|
Advanced Search Options
Case Laws
Showing 81 to 100 of 503 Records
-
2005 (11) TMI 453 - KARNATAKA HIGH COURT
... ...
... ... ..... not before this court at all. In the circumstance, while it is not necessary for this court to entertain these writ petitions for the purpose of pronouncing the validity or otherwise of the endorsement, it is always open to the petitioners to urge all such contentions that they want to urge before this court in these petitions, even before the Tribunal and pursue the matter in the hierarchy of appellate/revisional authorities under the provisions of the Act itself. It is equally open to the petitioners to seek additional benefits from the Government by approaching the respondents in such capacity to enable them to issue further notification. While such liberty is reserved to the petitioners to pursue their remedies elsewhere, these writ petitions are declined as one not warranting either interference or any expression of opinion at this stage by this court. In the result, these writ petitions are dismissed, as one not warranting interference in exercise of writ jurisdiction.
-
2005 (11) TMI 452 - GAUHATI HIGH COURT
... ...
... ... ..... e decision in Hindalco Industries 2004 135 STC 281 (SC) 2003 5 SCC 194, it is made clear that a court would be entitled to interfere in a case where the authority has acted without jurisdiction. The ratio available in these two judgments also augment the view that the assessees in the instant cases are not entitled to any relief from this court under article 226. They have no option but to approach the appellate authority constituted under the Act of 1956. In view of above discussion, the writ petitions are disposed of with direction to the petitioners to avail the alternative remedy, i.e., to approach the appellate forum constituted under the Act of 1956 within a period of three weeks from today. The appellate authority shall, in the event the assessees so approach and submit application, condone the delay for having chosen a wrong forum to vindicate their grievance. Till expiry of three weeks, the taxing authority shall not take any coercive measure for recovery. No costs.
-
2005 (11) TMI 451 - KARNATAKA HIGH COURT
... ...
... ... ..... d it is therefore that while rectified spirit suffers tax at a higher rate, ethyl alcohol may suffer tax at a lower rate. Different products will have different rates of taxes, which does not amount to any discrimination and this principle of levying tax at different rates on different products in taxation matters is well settled for being examined at any greater length. It is for this reason the second contention urged on behalf of the petitioners to declare that the levy of tax at two different rates is discriminatory and therefore one levy of tax at only one rate is permissible or that it should be so interpreted as to levy tax at the rate lower on both the products on the premise that the chemical combination is the same, is rejected. As both the contentions urged on behalf of the petitioners fail, it is not necessary for this court to consider the further arguments advanced on behalf of the petitioners. In the result, these writ petitions are dismissed. Rule discharged.
-
2005 (11) TMI 450 - DELHI HIGH COURT
... ...
... ... ..... U.P. v. Vanaspati Trading Company 1979 44 STC 491 1979 STI All 136. From the above it is apparent that the Tribunal was of the view that if these goods were taken to be for resale and not for the purposes of utilisation as containers and packing materials, even then the second proviso would not be attracted inasmuch as the snuff sold by the assessee was sold in a packed condition and the overall price charged for the snuff which was sold would have, implicit in it the price of the containers as well. Therefore, it could yet be considered to be a sale of the containers also meaning thereby that the condition of resale would also not have been violated. It has, however, been held in the alternative and on the assumption that the said items were earmarked for resale. We have already found that they were not so earmarked. Therefore, this issue does not at all arise and question No. 2 does not need any answer. In this view of the matter, the reference stands answered accordingly.
-
2005 (11) TMI 449 - ANDHRA PRADESH HIGH COURT
... ...
... ... ..... der, dated October 27, 2005 holding that use of the light diesel oil in the course of manufacture tantamounts to deemed sale of oil, therefore the petitioner is liable to pay penalty. This is not one of the grounds alleged against the petitioner in the show cause notice, but, admittedly, the petitioner was also not put on notice of this aspect of the matter. The conclusion drawn by the authority is at variance with the show cause notice issued requiring the petitioner to submit its explanation. It amounts to passing of order without putting the petitioner on notice. The petitioner is entitled to succeed on this short ground, viz., the order being in violation of the principles of natural justice. The impugned order is accordingly set aside. The writ petition is accordingly allowed. No order as to costs. However, this order shall not preclude the respondent herein to put the petitioner on proper notice and pass appropriate orders after providing an opportunity of being heard.
