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Case Laws
Showing 81 to 100 of 628 Records
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2004 (1) TMI 651
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... ... ..... the local area from outside the State cannot be levied. On the date on which entry tax was introduced on the goods in question, the general exemption granted on those goods under the BST Act and Rules made thereunder were in existence. Therefore, it cannot be said that the levy of entry tax was to ensure that all goods entering the local area bear either the entry tax or the sales tax. Thus the entry tax on furnace oil and low sulphur waxy residue oil instead of striking a balance, in fact creates imbalance between the imported goods and the local goods and in fact has defeated the very purpose of enacting Entry Tax Act. 39.. For all the aforesaid reasons, we hold that entry No. 13 to the Schedule to the Entry Tax Act in so far as it purports to levy entry tax on furnace oil and low sulphur waxy residue oil is unauthorised and unconstitutional. 40.. Petitions are allowed in the above terms and rule made absolute accordingly, with no order as to costs. Writ petition allowed.
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2004 (1) TMI 650
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... ... ..... of mixing fertiliser in different proportion and selling them after granulation amounts to manufacture within the meaning of section 2(17) of the Bombay Act? In the negative, i.e., in favour of the assessee and against the revenue S.T.R. No. 5 of 2000 and S.T.R. No. 2 of 2000 Whether on the facts and in the circumstances of the case and in the light of the decision of the Supreme Court in the case of M/s. Shaw Wallace and Co. Ltd. v. State of Tamil Nadu 1976 37 STC 522 the Tribunal was justified in law in holding that the activity of mixing various chemical fertilisers in different proportion and selling the said mixture in granulated form does not constitute a manufacturing activity under section 2(17) of the Bombay Sales Tax Act, 1959? This question is answered in the affirmative, i.e., in favour of the assessee and against the revenue. 16. The references are disposed of in the aforesaid terms. However, there shall be no order as to costs. References answered accordingly.
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2004 (1) TMI 649
Transfer of right to use the tug or not - use of tug on the territorial waters - use of the tug within the State of Karnataka.
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2004 (1) TMI 648
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... ... ..... will promote free movement of the goods not only intra-State but inter-State also. Insistence on a permit in respect of goods entering the State in course of inter-State trade could also be necessary to distinguish the goods that would be transported across the territory of the State and those which would reach the consumption point within the State and to ascertain whether tax would be payable in the latter category. 41.. Thus the provision of rule 45(b) of the Rules cannot be held to be beyond the legislative competence of the State under entry No. 54 of List II of the Seventh Schedule to the Constitution of India. 42.. Accordingly, the point Nos. (i), (ii) and (iv) are rejected and point No. (iii) is allowed to the extent mentioned above. 43.. The writ application is partly allowed as indicated above and the case of the writ petitioner for grant of exemption or declaration form shall be considered accordingly. ASHOK KUMAR VERMA, J.-I agree Writ application partly allowed.
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2004 (1) TMI 647
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... ... ..... minum foil, glass, plastic or similar packing material which have a longer shelf life. It is such processed foodstuff sold in hermetically sealed containers that should attract tax. The normal cleaned food items, which are not chemically treated or processed and which are put in ordinary containers without hermetical sealing, for purposes of convenience, portability and cleanliness should have the benefit of exemption from tax under Fifth Schedule. We suggest for the consideration of Legislature, appropriate amendment to entries 8(vii) of Part F of Second Schedule and entries 22 and 26 of Fifth Schedule, so that sale of meat/eggs/flesh of poultry/fish/prawns/shrimps/lobsters are exempted from tax, unless sold in hermetically sealed containers. 12.. We find no reason to interfere with the order of the authority. The appeal is therefore dismissed. Sri B Anand, learned Government Advocate is permitted to file memo of appearance for respondent within six weeks. Appeal dismissed.
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2004 (1) TMI 646
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... ... ..... ccount of others (appellant) shall be deemed to be the sale by the first dealer liable to tax under the section. The illustration given under section 5(3)(a) extracted above, reiterates this position. 13.. The position will therefore be thus (i) The sale by Applicomp to appellant will fall under the third proviso. As a consequence, the transaction liable to tax under section 5(3)(a) would be the sale by the appellant. The sale by Applicomp in favour of appellant will not be liable to tax having regard to the third proviso. (ii) The sale by appellant to its Marketing Agent/distributor/ wholesaler/dealer will attract the sixth proviso. Therefore the sale by the marketing agent/distributor/wholesaler/dealer of appellant will also be liable to tax, but the tax payable in regard to such sale shall be reduced by the amount of tax already paid on the sale by the appellant. 14.. We, therefore, affirm the clarification given by the authority and dismiss this appeal. Appeal dismissed.
