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Showing 61 to 80 of 558 Records
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2000 (9) TMI 1032
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... ... ..... dice to any party. The prestine doctrine couched in the maxim actus curiae neminem gravabit has ever remained a salutary and guiding principle. 12.. In our opinion, the aforementioned decision is clearly distinguishable because while in that case the assessee had no reason to delay the deposit of tax, the petitioner was not liable to pay such tax till the passing of the order dated May 7, 1998. 13.. For the reasons mentioned above, the writ petition is partly allowed. The levy of interest for the period prior to May 7, 1998 is declared illegal. However, the concurrent finding recorded by respondent Nos. 2 and 3 on the petitioner s liability to pay tax on the consignment sales is confirmed. The respondents shall now be free to recover the amount of tax after complying with the direction given by respondent No. 2 for exclusion of the element of purchase tax. They shall also be entitled to charge interest for the period commencing from May 7, 1998. Writ petition partly allowed.
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2000 (9) TMI 1031
Whether the mandate of Section 55 of the Act has not been followed and as the Trial Court as well as the Appellate Court arrived at the guilt of the appellant on wrong assumptions?
Held that:- If resort is had to the procedure prescribed under sub-section 3(a) of Section 52, the applicability of Section 55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under Clause (b) of sub-section (3) of Section 52 of the Act to the officer empowered under Section 53 of the Act, the compliance of Section 55 cannot be insisted upon
Keeping in view the multifarious activities and the duties cast upon the officer incharge of the police station under the Code of Criminal Procedure and he being apparently busy with the duties under the Code, the officers mentioned in Section 53 of the Act have been mandated to take action for disposal of seized narcotic drugs and psychotropic substances by filing application which, when filed, has to be allowed by the Magistrate as soon as may be. We are of the opinion that in the present case the procedure prescribed under Section 49 read with Section 43 was attracted, which, on facts, has been found to be followed. Keeping in mind the facts and circumstances of the case and the mandate of law, as explained by this Court in Abdul Rashid Ibrahim Mansuri’s case (supra), we are of the opinion that the appellant had not discharged the burden of proof in any manner to rebut the presumption envisaged under Section 35 of the Act. He has been proved to be transporting the opium with a conscious mind and full knowledge. All ingredients of the offences with which he has been convicted and sentenced had been proved by the prosecution. Appeal dismissed.
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2000 (9) TMI 1030
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... ... ..... dated May 30, 1992. 3. Feeling aggrieved by the said order the assessing authority filed second appeal before the Tribunal and the Tribunal had set aside the penalty by holding that the import of coal has been duly recorded by the assessee in its books of accounts, which have been accepted. Further, there was no intention to evade any payment of tax as coal, which was only to be used as fuel by the assessee and was not meant for sale. The Tribunal also found that the assessee could not submit form XXXI while taking delivery of coal from the railways on account of the stand taken by the authority in not issuing form XXXI. Thus, no penalty was exigible. The findings recorded by the Tribunal are pure findings of fact, which are based on appreciation of evidence and material on record. It does not give rise to any question of law, which requires to be decided by this Court under section 11 of the Act. 4.. The revision lacks merits and is dismissed in limine. Petition dismissed.
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2000 (9) TMI 1029
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... ... ..... the 22nd day of September, 2000. APPENDIX II J. KANAKARAJ Chairman).-Petition on being called upon today hearing the both sides the Tribunal ordered as follows The original petition challenges the correctness of the order of the first respondent in proceedings in TNGST 640098/97-98 dated December 21, 2000. The main dispute relates to the inclusion of the fertiliser subsidy to the tune of Rs. 17,52,22,788 at 4 per cent. We have already rendered a decision in T.P. No. 404 of 1997 dated August 3, 1998 Neyveli Lignite Corporation Ltd. v. Deputy Commercial Tax Officer, Cuddalore 1999 115 STC 51 (TNTST) upholding such inclusion of fertiliser subsidy in the taxable turnover. Consequently, the original petition and the miscellaneous petition therein are dismissed. 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 9th day of January, 2001.
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2000 (9) TMI 1028
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... ... ..... able to be excluded while determining the turnover in view of the exemption given in section 3-F of the Act. The Tribunal had held that the benefit of compounding scheme cannot be granted to the applicant as it had not applied for the assessment year 1992-93. Further, it had not examine the specific ground No. 14 mentioned in the memorandum of appeal regarding exemption on purchases made outside the U.P. It may be mentioned here that the question as to whether the benefit of compounding scheme is available to a contractor for the entire contract or in respect of a particular year to which he had opted has to be considered in the light of the compounding scheme introduced by the State Government. The Tribunal had not considered the compounding scheme. Thus, the order of the Tribunal cannot be sustained and is hereby set aside. The Tribunal is directed to decide the appeal afresh in accordance with law. 3.. In the result, the revision succeeds and is allowed. Petition allowed.
