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Case Laws
Showing 41 to 60 of 241 Records
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1984 (11) TMI 316 - SUPREME COURT
Whether a partner of a firm is an "employee ’ within the meaning of Section 2(9) of the Employees State Insurance Act, 1948?
Held that:- A partner is not treated as an employee of his firm merely because he receives a wage or remuneration for work done for the firm. Once we hold that the three partners were not employees, on the admitted fact the total number of employees would be less than 20, the Act would not be applicable to the establishment in question. There is no merit in the appeal and the same is, therefore, to be dismissed. At the hearing the respondent was not represented; we, therefore, make no direction for costs.
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1984 (11) TMI 315 - RAJASTHAN HIGH COURT
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... ... ..... in disposing of cases under the Central Sales Tax Act, 1956. There is no discussion in the cited judgment of the relevant provisions of law contained in the Rajasthan Act and the Central Act. The Division Bench seems to have arrived at the aforementioned conclusion on the basis of the decision of the Supreme Court in Shama Rao v. Union Territory of Pondicherry 1967 20 STC 215 (SC). We have carefully studied the judgment in Shama Rao s case 1967 20 STC 215 (SC) and find that the ratio of that case is not applicable to the facts of the Man Industrial Corporation s case 1970 26 STC 169 (Raj). We are therefore of opinion that the Man Industrial Corporation s case 1967 26 STC 169 (Raj) was not decided correctly. 14.. For all these reasons, our answer to the question stated in the first paragraph of this judgment is in the affirmative. Both the reference cases will therefore be returned to the Division Bench for adjudication according to law. Reference answered in the affirmative.
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1984 (11) TMI 314 - ANDHRA PRADESH HIGH COURT
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... ... ..... tant Commissioner is unwarranted in a case like this. Assessee s financial position has no bearing on the question regarding the quantum of penalty leviable. It is the serious nature of offence that is relevant. No offence could be more serious than the assessee himself admitting without even a word of explanation that he filed incorrect returns and challenged the tax officials to find out correct turnover. If the assessee was in bad financial position, that may be a case for writing off the amount. The Assistant Commissioner has been unduly generous in reducing the penalty and surprisingly the Revenue did not file an appeal to the Tribunal against the relief given by the Assistant Commissioner. The assessee should consider himself to be lucky in getting away with the penalty of Rs. 7,180. 12.. For the aforesaid reasons, we do not find any merit in this tax revision case. It is dismissed. The assessee shall pay the Revenue s costs. Advocate s fee Rs. 500. Petition dismissed.
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1984 (11) TMI 313 - BOMBAY HIGH COURT
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... ... ..... g them could be regarded as a producer or manufacturer of those eggs even within the wide definition given in sub-section (17) of section 2 of the said Act. In the present case, there is nothing to show that the respondents did anything more in respect of layers than keeping them in proper health and feeding them. It is true that the respondents must have taken proper care to collect the eggs, to preserve them and to sell them. But all those activities were conducted after the eggs were laid or produced, and on account of those activities, it could not be said that it was the respondents who produced the eggs. 7.. In the result, the questions referred to us are answered as follows Q. No. (a) in the affirmative. Q. No. (b) in the affirmative. 8.. As the respondents have not appeared before us, there will be no order as to costs. 9.. Before parting with the matter, we must mention that we are obliged to Mr. Patel for the assistance which he rendered willingly as amicus curiae.
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1984 (11) TMI 312 - BOMBAY HIGH COURT
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... ... ..... uor and wines. Even apart from the said chit, the value of these articles could easily be determined by a proper factual investigation. 4.. We may make it clear that, in a sense, the Tribunal, which is the final fact finding authority, came to the conclusion that the facts on record lead to an inference that when the customers of the respondent agreed to purchase liquor or wine, they also agreed to purchase snacks and soda water along with liquor and wines from the respondent. This, in a sense, can be regarded as an inference of fact so that it would not be open for us to question that inference at all. We have, however, to avoid any controversy, examined the correctness of the said inference taking into account the facts on record and we find that the inference was quite justified. 5.. The question referred to us is, therefore, answered in the affirmative and in favour of the respondent-dealer. 6.. The Commissioner to pay the costs of this reference to the respondentdealer.
