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1994 (7) TMI 338 - ALLAHABAD HIGH COURT
... ... ... ... ..... lf after satisfaction on the facts of each case. Petitioner s contention further is that neither any order has been passed assessing the said amount of loss by the respondentauthorities nor any notice prior to it has been given. After perusing the said Act we do not find any provision enabling respondents to levy tax on the losses. We accordingly held imposition of tax on the losses is unsustainable. Consequential recovery for the aforesaid amount thus is also unsustainable. Learned Standing Counsel for the State could not point out any provision to justify the imposition of this tax. 9.. In view of the aforesaid finding we allow this writ petition with costs and quash the impugned notice dated October 31, 1990 (annexure 1 to the petition), the letter dated January 2, 1981 (annexure 2 to the petition) and letter dated January 29, 1981 (annexure 5 to the petition) and further the consequential recovery of the amount of Rs. 83,468.65 from the petitioner. Writ petition allowed.
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1994 (7) TMI 337 - ALLAHABAD HIGH COURT
... ... ... ... ..... we have indicated above that in numerous letters it was made clear by the State Government that the liability to pay the purchase tax on the rejected wheat would be on the Regional Food Controller and he was even directed to issue form III-C. Now the State Government cannot be permitted to refile from the stand that the liability to the purchase tax would be upon the flour roller mills. In view of what we have indicated above, the writ petition succeeds a writ in the nature of, mandamus, commanding the respondents Nos. 2 and 3 to issue form III-C(2) in respect of the rejected wheat sold by them as registered dealers to the petitioner during the assessment year 1983-84 within a period of six weeks from the date of production of certified copy of this Judgment. However, it is made clear that our observations pertaining to the liability to pay the purchase tax would not create any hurdle in the way of sales tax to proceed with case in accordance with law. Writ petition allowed.
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1994 (7) TMI 336 - ALLAHABAD HIGH COURT
... ... ... ... ..... ave indicated the firm of the petitioner was registered and was allowed to use tinsheet partly with effect from January 7, 1985, hence it may not be said that the petitioner used any raw material for which it was not registered. It was incumbent upon the opposite parties to have considered the application of the petitioner in the perspective of the provisions of section 4-A. Hence this case deserves to be remitted to the Divisional Level Committee again for consideration. 6.. In view of what we have indicated hereinabove, the writ petition partly succeeds. A writ in the nature of certiorari quashing the order dated June 27, 1987, passed by the Divisional Level Committee contained in annexure 10, is issued. A writ in the nature of mandamus to the Divisional Level Committee is also issued to consider the application of the petitioner afresh and pass appropriate orders within three months from the date of production of certified copy of this order. Writ petition partly allowed.
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1994 (7) TMI 335 - ALLAHABAD HIGH COURT
... ... ... ... ..... U.P. Sales Tax Act. While considering section 147 of the said Act in the case of the Income-tax Officer v. Nawab Mir Barkat Ali Khan Bahadur AIR 1975 SC 703 the same view has been taken. Having second thoughts on the same material does not warrant initiation of proceedings under section 147 of the Income-tax Act. 11.. Having regard to the catena of decisions the well-settled law apply the same principle to the present case which squarely applies, as such we find that the present notice issued by the respondents under section 21 of the U.P. Sales Tax Act is merely a change of opinion and has been issued for the purpose of reassessing the petitioner on the material already scrutinised and considered while passing the original assessment order, hence the notice under section 21 of the said Act dated February 13, 1980 (annexure 2 to the petition) is hereby quashed. 12.. In view of the aforesaid observations the present writ petition is allowed with costs. Writ petition allowed.
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1994 (7) TMI 334 - KERALA HIGH COURT
... ... ... ... ..... e Assistant Commissioner ought to be disposed of on merits instead of being scuttled on the ground of delay. The petitioner appears to be an illiterate person, claiming to be a mere agriculturist. He had clearly stated that the business was not his, but his son s, who was paying the tax therefor. Though the appeals were belated, the default of the representative appears to have contributed to the decision of the Appellate Assistant Commissioner. We are of the opinion that the interests of justice require a decision of the first appeals on the merits, after condoning the delay in filing them. The tax revision cases are accordingly allowed and the impugned common order of the Appellate Tribunal is set aside. The Tribunal shall dispose of the appeals afresh, remitting the cases back to the Appellate Assistant Commissioner for decision on the merits, treating the appeals before him as filed in time after condoning the delay. There will be no order as to costs. Petitions allowed.
