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Case Laws
Showing 101 to 120 of 576 Records
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2005 (10) TMI 513 - KERALA HIGH COURT
... ...
... ... ..... ), which reads as follows 39 An extra part of a vehicle or machine kept ready for use in emergency or replacement 39 . Therefore, the essential thing is, it must be a part of the machine or apparatus, as the case may be. Above mentioned decisions would clearly indicate that accessory is not a component, nor spare part or any of the items mentioned in entry 6 of the Fifth Schedule. Commissioner is therefore not justified in holding that fridge stand is an accessory which falls under serial No. 6 of the Fifth Schedule to the Kerala General Sales Tax Act. 9.. We are therefore inclined to quash exhibit P3 order in O.P. No. 18130 of 2003 passed by the Commissioner of Commercial Taxes and hold that fridge stand will fall only under the general category in the residuary entry in serial number 156 of the First Schedule to the Act. Fresh assessment orders would be passed by the assessing officer concerned in all these cases based on this declaration. Appeal and writ petition allowed.
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2005 (10) TMI 512 - BOMBAY HIGH COURT
... ...
... ... ..... 1.. The apex Court, thus, ruled that the case of Tungabhadra Industries Ltd. 1960 11 STC 827 did not decide the issue as to whether process of refining amounts to manufacture or not. 52.. The apex Court after considering the meaning of the word processing as pointed out above, reached to the conclusion that processing of oil did amount to manufacture . 53.. In the above view of the matter, we do not see any legal or constitutional infirmity in the amendment brought on the statute with retrospective effect. It is nothing but a clarificatory amendment which was necessary to take away the effect of the judgment of the Tribunal and in the facts and circumstances of the case, thus, retrospective effect to the amendment was rightly given. In our considered view, all the contentions raised on behalf of the petitioners are devoid of any substance and the petition has no merit. In the result, the petition is dismissed. Rule is discharged with no order as to costs. Petition dismissed.
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2005 (10) TMI 511 - KARNATAKA HIGH COURT
... ...
... ... ..... 002, 5227 of 2002, 5230 of 2002, 5232 of 2002, 5260 of 2002, 5265 of 2002, 5274 of 2002, 5355 of 2002, and 5441 of 2002, 7793 of 2003 and 7938 of 2003, 65 of 2004, 5182 of 2002, 5391 of 2002, 5184 of 2002, 5194 of 2002, 5214 of 2002, and 6180 of 2002 and 2264 of 2004 are rejected. II. Writ appeals filed by the Revenue in W.A. Nos. 3059 of 2003, 5707 of 2002, 5724 of 2002, 5807 of 2002, 6475 of 2002 and 6493 of 2002, 141 of 2003, 142 of 2003 and 2290 of 2003, 4571 of 2004, 5781 of 2002 and 1752 of 2003 are allowed. III. The declaration made by the learned single Judge that the circular issued by the Commissioner of Commercial Taxes dated April 12, 1996 is binding on the assessing authorities in regard to the assessment period April 1, 1996 till March 31, 2000 is set aside. IV. In all other aspects, the impugned order passed by the learned single Judge is affirmed. V. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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2005 (10) TMI 510 - GAUHATI HIGH COURT
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... ... ..... reals are grains that are edible or fit for human consumption. It may be, the cereals, if sown produce sapplings but they are not used as seeds to raise a new crop. In the same way seeds are to be interpreted as is understood in common parlance and given its popular sense meaning and if so understood, it only means seeds of a cereal grown or used for raising a new crop. 34.. In view of the foregoing analysis seeds of cereals, wheat, pulses, paddy, mustard sold as seeds by the petitioner are not to be exempted under entry 6 or entry 48 of Schedule I and cannot be treated as cereals in all its forms or pulses in all its forms , however, these seeds are to be taxed as an entry otherwise in entry 2 of Schedule III of the Act 1993 . I do not find force in the contentions of the petitioner, therefore, the civil rule preferred in respect of both the orders dated May 12, 1998 passed by revisional authority for the assessment years 1994-95 and 1995-96 is dismissed. Petition dismissed.
