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Showing 21 to 40 of 312 Records
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1998 (5) TMI 402
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... ... ..... ssion, it follows that the approach of the trial court was patently erroneous and the conclusions arrived at by it were wholly untenable. It is thus mot the case where two reasonable views on examination of the evidence on record are possible and so the one which supports the accused, should be adopted. The view taken by the trial court can hardly be said to be a view on proper consideration of evidence much less a reasonable view. Therefore, interference by the High Court in the appeal against acquittal of the appellant and recording the finding of their conviction for offences under Sections 302,307 read with Section 34 IPC and Section 3 of the Explosive Substances Act, 1908, on consideration of the evidence, is justified. The judgement under appeal does not warrant any interference. We find no merit in this appeal; it is accordingly dismissed. Appellants 1 and 3, who are now on bail will surrender to their bonds to serve out their sentece confirmed by us. IN THE MATTER OF
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1998 (5) TMI 401
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... ... ..... e submission by supporting the order of the CIT(A). 6. Having heard the rival parties and on going through the orders of the authorities below and after careful consideration of the facts of the case and the paper book filed by the assessee's counsel, we are of the opinion that the appeal by the assessee deserves to succeed. We find that the facts of the case are not disputed by either side. We also find that the AO has waived interest under s. 139(8) and s. 217 under r. 40 and r. 117A of the IT Rules, 1962 as per order dt. 5th Oct., 1991. While waiving interest under s. 139(8) of the Act, the AO has held that the assessee was prevented by reasonable cause from filing the return of income in time. We also find that the decision of the Tribunal, Bombay Bench 'A' and Delhi Bench, cited and relied on by the learned counsel of the assessee supports his argument. For the reasons stated above, the order of the CIT(A) is vacated. 7. In the result, the appeal is allowed.
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1998 (5) TMI 400
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... ... ..... ion in this connection on the diverse claims of the writ petitioner, it will be open to the writ petitioner to challenge such assessments by filing appeals under the rules and relevant provisions of the Act. Point No.2 for consideration is answered by issuing the aforesaid relevant directions. We may also mention, in this connection, that if such claims are lodged by the writ petitioner within the time aforesaid, then only they will be examined at the earliest and preferably within a period of further 12 weeks from the lodging of such claims and after hearing the petitioner or his representative, appropriate assessment orders and consequential refund orders, if any, may be passed by the authorities concerned. The appeals are allowed accordingly to the aforesaid extent. The judgment and order of the High Court are set aside. The writ petitions filed by the writ petitioner before the High court will stand granted in the aforesaid terms with no order as to costs all throughout.
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1998 (5) TMI 399
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... ... ..... hese facts have been noticed to highlight the desirability and requirement of challenging the orders with expedition. 7. In cases of this nature, unlike cases under general law, when liberal approach is adopted while considering prayer for condensation of delay, a serious view of the time spent or delay in preferring the Appeal has to be taken. That is the approach which has also been adopted by the AIFR. The reason is obvious. It is prejudice to opposite party and difficulties in setting back the clock. In the present case, the prejudice to the respondents is evident for the facts noticed above. Thus, the AIFR had rightly dismissed the appeal as time barred. 8. It is in the aforesaid circumstances we have also to weigh what we have noticed earlier that this petition was filed about three months after the order was passed by the AIFR. We find no infirmity in the order of the AIFR. The Writ petition is accordingly dismissed. Parties are, however, left to bear their own costs.
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1998 (5) TMI 398
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... ... ..... ry himself had made no effort to find out from the Police authority as to why they were not able to apprehend him and yet they were not successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during this whole period of delay to find out if the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent from carrying on the prejudicial activity referred to in the grounds of detention. We are of the opinion that the order of detention was passed by the detaining authority not in lawful exercise of the power vested in him. We, therefore, allow this petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in jail in connection with any other case.
