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2001 (2) TMI 1019
... ... ... ... ..... fect of wilful suppression of the turnover by the assessee. When once there was a wilful suppression of the turnover from the tax liability, the petitioner-dealer is liable for penalty under section 14(8) of the Act. Therefore the penalty levied is proper and just. Though penalty proceedings are independent and the authorities have to consider the material independently, in the present case the petitioner did not bring on record any material. No reply to the show cause notice was also filed. Therefore, it is not open to the petitioner to contend that penalty was levied or confirmed based on the findings made in the assessment proceedings. The material brought on record in reassessment proceedings clearly shows that there was wilful suppression of the sale turnover. Hence, the penalty levied is proper and just. 10.. Under the above circumstance, the tax revision case filed by the petitioner-assessee is devoid of merit and the same is accordingly dismissed. Petition dismissed.
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2001 (2) TMI 1018
... ... ... ... ..... reasons indicated above. In fact we find that in the guise of filing writ petitions before this Special Tribunal as interested parties to declare the levy of sales tax on industrial alcohol as illegal, though the validity, was already upheld by the Supreme Court of which the petitioners were aware of but mis-quoted as narrated above, they have chosen to challenge the collection of administrative fee levied under the Excise Act from the petitioners by the sellers for which no writ petition could lie before this Special Tribunal. On merits also as indicated above, we find absolutely no case to consider the claims in all these frivolous petitions filed by the petitioners. In such circumstances, all the original petitions 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 27th day of February, 2001. Petitions dismissed.
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2001 (2) TMI 1017
... ... ... ... ..... ate prescribed by the said resolution also cannot be regarded as arbitrary because before the cut-off date, decision was already taken to abolish sales tax related incentives and concessions in the conference of the Chief Ministers and Finance Ministers of States and Union Territories which was held on November 16, 1999 and the petitioner must be presumed to be aware of the same. The petitioner has failed to establish plea of promissory estoppel. On overall view of the matter, we are satisfied that the action of the respondents in not granting the benefit of Industrial Incentive Policy 1995-2000 to the petitioner cannot be regarded as arbitrary or illegal so as to warrant our interference in the present petition which is filed under article 226 of the Constitution. The petition, therefore, cannot be entertained and is liable to be dismissed. 7.. For the foregoing reasons, the petition fails and is dismissed. Notice is discharged with no order as to costs. Petition dismissed.
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2001 (2) TMI 1016
... ... ... ... ..... ly declining the prayer of the petitioner for total exemption, are quite germane to the exercise of the power under proviso to section 39(5) of the Act and we do not find any valid ground to interfere with the discretion exercised by him and the Tribunal more so because the petitioner has not controverted the fact that it had closing stock of Rs. 15,23,946 which can be utilised for defraying its liability. For the reasons mentioned above, the writ petition is dismissed. However, we accept the oral request made by Shri Avneesh Jhingan for grant of some time to the petitioner to deposit the amount in terms of the order dated November 2, 1999 and direct that if the said amount is deposited within four weeks from today, the appeal filed by the petitioner under section 39(1) of the Act shall be heard and decided by respondent No. 3 on merits. If the petitioner fails to comply with this condition, the appeal filed by it shall stand dismissed automatically. Writ petition dismissed.
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2001 (2) TMI 1015
... ... ... ... ..... cylinders. Therefore, we find that the inclusion of the freight charges along with the price of the goods by the Joint Commissioner, is in order, though the freight charges have been shown separately in the sale invoices, inasmuch as the character of the payment by the customers, namely, the sale price does not change in any way, though the appellant has chosen to bifurcate the price as value of gas and freight charges. Thus, a turnover of Rs. 10,87,632 at 10 per cent added for the purpose of assessment along with the gas value by the Joint Commissioner, is quite in order and there is no reason to interfere with the orders of the Joint Commissioner. 14.. Accordingly, the tax appeal case is 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 5th day of February, 2001. Appeal dismissed. Reported in 2003 132 STC 337 (TNGST).
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2001 (2) TMI 1014
... ... ... ... ..... t the sellers, namely, M/s. Rekha Distributors were not doing business during 1989-90 and that really no movement of goods took place from Madras to Coimbatore as contended and in such circumstances, as the appellant in this case has not proved that the earlier sales were taxable sales and that tax was payable by the earlier sellers in terms of the ratio of the decision of the Supreme Court in State of Tamil Nadu v. Govindan and Co. 1994 93 STC 185, the conclusions reached by the Joint Commissioner of Commercial Taxes so as to assess a turnover of Rs. 3,33,855 by adding gross profit of 9.31 per cent on the purchase value of Rs. 3,05,420 is fully justified and there is no case to interfere and accordingly the tax appeal case is 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 1st day of February, 2001. Appeal dismissed.
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2001 (2) TMI 1013
... ... ... ... ..... n, contrary to the earlier clarification is not a sound argument. The Commissioner has issued such clarification for the purpose of uniformity in the work of assessment and collection of tax but the assessing authority at the time of assessment has full powers either to agree or to deviate from such clarifications, for his own reasoning given in the order. 21.. Therefore, the prayer in O.P. No. 126 of 2001 for declaration that the rubber purchased and used in re-rubberising the worn out spindles is not exigible to sales tax, also cannot be granted. 22.. From the above discussion, the petitioner in these petitions cannot get the reliefs asked for and therefore, all the petitions deserve to be dismissed. Accordingly they 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 26th day of February, 2001. Petitions dismissed.