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2000 (9) TMI 1027
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... ... ..... der is vitiated and the same cannot be supported in law. The contention of the learned Standing Counsel that in the impugned notices at annexures 6 and 1 there is statement to the effect that the assessment made is prejudicial to the interest of the Revenue and as such the final order cannot be struck down, has no merit. The validity of the initiation of the proceedings depends on whether the basic fact as required under rule 80 was present in the mind of the revisional authority as it goes to the root of the jurisdiction. Therefore, mention in the notices that the assessment was prejudicial to the interest of the Revenue cannot remunerate to a void proceeding . For the aforementioned reasons, the impugned notices at annexures 6 and 1 and the final order dated April 20, 1999 at annexure 1/A as well as the demand notice at annexure 1/B are hereby quashed being without jurisdiction. In the result, the writ petition is allowed. Ch. P.K. MISRA, J.-I agree. Writ petition allowed.
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2000 (9) TMI 1026
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... ... ..... article 14 does not therefore arise. 31.. A division Bench of this Court in Poorna Wines v. Commissioner of Commercial Taxes 1995 97 STC 40 (1994) 18 APSTJ 173 held that notwithstanding the artificial bifurcation of the price which the assessee paid to the manufacturer while purchasing the beer and the price received while selling the same to the retail dealers, the assessee must be deemed to have received a single amount for the sale of the bottled beer and the cost of the bottle cannot be separated from the price of the beer. 32.. Considering the purpose and objective behind the impugned provision and the mischief sought to be remedied, it cannot be said that the differentiation in the rate of cement is unreasonable or irrational. We cannot, therefore, uphold the petitioner s contention. 33.. The writ petition is dismissed with costs quantified at Rs. 2,000. Writ petition dismissed. Reported as Circar Enterprises v. Commissioner of Commercial Taxes 1995 97 STC 40 (AP).-Ed.
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2000 (9) TMI 1025
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... ... ..... re, with great respect we humbly disagree with the conclusions reached in the aforesaid two decisions in view of absence of a transfer of right to use beyond the period of 14 days to the buyer. Therefore, as there is no transfer of right to use by the buyer beyond free loan period of 14 days, consideration received for over-detention of the cylinders cannot be held to be a sale price for transfer of right to use of the cylinders and as such, all the forums, i.e., assessing officer, Assistant Commissioner and the Tribunal have erred in law in concluding otherwise. 10.. In view of the aforesaid discussions, we answer the question in favour of the dealer in the following manner In the facts and circumstances of the case, the amount received by the petitioner on account of delay in return of cylinders by the purchaser cannot be held to be taxable under section 2(g)(iv) of the Orissa Sales Tax Act. The reference application is allowed. R.K. PATRA, J.-I agree. Application allowed.
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2000 (9) TMI 1024
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... ... ..... n or entry. Therefore, insertion of entry No. 43 in the list of ineligible industries mentioning units manufacturing besan out of dal clearly indicates that flour mill does not include a mill producing besan out of dal. As such, the conclusion of the Assistant Commissioner as well as the Commissioner in annexures 10 and 11 is not tenable in law. We, therefore, hold that from the date of its commercial production, i.e., from February 4, 1989, the petitioner is entitled to exemption for a period of seven years on the sale of its finished products and five years for purchase of raw materials, spare parts and packing materials in accordance with law. 5.. For the foregoing discussions, we quash the notice of the Assistant Commissioner in annexure 9 and the consequential orders of the Assistant Commissioner and the Commissioner in annexures 10 and 11. 6.. In the result, the writ petition is allowed. There will be no order as to costs. R.K. PATRA, J.-I agree. Writ petition allowed.
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2000 (9) TMI 1023
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... ... ..... id clauses unless it falls within the exclusion part of those clauses. The demarcation sought to be drawn by the learned Government Advocate cannot be read in the said definition. As observed by the Supreme Court in P. Nalla Thampy Thera v. B.L. Shankar AIR 1984 SC 135 A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases . There are no creases in the instant case and the legislative intent is very clear. Any cooked item or food which is not included in the exclusion clause of the definition would fall within the meaning of cooked food as defined under section 2. 10.. For what I have said above it must be held that fryums are cooked food and liable to be assessed under entry 4 of Part I of the Second Schedule to the Act of 1958 (corresponding serial No. 2 of Part I to the Act of 1994). Accordingly I allow this petition and quash the impugned orders (annexures B, C, D, E, F and G) passed by the respondents. Petition allowed.
