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Showing 81 to 100 of 559 Records
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2003 (11) TMI 570
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... ... ..... to the writ petition and direct that the petitioner will submit fresh applications for the periods in question in form XII under rule 39 of the Orissa Sales Tax Rules, 1947 and the Sales Tax Officer, Rourkela II, Circle, Panposh will compute the amount of tax paid by the petition on the tax-paid goods purchased by it as raw materials for its industry on the basis of the copies of the purchase bills produced before him by the petitioner and determine such amount to be refunded and refund the same to the petitioner within 90 (ninety) days from the date of such application failing which the petitioner will be entitled to interest at the rate mentioned in section 14-C of the Orissa Sales Tax Act, 1947 with effect from the date of expiry of the said period of ninety days. 15. With the aforesaid observations and directions, the writ petition is allowed. But in the facts and circumstances of the case, there shall be no order as to costs. B.P. DAS, J.-I agree. Writ petition allowed.
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2003 (11) TMI 569
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... ... ..... acts and circumstances of the case, since sales tax authority had regularly issued form C in spite of details being furnished penalty to the extent of benefit availed should be levied. On the oil-seed, without form C tax was 8 per cent and against form C it was 4 per cent. Therefore, on account of issuance of form C benefit of 4 per cent tax was availed. Therefore, penalty to the extent of 4 per cent should be levied. In the assessment year 1985-86, dealer had issued form C for purchase of oil-seed on the amount of Rs. 6,81,863.53 and for the assessment year 1986-87 on the amount of Rs. 16,73,866.89. On the aforesaid amount, penalty at 4 per cent comes to Rs. 27,275 for the assessment year 1985-86 and Rs. 66,955 for the assessment year 1986-87. 23.. In the result, revision is allowed in part. Order of Tribunal is set aside and the penalty for the assessment years 1985-86 and 1986-87 are levied to the extent of Rs. 27,275 and Rs. 66,955 respectively. Petition allowed in part.
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2003 (11) TMI 568
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... ... ..... 547, Neyveli Lignite Corporation Ltd. v. Commercial Tax Officer, Cuddalore reported in 2001 124 STC 586 (SC) as well as of the Calcutta High Court in the matter of State Bank of India (Overseas Branch) v. Commercial Tax Officer reported in 2003 132 STC 234. Liberty to the petitioners to file appropriate reply and place before the respondents the necessary judicial pronouncements. 6.. While holding the order of assessment dated March 31, 1997 to be bad in law and, therefore, quashed and set aside, petitions are disposed of with directions to the respondents to pass an appropriate order after hearing the petitioners and in accordance with the provisions of law, bearing in mind the law laid down by the apex Court and other courts in the relevant points. 7.. It is made clear that this Court has not expressed any opinion on any of the points sought to be raised in these petitions. 8.. Rule is made absolute accordingly, with no order as to costs. Petitions disposed of accordingly.
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2003 (11) TMI 567
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... ... ..... ty of hearing in terms of sub-rule (5) of rule 94 of the Orissa Sales Tax Rules, 1947 before issuing the impugned notice dated August 15, 2003. 8.. For the aforesaid reasons, we quash the impugned notice dated August 15, 2003 of the Sales Tax Officer, Dhenkanal Circle, Angul demanding the tax, surcharge and penalty in respect of the goods in question and direct the Sales Tax Officer, Dhenkanal Circle, Angul to give an opportunity to the petitioners in terms of sub-section (5) of section 16-D of the Act and of sub-rule (5) of rule 94 of the Orissa Sales Tax Rules, 1947. For the aforesaid purpose, the petitioners will appear before the Sales Tax Officer, Dhenkanal Circle, Angul on November 13, 2003 with all their relevant documents and accounts other than those already produced before him and the Sales Tax Officer will hear the petitioners or fix another date of hearing and pass orders in accordance with law. 9.. The writ petition is accordingly allowed. Writ petition allowed.
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2003 (11) TMI 566
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... ... ..... essment and since assessment takes place long after the closure of the year, forms obtained subsequent to the closure of the year can be used in respect of transaction of a date prior to the date on which the form had been obtained. We do not find anything in the Act or Rule which indicate that the submission so made is contrary to law. Counsel for the Revenue fairly stated that the assessee may produce the account books for the years to which the entries in those 7 forms relate and the assessing officer would examine the same. 8.. We set aside the orders of the Tribunal and other appellate authorities and direct the assessing officer to do the assessment afresh in so far as the turnover that has been assumed by him in relation to those 7 13 forms. We leave the other parts of the assessment undisturbed. The assessment to be so done will be done keeping in view what has been stated in this order. This writ petition is accordingly disposed of. Petition disposed of accordingly.
