member).-I agree. Application allowed.
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1998 (1) TMI 492
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... ... ..... ctive effect. 8.. Petitioner has also placed reliance on a judgment of this Court, reported in 1996 103 STC 142 (Commissioner of Sales Tax v. Madhya Bharat Papers Ltd.) which also deals with regard to cancellation of the eligibility certificate pursuant to an action taken by the sales tax authority. 9.. In view of the aforesaid judgment and in the light of discussions held above, I am of the considered opinion, that annexure P13, deserves to be quashed. It is, accordingly, quashed. The petition, accordingly, stands allowed to the extent mentioned above. On account of this, the necessary consequence is, that petitioner would be deemed to have enjoyed the necessary exemption from payment of sales tax on the basis of eligibility certificate issued by District Level Committee. 10.. Looking to the facts and circumstances of the case, parties shall bear their own costs. Security amount, if, deposited, be refunded back to the petitioner after its due verification. Petition allowed.
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1998 (1) TMI 491
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... ... ..... the detenu cannot be continued under detention after the expiry of the period for review. But, in the present case, the detenu was released before the expiry of the period of four months and hence the question of continuing the detenu in prison after the expiry of the period of four months did not arise. The said decision is, therefore, of no application in the present case. We have no hesitation in holding that the husband of the appellant was not released by virtue of a conscious order of revocation by the appropriate authority and hence the third proviso to section 2(2) of the SAFEMA does not apply. It, therefore, follows that the provisions of the Act are applicable to the detenu and the appellant being the wife of the detenu is also covered by the provisions of the SAFEMA. We, therefore, overrule the contention of the appellant with regard to the maintainability and application of the provisions of the SAFEMA to the appellant. The appeal will be considered on its merits.
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1998 (1) TMI 490
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... ... ..... iled in the impugned order how Shri Virendra Kumar Rai, the detenu, was involved in illegal activities including illicit trafficking in the narcotics, in fact it appears some of his other family members were also so involved. Having regard to these facts, we are convinced that these properties, viz., listed at Sl. Nos. 6, 7, 8 and 9 have correctly been forfeited as illegally acquired properties. To sum up, we hold (a) that the period of limitation prescribed in the proviso to section 68C(2) of the NDPS Act does not cover persons detained under the PIT NDPS Act (b) that the provisions of the NDPS Act are correctly applicable to Smt. Roopa Rai (c) that the properties listed at Sl. Nos. 1, 2, 3, 4, 5, 10 and 11, were acquired between 1953 and 1955 when the detenu, Shri Virendra Kumar Rai, was only 5 mdash 7 years of age and not liable for forfeiture and (d) that properties listed at S. Nos. 6, 7, 8, 9 and 12 have been correctly forfeited. The appeals are disposed of accordingly.
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1998 (1) TMI 489
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... ... ..... f, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that neither the Intelligence Officer, Narcotics Control Bureau nor the Bureau by itself is a ldquo person aggrieved rdquo within the meaning of section 68-O of the Act. Before we part with the matter, we have to observe that there is a serious lacuna in the Narcotic Drugs and Psychotropic Substances Act, which requires the attention of Parliament. There is no provision to rectify an incorrect order of the competent authority as no statutory provision has been made enabling the authorities of the State to question the order of the competent authority in appeal, which would become final if it is in favour of the affected person. There is not even a provision in the Act enabling the Appellate Tribunal to take suo motu action, even if the order of the competent authority is found to be incorrect. With these observations, we are constrained to dismiss these appeals as not maintainable.
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1998 (1) TMI 488
Cess - Paper and paperboard industry ... ... ... ... ..... quo Industrial Undertaking rdquo is synonymous to words ldquo Industrial Unit rdquo . In a case reported in 1984 (16) E.L.T. 30 (Bom.) in case of Devidayal Electronics and Wires Ltd. v. Union of India, the Hon rsquo ble High Court has held that plant and building used exclusively for the manufacture of goods in question alone to be treated as industrial unit. The words industrial undertaking occurring in the Notification dated 3-2-81 for levying of CESS should be considered as if conveying the same meaning as ldquo Industrial Unit rdquo , where bulk paper/paper product are manufactured. rdquo 4. emsp We agree that in construing the expression ldquo Industrial Undertaking rdquo it can only mean that such an undertaking has manufactured paper and not all undertakings including sugar mill put together. 5. emsp In that view of the matter, we do not find any infirmity in the Order of the Collector (Appeals) and therefore, we uphold the impugned order and reject the Revenue appeal.