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1984 (11) TMI 311 - BOMBAY HIGH COURT
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... ... ..... of tax for 1963 remains an amount due although its recovery is stayed under the stay order. The liability to pay the amount is not affected by virtue of the stay order and hence it remains as an amount due. Nevertheless since the recovery has been stayed the department cannot resort to adjustment under section 43. 11.. The questions as framed do not bring out the true nature of the controversy between the parties. In view of what we have held earlier the questions are answered as follows Question No. 1 The order of stay can be looked upon as an order passed under section 38, sub-section (4). Question No. 2 We need not answer this question in view of our finding that even if the tax dues for 1963 are looked upon as an amount due , they cannot be adjusted against the refund for 1964 under the proviso to section 43 in view of the stay of recovery proceedings. In the result the assessee succeeds in the reference. The applicants will pay to the respondents costs of the reference.
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1984 (11) TMI 310 - BOMBAY HIGH COURT
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... ... ..... g a hearing or without giving reasons. Such a reasoning, however, cannot be adopted in a case where the orders have been passed after the coming into operation of section 52 and in the exercise of jurisdiction conferred by reason of section 52 read with the notification concerned. In case of such orders, apart from the challenges which are precluded, other challenges are open to an assessee. 23.. In the present case, however, the principles of natural justice are not attracted for reasons which have already been set out. The question which is posed before us is, therefore, answered in the negative, that is to say, against the respondent-assessee. 24.. Mr. Patel has reserved his right to adduce arguments on any other aspect of the said order before the Tribunal. It will, therefore, be open to him to challenge the order on any other ground which may be open to him when the case goes back before the Tribunal. 25.. Respondent will pay to the applicant the costs of the reference.
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1984 (11) TMI 309 - BOMBAY HIGH COURT
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... ... ..... ssessee fails to discharge the burden of proof cast upon him under section 14(3) or is unable to do so for no fault of his, to raise a presumption such as was raised by the Tribunal would render nugatory the provisions of section 14(3), because it puts an assessee who has failed to discharge the statutory burden in the same position as if he had succeeded in discharging it. 4.. In view of this decision, it is clear that the question referred to us must be necessarily answered in the negative, and it is answered accordingly. 5.. Our notice has been drawn by Mr. Patil to a circular dated 1st December, 1979 providing for grant of relief in such cases. Mr. Dhotre states that the circular has not been withdrawn and is still in force. If the respondent is entitled to get any benefit under this circular, it is agreed that such benefit will be given to the respondent. 6.. Looking to all the facts and circumstances of the case, there will be no order as to the costs of the reference.
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1984 (11) TMI 308 - KERALA HIGH COURT
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... ... ..... , therefore, is that, on the facts found, in the present case, the value of the containers could not have been subjected to sales tax at a rate higher than that was applicable to the value of the contents thereof. 12.. The result, therefore, is that we uphold the view taken by the Tribunal that on the facts and in the circumstances of the case, the value of tins and gunnies included in the turnover of the containers should be subjected to tax at the same rate as was applicable to the contents. 13.. We notice that the Appellate Tribunal has remanded the matter to the first appellate authority to decide whether the value of the containers could be ascertained and, if so, whether the estimate made by the assessing authority is reasonable or not. That has to be so and we do not think that any interference is warranted at our hands with respect to this direction. 14.. The revisions are accordingly dismissed however, in the circumstances of the case, without any order as to costs.
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1984 (11) TMI 307 - KERALA HIGH COURT
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... ... ..... e of material used in producing the printed article for a particular customer. The lines of enquiry or the principles applied in all these cases were more or less the same, but the conclusions reached were different because the facts and circumstances attending the different transactions were different. 8.. On an examination of the orders impugned in these revisions we are satisfied that the Tribunal has only attempted to trace the development of case law after P.T. Varghese 1976 37 STC 171 and apply the principles deducible therefrom to the facts presented before it. We are also satisfied that no-mistake has been committed either in ascertaining the facts or in applying the relevant principles of law. But we hasten to add that its conclusions cannot be treated as laying down inflexible rules applicable to all transactions of a similar nature where the attendant facts may be different. And subject to this clarification, we dismiss the revisions without any order as to costs.