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2003 (11) TMI 565
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... ... ..... rt but the assessing officer for the reasons best known to him proceeded ex parte, assessed the petitioner and decided the artificial liability of the petitioner. We cannot approve the manner in which the two assessment orders were passed. When the petitioner/petitioners was/were saying before the assessing officer that particular items were tax-paid items, particular goods were tax-paid goods, particular items were obtained in interState sale then proper opportunity ought to have been given to the petitioner/petitioners to prove his/their case. The manner in which the ex parte orders of assessment were passed was also bad. On that short count, these assessment orders could also be quashed and the matter could be remitted to the authority for reassessment. In any case, the matters are not required to be remitted to the assessing officer in view of the decision on the larger question. 36.. Both the petitions are allowed. There shall be no order as to costs. Petitions allowed.
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2003 (11) TMI 564
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... ... ..... ome petitioners approached this Court in the year 2003 only and before that they were paying the fees voluntarily. Therefore, as far as refund of the fees paid is concerned, it will be applicable only to the petitioners who approached the court questioning correctness of levy that too in respect of fees collected for the period after they approached the Court. 15.. In the result we hold that (1) section 14(1) of the KGST Act is legal and valid (2) section 14(1A) is unconstitutional and its enactment is beyond the legislative competence (3) section 14(5) is invalid in so far as it compels payment of registration fee at the rate prescribed under section 14(1) on every year at the time of renewal as such fees are charged without any quid pro quo without any services rendered or benefits or privileges conferred to the assessees. All the original petitions are disposed of accordingly. C.M.P. No. 23417 of 1997 in O.P. No. 13088 of 1997 dismissed. Petitions disposed of accordingly.
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2003 (11) TMI 563
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... ... ..... ered to file the revision under section 38, is entitled to compute the period of limitation from the date on which he receives the copy of the order. This argument is not one which can be accepted. Sub-section (8) of section 36 requires that the copy of the order to be sent to the respondent. The respondent in the appeal is the State of Tamil Nadu which receives the notices and orders concerning an appeal through its State representative. The service effected on the said representative is the service on the respondent. It is that same respondent-State which prefers a revision under section 38 by acting through the Deputy Commissioner. The Deputy Commissioner, therefore, is merely an agent of the State and does not have any special status except that he is the officer who has been identified in the Act as the person who is competent to act on behalf of the State for the purpose of filing the revision. 8.. The writ petitions are, therefore, dismissed. Writ petitions dismissed.
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2003 (11) TMI 562
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... ... ..... specific data. In the present case, there is no challenge to the provisions. The statute is not shown to be beyond the legislative competence. In view of the rule laid down by their Lordships of the Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 538 there is a presumption in favour of the constitutionality. It has to be presumed by the court that the Legislature is aware of the needs of the people, which have been made manifest by experience. The burden of proving that a particular provision is unconstitutional lies on the person who challenges it. Probably, in some case the court shall have an opportunity to consider this aspect of the matter. However, for the present, we find no ground to interfere with the order of the learned single Judge. 31.. No other point has been raised. In view of the above, we find no merit in this appeal. It is consequently dismissed. Order on C.M.P. No. 2886 of 2002 in W.A. No. 1141 of 2002 dismissed. Appeal dismissed.
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2003 (11) TMI 561
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... ... ..... The approach of the courts/authorities to whom the power to condone the delay is conferred by the statute should be liberal in condonation. It is only in exceptional cases where the cause is not even disclosed, the delay be not condoned. Such does not appear to be a case of that nature. 7.. In view of aforesaid discussion, I am inclined to allow the writ and quash the order, dated February 7, 2003 (annexures H and H-II). I accordingly, condone the delay in filing revisions by the petitioner against the order, dated September 26, 1997, passed by the Assistant Commissioner in case No. 33 of 1994 and 31 of 1994. As a result, the revisions are held to be within limitation. They have to be heard and decided on merits. Let it be so decided by the revisionary authority (the respondent No. 1) within a period of six months uninfluenced by any of the observations made by this Court and strictly on its merits after granting adequate opportunity to the petitioner. Writ petition allowed.