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1998 (5) TMI 397
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... ... ..... etermined by him is arbitrary. The C.T.O. does not say anything specific about the basis of this valuation except that it is according to his best judgment. No doubt, an estimation by best judgment may take into account an element of guess-work, but it is nevertheless a judgment and hence must have some basis. It cannot be without any basis at all. So, the value determined by the C.T.O. cannot be accepted. 12.. That being the position, the saleable value declared by the applicant has to be accepted. 13.. The facts and circumstances of the case justify imposition of the maximum amount of penalty, i.e., 25 per cent of the value. Hence, the penalty must be, and is hereby reduced to Rs. 42,250. 14.. Thus, the application is allowed in part. The sum of Rs. 42,250 deposited under interim order of this Tribunal shall be adjusted against the quantum of penalty (Rs. 42,250) determined by us. No order is made for costs. J. GUPTA (Judicial Member).-I agree. Application allowed in part.
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1998 (5) TMI 396
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... ... ..... Schedule. Entry under item 3, Third Schedule is as follows Handloom cloth . 5.. The Appellate Tribunal, by the impugned judgment, rejected the contention of the assessee saying that when a particular entry is provided by the statute, general entries are to be ignored. We fully agree with the approach of the Appellate Tribunal. When there is a particular entry to cover up a commodity, there is no need for the assessing officer to go into the general entries. Pile carpets, the assessee deals in, do specifically fall under entry 100B/142 of the First Schedule and, therefore, entry under item 3 of the Third Schedule will not attract. Otherwise also, concept of handloom cloth is entirely different from that of pile carpet. In common parlance as well as in commercial sense, pile carpet is never treated as cloth or handloom cloth. For the above reasons, all the revisions fail and are dismissed. Order on C.M.P. No. 1893 of 1997 in T.R.C. No. 92 of 1997 dismissed. Revisions dismissed.
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1998 (5) TMI 395
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... ... ..... pass the statutory remedy and come to the court with a writ petition. These questions basically of fact should be agitated before the statutory appellate authority . 19.. In respect of the above decision of the Supreme Court, we are constrained to render a finding in these two original petitions because the original petitions were filed as early as in the year 1996 and have been pending for nearly two years. It is the petitioners who have taken the risk of adjudication by the Special Tribunal. 20.. For all the above reasons, we have no hesitation in upholding the impugned order of assessment dated August 16, 1996 and rejecting O.P. No. 1706 of 1996. Consequently, both the original petitions are dismissed. There will be no order as to cost. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 6th day of May, 1998. Petitions dismissed.
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1998 (5) TMI 394
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... ... ..... r non-appearance and seeking the recall of the ex parte order and for opportunity of hearing, the AA ought to have furnished such opportunity the question is now only of academic interest if at all. 40.. As regards the jurisdiction of the AA, benefits allowed to be availed of on a turnover in goods not exempt under the Incentive Scheme would definitely be a case of escaped assessment warranting action by the AA under section 30 of the 1994 Act. The AA had the jurisdiction. He has only sought to ensure that the benefits availed of are to the extent admissible under the Incentive Scheme. He cannot therefore be said to poach on the Screening Committee s preserves. 41. In view of the foregoing the impugned assessment order and notice of demand both dated June 19, 1996 are modified to the extent that the amount of interest of Rs. 30,645 is set aside. The application stands allowed to that extent only and is dismissed for the rest. No order as to costs. Application partly allowed.
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1998 (5) TMI 393
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... ... ..... mponent of it and hence that can be regarded as a ball pen by itself. 6.. In common parlance or in commercial sense also the body of the ball pen cannot be regarded as pen, but a refill which can be used for writing as such can be treated as pen. What can write and which can be used for writing is ordinarily a pen, but the body of the ball pen which is not an aid to writing device but merely an embellishment, can in no case be treated as a pen. So from a layman point of view also, it is the refill and not the body which can be treated as pen. For these reasons, we accept the contention of the revision-petitioner. The revisions are, therefore, allowed. The impugned common order of the Full Bench of the Sales Tax Appellate Tribunal is set aside. The refill will, therefore, be treated as a classified item falling under entry 135 of the First Schedule to the Kerala General Sales Tax Act, 1963. Order on C.M.P. No. 1570 of 1997 in T.R.C. No. 60 of 1997 dismissed. Petition allowed.