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1998 (1) TMI 487
Excisability ... ... ... ... ..... barred by time. 5. emsp We have carefully considered the matter. It is settled position now that marketability is the sine qua non for the purpose of excisability. Unless it is proved that item as such was sold or capable of being marketed, the item is not liable to excise duty as it was held by the Apex Court in the case of Bhor Industries 1989 (40) E.L.T. 280 (S.C.) and latest in the case of Moti Laminates reported at 1995 (76) E.L.T. 241. Supreme Court has been taking a consistent view that an item cannot be held to be excisable unless it is marketable. In the instant case, the Collector himself has given a categorical finding that no evidence was brought on record to show that item as such was marketable at the intermediate stage. In view of the clear finding by the Collector and following the ratio of the decisions of the Supreme Court, we accept the contention of the party on the issue of marketability and accordingly appeal is allowed with consequential relief, if any.
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1998 (1) TMI 486
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... ... ..... payment of Rs. 25,000/- on 22-11-89 to the appellant. Show cause notice was issued stating that appellant would earn interest on the advance amount and the same should be included in the assessable value. Though this was resisted by the appellant, the Assistant Collector passed an order directing the element of interest also to be included in the assessable value. The Collector (Appeals) having confirmed this order the present appeal has been filed. 3. emsp The amount of the order is Rs. 3,14,000/-, advance received was Rs. 25,000/- and it remained in the hands of the appellant only for a few months. The department has no case that there were any sales without any advance and in such cases the price was higher. There is nothing to indicate that the advance payment had depressed the price to any effect. Therefore, the notional interest element cannot be added to the assessable value. 4. emsp For the reasons indicated above, we set aside the impugned order and allow the appeal.
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1998 (1) TMI 485
Winding up – Exclusion of certain time in computing periods of limitation ... ... ... ... ..... 58A of the Companies Act. Therefore, in view of all the above considerations, even giving all the benefits of counting the period of limitation in favour of the official liquidator, it is quite obvious that on the date when this application was filed, the claim for getting the order-cum-decree could not be entertained as the same was already barred by the law of limitation and, therefore, on this count alone, the present application deserves to be rejected. The said claim is barred by the law of limitation as provided by article 137 of the Limitation Act, 1963. I am supported to this view of mine by the decision of the Full Bench of the Delhi High Court in the case of R.C. Abrol and Co. (P.) Ltd. (In Liquidation) v. A.R. Chadha and Co. 1979 49 Comp Cas 77 and the judgment of the single judge of Hind Chit Fund (P.) Ltd. (In Liquidation) v. Gian Chand 1974 44 Comp Cas 329 (Punj). Thus, this application stands rejected, but in the circumstances of the case, no order as to costs.
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1998 (1) TMI 481
Appeal - Limitation ... ... ... ... ..... , and in this certificate the Doctor has observed that the employee Shri Kulkarni is under his treatment, since 2-10-1992 and that he is advised a rest for 40 days. Since this certificate is not dated, it has given rise to the question as to when the 40 days rest started to run. The Collector (Appeals) has taken the period as commencing from the date of the injury on 2-10-1992. But it would appear that in a case like this certificate can be read to indicate the period of 40 days rest inclusive of the commencement of the treatment, and since it is arising out of the undisputed fact of the employee suffering fracture, the strict interpretation is well avoided. Therefore, in the interest of justice, on the facts and in the circumstances of this case, the delay is condonable, and as such, the matter is remanded to the Commissioner (Appeals) having jurisdiction for consideration of the appellants case on merits in accordance with law and after hearing the appellants in the matter.
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1998 (1) TMI 476
Winding up - Suits stayed on winding-up order ... ... ... ... ..... thin the ambit of any of the matters mentioned in section 34 of the Act. Even otherwise, it is a settled proposition of law that this court while examining an arbitration award does not sit as a court of appeal. It can only correct errors which amount to error apparent on the face of the award. This court cannot interfere if erroneous findings of fact or of law are given by the arbitrator. In fact, the courts can also not interfere on the ground of reasonableness of the reasons given by the arbitrator. In the present case the arbitrator has shown every indulgence to the petitioners. The arbitrator has been appointed by consent. The time was limited for the pronouncement of the award in the consent terms itself before the Chief Justice. Having agreed to the consent terms all manner of technical grounds have been taken. Having considered the facts and circumstances of the case I find no merit in the arbitration petitions. The same are hereby dismissed with no order as to costs.