-
2005 (11) TMI 448 - ALLAHABAD HIGH COURT
Classification of goods - Mosquito mats/coils or refills - whether the goods manufactured and marketed by the petitioners as mosquito mats/coils or refills would fall under entry titled "pesticides and insecticides" in the notifications issued u/s 3-A of the U.P. Trade Tax Act, 1948 ("the Act") - HELD THAT:- We find from the pleadings that articles/goods sold by the petitioners, though used as household articles, are nevertheless household "insecticide" which fact is also mentioned on their products. The chemical composition used in manufacturing the goods in question (though widely known and popularly understood as mosquito repellent) is allethrin which is an "insecticide". The petitioners are using chemicals for manufacturing the finished goods which have been treated as "insecticides" and under the provisions of the Insecticides Act, 1968 a certificate has been issued by Government of India, Ministry of Agriculture which leaves no scope of doubt that allethrin which is used in the product sold by the petitioners is "insecticide". Insecticides Rules, 1971 provides for the manner of labeling. Labelling/packing of the products of the petitioner is as per the aforequoted rule 19(4) of the Rules.
D-Trans "allethrin" and "pallethrin" are used in manufacturing the goods which have been described as household "insecticides " on their products as per the statutory requirement under the Insecticides Act. In the absence of any specific entry relating to mosquito repellent/mosquito destroyer and at the same time there being an entry mentioning "insecticides", it can reasonably be said that an ordinary person will ordinarily understand the product of the petitioners falling under category of the "insecticides".
These facts coupled with the principles enunciated in the decisions referred to above leave us in no doubt that the products sold by the petitioners are basically in the categories of "insecticides" particularly in the absence of any indication in the notification in question.
We are, however, unable to persuade ourselves to hold that merely because the petitioners have at various stages contended that the product is described or commonly traded as "mosquito repellent" it should not fall in the category of "insecticides". We would have accepted such a contention if there was separate or specific exclusion entry of "mosquito repellant" in the existing entry of "pesticide and insecticide". In that case there would have been no difficulty but in the absence of specific mention as indicated above, the product in question falls under the entry "insecticides". The percentage of "allethrin" used in the product, is of no consequence at all, since it is admittedly an "insecticide".
Thus, we consider it appropriate to decide the issue and matter finally at this stage and reject the objection raised by the learned counsel for the respondents, that the petitioners seeks to challenge, at this stage, show cause notice issued u/s 21(2) of the Act.
All the above Writ Petitions are allowed.
-
2005 (11) TMI 447 - ANDHRA PRADESH HIGH COURT
... ...
... ... ..... ion can be assumed or presumed in terms of the G.O., as there is no such reference at all. Under the above circumstances, the stand taken by the department as accepted by the Tribunal that the unit has to achieve the local level of sales in order to get the benefit of deferral is clearly illegal and unsustainable as no such restriction is contemplated under G.O. Ms. No. 108. We, therefore, set aside the impugned orders of the Tribunal as well as the assessments and direct the assessing authorities to compute the benefit of deferral in sales tax taking into account the base turnover as best production in terms of the quantity of the goods produced or expected to be produced in terms of para 7 of the G.O. In the result, the tax revision cases filed by the petitioners-assessees and the writ petitions are accordingly allowed to the extent indicated. The tax revision cases filed by the department are accordingly dismissed. No costs. That rule nisi has been made absolute as above.
-
2005 (11) TMI 446 - RAJASTHAN HIGH COURT
... ...
... ... ..... rial unit itself and it may be required to undertake such part of manufacturing process with the help of other industrial units but, the fact remains that such goods after completion of such manufacturing process when they are sold by the industrial unit are only the goods manufactured by them and sold by them, on which the question of exemption or taxability can arise. The industrial unit cannot be denied, in the considered opinion of this Court, the benefit of incentive under this Scheme even if the part of manufacturing process is required to be undertaken for aforesaid or other reasons outside the premises of the industrial unit itself and therefore, the learned appellate authorities below cannot be said to have committed any error in law in setting aside the assessment order and holding that the benefit of incentive cannot be denied to the industrial unit for this reason. Consequently, I do not find any force in this revision petition. The same is accordingly dismissed.