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1998 (5) TMI 392
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... ... ..... under the Act was illegal. That is exactly the position in this case, in that the maximum amount that could have been collected as compounding fee was Rs. 1,000 and as double that amount has been collected, the respondent had the right to challenge the legality of the levy. With great respect, it has to be held that the abovesaid principle will apply to the facts of the instant case as well. Therefore, I am of the view, that as the decision relied on by the learned Government Pleader in W.P. No. 29546 of 1996 was mainly decided on the conduct of the petitioner in moving this Court belatedly that principles therein will not apply to the facts of this case. As such following the said decision I allow this writ petition. The excess amount of Rs. 24,000 collected from the petitioner as composition fee will be refunded to the petitioner within six weeks from today. The writ petition is disposed of with the said direction. There will be no order as to costs. Writ petition allowed.
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1998 (5) TMI 391
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... ... ..... intended to create any legal relationship between the Government and the party drawing benefit flowing from of the said notification. It is, therefore, futile to contend that even if the public interest so demanded and the Central Government was satisfied that the exemption did not require to be extended any further, it could still not withdraw the exemption. 28.. These decisions, in our considered opinion, do not have any direct bearing on the questions raised in these petitions. The judgment in Kasinka Trading s case AIR 1995 SC 874, is clearly distinguishable because in that case the benefit of exemption available for the period up to the issuance of the second notification had not been withdrawn as is sought to be done in the present cases. 29.. In the result, we allow the writ petitions and quash the impugned notices and demands issued by the respondents for levy of tax on the milk purchased by the petitioners from April 1, 1996 to June 4, 1997. Writ petitions allowed.
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1998 (5) TMI 390
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... ... ..... e of hearing before us (April 20, 1998) to confirm that he really failed to advise the applicants to produce the documents before the Board, though it was competent to consider them. Mr. A.K. Roy, learned advocate, now appearing for the applicants, submitted that it was wrong to advise that the documents did not need to be produced before the Board. 11. Accordingly, the impugned order dated September 1, 1997 of the Board is set aside. The Board is directed to hear the revision case No. 816 of 1992-93 afresh according to law after giving the applicants an opportunity of hearing and production of necessary books of account and documents to establish their claims. Meanwhile, a fresh demand notice according to section 11(3) must be served forthwith on applicants by respondent No. 1. 12.. Thus the main application is finally disposed of without any order for costs. J. GUPTA (Judicial Member).I agree. M. K. KAR GUPTA (Technical Member).I agree. Application disposed of accordingly.
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1998 (5) TMI 389
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... ... ..... ed under the statute is also an alternative remedy. 56.. This being so, our judicial discretion is tight, in maintaining the judicial discipline by following the binding precedent. 57.. Thus, from the foregoing discussions, we come to the conclusion that the condition imposed under sub-section (3) of section 45 of the Act for depositing 20 per cent of the assessed tax before the admission of the appeal is neither onerous so as to amount unreasonable restriction nor such right of appeal is illusory infringing petitioner s right guaranteed under article 19(1)(g) and also not violative of article 14 of the Constitution. 58.. In the result, this petition fails and is dismissed with liberty to the petitioner to avail alternative statutory remedy provided under the Act in the light of directions and observations made in this order. Interim order of stay is hereby vacated and the respondents are directed to proceed in accordance with law. S.K. SINGH, J.-I agree. Petition dismissed.
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1998 (5) TMI 388
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... ... ..... on 11E(2) and the orders passed by him reopening the assessments, the pre-assessment notices, and also the assessment orders made by respondent No. 4, Commercial Tax Officer, Ballygunj Charge, for all the disputed years and the demand notices are all valid. However, the applicant has the liberty to prefer appeals against the orders of assessment according to law. Even if the period of limitation for preferring appeals has already expired, we allow two weeks time from now for the ends of justice to prefer such appeals before the appropriate authority. If appeals are preferred within the said period or within the prescribed period of limitation, as the case may be, the appellate authority shall dispose them of according to law on merits after hearing the applicant. 12.. The application is thus dismissed and finally disposed of with the above directions. No order for costs. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Application dismissed.