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2005 (10) TMI 509 - BOMBAY HIGH COURT
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... ... ..... ning of the utensil is distinct from appliance. This indicates that stainless steel water filter which is an appliance is different than the stainless steel utensil for household purpose as contemplated under entry 145(1) of the notification issued under section 41 of the Act, 1959. 28.. With due respect, it is difficult to go along with the view taken by the Madhya Pradesh High Court in the case of Yadav 1980 46 STC 30. Even if water filter is considered in its popular sense and common parlance test is applied, even then it would not fall in the category of utensil, as sought to be canvassed by the learned counsel for the assessee. When the consumer buys the article he buys it because it filters water. Otherwise, nobody would go to buy it, treating it as kitchenware or for being used in the kitchen. In this view of the matter, the question referred in both the references are answered in favour of the Revenue and against the assessee. Reference answered in favour of Revenue.
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2005 (10) TMI 508 - GAUHATI HIGH COURT
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... ... ..... cation, dated August 16, 1995, aforementioned, to the extent that the same is repugnant to the Industrial Policy of 1991 read with the notification, dated April 26, 1994 aforementioned, is hereby set aside and quashed. The impugned letter, dated April 28, 1998 aforementioned, issued by the Additional Director (US), Directorate of Industries, Government of Assam, declining to issue to the petitionercompany the requisite eligibility certificate is also hereby set aside and quashed. The respondents are directed not to force the petitionercompany to pay sales tax for the period, which the petitioner-company, in terms of the notification, dated April 26, 1994 aforementioned, is, otherwise, not liable to pay. The respondents are, however, left at liberty to recover, in accordance with law, sales tax, if any, that the petitioner-company might have collected on its finished products. With the above observations and directions, this writ petition is disposed of. No order as to costs.
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2005 (10) TMI 507 - ANDHRA PRADESH HIGH COURT
Tax revision - rice millers and registered dealers under the APGST Act - revision of assessment u/s 20(2) - Whether gunnies which have suffered tax within the State of A.P. can, u/s 6-C of the Andhra Pradesh General Sales Tax Act, 1957 (APGST Act) again be subjected to tax when they are sold along with the contents, despite the prescription in entry 19 of the First Schedule that gunnies, sold with or without its contents, are liable to be taxed only at the point of first sale in the State? - HELD THAT:- We are unable to appreciate the distinction sought to be made by Sri V. Bhaskar Reddy, learned counsel for the respondents, between sections 5, 5-B, 5-C, 5-F, 6 and 6-A on the one hand and section 6-C on the other. The expression "shall pay tax" used in sections 5, 5-B, 5-C, 5-F, and 6-A and "shall be liable to tax" used in section 6 are not dissimilar to the expression "tax shall be levied and collected" as used in section 6-C. Further the heading of section 5 is "levy of tax on sale or purchase of goods", that of section 5-A is "levy of tax on turnover", section 5-F is "levy of tax on transfer of property in goods involved in the execution of works contract", section 6-A is "levy of tax on turnover relating to purchase of certain goods" and section 6-C is "levy of tax on packing material". Thus sections 5, 5-A, 5-F, 6-A and 6-C are provisions which relate to levy of tax.
If sections 5 and 5-A are to be held as charging sections we see no reason, in the absence of any discernible distinction, to hold that section 6-C is not. Sri V. Bhaskar Reddy, learned counsel for the respondents, would urge, rightly so, that the interpretation placed by us on section 6-C would result in gunnies being taxed at multiple points. If that is what the Legislature intended, by providing a non obstante clause in section 6-C, and in subjecting section 5(1) to the other provisions of the APGST Act including section 6-C, such a consequence would indeed be the result and must be accepted.
It is also true, as contended by Sri V. Bhaskar Reddy, learned counsel for the respondents, that entry 19(iii) was inserted, in the First Schedule, by Act No. 30 of 1997 with effect from May 12, 1997 after section 6-C was amended by Act No. 22 of 1995 with effect from April 1, 1995. As referred to supra, prior to May 12, 1997 "gunnies" were enumerated under entry 157 of the First Schedule and the point of levy then was also at the point of first sale in the State. The First Schedule, when "gunnies" were under entry 157 and now under entry 19(iii), details goods in respect of which single point tax is leviable u/s 5.