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2003 (11) TMI 560
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... ... ..... ts on this ground also as appears from the record that the sale to the respondent-corporation was made under the special purchase scheme to help the appellants as there was no takers of their rice and the purchase has been made by the respondent-corporation in terms of the agreement entered into between the parties for sale at a special rate where relevant factors including sales tax, market fee was taken into consideration. The respondent-corporation takes its liability to pay the market fee except to the extent as mentioned in the agreement. There is serious dispute with regard to factual aspect of the matter as it involves interpretation of the agreement and as such we fully agree with view taken by the learned single Judge that no direction can be given in this writ application to the respondentcorporation to pay the market fee to the Market Committee. The appellants may pursue the other remedy available in law. 20.. Accordingly, the appeal is dismissed. Appeal dismissed.
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2003 (11) TMI 559
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... ... ..... ) evolve a rough and ready method of assessment of tax and leave it to the contractor either to opt to it or be governed by the normal method. It is only an alternative method of ascertaining the tax payable, which may be availed of by a contractor if he thinks it advantageous to him. Therefore, we are of the view that once a dealer elects for composition on the ground that opting for composition is beneficial to him, at the end of the assessment year he cannot be permitted to go back on that. We are of the view that the decision relied upon by Sri Sarangan in the case of Tata Honeywell Ltd. 1999 115 STC 220 (Kar.), is of no assistance to him. That is a case where exemption was granted under section 8-A of the Act and that has nothing to do with the matters in controversy in this petition. 8.. In the light of the discussion made above, we do not find any merit in this petition. Accordingly, this petition is rejected. However, no order is made as to costs. Petition dismissed.
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2003 (11) TMI 558
Whether the import fee levied is the levied is the price for parting with the privilege given to the respondent to import liquor into the State and, therefore, the same is within the competence of the State to impose import fee?
Whether the imposition of import fee does not, in any way, restrict trade, commerce and intercourse among the States?
Held that:- The maxim 'res extra commercium' has no role to play in determining the constitutional validity of a statute.
The State, in its discretion having regard to the provisions contained in Article 47 of the Constitution of India may part with its right of exclusive privilege but once it does so, the grant being subject to the terms and conditions of a statute, the common law principle based on the maxim 'res extra commercium' shall have no application in relation thereto. (2) When the constitutionality of a taxing statute is questioned, the same has to be judged on the touchstone of the constitutional provisions including Article 301 thereof. The freedom guaranteed under Article 301 of the Constitution of India may not be considered in isolation having regard to the expression contained therein that such freedom is subject to Part XIII of the Constitution of India.
The right to carry on trade in liquor is a fundamental right within the meaning of Article 19(1)(g) of the Constitution of India and the State may, however, legislate prohibiting such trade either in whole or in part in terms of Clause (6) of thereof.
Article 14 is applicable in the matter of grant by the State and, thus, there is no reason as to why grantee would not be entitled to invoke the commerce clause contained in Article 301 of the Constitution of India. (5) In interpreting the constitutional provisions, the court should take into consideration the implication of its decision having regard to the international treaties dealing with countervailing duty, etc.
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2003 (11) TMI 557
Condonation of delay - inordinate delay - Held that:- There is no proper explanation for the inordinate delay of 310 days in filing the appeal and thereafter the very large inordinate delay of 2401 days in re-filing the appeal - Condonation denied.
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2003 (11) TMI 556
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... ... ..... xport. 9. Reading the two Acts together, the Supreme Court has found that the class of export sales covered by Section 5 of the Central Sales Tax Act cannot be regarded as sales within the State for the purpose of levy of purchase tax under the State enactments. 10. Such an interpretation does not result in any injustice to the concerned parties, as the intention of Parliament as set out in Section 5 of the Central Sales Tax Act is to grant immunity from State tax only for sales which are effected in the course of export. Article 28 6 of the Constitution, as also the Central Sales Tax Act clearly recognise that despite the fact that the sale has a situs in one State or the other, nevertheless when such sales also have the character of sales in the course of export or inter-State sales, despite the situs of the sale, such sales are to be regarded as sales which are qualitatively different from intra State sales for the purpose of taxation. 11. The writ petitions are dismissed.
