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1975 (7) TMI 145 - CALCUTTA HIGH COURT
... ... ... ... ..... se two companies the Excise duty formed part of the price of those goods and those two companies were liable to pay excise duty on those goods to the Excise authorities at the point of removal of those goods from their respective factories. They have also paid actual duty liable on those goods to the Excise authorities. 8. Further, the petitioner has not paid any duty to the Excise authorities, and therefore, the subsequent renewal of the said licence cannot confer any right on the petitioner to claim refund of the duty from the Excise authorities who are also not the debtors of the petitioner nor of those two companies for these two companies have not paid any excess duty on those goods. 9. Hence, it is unnecessary to express any opinion on the remaining contentions made on behalf of the respective parties, for the application is bound to fail on the merits for the reasons already stated. In the premises, the Rule is discharged. There will be no order as to costs.
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1975 (7) TMI 144 - SUPREME COURT
Whether the sub sequent amendments to s. 21 of the Penal Code after its incorporation in the Act would have to be read into the Prevention of Corruption Act, 1947 or not?
Held that:- In the facts and circumstances of the present case and having regard to the nature and scope or the Prevention of Corruption Act, the extended definition of s.21 of the Penal Code would have to be imported into s. 2 of the Act. That being the position there can be no doubt that the respondent was a public servant within the meaning of s. 2 of the Act and his conviction by the learned Special Judge, Indore, did not suffer from any legal infirmity.
The judgment of the High Court holding that the respondent was not a public servant is legally erroneous and cannot be allowed to stand.
The High Court has itself pointed out that the respondent had been forced under duress exercised by his superior officer in drawing the inflated travelling allowance. The High Court has also expressed the view that having regard to the fact that as the accused had to face a trial for a number of years, the Government will consider the desirability of not prosecuting him again. In view of these circumstances, therefore, we feel the respondent has committed only a technical offence and a token sentence is called for - allow the appeal, set aside the judgment of the High Court - convict the respondent under s. 420 I.P.C. and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act but reduce his sentence to the imprisonment already served
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1975 (7) TMI 143 - MADRAS HIGH COURT
... ... ... ... ..... held that if once an order was made within a period of 90 days the subsequent order made in pursuance of an order of remand or direction by the High Court could be at any time. The learned Judges pointed out that an appeal is provided under section 132(11) against an order under section 132(5) and the appellate authority could make such order as it thinks fit. If even after a remand the order will have to be made within a period of 90 days, in the words of the Supreme Court it would make sub-sections (11) and (12) of section 132 ridiculous and useless . We have, therefore, no doubt that the period prescribed under section 32(2) of the Tamil Nadu General Sales Tax Act would not apply to a fresh order to be made by the Deputy Commissioner in pursuance of a remand order made by the Appellate Tribunal. The tax revision case is accordingly allowed and the order of the Tribunal is set aside. The petitioners will be entitled to their costs. Counsel s fee Rs. 250. Petition allowed.
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1975 (7) TMI 142 - MADRAS HIGH COURT
... ... ... ... ..... hen an appellate or revising authority sets aside the order of assessment and remands the case for fresh assessment, the proceeding is still pending and that to such a proceeding the amending Act would apply. If the matter could be said to be pending when an appellate or revising authority sets aside the order and remands the case for fresh disposal, it could not be said that it was not pending when the appeal or revision had not been disposed of. We are of the view that the assessment proceedings and reassessment proceedings had not reached the stage of finality when they were questioned before the Tribunal In the appeals filed before It. To such a proceeding, certainly section 19-A applied. We are, therefore, of the view that both the assessment and the levy of penalty were legal and valid and that the orders of the Tribunal are not liable to be Interfered with. The petitions accordingly fall and are dismissed with costs. Counsel s fee Rs. 150 in each. Petitions dismissed.
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1975 (7) TMI 141 - MADRAS HIGH COURT
... ... ... ... ..... essment was made, penalty could be levied only with reference to the amount of tax due on the turnover that was not disclosed by the dealer in his return and not at one and a half times the tax assessed. Since even the Appellate Assistant Commissioner levied the penalty only with reference to the amount of turnover returned by the assessee, the orders of all the authorities including that of the Tribunal are liable to be set aside in so far as they relate to penalty. The turnover not disclosed by the dealer in his account has now been determined by the Tribunal and that will have to be taken as final since we are not interfering with the finding of the Tribunal regarding the same. The matter will have to be remanded to the assessing officer for fixing the penalty with reference to the turnover not disclosed by the dealer. There will be an order accordingly. The assessee would be entitled to his costs. Counsel s fee Rs. 250 (rupees two hundred and fifty). Ordered accordingly.