While bringing "gunnies" under entry 19(iii) from entry 157 with effect from May 12, 1997 the State Legislature did not choose to amend section 6-C or to omit the non obstante clause therein. By Act No. 30 of 1997 "gunnies" are now classified as two sub-entries under entry 19(iii), "gunnies when sold without contents" under entry 19(iii)(a) and "gunnies when sold with contents" under entry 19(iii)(b). This subclassification is obviously to bring gunnies, which are packing material, in tune with the requirements of section 6-C. Since the point of levy of tax on gunnies, both prior to its amendment, under entry 157, and after the amendment with effect from May 12, 1997 under entry 19(iii), is at the point of first sale, nothing turns on its amendment by Act No. 30 of 1997, while interpreting section 6-C of the APGST Act.
We therefore hold that gunnies which have suffered tax within the State of A.P. can, u/s 6-C of the APGST Act, again be subjected to tax when sold along with its contents despite the prescription in entry 19(iii) of the First Schedule that gunnies, sold with or without its contents, are liable to be taxed only at the point of first sale in the State.
These batch of tax revision cases are accordingly allowed and the order of the Sales Tax Appellate Tribunal set aside. There shall however be no order as to costs.
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2005 (10) TMI 506 - ALLAHABAD HIGH COURT
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... ... ..... and to make it smooth. It is commonly known as cosmetic and not as a medicine. It may have some antiseptic effect but that will not classify it as medicine. It is not intended to be used for treatment, mitigation or prevention of disease. Entry of cosmetic is much wide to include all cosmetic not only used for beautification but also for care of skin. A product, which is used for care of skin must necessarily have some antiseptic effect but that will not take out the product from cosmetic and to bring under medicine. It is mainly used to protect the skin from cut, etc., and to provide smoothness. The Vaseline is normally sold in cosmetics shop and not in a medicine shop. In common parlance also it is known as cosmetics and not as medicine. In the circumstances, I do not find any error in the order of the Tribunal. Decisions relied upon by the learned counsel for the applicant are distinguishable and are not applicable. In the result, all the revisions fail and are dismissed.
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2005 (10) TMI 505 - ANDHRA PRADESH HIGH COURT
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... ... ..... oncessional rate of tax, it is not open to the departmental authorities to go in the details either as to its user or the principle on which it is functioning. The necessity as to the nature of functioning would arise only when a particular item was not specifically enumerated in the list. As, admittedly, the plastic film capacitor, which are under consideration, was specifically referred to under item 13.39 of the list prepared by the Electronics Commission, which was adopted by the Government under its memo dated June 1, 1989. In the light of the said specific enumeration of the item in the list, there is absolutely no scope for any further adjudication. Under the above circumstances, the impugned orders of the Tribunal are set aside, declaring that the capacitors in question are one of the items of electronic goods or components, which are entitled for the concessional rate of tax in terms of the Government Orders. The tax revision cases are accordingly allowed. No costs.
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2005 (10) TMI 504 - ALLAHABAD HIGH COURT
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... ... ..... ate at which the goods packed therein is taxable. In view of the circular issued by the Commissioner of Trade Tax, which is in accordance with the law department, it is not open to the department to contend that the pouches are liable to be taxed under the Act. Besides the circular, I find sufficient force in the argument of the learned counsel for the dealer/opposite party that the pouches are not liable to be taxed in view of section 3-AB of the Act. Although section 3-AB of the Act has been added subsequently in the statute book, it has however been held by this court to be clarificatory in nature and has retrospective operation. In the totality of the facts and circumstances of the case, I find that the order of the Tribunal deleting the levy of tax on pouches is in accordance with law and there is no legal infirmity on this point in the order of the Tribunal. In view of above discussion, there is no merit in the revision. The revision is dismissed. No order as to costs.
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2005 (10) TMI 503 - SUPREME COURT
Petition filed under Section 17 (2) and (2A) of the West Bengal Premises Tenancy Act, 1956 filed by the appellant disposed off & declaring that the appellant-tenant was not a defaulter in payment of rent.
Held that:- Section 39 of the Act provides that subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908 shall apply to suits, appeals and proceedings under this Act. Since Section 17 (2A) confers power upon the court to extend time for making deposits of all arrears for the period in default, the application made by the appellant-tenant under Section 5 of the Limitation Act for condonation of delay in the initial tendering of the rent becomes meaningful.