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2003 (11) TMI 555
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... ... ..... services as rendered by the assessee definitely find place in the realm of ldquo professional services rdquo . In this regard, the Central Board of Direct Taxes Circular No. 700, dated March 23, 1995 (see 1995 213 ITR (St.) 78), clarifies that as long as technical and professional services are rendered from India and are received by a foreign Government or enterprise outside India, deduction under section 80-O would be available to the person rendering the services even if the foreign recipient of the services utilises the benefit of such services in India. Thus, in respectful consonance and agreement with E. P. W. Da Costa 1980 121 ITR 751 (Delhi), the professional services rendered by the assessee are entitled to deduction under section 80-O. We hold accordingly. For the foregoing discussion, the impugned order of the learned Commissioner of Income-tax (Appeals) is entirely correct and legal. It suffers from no infirmity. It is upheld. Resultantly, the appeal is dismissed.
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2003 (11) TMI 554
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... s Ltd. v. Commissioner of Customs, 2000 (121) E.L.T. 326, wherein it was held that penalties under the Customs Act, 1962, Section 112 are not called for at the time of importing the goods into the 100 EOU and submit that the same ratio would apply to the imports made by a unit in Free Trade Zone, therefore, penalties as arrived at under Customs Act, 1962 are not called for in the case of import of these goods. 3. emsp After considering the issue involved and the submissions made we find that there is cause to grant full waiver of pre-deposit of penalties as prayed for in the stay applications. We order accordingly and direct the stay of recovery of the amount of penalties as imposed pending the final decision in these appeals. Stay applications disposed of in the above terms. Oral request for earlier hearing made by ld. Advocate, since goods are pending clearance, granted an early hearing, date fixed on 6-11-2003. Stay applications disposed off as above. (Pronounced in Court)
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2003 (11) TMI 553
Income from other sources ... ... ... ... ..... ceipt is in the nature of income, there is no basis for its being taxed as an lsquo income from other sources rsquo . It is also not in dispute that this aspect of the matter has not been examined by any of the authorities below. Keeping all these factors in mind, as also entirety of the case, we deem it fit and proper to restore the matter to the file of the Assessing Officer for the limited purposes of independently examining this aspect of this matter, i.e., whether or not the impugned receipt is a receipt in the nature of income. While doing so, the Assessing Officer shall give due and fair proper opportunity of hearing to the assessee and shall decide the matter by way of a speaking order and bearing in mind the observations that we have made earlier in this paragraph. Accordingly, the matter is hereby restored to the file of the Assessing Officer with the directions as above. 21. In the result, the appeal is allowed for statistical purposes in the terms indicated above.
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2003 (11) TMI 552
Capital gains, Interest on borrowed capital ... ... ... ... ..... nds raised by the department are dismissed. 6. The third grievance of the department is pertaining to the disallowance of Rs. 7,000 on account of interest paid on the borrowed funds. It was claimed by the assessee that the assessee has paid the interest on the borrowings taken for the purposes of business. The Assessing Officer has disallowed the same but the ld. DCIT(A) has allowed it. 7. After hearing both the parties and on perusal of materials available on record, it appears that the assessee has partly used the borrowed funds for the construction of the house and partly used borrowed funds for the purposes of business. When it is so then we modify the order of the first appellate authority and restrict the addition to Rs. 5,000. Thus, the assessee will get the relief of Rs. 2,000 from the order of the Assessing Officer under this head. Both the parties have agree to it. 8. In the result, the appeal filed by the department is partly allowed as announced in the open court.
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2003 (11) TMI 551
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... ... ..... IT (Appeals). The addition is Rs. 69,000 in respect of Double A Twisters and Rs. 6,000 in respect of Naeja Co-op. Lick. The Assessing Officer has made the addition on the ground that though the commission paid is shown by the assessee, the sale is not shown. The CIT (Appeals) noted that even as on the date of search by the excise authorities, the delivery of the machine has not taken place and therefore held that there was no sale. In fact he has mentioned that even the Assessing Officer has accepted the fact that the delivery was pending in respect of both the items. Accordingly he has held that there is no case for making an addition for sales out of the books. These findings have not been challenged before us on the basis of any material. In these circumstances, the decision of the CIT (Appeals) is confirmed. 12. In the result, the decision of the CIT (Appeals) is confirmed in respect of all the grounds taken by the department, which are rejected. The appeal is dismissed.
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