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Case Laws
Showing 41 to 60 of 491 Records
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1998 (2) TMI 578
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... ... ..... carried on in the name of the transferorcompany, who was required, under the conditions of the agreement, to act as trustees for the transferee-company. Under the circumstances, it cannot be held that (a) the transfer is not an absolute one and (b) that the transferee-company did not carry on the business after such transfer in its old name or in some other name. Hence, the conditions laid down in section 99 of the 1994 Act have been satisfied in this case and the amendment in registration certificate prayed for by the transferee-company should be allowed. 12.. Thus, the application is allowed. The order dated July 25, 1996, passed by the respondent No. 3 and the order dated October 9, 1996 passed by the respondent No. 2 are set aside. Respondent No. 3 is directed to amend the certificate of registration of M/s. Lakme Ltd., in favour of M/s. Lakme Lever Ltd., with effect from January 1, 1996 as prayed for by them. 13.. J. GUPTA (Judicial Member).-I agree Application allowed.
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1998 (2) TMI 577
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... ... ..... turnover, we do not see any reason to interfere with the minimum penalty imposed upon the assessee-dealers for the assessment years 1985-86 and 1988-89. Further, we are not inclined to restore the original penalty of 150 per cent, as had been imposed upon the assesseedealer by the assessing officer, inasmuch as the assessee-dealers had been facing the agony of litigation before different forums for well over a decade. 15.. In fine, T.C. (R) Nos. 152, 153, 178 and 179 of 1995 are dismissed. T.C. (R) No. 158 of 1995 is allowed by setting aside the order of the Tribunal in C.T.A. No. 211 of 1990 and ordering restoration of the order of the Appellate Assistant Commissioner (CT), Salem confirming the order of assessing officer as relatable to assessment for the assessment year 1987-88 alone. There shall, however, be no order as to costs, on the facts and in the circumstances of these actions. T.C. (R) Nos. 152, 153, 178 and 179 of 1995 dismissed. T.C. (R) No. 158 of 1995 allowed.
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1998 (2) TMI 576
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... ... ..... d sale under section 5F inside the State. In view of this exposition of the law by the Supreme Court, such transactions cannot be excluded from the protection given by section 38. Therefore, to the extent that the last portion of this proviso is in contradiction to the principle laid down by the Supreme Court, we have to construe the words but does not include the goods either obtained or purchased from other States and used in the execution of works contract as not applicable to such transactions which are assessed to the Central Sales Tax Act in the other States and in respect of which C forms have been issued by the contractee. The finding of the Tribunal is that the deemed sales are inter-State sales. In view of the finding of the Tribunal, the principle laid down by the Supreme Court in Sahney Steel and Press Works Ltd. 1985 60 STC 301, applies and the Tribunal is right in holding that the turnover is not taxable. The T.R.C. is accordingly dismissed. Petition dismissed.
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1998 (2) TMI 575
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... ... ..... rnover is not taxable and is exempted from the Sales Tax Act. Aggrieved by the same, the present revision is filed by the Revenue. 4.. The finding of the Tribunal is that the goods were used in the execution of the works contract in Maharashtra. The contract did not contemplate mere supply of pipes. The entire work is treated as completed only on execution of pipe line work. Payment is to be made on the basis of measured work at which stage the goods are immovable by accretion to the earth. In other words, according to the finding of the Tribunal, the sale actually took place outside the State and there was no sale inside Andhra Pradesh. There was only stock transfer receipt under section 6-A of the CST Act. Further the Tribunal followed the judgment of the honourable Supreme Court, in holding that there is no taxable turnover in the State. Therefore, we see no reason to interfere with the order of the Tribunal. Tax revision case is, therefore, dismissed. Petition dismissed.
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1998 (2) TMI 574
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... ... ..... dy of revision under clause 18(3) of the notification. The learned counsel for the petitioner has in this connection submitted that unless the order adversely affects the revenue no revision is maintainable. It is, however, not necessary to go into this question, because in our view when this Court has entertained the writ petition at the admission stage and the parties have exchanged affidavits, it will not be appropriate to dismiss it on the ground of alternative remedy. The preliminary objection is, accordingly, rejected. 11.. This writ petition is allowed and the impugned order dated November 5, 1997 passed by the Joint Commissioner, as contained in annexure 19 to the amendment application, is hereby quashed. The Joint Commissioner (respondent No. 3) is directed to decide the petitioner s application for exemption certificate afresh in accordance with law within a period of two months from the date of production of the certified copy of this order. Writ petition allowed.