For the reasons aforesaid, we are unable to agree with the views expressed by the learned single Judge of the Calcutta High Court and we accordingly set aside the order passed by the learned single Judge in the revision application and restore the order of the learned Civil Judge (Junior Division), Howrah holding that the appellant-tenant was not a defaulter in payment of the rents. The appeal is accordingly allowed but there will be no order as to costs.
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2005 (10) TMI 502 - SUPREME COURT
Interpretation of notification issued in terms of sub-section (1) of Section 25 of the Customs Act, 1962 being General Exemption No. 121
Held that:- It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is also well-settled that where literal interpretation gives rise to an anomaly of absurdity; the same should be avoided. It is also well-settled that the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.
We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Custom House situated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions.Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal dismissed.
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2005 (10) TMI 501 - SUPREME COURT
Whether the High Court was justified in law in not exercising its discretion under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage?
Held that:- Appeal dismissed. In the facts and circumstances of this case, it is not possible to accept the submission that the order was passed for a wrong purpose. Apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof etc. The facts of the present case are no different from the facts in Muneesh Suneja (2001 (1) TMI 903 - SUPREME COURT OF INDIA). We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia (supra). The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage
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2005 (10) TMI 499 - ITAT MUMBAI
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... ... ..... the finding of the learned Commissioner of Income-tax (Appeals) that excise duty is to be excluded from the total turnover for computation of deduction under section 80HHC. This issue is also admitted to be covered in the assessee rsquo s favour by the Bombay High Court decision in the case of Sudarshan Chemicals Industries Ltd. 2000 245 ITR 769. Accordingly, the order of the learned Commissioner of Income-tax (Appeals) on this issue is confirmed. The only other ground, which is common for both the assessment years, pertains to the finding of the learned Commissioner of Income-tax (Appeals) that ldquo non-compete rdquo fees are in the nature of revenue expenditure. This issue has already been considered and decided while dealing with the Department appeal for the assessment year 1997-98. For similar reasons, the expenditure is held to be capital expenditure and the Assessing Officer is directed accordingly. In the result, all the three departmental appeals are partly allowed.
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2005 (10) TMI 498 - ITAT BANGALORE
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... ... ..... the expenditure incurred on constructing new building after demolishing the premises, which was taken on lease. The hon rsquo ble Supreme Court held that the assessee did not acquire a capital asset but obtained only a business advantage. The hon rsquo ble Supreme Court held that the amount spent on construction was deductible as revenue expenditure. Explanation 1 to section 32 is akin to section 32(1A). Hence, in view of the judgment of the Karnataka High Court, the expenditure incurred cannot be considered to have been covered under Explanation 1 to section 32. It is not the case of the Revenue that the expenses incurred for new office and the amount paid to the lessor in relation to renovation resulted into any new asset belonging to the assessee. Hence, the expenditure of Rs. 28,98,119 is allowed. On this issue, the order of the learned Commissioner of Income-tax (Appeals) is reversed and the assessee gets corresponding relief. In the result, the appeal is partly allowed.
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2005 (10) TMI 497 - ITAT MUMBAI
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... ... ..... means actually allowed while computing the income. The decision of the hon rsquo ble Gauhati High Court in Lallacherra Tea Co. rsquo s case 1999 239 ITR 611 on which the Commissioner of Income-tax (Appeals) had relied is no longer a good law as it was overruled in KSSIDC rsquo s case 2002 258 ITR 770 (SC). Thus, we hold that the reopening of assessment by the Assessing Officer was justified. This ground of the Revenue is allowed.Other grounds of the Revenue are consequential to reopening as the decision of the hon rsquo ble Supreme Court in KSSIDC rsquo s case 2002 258 ITR 770 is binding on the authorities. They have to allow to carry forward only the actually unabsorbed investment allowance to the next year and not the notionally computed investment allowance. The order of the Assessing Officer is restored and that of the Commissioner of Income-tax (Appeals) is set aside. Therefore, two grounds of the Revenue are allowed. In the result, the appeal of the Revenue is allowed.