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1975 (7) TMI 140 - ALLAHABAD HIGH COURT
... ... ... ... ..... he category of machinery . In Commissioner of Sales Tax, U.P., Lucknow v. Ramesh Pd. Batuk Pd., Varanasi 1975 36 S.T.C. 367 1974 U.P.T.C. 535., sewai-ki-machine has been held to be machine . Similarly, in Commissioner of Sales Tax v. Chandok Traders 1973 32 S.T.C. 614 1973 U.P.T.C. 484., hair clipper was held to be a machine. In view of these decisions it is clear that band-pump which is used for lifting water falls in the category of machinery . We accordingly answer the question in the affirmative in favour of the department and against the assessee. The Commissioner of Sales Tax is entitled to the costs which we assess at Rs. 100. Reference answered in the affirmative.
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1975 (7) TMI 139 - ALLAHABAD HIGH COURT
... ... ... ... ..... he Sales Tax Officer did not pass the order immediately cannot possibly be a ground for making the registration effective from the date of the order. Any other view would inflict unnecessary hardship on a dealer for no fault of his, in case orders are not passed expeditiously on his application by the appropriate authority. The Orissa High Court in the case of Subhash Chandra Ghosh v. State of Orissa 1970 26 S.T.C. 211. has taken the same view. The Punjab High Court in the case of Chandra Industries v. Punjab State 1972 29 S.T.C. 558., in respect of the Punjab General Sales Tax Act, 1948, is of similar opinion. There is hardly any dispute that this principle applies to registration under the U.P. Sales Tax Act. The writ petition is accordingly allowed with costs. The order of the Sales Tax Officer in so far as it grants registration effective from 14th May, 1974, is set aside. The registration certificate shall be deemed to take effect from 8th April, 1974. Petition allowed.
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1975 (7) TMI 138 - ALLAHABAD HIGH COURT
... ... ... ... ..... power of the Appellate Tribunal is defined in section 33(4) as under The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The Supreme Court while examining the scope of this provision has made the following observations The word thereon , of course, restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. The words pass such orders as the Tribunal thinks fit include all the powers (except possibly the power of enhancement), which are conferred on the Appellate Assistant Commissioner by section 31 of the Act. A similar view has been taken by this court in Firm Parshuram Rameshwar Lal, Basti v. State of U.P. 1974 33 S.T.C. 540 1974 U.P.T.C. 65. For the reasons stated above, we answer the question in the negative in favour of the assessee and against the department. The assessee is entitled to costs, which we assess at Rs. 100. Reference answered in the negative.
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1975 (7) TMI 137 - CALCUTTA HIGH COURT
... ... ... ... ..... during those years in respect of sale of commodities which have become taxable under the amending Act. The deeming provision in the section, that is to say, section 4(1) of the Taxation Laws (Amendment) Act cannot be extended to the provision made for registration of dealers. A deeming provision is a legal fiction which ought not to be extended beyond its legitimate limits, that is to say, beyond the scope of the purpose for which the fiction was resorted to by the legislature. In this connection, reference may be made to the interesting case of Seldon v. Seldon50 T.L.R. 469., decided by the House of Lords. We are of the opinion that the amending Act by giving retrospective operation to clause (1a) of section 2 of the Act does not offend against article 20 of the Constitution. In the view we have taken, the rule is made absolute. There will be no order for costs. The operation of this order is stayed for a period of eight weeks. SUDHAMAY BASU, J.-I agree. Rule made absolute.
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1975 (7) TMI 136 - MADRAS HIGH COURT
... ... ... ... ..... e of business in Ernakulam and sold them there. When selling the same, the company made out separate bills for ex-factory price and for freight and handling charges. The Supreme Court held that the freight and handling charges could not be excluded from the taxable turnover under rule 9(f) of the Kerala Rules. It appears to us that the facts in our case are very similar to the one decided by the Supreme Court. In this case also the respondent-dealer had brought the coal from out-of-State places and while selling the same to the local purchasers had prepared the bill showing the price of coal ex-colliery and including the transport and other charges at a uniform rate per metric tonne. We, therefore, consider that the respondent is not entitled to a deduction of those charges from the taxable turnover. We, accordingly, allow these petitions and set aside the order of the Tribunal. The revenue will be entitled to its costs. Counsel s fee Rs. 150 in each case. Petitions allowed.