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1998 (2) TMI 573
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... ... ..... ng full particulars of the same is not correct. If the Tribunal relies upon an exemption notification, then, it should give the complete reference with reference to the notification, viz., number of the notification and date of the notification. The same procedure should be adopted if a concessional notification was relied upon and if it fails to do so, this Court is forced to search for the notification on which the Appellate Tribunal seems to have placed reliance. 23.. In fine, we are of the view that the order of the Appellate Tribunal in so far as it relates to the two items of dispute referred to above is concerned, is liable to be set aside and accordingly, it is set aside and the order of the assessing officer which was confirmed by the Appellate Assistant Commissioner is directed to be restored on file and consequently, the revision petition filed by the State is allowed. However, in the circumstances of the case, there will be no order as to costs. Petition allowed.
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1998 (2) TMI 572
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... ... ..... of rule 6. In fact in Fact Limited v. State of Orissa 1991 82 STC 62 (Orissa) it was conceded by the Revenue that the certificate of registration becomes operative from the date of application. That being the position, the analogy applied by the revisional authority to hold that the amendment with retrospective effect is not permissible cannot be maintained. The controversy is that though the application for registration contained all relevant aspects, Sales Tax Officer did not make the relevant entries for which a subsequent application was made. The prayer was to fill up the omissions. The entries once made have to operate from the date of Application. This aspect has not been considered by the authorities in the proper perspective. The Sales Tax Officer shall pass necessary orders keeping in view the position of law as indicated above. The writ application is allowed, but in the circumstances without any order as to costs. S.C. DATTA, J.-I agree. Writ application allowed.
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1998 (2) TMI 571
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... ... ..... at in the given circumstances imposition of penalty was unwarranted and arbitrary. 13.. Now we come to the question of quantum of penalty. Valuation of the excavator as evident from the invoice (page 12 of the affidavit-in-reply) is Rs. 38,78,160 and the applicants have purchased on hire at Rs. 41,25,000. On the basis of this valuation the C.T.O. fixed the penalty at Rs. 10,00,000. The revisional authority has already reduced the penalty to Rs. 4,50,000. Considering all these circumstances discussed above we find no cogent reason to reduce it further. 14.. Considering the conduct of the applicants we consider it to be a fit case where cost should be awarded and accordingly we award a cost of Rs. 1,000 (rupees one thousand only) to be paid by the applicants to respondent No. 1 within three weeks from now. 15.. In the result, the application is dismissed with a cost of Rs. 1,000 (rupees one thousand only). 16.. M.K. KAR GUPTA (Technical Member).-I agree. Application dismissed.
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1998 (2) TMI 570
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... ... ..... en especially the enhancement petition filed invoking the sanguine provisions adumbrated under section 36(3-A) of the TNGST Act 4as been dismissed, as time-barred prior to the disposal of the main appeal in M.T.A. No . 326 of 1993. The corollary conclusions to flow therefrom is that if the demand order of the Tribunal is to be construed in the manner focussed by Mr. k. Ravi Raja Pandian, learned Special Government Pleader, representing the Revenue in the sense of the remand having been made by the Tribunal to consider de novo of transactions of the assessee relatable to the assessment year 1986-87, the order of the Tribunal is certainly wrong. 15.. For the reasons as above, we remit the matter back to the Tribunal after setting aside the order of the Tribunal, for consideration of the turnover of Rs. 3,67,513 as disputed by the assessee-dealers and nothing further. There shalt, however be no order as to costs, on the facts and in the circumstances of the case. Case remanded.
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1998 (2) TMI 569
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... ... ..... if the stay order is granted. Thus, the tender of the amount was not unconditional. This aspect was not taken into account by the learned Joint Commissioner while passing the impugned order dated February 17, 1998. 5.. Having regard to all these facts and circumstances and having regard to the further fact that what is disputed is not tax but penalty, that too levied at the maximum of five times, we are inclined to dispose of the writ petition with the following directions instead of again remitting the matter to the Joint Commissioner On condition of the petitioner paying a sum of Rs. 5 lakhs (rupees five lakhs only) towards the disputed penalty within a period of two weeks, the cheque already issued by the petitioner should not be encashed and no further steps should be taken for the recovery of the disputed penalty, pending disposal of the appeal by the Sales Tax Appellate Tribunal. The writ petition is accordingly disposed of. No costs. Petition disposed of accordingly.