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1994 (7) TMI 333 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... be just and reasonable. It is only when there are aggravating circumstances with regard to the suppression of turnover, the authorities under the Act would be justified in levying the maximum penalty. Whether such circumstances exist is a question of fact and has to be decided on the facts and circumstances of each case. In the instant case no aggravating circumstances have been pointed out by the Tribunal to confirm the penalty levied at five times the tax due on the suppressed turnover. Indeed the Tribunal did not address itself to this question. Having regard to the facts and circumstances of the case and in the absence of any aggravating circumstances, in our view, passing the usual order in such cases, namely, levying penalty equivalent to twice the tax due on the suppressed turnover, would meet the ends of justice. Accordingly we reduce the penalty to twice the tax due on the suppressed turnover. T.R.C. No. 129 of 1986 is allowed in part. No costs. Ordered accordingly.
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1994 (7) TMI 332 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... on of applying a particular rate of tax does not arise and the Notification No. II cannot therefore operate in law until such date as the exemption is made legally ineffective. Notifications I and II being part of an integral scheme, the date of cancellation of the exemption and the date of operation of the modified rate of tax should necessarily coincide. If so, there can be no doubt, the rate of 4 per cent will be effective only from September 10, 1993, i.e., the date on which the notifications were published in the A.P. gazette. We, therefore, allow the writ petition by declaring the words with effect from August 1, 1993 occurring in Notifications I and II of G.O. Ms. No. 864, Revenue, dated September 7, 1993, as ultra vires the authority of the State Government and direct that the rate of tax at 4 per cent prescribed therein shall be levied and collected from the sales effected by the petitioner on and from September 10, 1993. No order as to costs. Writ petition allowed.
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1994 (7) TMI 331 - ALLAHABAD HIGH COURT
... ... ... ... ..... not recorded earlier, we feel that the impugned order dated January 19, 1989 (annexure 8 to the writ petition) is unsustainable and is liable to be quashed. We accordingly quash the impugned order dated January 19, 1989 (annexure 8 to the writ petition) and direct respondent No. 2 to decide afresh the question regarding the date of starting production by the petitioner s unit, after giving opportunity to the petitioner of being heard, by a speaking order preferably within a period of three months from the date a certified copy of this order is filed before the said authority. The petitioner will file a certified copy of this order within six weeks from today. Until disposal of the said review application of the petitioner by respondent No. 2 afresh, as aforesaid, the assessment proceedings for the years 1987-88 and 1988-89, both under the U.P. and Central Sales Tax Acts, shall remain stayed. The writ petition stand disposed of finally in the above terms. Ordered accordingly.
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1994 (7) TMI 330 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... e notice itself is an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia. On a matter of such importance where the stakes are heavy for the lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal hearing to the lessees. 8.. In the result I do not deem it proper to go into the merits of the matter. Instead I direct respondent Nos. 1 and 2 to hear the petitioner in this regard and pass appropriate orders with reasons within a period of one month from today. Till passing of a fresh order as directed, the interim order passed by this Court on April 7, 1993, shall continue to be operative. Annexure P14 is quashed. The petition is thus finally disposed of with directions as above, but without any order as to costs. Writ petition disposed of.
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1994 (7) TMI 329 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export. To invoke the said sub-section, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India should be for the purposes of (1) export and (2) the sale must have been for the purpose of complying with the agreement or order. The Tribunal, considering the facts of the case, recorded the finding that both conditions required to be fulfilled to attract sub-section (3) of section 5 of the Act are present in the instant case. In view of that finding, it allowed the appeal and set aside the order of assessment in respect of the disputed turnover. We do not find any illegality in the order of the Tribunal. The tax revision case is accordingly dismissed. No costs. Petition dismissed.