-
2005 (11) TMI 445 - RAJASTHAN HIGH COURT
... ...
... ... ..... o fulfilment of certain conditions, it does not mean that such goods will fall outside the definition of exempted goods . It is only subject to those conditions when fulfilled then the question of exemption would arise and only then, they will be said to be exempted goods. But, once such goods squarely come within the four corners of that notification. Thus, there is no doubt that turnover relating to those goods will be turnover of exempted goods and therefore, will fall within the ambit and scope of section 13(2)(i) of the Act. Therefore, the learned Tax Board has rightly reached to the conclusion that the turnover relating to sale of stainless steel flats, ingots and billets exempted under the said notification will also be entitled to exemption or exclusion under section 13(2)(i) of the Act. Consequently, I do not find any reason to interfere with or upset the said conclusion of the Tax Board. There is no force in the present revision. The same is accordingly, dismissed.
-
2005 (11) TMI 444 - RAJASTHAN HIGH COURT
... ...
... ... ..... by the Deputy Commissioner (Appeals) and such setting aside of penalty was upheld by the Tax Board also. From the perusal of the impugned orders, it does not appear that the assessing authority made any effort to establish the collusion of the selling dealer in production of the false or fake C forms before him. In the absence of any enquiry having been held, the two appellate authorities were justified in setting aside the penalty under section 65 of the Rajasthan Sales Tax Act upon the selling dealer. This being essentially a finding of fact as to whether the selling dealer was responsible in production of such fake or bogus C forms or not, no question of law as such arises in the matter. In view of the concurrent findings of both the appellate authorities, no interference is required by this court in revisional jurisdiction under section 86 of the Rajasthan Sales Tax Act. Consequently, there is no force in the present revision petition. The same is accordingly dismissed.
-
2005 (11) TMI 443 - KERALA HIGH COURT
... ...
... ... ..... upon the promise. No such foundation has been laid in the petition, much less evidence or materials furnished. Plea of promissory estoppel therefore would not stand. Exhibit P9, we have noticed, is a notice issued under section 45A of the KGST Act calling upon the petitioner to file objection to the proposal for levy of penalty. The legal basis on which the notice was issued has already been considered by us and answered. Learned single Judge has however vacated the proposal to levy penalty under exhibit P9 notice and directed the officer to compete of assessment pending from 1997-98 onwards and the right to impose penalty has been kept open, after completing the assessment proceedings. No appeal has been preferred by the State against that direction and hence we find it unnecessary to express any final opinion on that direction. We therefore find no reason to interfere with the judgment of the learned single Judge and the appeal is dismissed for the above mentioned reasons.
-
2005 (11) TMI 442 - ALLAHABAD HIGH COURT
... ...
... ... ..... the revising authority to look into and examine the order passed under section 21 of the Act. The order of the Tribunal in this respect is erroneous. On the facts and circumstances of the case, I am of the view that the matter requires reconsideration by the Deputy Commissioner (Executive). The Deputy Commissioner (Executive) may provide opportunity to the opposite party to explain the various objections raised in the notice. If the Deputy Commissioner (Executive) will be satisfied with the explanation, he may drop the proceeding and if any enquiry in the matter is required, he may ask the assessing authority to make an enquiry and pass the order afresh and if no enquiry is required, he may pass order as he may deem fit in accordance with law. In the result, the revision is allowed. The order of the Tribunal dated June 20, 1998 is set aside and the matter is remanded back to the Deputy Commissioner (Executive) to pass fresh orders in the light of the observations made above.
-
2005 (11) TMI 441 - RAJASTHAN HIGH COURT
... ...
... ... ..... e assessing authority to establish taxable sales in the hands of the assessee before a tax can be imposed. Such burden having not been discharged by the assessing authority, the appellate authorities were right in holding that merely on the basis of such check-post entries, the movement of goods could not be taxed as inter-State sales in the hands of assessee. Even, if the assessee failed to produce the books of account, the assessing authority could gather material from other sources to prove such taxable inter-State sales like enquiry from purchasing dealers of destination station, etc., but nothing of this sort was done by the assessing authority. I do not see any error in these appellate orders and since the assessing authority failed to bring any material on record to establish the taxable inter-State sales in the hands of the respondent-assessee, the same could not be taxed. Therefore, I do not find any force in the revision petition. The same is accordingly dismissed.