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1998 (2) TMI 568
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... ... ..... section, it is evident that it can be interpreted that the revisional authority can set aside only the order of one authority. However, it is to be noticed, where both the assessing authority and appellate authority pass concurrent orders and the revisional authority set aside the orders, both the orders will go by virtue of exercise of revisional powers. If the interpretation put forth has to be accepted, then only the order of the appellate authority will go while the order of the assessing authority remains. Therefore, we hold that the revisional authority has got the power to set aside the order of the appellate authority as also the assessing authority where the orders are concurrent and also set aside any one of the order if it is otherwise. In view of the above facts and circumstances, we see no merits in the contention of the learned counsel for the appellant. Accordingly, we confirm the order of the revisional authority and the appeal is dismissed. Appeal dismissed.
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1998 (2) TMI 567
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... ... ..... ellnigh it is possible for them to produce F forms as produced by M/s. Abishek Textiles Industries Private Ltd., in proof of the stock transfer effected for purpose of consignment sales. It is also equally possible for the assessee-dealers to prove their case by adduction of evidence aliunde apart from the production of F forms, in case the F forms so produced were not accepted. 8.. In this view of the matter, we rather feel it would not be besides justice to remit the matter back to the assessing officer for de novo enquiry after setting aside the orders of the assessing authorities, inclusive of the Tribunal. 9.. In fine, the revision is allowed. The matter is remanded back to the assessing officer for a de novo enquiry in the light of the observations we have made after setting aside the orders of the assessing authorities, inclusive of the Tribunal. There shall, however be no order as to costs, on the facts and in the circumstances of the case. Revision petition allowed.
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1998 (2) TMI 566
Whether Clause 9 of the Memorandum of Understanding dated 24th of January, 1989 constitutes an arbitration agreement; and whether the decision of the Chairman, IFCI dated 8th December, 1995 constituted an award?
Whether Suit No. 1394/1996 is an abuse of the process of court?
Held that:- The Chairman, IFCI has framed issues before answering them in his decision. These issues have been framed by himself for the purpose of enabling him to pinpoint those issues which require his decision. There is no agreed reference in respect of any specific disputes by the parties to him.The finality of the decision is also indicative of it being an expert's decision though of course, this would not be conclusive. But looking at the nature of the functions expected to be performed by the Chairman, IFCI, in our view, the decision is not an arbitration award. The learned Single Judge was, therefor, right in coming to the conclusion that the proceedings before the Chairman, IFCI, were not arbitration proceedings. Nor was his decision an award.
In a proceeding under the Arbitration Act, the appellants could not have raised an alternative plea that in case the impugned decision is treated not as an award. but as a decision, the same is bad in law. This plea could only have been raised by filing a separate suit. Similarly in the suit, the appellants could not h ave raised an alternative plea that in case the impugned decision is considered as an award, the same should be set aside. For this purpose an arbitration petition was required to be filed. Therefor, the suit, if and to the extent that it challenges in accordance with law, the impugned decision as a decision, cannot be treated as an abuse of the process of the court.
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1998 (2) TMI 565
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... ... ..... as well as the Catherene Traders case 1991 81 STC 228 (Mad.) would apply to the facts of this case. The Andhra Pradesh High Court has taken the same view in the case of State of Andhra Pradesh v. Standard Packings 1995 96 STC 151. 9.. In our view, to invoke the exemption under section 5(3) of the Act, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India should be for the purpose of export and the sale must have been for the purpose of complying with the agreement or order. In our view, both the conditions under section 5(3) of the Act are fully satisfied in the present case and in that view of the matter, the Tribunal is not correct in holding that the sale of the packing materials by the assessee which are required for export of the frozen sea foods is not exempt under section 5(3) of the Act. We, therefore, allow the tax case revision. There will be no order as to costs. Petition allowed.
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1998 (2) TMI 564
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... ... ..... Sales Tax) Act, 1941 as general goods. The application is dismissed. The assessment order will have to be modified to the extent as indicated above. The appropriate assessing officer is directed to modify the impugned order of assessment accordingly. Respondents shall adjust towards assessed and due taxes the cash security furnished by applicants and shall also encash the bank guarantees given to cover 50 per cent of the assessed and due taxes in terms of interim order dated February 10, 1997. That part of the said interim order dated February 10, 1997 stands vacated which relates to issuance of declaration forms. No order as to costs. After the judgment is delivered, Mr. R.N. Bagchi, learned advocate for the applicants prays for stay of operation of the judgment and order for 8 weeks. Mr. J.K. Goswami, learned State Representative appearing for respondents oppose the prayer. The prayer for stay is considered and rejected. L.N. Ray (Chairman).-I agree. Application dismissed.