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1984 (11) TMI 306 - BOMBAY HIGH COURT
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... ... ..... e principles, however, for determining whether there is a contract for sale which is a severable contract from the contract for work and labour, are well established. Applying these principles to the present case, in our view, for reasons which we have set out earlier, the present contract cannot be considered as a divisible contract, one for the sale of the material and the other for work and labour. 31.. In the premises the question which is posed before us is answered as follows The agreement dated 11th April, 1975, entered into by the applicants with Gujarat State Fertilisers Company Limited is not a divisible contract containing two agreements, one for the sale of goods and the other for payment of remuneration for service and work done. It is essentially a works contract although it involves supply of materials. The respondents will pay to the applicants costs of the reference. The amount deposited by the applicants before the Tribunal to be refunded to the applicants.
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1984 (11) TMI 305 - BOMBAY HIGH COURT
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... ... ..... hotel would necessarily be to provide a boarding and lodging to its customers on payment of its charges. It is difficult to conceive of a hotel, which primarily sells sweetmeats. It is quite clear that the expression conducted primarily for the sale of sweetmeats can apply only to establishments or shops of a like nature. Even from the point of view of grammar it is clear that the said phrase can qualify the noun establishment or at best the noun shop but nothing more. To hold that the said phrase also qualifies the earlier nouns like hotel , eating house , refreshment room or boarding establishment would result in violating the rules of grammar. In fact, Mr. Jetly fairly did not press his aforesaid contention any further. 7.. In the result, the questions referred to us are answered as follows Question (1) In the affirmative. Question (2) In the negative. Both the questions are thus answered in favour of the respondent-dealer. The Commissioner to pay costs of the reference.
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1984 (11) TMI 304 - BOMBAY HIGH COURT
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... ... ..... l and thereafter entered into a second agreement for doing erection work in respect of the material so supplied. Since the two agreements are separate agreements there can be no doubt that they are divisible and the parties contemplated that the two agreements should be distinct. 16.. As pointed out by the Supreme Court in the case of State of Madras v. Gannon Dunkerley and Co. reported in 1958 9 STC 353 (SC), the parties may enter into two contracts, one for the sale of goods and one for services. Even when such contracts are in one document they can be separate, far more so when they are in two separate documents. 17.. In view of this position it is not necessary to go into other authorities dealing with composite contracts and their interpretation for the purposes of levy of sales tax. In the premises the question is answered in the negative, that is to say, in favour of the revenue and against the assessee. The respondents to pay to the applicants costs of the reference.
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1984 (11) TMI 303 - BOMBAY HIGH COURT
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... ... ..... g Act intended to make the amendment retrospective and by section 27 of the very Act intended to render the retrospective part of the amendment completely nugatory. In our view, the submission of Mr. Patel in this connection is also liable to be rejected. 7.. In the result, question No. (2) referred to us is answered in the negative and against the dealer. In view of the answer which we have given to question No. (2), it is common ground that it is not necessary to decide question No. (1), because it becomes wholly redundant and we do not propose to answer that question. 8.. Considering the facts and circumstances of the case, including particularly the fact that the respondent has not even chosen to appear to defend the decision of the Tribunal, we direct that there will be no order as to the costs of the reference. 9.. Before concluding the judgment, we must state that we are obliged to Mr. Patel for the assistance which was rendered by him as amicus curiae in this matter.
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1984 (11) TMI 302 - BOMBAY HIGH COURT
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... ... ..... Private Limited v. State of Tamil Nadu reported in 1981 48 STC 406 and an unreported judgment of a Division Bench of this Court consisting of Chagla, C.J., and Dixit, J., dated 26th July, 1955 and delivered by Chagla, C.J., in Civil Reference No. 5 of 1955. It is not necessary to examine the facts of each of these cases. The transactions involved in these cases are in no way similar to the present transaction. In our view, for the reasons set out earlier, the present transaction is a transaction of sale. 27.. Before the Tribunal there were other points urged by the assessee, apart from the point which has been referred to us. These other points have not been decided by the Tribunal. It will therefore be open to the assessee to urge other points which may be open to the assessee, when the reference goes back before the Tribunal. In the premises the question is answered in the negative and against the assessee. The respondents will pay to the applicants costs of the reference.