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2004 (1) TMI 645
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... ... ..... ed that it is not for the court to sit in appeal against the policy decision taken by the State Government. In the given circumstances, I am not inclined to accept the argument that the word as shown as woman is to include women , which in my opinion would be running against the policy of a special provision being available to a woman dealer and not women dealer. The argument of the petitioner in this regard is equally rejected. Insofar as the merits of the matter is concerned, I do not express any opinion at this stage since annexure C is nothing but a notice to the petitioner. If no orders are passed as on today, liberty is reserved to the petitioner to file an appropriate reply to annexure C within two weeks from the date of receipt of a copy of this order. If no orders are passed as on today, the respondents are to consider the proposed objections and pass orders in accordance with law within four weeks thereafter. 10.. Ordered accordingly. No costs. Ordered accordingly.
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2004 (1) TMI 644
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... ... ..... Bihar v. Bihar Chamber of Commerce 1996 103 STC 1 (SC) (1996) 9 SCC 136. 105.. However, this Court has not been restrained from deciding these cases and in fact the Constitution Bench of the Supreme Court to which the matter has been referred can have the benefit of our opinion also. Hence, we are deciding these cases finally. 106.. For the reasons given above this petition and all the connected/similar petitions are allowed. The impugned Act is declared violative of articles 301 and 304 of the Constitution and is hence ultra vires. 107.. Any amount collected under the said Act shall be refunded to the petitioners with 10 per cent per annum interest from the date of realisation to the date of refund and the refund shall be made within two months from today. However, if the burden of the tax has been passed on by the petitioners to the consumers then the refund shall not be given to the petitioners of the tax realised as it will amount to unjust enrichment. Petitions allowed.
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2004 (1) TMI 643
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... ... ..... the rebate (to avoid pollution and storage problems), even if it knew that the differentiation between units within U.P and those outside U.P. was not permissible, as that would be incentive to utilise the fly ash. 27.. Hence it is obvious to us that the intention of the Government was to grant relief on fly ash produced by manufacturers. Hence we are of the opinion that the decision of the Supreme Court in Loharn Steel Industries Ltd. 1997 105 STC 30, squarely applies in this case. 28.. For the reasons given above the condition No. 1 in notification dated February 27, 1998 is declared illegal and is hereby quashed. Consequential relief in the form of rebate shall be granted to the petitioners within two months. The bank guarantee given by the petitioners shall stand released. Any amount deposited by the petitioners in excess of what was payable by it shall be refunded to it within two months, with interest at 10 per cent per annum. Petitions are allowed. Petitions allowed.
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2004 (1) TMI 642
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... ... ..... and medical oxygen may answer the general and wider definition of chemicals they are clearly identifiable and used as surgical aids. Nitrous oxide would therefore definitely fall under surgical and dental aids including....medicinal oxygen...and the like . It is well-settled that where a product or substance falls under a specific entry in the Schedule, the product will have to be considered under the specific entry even though it may also fall under an entry Here italicised. containing general description. Where a substance or product falls under a specific entry and also under a general entry, the specific entry will exclude the general entry. Therefore, the Tribunal was right in classifying nitrous oxide as falling under entry No. 21 in Part S of the Second Schedule and rejecting the request of the petitioner to treat it as a chemical falling under entry No. 10-A in Part C of the Second Schedule. The petition has no merits. It is accordingly rejected. Petition dismissed.
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2004 (1) TMI 641
Whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State?
Whether disclosure of the contents of the document would be against public interest?
Held that:- Keeping in view the purport and object for which the disclosure of the Report of the Board has been withheld, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. We may record that the learned Attorney General had made an offer to place the Report before us in a sealed cover. We do not think that in this case, perusal of the report by the Court is necessary. We are also satisfied that the order issued by the Central Government under Section 18 of the Act and its claim of privilege do not suffer from any legal infirmity warranting interference with the High Court judgment by us. Appeal dismissed.
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2004 (1) TMI 640
Whether the offences are made out is a matter of trial?
Held that:- The High Court was not justified in summarily rejecting the application for grant of leave. It has a duty to indicate reasons when it refuses to grant leave. Any casual or summary disposal would not be proper - set aside the impugned order of the High Court and remit the matter back to the High Court for hearing the matter on merits as according to us points involved require adjudication by the High Court. The appeal is allowed to the extent indicated.
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2004 (1) TMI 639
Provisions are in the nature of social-security measures like employment insurance, provident fund and pension - Held that: gratuity under the Payment of Gratuity Act, 1972 is no longer in the realm of charity but a statutory right given to the employee.
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2004 (1) TMI 638
Deductions - Profits and gains from hotels or industrial undertakings, etc., in backward areas
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2004 (1) TMI 637
Valuation of assets ... ... ... ... ..... if the application of the assessee for renewal of the leasehold right was not approved by the Government of India. That is only a case of remote chance for a distant danger. In the praesenti as well as with reference to the valuation dates involved in these appeals, the assessee-company is very much holding the leasehold rights carrying on its business, owning the building and also earning rental income. In the facts and circumstances of the case, there is no ground to overlook the provisions of rules 3 and 4 of Schedule III. 20. Therefore, the contention of the learned Chartered Accountant that the property should be valued in the manner laid down in Rule 20 of Schedule III is not sustainable. The Assessing Officer has rightly valued the property in terms of the provisions contained in rules 3 and 4 of Schedule III to the Wealth-tax Act, 1957. 21. In the facts and circumstances of the case, we find that these wealth-tax appeals are liable to be dismissed. Order accordingly.