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2000 (9) TMI 1022
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... ... ..... e dealing with them, viz., the trader and the consumer as medicines. No attempt has been made by any of the authorities to find out as to whether these two items are understood by those who are dealing with the said items as a drug or only as a chemical. The Tribunal also did not consider this question bearing in mind the definition of drugs in the Drugs and Cosmetics Act, 1940 and the fact that the assessee is dealing in the two items under a licence issued under the said Act. In the above circumstances, we are of the view that the matter must go back to the Tribunal for consideration of the said question afresh. Accordingly we set aside the order of the Tribunal and remit the matter back to the Tribunal for fresh consideration of this question. It is open to the parties to lead further evidence, if any, in the matter. The tax revision cases are disposed of as above. But in the circumstances of the case, there will be no order as to costs. Petitions disposed of accordingly.
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2000 (9) TMI 1021
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... ... ..... ve held that the dealer is liable to pay tax at 3 per cent as purchases took place prior to July 1, 1974, i.e., at the prevailing rate at the time purchases were made. This decision supports the conclusion reached by us as purchase of stock in hand was made on or before March 31, 1978, i.e., prior to April 1, 1978 when paddy purchased for conversion into rice or broken rice has become taxable at the purchase point and thereby has become exempted to be taxed at the sale point and as such, the same stock of paddy is liable to be taxed at the rate prior to April 1, 1978, i.e., at the nil rate. Therefore, we will answer the question raised in this reference application against Revenue as follows Under the facts and circumstances of the case, the Tribunal is not justified to confirm levy of purchase tax on the paddy remaining in stock as on April 1, 1978 and not purchased on or after April 1, 1978. The reference application is allowed. R.K. PATRA, J.-I agree. Application allowed.
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2000 (9) TMI 1020
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... ... ..... Dealer in turn under section 37 of the West Bengal Sales Tax Act collects the sales tax from its customers as an agent of the State of West Bengal. Unlike income-tax, the taxable event is not the income it is on sale and once exemption is granted on payment of any tax as a result whereof the petitioner would not perform his statutory duty as envisaged under section 37 of the said Act. It is not a case where the doctrine of restitution may be taken recourse to nor is it a case where the petitioner could have been directed to pay the amount by invoking the principles of unjust enrichment. 14.. For the reasons aforementioned we are of the opinion that the learned Tribunal committed an error in passing the impugned judgment which is set aside accordingly. This application is allowed. However, there will be no order as to cost. 15.. All parties are to act on a xeroxed certified copy of the judgment, to be delivered on priority basis, on the usual undertaking. Application allowed.
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2000 (9) TMI 1019
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... ... ..... directed that the authority concerned (the Assistant Commissioner of Commercial Taxes, Corporate Division) shall take necessary steps within four weeks from the date of this order to refund Rs. 5,71,692 to the company. The respondents shall also pay interest on the same amount to the company for the period from the date of issue of the notice in form VII till the date of payment of the aforesaid amount and the interest shall be at the rate of 1 per cent per month. The application is, therefore, disposed of. We make no order as to costs. A. DEB (Technical Member).-I agree. 9.. After the delivery of the judgment Mr. J.K. Goswami, learned State Representative, prays for staying the operation of the judgment. Since the respondents have already been given four weeks time to make payment of the money we are of the opinion that the respondents will not be prejudiced and they can move the appropriate forum in the meantime. Hence, the prayer for stay is rejected. Application allowed.
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2000 (9) TMI 1018
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... ... ..... the Tribunal, I find that there was difference in the turnover as disclosed by the applicant as per its books of accounts and as per returns as well as in the net taxable turnover. Certain claims of goods returns, etc., was also put forward but in the absence of books of accounts, neither disclosed turnover nor claim of exemption could be verified. Be that it may be, the fact remains that the books of accounts was not produced by the applicant before the authorities to get the disclosed turnover and the claim of exemption verified. Thus, the best judgment assessment was necessitated. Since no suppression and concealment has been found, the turnover ought to have been determined by the previous history which the Tribunal did not do. In view of the above, the impugned order dated December 13, 1990, passed by the Tribunal is set aside and the Tribunal is hereby directed to decide the appeals afresh in accordance with law. In the result the revision is allowed. Petition allowed.