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1998 (2) TMI 563
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... ... ..... raising any objection, and no prejudice seems to have been caused to him. 17.. For the aforesaid reasons, we hold that the present writ petitions are not maintainable and the petitioner has to approach the appellate forum. Considering the facts and circumstances of the case, we allow 15 days time to the petitioner to file appeals, if so advised. 18.. Coming to the question of stay, we direct that on payment of 30 per cent of the amount assessed by March 10, 1998, no coercive action shall be taken against the petitioner till disposal of the first appeal. In this connection, it may be stated that by order dated October 4, 1996 passed in O.J.C. No. 1902 of 1996, this Court had directed that on deposit of a sum of Rs. 10,00,00,000 (ten crores) by October 20, 1996, no coercive action shall be taken. The said amount, if already paid, shall be adjusted. 19.. The writ petitions are disposed of accordingly. No costs. P.K. TRIPATHY, J.-I agree. Writ petitions disposed of accordingly.
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1998 (2) TMI 562
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... ... ..... ll parts of plants are covered by the expression plant ) lead us to construe them together to mean decorative flowers and plants producing such flowers or have the decorative qualities like flowers. We are, therefore, unable to hold that the medicinal herbs, fruits, bark, etc., as mentioned in the application are included in item No. 47 of Schedule I. Accordingly, we are unable to concur with the opinion expressed in the purported circular of the Ayurvedic Drugs Manufacturers Association of India. It is not correct to say that in Memo No. 7979M/29-37/181 date June 25, 1982 referred to in the association s letter the Commissioner has given any specific finding that medicinal herbs are included in item 47 of Schedule I. We, therefore, find nothing wrong on the findings of the respondents Nos. 1, 2 and 3 on the aforesaid issue. 9.. In the circumstances, the application is dismissed. We make no order as to costs. M.K. KAR GUPTA (Technical Member).-I agree. Application dismissed.
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1998 (2) TMI 561
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... ... ..... le that seeds and fruits are parts of plants and if the argument that once plants are exempted from tax, such exemption would automatically be available to parts of plants were correct then there would not have been any necessity for including these various entries regarding fruits and seeds in the First Schedule. Further, entry 47 reads flowers and plants . If the contention of the applicant is correct, then there was no necessity of mentioning flowers separately because flower would, in any case be exempt from taxation being part of plants. Inclusion of these entries in the First Schedule only confirms the contention that while plants may be exempted from tax, parts of plants are not necessarily exempted from tax unless separately included in the Schedule. The scheme of the statute is, therefore, one which clearly negates the contention that because plants are excluded from the taxation net, parts of plants would automatically be similarly excluded. Applications dismissed.
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1998 (2) TMI 560
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... ... ..... acted the provisions of clause (ii) of sub-section (4) of section 12, which will attract penalty, under clause (ii) of sub-section (5) of section 12 of the TNGSTA. 15.. Under clause (ii) of sub-section (5) of section 12 of the TNGSTA, as already indicated, penalty in a sum equal to two per cent of the tax payable for every month or part thereof, during which the default in the submission of the return continued, subject to a maximum of fifty per cent of the tax. 16.. In the case on hand, only a minimum penalty of two per cent of the tax payable for every month or part thereof during which the default in the submission of the return continued had been imposed and therefore it is such imposition of penalty does not at all call for interference. This point is answered accordingly. 17.. In fine, the tax case (revision) fails and the same is accordingly dismissed. There shall, however, be no order as to costs, on the facts and in the circumstances of the case. Petition dismissed.
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1998 (2) TMI 559
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... ... ..... re is no dispute in the meaning of the processing given in the dictionary. But the Supreme Court considered the same and held that this character will not change by adding acid or any chemicals and treating with smoke for the purpose of drying it. Therefore, we are not able to agree with the contention of the learned Government Advocate. 11.. It is contended by the petitioner that the sale is inter-State sale. Once it is inter-State sale it is not taxable under the Karnataka Sales Tax Act or Central Sales Tax Act. It is to be noticed that the assessing authority, first appellate authority and the Tribunal held against the Revenue after considering all the facts of the case. Assailing that, the Sales Tax Department has not filed any revision and the same is not challenged. This Court is not a fact-finding authority. We do not want to interfere with the same. Accordingly, this revision petition is allowed and the earlier order of the lower court is set aside. Petition allowed.
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