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2004 (1) TMI 636
Agricultural income ... ... ... ... ..... e the yield from the cultivation of flower. The Learned CIT(A) has estimated the agricultural income of the assessee taking 14.9 bighas of land and by applying the selling price of rose flower as given by NHB and taking 2 crops of rose flower per year. In our opinion, the learned CIT(A) is incorrect in taking 14.9 bighas of land as land under cultivation of rose flower only and taking 2 crops of rose flower per year. As per report of NHB there can be only one crop of rose flower per year. About the area of land under cultivation, we have already held that it was not 14.9 bighas. In the facts and circumstances of the case, we are of the opinion that agricultural income as estimated by Assessing Officer appears to be just and reasonable. We, therefore, set aside the order of CIT(A) and restore the order of the Assessing Officer. Before we part with the matter, we appreciate the assistance rendered by the DR in the matter. 14. In the result, the appeal of the revenue is allowed.
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2004 (1) TMI 635
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... ... ..... rsquo ble Supreme Court in the case of Ranchi Club Limited 247 ITR 209 (SC). 7. After considering the submissions of the assessee and going through the impugned order, it is noticed that the assessee raised this ground before the CIT(A) in the following words In the facts of the case the Assessing Officer erred in charging interest under section 215 of Rs. 2,351. 8. The ld. CIT(A) mentioned in the impugned order that the assessee had not pressed this ground. We think appropriate to reproduce the observation of the ld. CIT(A) which were as under The other grounds of appeal were not pressed by the ld. Counsel and the same are hereby rejected. 9. From the above it would be clear that the assessee had not pressed the ground related to the charging of interest under section 215 before the CIT(A). Therefore, this ground does not arise from the order of the CIT(A), as such the same is rejected. 10. In the result, ITA No. 258 is partly allowed while ITA Nos. 259 and 260 are allowed.
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2004 (1) TMI 634
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... ... ..... ax department is a payment of a statutory obligation. It is never advanced with an intention to finance the Government and as such, the interest received on income tax refund cannot be said as interest received on loans and advances and hence interest tax is not chargeable on this ground. It was argued by the learned D.R. of the revenue that any payment towards advance tax in excess of that liability shall be treated as advance and interest thereon shall be subject to charge of interest tax. 3. We have considered the rival submissions and perused the material on record and in the facts and circumstances of the case, we are of the considered opinion that interest on income tax refund cannot be said as interest on loans and advances and hence in our opinion, no interest tax is chargeable on the interest received by the assessee from income tax department on income tax refund. The assessee rsquo s succeeds on this ground. 4. In the result, the assessee rsquo s appeal is allowed.
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2004 (1) TMI 633
Business disallowance ... ... ... ... ..... he discount claimed to have been availed by the Revenue. Hence, availing of discount in the present set of circumstances of the case is to be treated to come within the ambit of lsquo commercial expediency rsquo . After all without running of business the assessee is not supposed to grow and running of business means earning of profit either directly or indirectly. The department cannot stop the assessee of availing this discount and treat the same as a tax avoidance. Such a view taken by the revenue is hereby rejected. 9. Moreover, the interpretation as has been made by Hon rsquo ble jurisdictional High Court and that of Hon rsquo ble Apex court in the above discussed cases has to be borne in mind and in simple routine manner the Revenue has invoked the provisions of section 40A(3) in the instant case. Hence, the appeal filed by the assessee on this issue is hereby allowed and the orders of the authorities below are cancelled. 10. In the result, the appeal is partly allowed.
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2004 (1) TMI 632
Penalty - For failure to comply with section 269SS ... ... ... ... ..... the claim that the cashier, by mistake, entered the amount in the cash loan account of RIPL. In our view, penalty under section 271D is not exigible and therefore the same is directed to be deleted. Appeal No. 3013 7. This appeal is against the confirmation by the ld. CIT(A) of penalty of Rs. 74,192 levied under section 271E. As already discussed (supra), the sum of Rs. 74,192 was debited in the account of RIPL and the explanation is that from out of the cash of Rs. 1,15,000, the aforesaid amount was taken by Shri Ganguly to meet the expenses on behalf of RIPL. The balance amount was squared up by passing a journal entry on 31-3-1997. The penalty has been levied and confirmed by the ld. CIT(A) on the basis that provisions of section 269T have been violated. The arguments and submissions of both the sides are the same and therefore for the same reasons as indicated by us above, the penalty of Rs. 74,192 is directed to be deleted. 8. In the result, both the appeals are allowed.
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