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1984 (11) TMI 301 - BOMBAY HIGH COURT
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... ... ..... etting it dehusked and converted into rice in rice mills. The assessees collected amounts by way of administrative surcharge and price equalisation charge from the purchasers (ration shop retail dealers) and included those amounts in the sale bills issued to the purchasers as part of the price of the goods sold. It was held that the amounts collected by the assessees from the purchasers by way of administrative surcharge and price equalisation charge formed part of the assessees turnover and therefore, were liable to tax, as they would be included within the meaning of the expression turnover as defined in section 2(27) of the Kerala General Sales Tax Act, 1963. The facts in this case are also altogether different from the facts of the case before us and the decision is of no assistance to Mr. Jetty. In the result, we answer questions referred to us in the affirmative and in favour of the respondent-assessee. The applicant to pay to the respondent the costs of the reference.
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1984 (11) TMI 300 - BOMBAY HIGH COURT
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... ... ..... hat the use of tikuli is typical to Hindu ladies. It might have been used in ancient times only by married ladies but it was not denied, rather it had been found by the appellate authority, that in the present times it is being used by both married and unmarried women. According to the learned judge, that it is an item of beautification of appearance could not be doubted. In our view this decision is of no relevance in the case before us, because there was no entry under the U.P. Sales Tax Act, 1948 covering the item kumkum . We may with respect, however, point out that we do not quite agree with the observation that kumkum or tikuli is used by ladies normally for beautifying their appearance. It could be more appropriately regarded as used by Hindu ladies for proper grooming or as a symbol of good fortune as we have pointed out. In view of what we have observed above, the question referred to us is answered in the affirmative. The Commissioner to pay costs of the reference.
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1984 (11) TMI 299 - KERALA HIGH COURT
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... ... ..... uld not determine the classification of a commodity. It was apparently a case where the material on record was insufficient to hold that the subject-matter of the bargain was anything other than firewood. 13.. Finally let us ask a question similar to the one asked in Krishna Iyer s case 1962 13 STC 838 (FB) would a householder requiring firewood for cooking his evening meal approach the proprietor of a fuel depot and insist on specifications and conditions, like those found in the three cases on hand? Would a factory owner requiring fuel for his kiln, furnace or boiler insist on similar conditions and terms? The answer can only be in the negative. 14.. We therefore set aside the orders of the Tribunal in T.R.C. No. 62 of 1983 and 120 of 1983 and restore the orders of the assessing authorities, as confirmed by the Appellate Assistant Commissioner. In T.R.C. No. 73 of 1981 also the direction of the Tribunal to assess the transaction under entry 55 will stand vacated. No costs.
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1984 (11) TMI 298 - BOMBAY HIGH COURT
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... ... ..... as a decision in the case of Star Radio Electric Co. v. Commissioner of Sales Tax, Gujarat reported in 1971 27 STC 367. The Gujarat High Court was asked to consider whether a fluorescent tube without a choke and a starter could be considered as a domestic electrical appliance or not. The Court held that in order to bring an article within the meaning of the word appliance the article should be capable of rendering the desired service. Since a fluorescent tube could not function without a choke and a starter it could not be considered as an appliance. We fail to see the relevance of this decision to the question posed before us. 7.. The fittings in question, whether they are considered as lamp shades or lamp fittings, fall under entry 7A of Schedule E to the Bombay Sales Tax Act, 1959 as in force at the relevant time. In the premises the question is answered in the affirmative and in favour of the respondents. The applicants will pay to the respondents costs of the reference.
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1984 (11) TMI 297 - BOMBAY HIGH COURT
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... ... ..... chased have been used in the manufacture of taxable goods for sale. For this purpose we have to see whether the entire quantity so purchased has been utilised fully to the extent possible in the manufacture of such goods. If so, the assessee is entitled to the full set-off. It is not necessary that the entire quantity of purchased material has to be used up in the manufacture. If there are any remnants left over which are unusable for the manufacture in question, this would not deprive the assessee of the benefit of a full set-off under rule 41-A. Whether such remnants are resold or thrown away makes no difference to this legal position. 6.. In the premises, the question is answered in the affirmative, that is to say, in favour of the respondents. 7.. As the respondents have not appeared in the reference, there will be no order as to costs. We would like to thank Mr. B.C. Joshi, who has very kindly appeared at our request as amicus curiae, for the assistance rendered by him.
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