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2001 (2) TMI 1012
... ... ... ... ..... n unjust enrichment to the dealer. 5.. Moreover, in this case, the State has yet another hurdle. Section 22(2) of the Act has been interpreted by this Court in the case of State of Tamil Nadu v. K. Mohammed Ibrahim Sahib 1991 83 STC 402 to mean that the section would have no application to cases where a dealer receives the amount of the tax from his buyers and remits the same to the State. Such action on the part of the dealer cannot, it has been held, bring him within the mischief of the provisions, as he cannot be said to have collected by way of tax or purporting to be by way of tax under the Act, amounts, not payable as such. The case of the dealer here falls squarely within the ratio of that judgment. 6.. We, therefore, do not find any error in the order of the Tribunal holding that the dealer is not liable to pay penalty and that the penalty that had been imposed on the dealer was required to be set aside. The tax revisions are dismissed. Tax revisions cases dismissed.
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2001 (2) TMI 1011
... ... ... ... ..... different quantity would not take away the concept of purchase of cotton and use in the manufacture of yarn. (5) The money value of the goods had been disclosed in the form XX declarations and in the accounts of the assessee. (6) The profit and loss account clearly disclosed the money consideration for the transactions. Consequently, we hold that the orders of the Joint Commissioner for all the three years, do not call for any interference, because on facts it has been held that there was a money consideration for the transactions. Therefore, any amount of law is not going to change or alter the character of the transactions. We confirm the order of the Joint Commissioner for all the three years and dismiss all the tax appeal cases. 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 first day of February 2001. Petitions dismissed.
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2001 (2) TMI 1010
... ... ... ... ..... not be countenanced in view of the decision reported in 1983 53 STC 289 (SC) (Shiv Dutt Rai Fateh Chand v. Union of India), wherein it has been held in unmistakable terms that a Reported in 2002 125 STC 106 (Mad.). penalty imposed by the sales tax authority is only civil liability, though penal in character. 9.. Thus we find that the levy of penalty upheld by the Appellate Tribunal is quite in accordance with law. 10.. In the above circumstances, we find that the Appellate Tribunal has not erred either on facts or in applying the correct law in deciding the present case. Thus, we find no case to interfere with the order of the Appellate Tribunal and accordingly the tax revision case is dismissed at the admission stage itself. 11.. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. 12. Issued under my hand and the seal of this Tribunal on the 27th day of February, 2001. Petition dismissed.
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2001 (2) TMI 1009
... ... ... ... ..... of the fact that provision of section 11B was not extended to the Central Sales Tax Act and in view of decision of the Honourable Supreme Court in the case of India Carbon Ltd. v. State of Assam reported in 1997 106 STC 460, no interest was leviable in respect of liability of tax payable under the Central Sales Tax Act. However, it is not in dispute that after the decision of Honourable Supreme Court the provision of interest on demand outstanding under the CST Act has also been inserted with retrospective effect from the same date on which section 11B was inserted in Rajasthan Sales Tax Act. No question as to the validity or vires of the Central Sales Tax Act regarding that amendment giving effect retrospectively has been raised before us and, therefore, in the face of existing statute, we are of the opinion that the judgment of the honourable Supreme Court would not apply to the present case. 8.. Accordingly, this petition fails and is hereby dismissed. Petition dismissed.
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2001 (2) TMI 1008
... ... ... ... ..... urns was procedural aspect providing edifice on which demand in time could be inferred. 22.. We, are therefore, of the opinion that the Tribunal clearly erred in treating the application filed for grant of benefit under Incentive Scheme, 1989 after the application was rejected under 1987 Scheme as application under 1987 Scheme inasmuch as no application was permissible to have been filed by the respondents under 1989 Scheme and once the application under 1987 Scheme was rejected, the District Level Screening Committee was left with no jurisdiction to entertain any further application and decide the same on merits under 1987 Scheme. Consequently, the Tribunal was not right in treating the application to have been filed under 1987 Scheme and decide the same on merits. 23.. As a result the petition is allowed. The order passed by the Tribunal dated September 17, 1998 is set aside and the order passed by District Level Screening Committee is restored. No costs. Petition allowed.
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2001 (2) TMI 1007
... ... ... ... ..... actual finding recorded by the assessing officer when it held that particular sales effected by the petitioner during the period in question (August 1, 1989 to July 31, 1990) in favour of one company Blow Plast can be regarded as favoured sales or genuine sales. This exercise could be done only by the appellate authority under the Act but not by this Court. 9.. Perusal of petition and the grounds taken therein do not make out any case for quashment of assessment order. A plea of article 14 in para 7 of the petition has absolutely no basis. The impugned order of assessment cannot be set aside on the plea of article 14. 10.. As observed supra during argument, the challenge was only on the ground of order passed by the Board of Revenue which has been negatived by this Court. 11.. Accordingly and in view of the discussion aforesaid, the petition has no merit. It is dismissed. No costs. Security amount, if deposited by the petitioner, be refunded as per rules. Petition dismissed.