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1994 (7) TMI 328 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... caps/hub-caps or as surgical goods of stainless steel. The Tribunal did not agree with the findings of the assessing authority and the appellate authority that the goods in question were wheel caps/hub-caps and at the same time it did not accept the plea of the assessee that they are water disc or stainless steel surgical appliances. This Court exercising jurisdiction under section 22(1) of the Andhra Pradesh General Sales Tax Act cannot go into the questions of fact to decide the identity or the nature of the goods. In the circumstances, we consider it just and proper to set aside the order under revisions and remit the matter to the Tribunal directing it to record finding as to whether the disputed turnover relates to wheel caps/ hub-caps or stainless steel goods. As the matter relates to the assessment year 1974-75, we direct the Tribunal to dispose of the matter as expeditiously as practicable. The T.R.Cs are accordingly allowed. No costs. Petitions allowed accordingly.
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1994 (7) TMI 327 - ORISSA HIGH COURT
... ... ... ... ..... unit and commercial production started from December 14, 1989, the petitioner is entitled to the concession of tax relief given under the Policy Resolution. Even otherwise, we hold that the activity of the petitioner of producing cotton from waste cotton being a manufacturing activity, the petitioner is entitled to the concession in question. The Sales Tax Officer committed an error in passing the order under section 12(8) of the Orissa Sales Tax Act under annexure 1 by denying the concession to the petitioner. The impugned order under annexure 1 is hereby quashed and O.J.C. No. 1166 of 1992 is allowed. 8.. The other writ applications, namely O.J.C. Nos. 6 of 1993, 162 of 1993, 181 of 1993 and 182 of 1993 are disposed of with a direction that the proceedings be concluded bearing in mind the law laid down by us in this judgment. All the writ applications are disposed of accordingly. We make no order as to costs. R.K. PATRA, J.-I agree. Writ petitions disposed of accordingly.
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1994 (7) TMI 326 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... irst see whether the accounts maintained by the assessee were rightly rejected as unreliable..........If the basis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate basis, the estimate made by the assessing authority cannot be disturbed..........The basis adopted by the Sales Tax Officer was a relevant one whether it was the most appropriate or not. 5.. Examining the facts in the light of above principles, it is clear that the Sales Tax Officer has adopted relevant basis for the purpose of arriving at his best judgment. The burden was on the assessee to show that during the remaining period, the transactions were not as high as during the period covered by the brokerage vouchers. The decision was arrived at on mere appreciation of facts and material circumstances, and we do not agree that any question of law, as suggested, arises for consideration. The application is dismissed but without costs. Application dismissed.
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1994 (7) TMI 325 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... orders were transmitted by the branch office to the head office as a consequence of which in both the cases the goods were despatched directly by the dealers to the branch office without the intervention of the branch, the other transactions do not answer the description of inter-State sales falling within the purview of section 3(a) of the CST Act. and remanded the case to the assessing authority to examine de novo after giving notice to the assessee and affording opportunity to produce evidence, each of the transactions in the light of the observations contained in the judgment. The assessee was also directed to file the C forms after de novo enquiry decides in the light of the observations contained in the judgment, to be inter-State transactions. From the findings recorded by the Tribunal it is clear that the remand of the case for de novo enquiry is justified and we, therefore, dismiss the tax revision cases for the aforementioned reasons. No costs. Petitions dismissed.
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1994 (7) TMI 324 - ALLAHABAD HIGH COURT
... ... ... ... ..... e or counsel, and after obtaining photo copies of all the relevant documents, which may be kept by the sales tax authorities for themselves, the original documents, would be returned. In view of what we have indicated hereinabove, this writ petition partly succeeds. A writ in the nature of mandamus commanding the respondents to return all the account books, registers, documents, etc., which were seized by the respondents in the night of 17th and 18th of February, 1986, from the premises of the petitioners, is issued. However, the sales tax authorities in the presence of the petitioners or their nominee or counsel, will open the sealed cover which contains the relevant documents and after obtaining photo copies of the same which the sales tax authorities may retain for themselves, will return the original documents to the petitioners expeditiously, say, within a period of six weeks from the date of production of a certified copy of this judgment. Writ petition partly allowed.
