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Case Laws
Showing 81 to 100 of 316 Records
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1991 (7) TMI 309 - DELHI HIGH COURT
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... ... ..... ry case that freight charges would form part of the sale price. If it was unequivocally disclosed in the contract of sale that freight charges will not form part of the sale price, then no sales tax would be payable in respect thereto. The court decided against the dealer in that case because there was no proof with regard to the question as to whether the freight charges were payable by the dealer or the customer. In the present case, however, it is clear that the contract of sale between the parties as interpreted in the light of the provisions of the Colliery Control Order clearly provided that the freight and octroi charges were not to form part of the sale price. The Tribunal was, therefore, right in coming to the conclusion that no sales tax was payable on freight and octroi. For the aforesaid reasons, the question of law referred to us is answered in the affirmative and in favour of the dealer. There will be no order as to costs. Reference answered in the affirmative.
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1991 (7) TMI 308 - MADRAS HIGH COURT
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... ... ..... olding the order of assessment based on best of judgment without adverting to the pleas raised by the assessees. It was possible for the authorities to have taken note of the opening and closing stocks to test the correctness or otherwise of the return filed by the assessees. That course, for reasons undisclosed, was not adopted. 7.. In the peculiar facts and circumstances of the case and on account of the fact that the authorities below failed to record findings which are essential for taking recourse to the provisions of section 12(2) of the Act, the orders of the authorities, including that of the Tribunal, cannot be sustained. Consequently, this revision succeeds and is accepted. The orders of the authorities below are set aside. The case is remanded to the assessing authority to make a fresh order of assessment in accordance with law after giving the assessees an opportunity to explain the alleged defects. There shall, however, be no order as to costs. Petition allowed.
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1991 (7) TMI 307 - ALLAHABAD HIGH COURT
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... ... ..... the item falls within the exclusionary clause of entry No. 32, namely, excluding electrical equipment, plants and their accessories required for generation, distribution and transmission of electrical energy and electric motors and parts thereof. Once it is found that the item falls under the exception carved out under entry 32, the item becomes taxable under entry 33 at the rate of 7 per cent and not under the main part of entry 32 at the rate of 12 per cent. In the result, the petition succeeds and is allowed in part. The impugned order of assessment dated December 6, 1979 shall, in so far as the turnover pertaining to the item of service meter is concerned, stand modified to the extent that the tax will be recalculated on this item at the rate of 7 per cent instead of 12 per cent. The rest of the impugned order of assessment is left undisturbed by this Court. In view of the divided success of the parties, they are directed to bear their own costs. Petition partly allowed.
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1991 (7) TMI 306 - KARNATAKA HIGH COURT
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... ... ..... ity which affords complete answer both with regard to the power of the Legislature to enact retrospectively and also about the difficulty pleaded by the appellant in not collecting the tax. We may add that tax on sale is attracted the moment sale takes place because it is a tax on the incidence of sale. The assessment is nothing more than quantification. Therefore, irrespective of the fact whether the appellant had collected it or not, the appellant will be liable. Himansu Majumdar s case 1982 51 STC 33 (Orissa) has no application to the facts of this case because that merely stated that in the case of an ambiguity in the matter of taxation it must be resolved in favour of the assessee. Here, there is no ambiguity whatever because the Legislature has stepped in and made the position unambiguous by enacting a law, though retrospectively. 6.. For the reasons stated above, we hold that there are no merits in these appeals. They are accordingly dismissed. Writ appeals dismissed.
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1991 (7) TMI 305 - MADRAS HIGH COURT
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... ... ..... ld also get the benefit of the exemption in Government Notification dated March 19, 1976, is the only question before us. It is not necessary for us to advert to the wordings of the notification dated March 19, 1976 or the reasonings given by the Joint Commissioner to hold that the colour pencils would not be included in the said notification because we find that the Board by its letter No. A-2. 1660/76 dated April 19, 1976, clarified that the exemption with regard to the writing pencils would also be applicable to copying pencils and colour pencils. In view of the clarification by the Board, the order of the Appellate Assistant Commissioner holding that the assessee was eligible for exemption on the sale of colour pencils is unexceptionable. The Joint Commissioner fell in error in revising the same. The order of the Joint Commissioner consequently cannot be sustained and is hereby set aside and that of the Appellate Assistant Commissioner restored. No costs. Appeal allowed.
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1991 (7) TMI 304 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... the notification is violative of article 14 of the Constitution of India. The next submission of Mr. Sibal, that the notification is ultra vires article 19(1)(g) of the Constitution as the notification creates obstacles and restricts the trade of the petitioner is equally devoid of force. The notification does not put any restriction on the right of the petitioner to carry on his trade of selling the vehicles in the State of Punjab. In the foregoing paragraphs, I have already held that this notification does not give any unfair or illegal advantage to any local. foreign collaborators. Moreover, the petitioner has failed to lay any foundation of facts by producing his books of accounts, sale registers, etc. to show that its trade has in any way been affected because of issuance of the notification, annexure P/2. No other point was urged before me. For the reasons stated above, I find no merit in this writ petition and the same is dismissed. No costs. Writ petition dismissed.