-
2005 (11) TMI 440 - GUJARAT HIGH COURT
Validity of Notification No.10/2004-CE (NT) - Prospective or retrospective amendment - Applicability of provisions of Rule 19 of the Central Excise Rules, 2002 - Seeking ex-parte ad-interim relief - HELD THAT:- On a plain reading of both the Rules i.e. Rules 18 and 19 it is apparent that the said Rules operate in separate fields. Rule 18 of the Rules comes into play only in relation to the final products or the inputs which are not only liable to duty but on which duty has been paid. The said Rule viz. Rule 18 of the Rules, cannot be invoked in case of either final products or inputs on which no duty is paid even though the goods are liable to duty. The insistence of the respondent authorities, in the circumstances, that in a case where an exporter exercises option under sub-rule (2) of Rule 19 of the Rules in relation to inputs, which may be duty free, or which are removed without payment of duty on execution of bond, when used for the purposes of manufacture or processing of final products which are exported, the exporter must export the goods only under Rule 19(1) of the Rules is not borne out by the provisions of the Rules.
It is not disputed that the original notification issued by CBEC under sub-rule (3) of Rule 19 of the Rules on 26th June, 2001 and made effective from 1st July, 2001 has been operating without any difficulty and nothing has been brought on record to show why the impugned amendment became necessary. At the cost of repetition it requires to be stated that nothing has been brought on record nor has the learned counsel been in a position to point out as to how and in what circumstances an exporter can claim double benefit.
The power to issue notification under Rule 18 of the Rules is available with the Central Government while power under Rule 19(3) of the Rules is available with the CBEC. The Board is a creature of the statute and cannot go beyond the powers granted under the statute. If the Central Government has, in its wisdom, provided for granting rebate upon fulfillment of certain conditions and subject to certain procedural safeguards, CBEC cannot be permitted to render the Notification issued by the Central Government redundant by issuing a notification in exercise of powers under Rule 19 of the Rules. Nor can CBEC exercise such powers so as to render Rule 18 otiose. Hence, for this reason also, the impugned Notification cannot be upheld.
Thus, impugned Notification being Notification No.10/2004-CE(NT) dated 3rd June, 2004 is bad in law for the aforestated reasons, namely, it is not in consonance with the principal provisions, namely, Rules 18 and 19 of the Rules, and it is, even otherwise, Revenue neutral. The CBEC cannot exercise power under Rule 19 of the Rules to negate a notification issued by the Central Government under Rule 18 of the Rules. The same is, therefore, declared to be bad in law and is quashed and set aside. As a consequence the impugned show cause notices (Annexure-C Collectively) are also quashed and set aside.
The petition is allowed, accordingly, to the aforesaid extent.
-
2005 (11) TMI 439 - SUPREME COURT
Arbitration petition filed before this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator
Held that:- In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which court will have jurisdiction to try and dispose of the matter.
In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral tribunal shall be final and obligatory for both the parties.
This Court has no jurisdiction and the Chamber of Commerce and Trade of Russian Federation alone has jurisdiction to act as an arbitrator and resolve the dispute. Hence this application is rejected.
-
2005 (11) TMI 438 - ITAT MUMBAI
... ...
... ... ..... ard of Direct Taxes, the Department has to prove that the assessee is dealing in shares to manipulate the rates of taxable income before the Explanation to section 73 could be invoked, we are of the view that the decision of a single member Bench in Aman Portfolio P. Ltd. rsquo s case 2005 92 ITD 324 (Delhi) has been overruled in Deputy CIT v. Frontline Capital Services Ltd. 2005 96 TTJ 201 (Delhi), and therefore, it is no longer necessary for the Assessing Officer to establish for invoking the Explanation to section 73, that the assessee is manipulating to reduce its taxable income by trading in shares and incurring losses. This argument of learned counsel for the assessee is also rejected. Thus, we hold that in the present case, the Explanation to section 73 is attracted and loss from trading in shares has to be treated as speculation loss. The order of the Commissioner of Income-tax (Appeals) is, therefore, confirmed. In the result, the appeal of the assessee is dismissed.