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2005 (10) TMI 496 - ITAT BANGALORE
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... ... ..... s excessive. In this regard what is to be seen is that when penalty under section 271(1)(c) is attracted no discretion lies with the Assessing Officer to reduce the same below the minimum leviable. If ultimately it is found that penalty is leviable, the same shall not be less than but which shall not exceed three times the amount of tax sought to be evaded. It is to be held that only the net amount will be considered for arriving at ldquo amount of tax sought to be evaded rdquo i.e. net of depreciation disallowed minus lease rent offered as income. Explanation 4 defines expression ldquo the amount of tax sought to be evaded rdquo . Clause (a) of Explanation 4 will apply in the situation and hence, there is no room to reduce the penalty. However, since on the facts we have held that there is neither concealment of particulars of income nor furnishing inaccurate particulars, penalty under section 271(1)(c) is not leviable. In the result, the appeal is treated as partly allowed.
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2005 (10) TMI 495 - SUPREME COURT
Arbitral tribunal so constituted, in terms of Section 16 of the Act, has the right to decide whether it has jurisdiction to proceed with the arbitration, whether there was any agreement between the parties and the other matters referred to therein.
Whether the Chief Justice could entertain the application under Section 11(6) of the Act?
Held that:- The function performed by the Chief Justice of the High Court or the Chief Justice of India under Sub-section (6) of Section 11 of the Act (i.e. Arbitration and Conciliation Act, 1996) is administrative - pure and simple - and neither judicial nor quasi-judicial.
The function to be performed by the Chief Justice under Sub-section (6) of Section 11 of the Act may be performed by him or by 'any person or institution designated by him'.
While performing the function under Sub-section (6) of Section 11 of the Act, the Chief Justice should be prima facie satisfied that the conditions laid down in Section 11 are satisfied.
The Arbitral Tribunal has power and jurisdiction to rule 'on its own jurisdiction' under Sub-section (1) of Section 16 of the Act.
Where the Arbitral Tribunal holds that it has jurisdiction, it shall continue with the arbitral proceedings and make an arbitral award.
A remedy available to the party aggrieved is to challenge the award in accordance with Section 34 or Section 37 of the Act.
Since the order passed by the Chief Justice under Sub-section (6) of Section 11 of the Act is administrative, a Writ Petition under Article 226 of the Constitution is maintainable. A Letters Patent Appeal/Intra-court Appeal is competent. A Special Leave Petition under Article 136 of the Constitution also lies to this Court. (viii) While exercising extraordinary jurisdiction under Article 226 of the Constitution, however, the High Court will be conscious and mindful of the relevant provisions of the Act, including Sections 5, 16, 34 to 37 as also the object of the legislation and exercise its power with utmost care, caution and circumspection.
Since the Chief Justice is performing administrative function in appointing an Arbitral Tribunal, there is no 'duty to act judicially' on his part. The doctrine of 'duty to act fairly', however, applies and the Chief Justice must issue notice to the person or persons likely to be affected by the decision under Sub-section (6) of Section 11 of the Act. (xii) All appointments of Arbitral Tribunals so far made without issuing notice to the parties affected are held legal and valid. Henceforth, however, every appointment will be made after issuing notice to such person or persons. In other words, this judgment will have prospective operation and it will not affect past appointments or concluded proceedings.
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2005 (10) TMI 494 - SUPREME COURT
Whether the Corporation chose to receive payment from the indenting departments or not?
Held that:- Appeal allowed in part. In relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act (compound interest at the rate of 23.5.% per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable upto the date of institution of the suit and pendente lite and till realisation. The judgment and decree to that extent requires to be modified. It is directed accordingly.
The appeal is, therefore, allowed in part in regard to interest and to the extent mentioned hereinbefore. The Corporation shall bear the costs of the Respondent in this appeal. Counsel's fee is assessed at Rs. 25,000/-.
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2005 (10) TMI 493 - SUPREME COURT
Order of detention dated 3-11-2004 issued by Respondent 2 whereby the father of appellant has been detained in terms of the COFEPOSA - Held that:- Perusal of the proposal made by the sponsoring authority and the order of detention passed by the detaining authority would show that except by substituting word "he" by "you" no other change was effected. As from the records produced before us it would be evident that there had been due application of mind on the part of Respondent 2 in passing the order of detention. This may be so but keeping in view the safeguards envisaged under Article 22 of the Constitution it was absolutely essential for the second respondent herein to apply her mind not only at the time of grant of approval to the proposal for detention but also when the actual order of detention and grounds thereof are prepared. To the aforementioned extent there has been no application of mind on the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained.
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