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1994 (7) TMI 323 - KERALA HIGH COURT
... ... ... ... ..... ng fifty per cent of the amount demanded and furnishing security for the balance amount to the satisfaction of the assessing authority concerned. 2.. The impugned order being purely interlocutory in nature is not appealable. On that sole score the writ appeal is not maintainable. 3.. It is open to the appellants to move for expeditious hearing of the original petition before the learned single Judge. Writ appeal is dismissed in limine.
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1994 (7) TMI 322 - BOMBAY HIGH COURT
... ... ... ... ..... ional tax payable by him under this section. It is thus clear that additional tax is payable by virtue of section 15A by a class of dealers falling thereunder on the sales of goods made by them. Such dealers cannot recover the same from the purchasing dealer. That being the legal position, the petitioner cannot claim any set-off, drawbacks or refund on account thereof as the incidence of that tax has not been shifted to him. Moreover, the validity of section 15A is not a subject-matter of challenge before us in this petition. In that view of the matter, it is not necessary to go into the consequential effect of the impugned amendment on the levy of additional tax on the turnover of the petitioners. 16.. In view of the foregoing discussion, we do not find any merit in these writ petitions. The same are, therefore, dismissed. Having regard to the facts and circumstances of the case we make no order as to costs. Issuance of certified copy is expedited. Writ petitions dismissed.
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1994 (7) TMI 321 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... ndents is without jurisdiction and as such, further action in terms of notice (annexure P9) is inutile and futile and no party should be lugged into futile litigation. 7. In view of the aforesaid position and in view of the fact that the objections (annexure P8) are still undisposed of, I deem it proper not to express any opinion on the merits of the matter. 8.. Instead, I dispose of this petition by directing respondent No. 1 to consider and decide the objections contained in annexure P8 with reference to the decision referred to above in conformity with law by a reasoned order. 9.. It is further directed that the notice (annexure P9) shall not be enforced till decision is rendered on objections (annexure P8) under intimation to the petitioner. Further action, if any, shall depend on the decision on the objections as noted above. 10.. The petition thus, stands finally disposed of in terms indicated above, but without any orders as to costs. Petition disposed of accordingly.
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1994 (7) TMI 320 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... in the present case, could not have imposed a penalty but as discussed above, it is clear that the appellate authority had jurisdiction under section 43 to impose penalty for the first time after giving an opportunity to the assessee of being heard and it is not disputed that that opportunity was afforded and notice was issued before the final orders were passed by the appellate authority. 7.. It is thus clear that there was no power to enhance the penalty. 8.. The order passed by the respondent No. 1, is therefore, luculently contrary to law and cannot be sustained. The rectification as made in earlier order, dated November 26, 1983 (annexure E) is ultra vires of the power and in violation of law. 9.. In the result, this petition is allowed. The order dated November 23, 1984 (annexure I) is consequently set aside. 10.. The petition is thus allowed but without any order as to costs. Security amount shall be refunded to the petitioner after due verification. Petition allowed.
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1994 (7) TMI 319 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... ferent views with respect to classification of certain goods. The exercise cannot be an endless one. However, we must qualify this principle by stating that if a decision is rendered either by the Supreme Court, or this Court, or by the Sales Tax Appellate Tribunal, or the Commissioner of Commercial Taxes, and if the assessing authority finds that an assessment already made by him ought to be reopened in the light of such decision, it is always open to him to do so. In such a case, it cannot be said that the assessment is reopened on a mere change of opinion of the assessing authority. This can be equated to a situation where an assessment is reopened on information, and even under the Income-tax Act, it has been held that decision of the Supreme Court, or the High Court, constitutes information. In this view of the matter, we do not find any merit in the appeal it is accordingly dismissed. But in the circumstances of the case, we make no order as to costs. Appeal dismissed.
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