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1975 (7) TMI 135 - ORISSA HIGH COURT
... ... ... ... ..... eement. On the basis of these terms, the movement of the jute had to take place from Orissa to West Bengal. Completed sales in West Bengal therefore occasioned the movement of the jute from Orissa to West Bengal and would come within the scope of section 3(a). The sales were in the course of inter-State trade or commerce. 14.. There is no dispute before us that if the sales were in the course of inter-State trade or commerce, the taxing authorities in Orissa were within their jurisdiction to tax the sales. 15.. We would accordingly answer the questions thus (i) Title to the jute passed in West Bengal and not in Orissa. (ii) Even though title to the jute passed in West Bengal the sales were in the course of inter-State trade or commerce, as the completed sales occasioned the movement of the jute from Orissa to West Bengal. 16.. On the aforesaid analysis, the reference is discharged but, in the circumstances of the case, there will be no order as to costs. ACHARYA, J.-I agree.
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1975 (7) TMI 134 - MADRAS HIGH COURT
... ... ... ... ..... and had been separately shown in the bills, it could be claimed as an exemption within section 2(h) of the Central Sales Tax Act. The assessing officer will have to go into the facts afresh with reference to each bill. We also make it clear that on the mere use of the words handling and loading charges in the bills, the assessee could not be said to have made himself ineligible for the exemption. In each case it will have to be found out what was the charges that were made especially because the words handling and loading charges seem to have been indiscriminately used for the purpose of charging loading alone. With this observation, the orders of the Tribunal, the Appellate Assistant Commissioner and the assessing officer are set aside in respect of the disputed turnover and the matter is remitted to the assessing officer to go into the matter afresh. The petitioner will be entitled to his costs in this revision petition. Counsel s fee is fixed at Rs. 250. Petition allowed.
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1975 (7) TMI 133 - GUJARAT HIGH COURT
... ... ... ... ..... to make it a proper battery itself, if any charging has to be done, it could never be held that the legislature intended to make any difference between the charged or unchanged batteries for the purpose of entry 42B. There was no question of any further adaptation. The charging process had to be done for making it a proper workable battery as one of its constituent process, and it was not a process or adaptation done for the purpose of using it as a part of the motor vehicle. Therefore, whichever way the matter is looked at, whether the battery being a component part or as having been listed in this catalogue in the parenthetic inclusive clause, a battery specifically falls in this entry 42B, even though it can be used even in a tractor. Therefore, the only answer which can be given on the first question must be in the affirmative, and so the second question cannot arise. The reference must be accordingly disposed of with no order as to costs. Reference answered accordingly.
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1975 (7) TMI 132 - KERALA HIGH COURT
... ... ... ... ..... am not satisfied that the respondents have acted with propriety in keeping the books to themselves for such a long time and launching the prosecution on the eve of the hearing of the writ petition and producing the books in court. The books are valuable documents which the dealer needs for day-to-day purposes. The respondents have not been able to substantiate any ground to justify their action in keeping the books for such a long time. Even if the books were necessary for production, the relevant extracts should have been produced along with the complaint and steps should have been taken to get the books produced in court either by getting a direction to the accused to produce the books or by the exercise of the power of seizure at the appropriate time by the officers concerned. In the result, I allow the writ petition and direct the respondents to deliver the slips and books seized from the petitioner to him within one month from today. There will be no order as to costs.
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1975 (7) TMI 131 - ORISSA HIGH COURT
... ... ... ... ..... facts and circumstances of the case. 7.. Opposite party No. 1 reduced the penalty to Rs. 1 lakh on the ground that the petitioner did face certain financial difficulties. If he would have discussed all the facts in their true perspective he might have recorded a different conclusion. What it would have been, we cannot speculate nor we have the jurisdiction to go into facts and consider the reasonableness of the penalty. 8.. On the aforesaid analysis, we quash annexure 3 dated 6th May, 1971. The case would go back to opposite party No. 1, who would apply his mind fully to the facts and circumstances averred by the petitioner and decide the case in accordance with law and the observations made above. 9.. In the result, the writ application is allowed. A writ of certiorari be issued quashing annexure 3. Opposite party No. 1 would dispose of the case within two months from today. In the circumstances, there will be no order as to costs. MOHANTY, J.-I agree. Application allowed.