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2001 (2) TMI 1006
... ... ... ... ..... rtnight from today. In the application the petitioner shall claim adjustment/refund of the amount of the tax already paid by it on the purchase of raw materials and to which it is entitled in terms of the exemption certificate dated July 31, 1999 (ii) on receipt of such representation/application, the Deputy Commissioner, Commercial Taxes, shall process the same, consider it in the light of the observations made above and upon verification of all the facts and figures contained in the said representation, particularly those relating to the payment of the tax for which refund is claimed, shall pass an appropriate order within a period of three weeks from the date of receipt of the representation/application. While passing the appropriate order, it shall be open to the Deputy Commissioner of Commercial Taxes to either refund the amount or to make its adjustment towards future payment. 7.. This writ application is thus disposed of. No order as to costs. Writ application allowed.
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2001 (2) TMI 1005
... ... ... ... ..... ut of consideration, which undoubtedly has been taken into consid eration even according to the representation made by the departmen tal representative before the Tribunal, the assessment order cannot be sustained even on the ground that it has been made by taking into consideration the material which is partly relevant and partly irrelevant and it is not possible to detect the degree of decision effected by irrelevant consideration. The entire order stands vitiated. 11.. We, therefore, are in agreement with the Tribunal that the circular dated August 14, 1980 is ultra vires the powers of the Commissioner and has been issued in violation of the provisions of Act and also violates article 14 of the Constitution of India deserves to be quashed and that the assessment orders in question are to be set aside and remanded back to the assessing authority for decision de novo in accordance with law. 12.. All the petitions fail and are hereby dismissed. No costs. Petitions dismissed.
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2001 (2) TMI 1004
Whether search should be carried out in presence of Gazetted Officer or Magistrate?
Held that:- It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk. In favour of assessee.
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2001 (2) TMI 1003
... ... ... ... ..... n Tribunal Act, 1987. The said section incorporates a statutory period during which a prudent person should challenge the validity of an action or order by which he has become aggrieved. The remedy under section 8 of the said Act is in the nature of a remedy as contemplated under article 226 of the Constitution. It is well-settled that such an application should not be presented with unreasonable delay. Here is a case where the application was presented after four years from the date of the order sought to be challenged. In the circumstances we find that the petitioner has miserably failed to explain the delay and his relief, if there be any, has become barred by limitation in the meantime. We do not find any ground to condone such delay and, therefore, this application for condonation of delay is rejected. 6.. The petition under section 8 of the West Bengal Taxation Tribunal Act, 1987 also stands rejected as being time barred. We make no order for costs. Petition dismissed.
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2001 (2) TMI 1002
... ... ... ... ..... that the assessee acted only as agent of SPIC Ltd., and even assuming that there was a separate transaction between the assessee and the actual user, SPIC Ltd., it was so inextricably connected that the joint purchase which resulted in the import of the goods. Consequently, there was no sale by the assessee to SPIC Ltd., warranting levy of tax under the TNGST Act, 1959. Having come to this conclusion, there is no necessity for us to discuss the issue of penalty, because it will not arise at all. The tax revision case is, therefore, allowed in entirety and the orders of the Appellate Tribunal confirming the orders of the assessing authority and the Appellate Assistant Commissioner, are set aside. In fine, the tax revision case is allowed. 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 8th day of February, 2001. Petition allowed.
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2001 (2) TMI 1001
... ... ... ... ..... application made by the petitioner and hence not only the application made by the petitioner under section 42-A was misconceived but even this petition too. In other words, I am inclined to observe that if invocation of section 42-A by the petitioner was bad, then invoking the writ jurisdiction by filing the writ was worst. In my opinion, the Commissioner was perfectly justified in rejecting the application so made by the petitioner because admittedly no proceedings involving decision to be given on any question of law were pending before any of the authorities, i.e., Commissioner, Tribunal or High Court. 6. Perusal of petition shows that the petition is full of those facts which are totally foreign to the requirement of section 42-A ibid. In other words, what is required to be pleaded for making out a case under section 42-A is totally missing in the petition. 7. To conclude, I find no merit in the writ. It is accordingly dismissed with costs Rs. 1,500. Petition dismissed.
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2001 (2) TMI 1000
... ... ... ... ..... ion outside India to treat the sales effected by the petitioner as sales in the course of export. The sales were effected to the customers residing at Visakhapatnam for the fishing trawlers, which may have incidentally, taken the goods to the high seas for their consumption, during the course of fishing operations. By that itself, it could not be considered that the sales were effected in the course of exports. The facts clearly show that the petitioner/dealer failed to show that there is any destination to a place outside India as contemplated in the above considered judgments of the apex Court as well as the decisions of this Court. When a place of destination outside India is absent, the sales even assuming that the goods were taken to the high seas does not amount to sales in the course of export. 15.. Under the above circumstances, we do not find any merit in the petitioner s contentions and accordingly the tax revision cases are dismissed. No costs. Petition dismissed.
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