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1998 (1) TMI 471
Whether the company fell within the definition of “dealer”?
Held that:- Appeal allowed. In the present case, despite the remand ordered by the High Court earlier, the Revenue failed to bring on record facts which would justify the conclusion that the company is a dealer. It could not have been unaware of the onus that it was required to discharge, but it failed to do so. Even so, we are persuaded to remand the matter to the Tribunal so that the Revenue may have a last opportunity to produce such facts as are requisite to support its case. The company would, of course, also be entitled to lead such evidence as it thinks necessary to counter the Revenue’s case.
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1998 (1) TMI 463
Contempt of Court ... ... ... ... ..... een the parties, the last instalment was to be paid as per the said undertaking on 1-4-1986. It is the case of the petitioner that only two instalments payable on 1-12-1985 and 1-1-1986 were paid. The remaining three instalments of Rs. 12,000, Rs. 12,000 and Rs. 5,000 payable on 1-2-1986,1-3-1986 and 1-4-1986 respectively are not paid. It is the claim of the petitioner that the failure to make payment of those instalments on the dates mentioned in the undertaking amounts to contempt of court. If that is the case, then the last act of commitment of the alleged contempt has taken place on 2-4-1986. The present petition is filed on 16-12-1987. Thus, it is filed beyond a period of one year from the date of the alleged contempt. Therefore, on that ground also, the present application is not tenable. 7. Thus, I hold that the present application is not tenable in law and the same deserves to be rejected. I, accordingly, reject the same with no order as to costs. SCL q MARCH 20, 1999
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1998 (1) TMI 462
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... spondent is consistent, and particularly such when the petitioner has not come before the court with clean hand by not making any reference to their approaching to the police and not filing affidavit of the director of the company in spite of the specific stand taken by the company in question that negotiations and settlement had taken place between the director of the petitioner company and the Managing Director of the company in question. Therefore, in the circumstances, I hold that the debt is disputed and as such this winding up petition will have to be rejected. I, accordingly, reject the same with no order as to costs. 6. The observations made by me in the judgment are only for the purpose of deciding this petition. They are not final and conclusive. I have made the observations only for the purpose of considering the question as to whether the defence raised by the defendant for disputing the debt is prima facie an honest and reasonable one or not. SCL q APRIL 20, 1999
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1998 (1) TMI 461
Amalgamation ... ... ... ... ..... e has been accepted without demur by the overwhelming majority of the shareholders of the two companies or to say that the shareholders in their collective wisdom should not have accepted the said exchange ratio on the ground that it will be detrimental to their interest. (p. 309) These observations in our view represent the correct legal position on this aspect.... (p. 117) Thus I hold that the objections raised by the Regional Director of Company Affairs also do not survive. 6. Therefore, in view of all the above considerations I hold that there are no grounds or circumstances to refuse to grant approval and grant the amalgamation scheme in question. I therefore, accordingly allow this petition and I approve and sanction the amalgamation scheme in question by which the petitioner transferor company viz., Operations Research (India) Ltd. is to merge with MARG Marketing and Research Group (P.) Ltd. The petition stands disposed of with no order as to costs. SCL q MARCH 5, 1999
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1998 (1) TMI 457
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... ers of the family and they were also not given their shares as well as dividends and in those cases also, there was no direct orders of winding up company, but some interim relief by way of paying certain amounts were granted in favour of the petitioners who were denied their shares in the company as well as dividends of the company. Therefore, all those cases are not applicable to the case before me. He has also cited before me the case of Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao AIR 1956 SC 213. The said case is under the old Companies Act, 1913 and facts of the said case is also not applicable to the case before me. The present case before me is squarely covered by the decision of the Apex Court reported in Hind Overseas (P.) Ltd. (supra) and in view of the averments and material on record, I refused to admit this petition and I reject the same with no order as to costs. Interim relief granted stands vacated. Notice discharged. SCL q APRIL 20, 1999
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