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1998 (5) TMI 387
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... ... ..... be excluded for the purpose of calculating the period of four years under section 20 of the APGST Act. If so calculated, the order should have been passed on or before April 12, 1988, but the order was passed on April 11, 1990. Therefore, it is beyond the period of limitation prescribed under section 20 of the APGST Act. 7.. The argument of the learned Government Pleader for Revenue that fresh notice was issued on March 16, 1990 and, therefore, the period commences from March 16, 1990 cannot be countenanced as in our view the extended period of limitation under section 24-A of the APGST Act has no application as the impugned order is not passed in pursuance of or in consequence of or to give effect to the order of the High Court in W.P. Nos. 8463 of 1982 and 8546 of 1982 as the proceedings were already initiated and have been concluded. 8.. In view of the above, it follows that the special appeals are to be allowed and they are accordingly allowed. No costs. Appeals allowed.
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1998 (5) TMI 386
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... ... ..... n is opposed to law is not acceptable, as the extension of time for conclusion of assessment has already been taken from the Commissioner of Commercial Taxes in view of the adjournment for production of books of accounts prayed by the dealer, vide order No. MSR. SR. 50 of 1989-90 July 25, 1989 and revocation Order No. MSR. SR. 147 of 1990-91 dated August 28, 1990. Clearly, this reason, is hardly sufficient to invoke the power of deferment. There are, therefore, no valid grounds made out for the invoking of the exclusion available under section 12(6)(b) of the Act. If so, in view of what is stated in the proceeding paragraphs it has to be held that annexure A assessment is barred by time. W.P. No. 19504 of 1990 has to be allowed. 22.. In the result, W.P. Nos. 12083-85 of 1997, W.P. No. 21319 of 1991, W.P. Nos. 8319-22 of 1991 and W.P. 19504 of 1990 are allowed. W.P. No. 19503 of 1990 is dismissed. No cost. W.P. No. 19503 of 1990 dismissed and all other writ petitions allowed.
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1998 (5) TMI 385
Evidence - Additional evidence ... ... ... ... ..... ingly, we are of the view that the matter is fit for de novo proceedings by the adjudicating authority namely, Commissioner of Central Excise, Calcutta-II who is directed to take into account these documents and then decide the case in accordance with the principle of natural justice. Consequently, we set aside the impugned order and allow the appeal by way of remand in terms of the aforesaid directions. 3. emsp Since Appeal has been allowed, Stay Petition also gets disposed of.
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1998 (5) TMI 384
Valuation - Demand - Limitation ... ... ... ... ..... tly denied the benefit of the discount claimed by the appellant-firm, inasmuch as the terms of the Contract were not fulfilled. Therefore, on merits, we do not find much strength in the appellants rsquo case. 5. emsp The next plea of the learned Advocate is on the question of limitation. He submits that every fact was known to the Department and therefore, the demand is barred by time inasmuch as the show cause notice dated 12-8-88 has been issued beyond the period of six months. This plea of the appellant-firm has been rejected by the lower authority on the ground that there is wilful suppression of fact of non-fulfilment of the contract condition from the Department, which was a vital information from the point of view of admissibility of discount in this case. We do not find anything wrong in this finding of the adjudicating authority. Consequently, we do not accept the plea of limitation raised by the learned Advocate for the appellant-firm. Hence the appeal is dismissed.
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1998 (5) TMI 383
Mill neps - Blended yarn ... ... ... ... ..... no warrant to give any restricted meaning to the term Polyester Fibre. Therefore, the Tribunal held that the Notification which extends to articles other than polyester fibre cannot be extended to staple fibre of polyester. Therefore, mill nep being in the nature of artificial staple fibre continues to remain so and its addition to give attraction to the fibre, cannot change its characteristic and bring within the category of lsquo textile material rsquo . rdquo 10. emsp On perusal of the above decision of this Tribunal, we note that the issues raised by the Revenue and discussed by the lower authorities have been dealt with appropriately in the above paragraphs. We do not find any reason to disagree with the decision of this Tribunal in the aforesaid case. In this view of the matter, we hold that mill neps or neps in the instant case are not textile materials classifiable under Chapter Heading 5601.00. In the result, the impugned order is set aside and the appeal is allowed.
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