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1975 (7) TMI 130 - ORISSA HIGH COURT
... ... ... ... ..... regarding validation of the notification is with reference to these two assessments. Section 15(1)(a) of the amending Act validates acts, proceedings and things done or action taken in connection with assessment, reassessment, levy or collection of tax. Section 15(1)(a) of the validating Act does not intend to have any prospective effect, that is under its cloak, action taken after 1st April, 1973, would not be valid unless it fits in with the scheme of the Central Act. The assessments completed after 1st April, 1973, thus would not have any protection of the validating Act and the petitioner is not entitled to derive any support from the said Act for the contention that the assessments for the years 1971-72 and 1972-73 by adopting the notification having already been made cannot be reopened. Both the contentions of the petitioner, therefore, fail. 6.. The writ application is accordingly dismissed. We make no direction for costs. B.K. RAY, J.-I agree. Application dismissed.
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1975 (7) TMI 129 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... complete, and the deductions of the price of the goods supplied have been already made during the period of assessment, the liability to purchase tax cannot be avoided on the ground that there was no purchase. We must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency. We must, if we can ascertain what is the meaning of the instrument taken as a whole in order to give effect if it be possible to do so to the intention of the parties to the document or the frame of it. 9.. Under these circumstances, the question referred to this court is answered in the affirmative by us as below Under the facts and circumstances of the case, the iron and cement supplied by the P.W.D. to the assessee for use in the works executed by the appellant for P.W.D. was a sale liable to purchase tax under section 7(1) of the Act. 10.. The case be sent back with aforesaid opinion to the Tribunal for further action according to law. Reference answered in the affirmative.
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1975 (7) TMI 128 - ORISSA HIGH COURT
... ... ... ... ..... reassessment, levy or collection of such tax shall, for all purposes, be deemed to be and to have always been done or taken in accordance with law (b)............... (c)............... In view of the clear provision of clause (a) quoted above, we are of the view that notwithstanding the fact that the notification ran counter to section 15(b) of the Central Act, the said assessment must be taken to be valid. As merely on the infirmity of the notification steps for reopening the assessment for the year 1971-72 are intended to be taken, the validating provision would stand as a bar to such action. 5.. We would accordingly allow the writ application in part and hold that the notice issued for reopening the assessment for the year 1971-72 under purported exercise of powers under rule 10(2) of the Central Sales Tax (Orissa) Rules is not tenable in law. The said notice confined to that year is quashed. We make no order as to costs. B.K. RAY, J.-I agree. Application partly allowed.
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1975 (7) TMI 127 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... edule II reads dyes, paints, varnishes, lacquers, enamels, glue, etc. The word dyes should be understood as denoting that type of material which is more or less similar to the other goods described. 16.. Thus, as a result of the above discussion, we are of opinion that ultramarine blue, i.e., neel is not a dye and we hold accordingly. 17.. The reference is, therefore, answered by saying that ultramarine blue or ultramarine Robin blue, commonly known as neel, cannot be taxed under entry 25 of Schedule II, Part II, of the M.P. General Sales Tax Act, 1958, and should be taxed only under the residuary entry in Part VI of Schedule II. 18.. The costs of the applicants in Misc. Civil Cases Nos. 79 of 1972 and 80 of 1972 shall be borne by the non-applicant. Counsel s fee Rs. 50 in each case, if certified. The cost of Misc. Civil Case No. 78 of 1973 shall be borne by the parties as incurred, as none appeared in that case on behalf of the non-applicant. Reference answered accordingly.
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1975 (7) TMI 126 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... by the members of service societies to the assessee for which payment was made by the assessee to the service societies, who adjusted the payment against the loan advanced by the service societies to the respective members. (3) That, on the facts and in the circumstances of the case, the question of sufficient cause was a pure question of fact and, for that reason, we decline to answer the same on the ground that a question of law alone could have been referred to us for our opinion. Consequently, there was no sufficient cause within the meaning of section 17(3) of the Act for late filing of three quarterly returns. (4) In view of our answer to question No. (3), this question does not arise for consideration at all. 10.. Let the case be remitted to the Board of Revenue for acting in accordance with the opinion given by us. The petitioner shall bear the costs of the reference, including the respondent s costs and counsel s fee shall be Rs. 100. Reference answered accordingly.
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