-
2005 (11) TMI 437 - ITAT MUMBAI
Capital gain on sale of property - Transfer u/s 2(47)(v) - whether there was a transfer of property when the bank had a lien on the property? - mortgage of the property with the bank would in any way affect the rights of the transferee ? - HELD THAT:- There is an agreement of sale dated November 27, 1997, the transferee has paid sale consideration in March 1998, and is willing to fulfil other conditions and has taken over possession of the same on March 31, 1998 and subsequently undertaken renovation of the same. Therefore, the transferee gets the rights over the property and the transferor-assessee can only enforce the rights expressly provided by the terms of the contract. But that has nothing to do with the ownership of the proposed transferor who remains the full owner of the lands till they are legally conveyed by a sale deed to the proposed transferee.
Any mortgage of the property would not invalidate the contract of agreement of sale or part performance thereof, but would only give the right of preference for the satisfaction of the debt. Section 2(47)(v) of the Income-tax Act or section 53A of the Transfer of Property Act, do not speak of transfer of title of ownership, but only speaks of transfer of possession of the property. Section 53A of the Transfer of Property Act, deals with part performance of a contract of transfer and not a final transfer. Final transfer of the property could be only with the execution of the registered sale deed as provided under the law and that can be done only after the bank issues the no-lien certificate. Section 2(47)(v) of the Income-tax Act, refers to transactions in the nature of contracts referred to in section 53A of the Transfer of Property Act.
Therefore, in our opinion, the condition u/s 53A of the Transfer of Property Act is satisfied in this case and as per section 2(47)(v), there is a transfer of immovable property in the assessment year 1998-99 only. Hence, the capital gains arise in this year only and not in 1999-2000.
Thus, it is clear that the Assessing Officer was enthusiastic to tax the capital gains in the assessment year 1999-2000 since it had taxable positive income and the assessee would not be able to set off the business loss from the capital gains. In our opinion this approach of the Assessing Officer is not correct. The Revenue authorities have to follow the provisions of law and should not be guided by revenue collection only. In this case, we find that the capital gains arise in 1998-99 only and therefore, the business loss in the year 1998-99 can be set off from the capital gains. In this view of the matter, the assessee’s appeal is allowed.
In the result, the appeals filed by the assessee are allowed.
-
2005 (11) TMI 436 - SUPREME COURT
Whether the appeal by DCC against the eviction decree was defective or invalid?
Whether such defect could be permitted to be rectified?
Held that:- Appeal dismissed. High Court was justified in setting aside the dismissal and restoring the first appeal to the file of the Additional District Judge with a direction to decide the matter on merits. If the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant DCC, to rectify the defect.
There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his colleagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation [c], even without a separate vakalatnama for the appeal.
-
2005 (11) TMI 435 - CESTAT, MUMBAI
Refund claim - Rejection of ... ... ... ... ..... ppeal against the original letter dated 29-1-1990. It is the claim of the appellants that since no duty was payable, interest cannot be demanded and that their case is consequently covered by the Apex Court decision in the case of Pratibha Processors v. Union of India - 1996 (88) E.L.T. 12 (S.C.). 2. emsp Considering all aspects of the case, we are of the view that the appellant rsquo s claim for refund was rejected under the letter dated 5-2-1997 and for an invalid ground. We are also of the view that the Commissioner (Appeals) has erred in not entertaining their appeal. As such, we set aside the impugned order passed by the lower authorities and remand the matter to the original authority to consider the refund claim afresh. The appellants shall be given an adequate opportunity of hearing and the ratio of the Apex Court decision cited by the appellants shall also be taken into account while passing a fresh order. The appeal is allowed by way of remand. (Pronounced in Court)
-
2005 (11) TMI 434 - CESTAT, MUMBAI
Cenvat/Modvat - Common inputs used for dutiable and exempted products ... ... ... ... ..... of 8 , and such the Commissioner (Appeals) was not justified in setting aside the demand. 2. emsp I find that Rule 57CC operates in an arena where common inputs, in respect of which credit has been availed are used for durable as also exempted product. In case an assessee reverses the modvat credit in respect of inputs used for exempted goods, the same would have the effect as if no credit was availed by the assessee. In this situation provisions of Rule 57CC are not attracted. Accordingly, the Revenue s appeal is rejected. (Dictated in Court)
........
|