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2000 (9) TMI 1017
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... ... ..... .O. No. 342 of 1963 as modified by S.R.O. No. 1542 of 1987. The question of law posed in the opening para of this judgment is answered in the negative against the Revenue and in favour of the assessee. 12.. In the light of the above, we set aside the orders of the assessing authority, the Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal for all the four assessment years as illegal, erroneous and unsustainable. The assessing authority is directed to complete the assessment for the four years exempting the turnover of plough (kozhu with handle) from tax under S.R.O. No. 342 of 1963 as modified by S.R.O. No. 1542 of 1987. These tax revision cases are allowed as above. Order on C.M.P. No. 1494 of 1999 in T.R.C. No. 53 of 1999 dismissed. Order on C.M.P. No. 1500 of 1999 in T.R.C. No. 54 of 1999 dismissed. Order on C.M.P. No. 1502 of 1999 in T.R.C. No. 55 of 1999 dismissed. Order on C.M.P. No. 1504 of 1999 in T.R.C. No. 56 of 1999 dismissed. Petitions allowed.
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2000 (9) TMI 1016
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... ... ..... Appellate Tribunal to grant set-off from actual suppression of Rs. 6,50,568 sustained by the Appellate Tribunal, is totally erroneous in law and therefore, the relief granted on a turnover of Rs. 5,81,472 is set aside. Apparently, we find that there is no case for further addition over and above the actual suppression of Rs. 6,50,568. In fine, the actual suppression is fixed at Rs. 6,50,568 as against Rs. 69,096 determined by the Appellate Tribunal. Surcharge and additional sales tax would be levied on the turnover determined as above. Similarly, the quantum of penalty at 50 per cent of tax due on the suppression, is fixed on the turnover of Rs. 6,50,568. 11.. In fine, the tax revision case is partly allowed as indicated above. 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 29th day of September, 2000. Petition partly allowed.
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2000 (9) TMI 1015
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... ... ..... rest on the refundable amount to the applicant for the period from the date of issue of the demand notice till the date of payment of the aforesaid amount and interest shall be at 1 per cent per month. At this juncture, Mr. J.K. Goswami, learned State Representative, submits that on August 29, 2000 the Tribunal had ordered for payment of the excess amount within four weeks from that date but due to inadvertence, he has not been able to communicate the same to the appropriate authority. He prays for modification of the order so that the refundable amount is made payable within four weeks from this date. Mr. S.K. Chakraborty, learned advocate for the applicant, does not have any objection to that. Accordingly, the order passed on August 29, 2000 is modified to the effect that the refundable amount shall be paid within four weeks from this date along with the interest. 3.. The application is, therefore, finally disposed of without any order as to costs. Application disposed of.
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2000 (9) TMI 1014
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... ... ..... as cognizable by the Division Bench of the Tribunal. Subsequently, in view of the amendment made under section 10 of the Act, the appeal was heard and decided by single member. It is submitted that before the Tribunal, the applicant had filed copy of the order dated April 23, 1988, passed by the Sales Tax Tribunal, U.P., Lucknow, but the Tribunal has not adverted to the said order. The facts being similar, the applicant submits that the Tribunal has committed error in upholding the levy of penalty when in similar circumstances, the penalty for assessment years has been deleted. 5. Heard the learned counsel for the parties. 6.. The Tribunal has not considered its earlier order dated April 23, 1988, passed in a similar situation which vitiates the impugned order dated January 1, 1991. Thus, the impugned order dated January 1, 1991 is set aside. The Tribunal is directed to decide the appeal afresh in accordance with law. In the result, the revision is allowed. Petition allowed.
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2000 (9) TMI 1013
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... ... ..... nce it has not considered the documents filed by the applicant alongwith the memo of appeal. Thus the impugned order passed by the Tribunal cannot be sustained and is hereby set aside. In the result the revision succeeds and is allowed. The Tribunal is directed to decide the appeal afresh in accordance with law. It may be mentioned here that a Division Bench of this Court in C.M. Writ Petition No. 852 of 1999 decided on September 14, 1999 had stayed the recovery proceedings till the disposal of the appeal pending before the authority concerned. The Tribunal has decided the appeal on April 6, 2000 and this Court while admitting the petition on July 17, 2000 had stayed the recovery proceedings till September 11, 2000. Since the matter has been remanded to the Tribunal for deciding the appeal afresh, in the interest of justice it is directed that the recovery proceedings against the applicant shall remain stayed till the disposal of the appeal by the Tribunal. Petition allowed.
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