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1991 (7) TMI 303 - GUJARAT HIGH COURT
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... ... ..... acter of packing material. The contention cannot be accepted in view of the decision of the Supreme Court in the case of Collector of Central Excise v. Eastend Paper Industries Ltd. 1990 77 STC 203. This is so because the adhesive plaster tapes do not come into existence so as to become marketable unless the same is wrapped on plastic spools. In this process the plastic spools become component part of the adhesive plaster tapes. Thus it loses its character as packing material in the process of manufacture of goods. The manufacturing process can be said to be over only after the goods become marketable. It is inconceivable that adhesive plaster tapes can be sold without the same being wrapped on plastic spools or on some such other item over which it can be conveniently and safely wrapped. 6.. In the result, the reference is answered as indicated in para 2 of this judgment. Reference stands disposed of accordingly with no order as to costs. Reference answered in the negative.
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1991 (7) TMI 302 - KERALA HIGH COURT
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... ... ..... marble tiles effected by the petitioner to the second respondent, as has been stated above, is an inter-State sale. That sale is one coming within the purview of section 3(a) of the Central Sales Tax Act. Tax under that Act has been levied on the petitioner and is to be paid to the State of Rajasthan from where the goods moved. The first respondent has no authority to subject that sale to tax under the Act. The action taken by the first respondent for levying tax on the sale is without jurisdiction. Exhibit P8 notice, for the reasons stated earlier in this judgment, is also illegal. Hence I quash the entire proceedings initiated by the first respondent against the petitioner. The bank guarantee executed by the petitioner in pursuance of the direction given by this Court in O.P. 7002 of 1990 has also to be released to the petitioner. I do so. The original petition is allowed in the above terms. However, I direct the parties to suffer their respective costs. Petition allowed.
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1991 (7) TMI 301 - MADRAS HIGH COURT
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... ... ..... on of the assessing authority to determine whether the penalty provisions under section 22(2) of the Act are attracted in a case even where collections have been made in violation of section 22(1) of the Act, and that the imposition of penalty is not automatic. The discretion indeed, has to be exercised judiciously, properly and bona fide. 13.. On the established facts of the present cases and the peculiar circumstances, therefore, it must be held that the deletion of the penalty by the Tribunal under section 22(2) of the Act was in proper exercise of the discretion. The discretion was both judiciously and reasonably exercised. No error can, therefore, be found with the course adopted by the Tribunal in each one of these cases. 14.. Thus, in view of what we have said above, we find that the order of the Tribunal does not require any interference. Consequently, these tax revision cases fail and are dismissed. There shall, however, be no order as to costs. Petitions dismissed.
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1991 (7) TMI 300 - KARNATAKA HIGH COURT
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... ... ..... l notice dated 9th January, 1991, the proposal is issued under section 28-AA(4) read with rule 23F(2) and (3). Therefore, the conclusion is inescapable that the Commercial Tax Officer (Intelligence), Bellary, is the person who is empowered to assess in terms of section 28-AA(4). This power, as we observed above, is altogether an independent power than the regular assessment arising under the charging section 5(5). Consequently, we hold that no exception could be taken to the proposal notice dated 9th January, 1991, both in relation to the levy as well as the penalty. If this much is clear, it equally follows that he has every jurisdiction to make the assessment. That being the case, the proper course for the appellant will be to pursue the remedy against the order of assessment in the manner provided under the Karnataka Sales Tax Act. Thus, for a different reason than that of the learned Judge, we come to the same conclusion and dismiss the writ appeal. Writ appeal dismissed
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1991 (7) TMI 299 - MADRAS HIGH COURT
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... ... ..... commerce, was included in the taxable turnover. It was urged on behalf of the assessee that a separate bill for the container or itemising the bill made out for the goods would by itself, be decisive of the question. It was pointed out that the proper way to look at such transactions would be to find out whether there was express or implied agreement between the parties to sell the goods along with the packing materials. In this case we have already pointed out that there is an implied agreement to sell the magnesite in gunny bags. 8.. For all the reasons stated above we have no hesitation in upholding the concurrent findings of the assessing authority, Appellate Assistant Commissioner and the Tribunal and hold that for all the three assessment years the packing charges and labour charges for packing would rightly be included in the taxable turnover of the assessee. These revisions fail and they are dismissed. There will however be no order as to costs. Petitions dismissed.
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1991 (7) TMI 298 - DELHI HIGH COURT
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... ... ..... ned order has been passed, pertained to the local Act while the order has been passed with reference to the Central Act. Counsel for the respondents states that under section 7(3A) of the Central Sales Tax Act, the respondents are entitled to charge security and also increase the same from time to time. There is no dispute with regard thereto. But what is contended by learned counsel for the petitioner and, in our opinion rightly so, is that the order which has been passed under section 7(3A), cannot provide for a security which is in excess of the limit prescribed by section 7(3BB). The impugned order does not indicate that under the provisions of the Central Sales Tax Act, the petitioner will be required to pay such an amount of tax which can justify an additional security of Rs. 9 lakhs. The impugned order is contrary to the provisions of section 7(3BB) and we, therefore, quash it. The petition stands disposed of. There will be no order as to costs. Writ petition allowed.
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1991 (7) TMI 297 - SUPREME COURT
Whether the vend fee in respect of the industrial alcohol under different legislations and rules in different States is valid?
Whether is the vend fee an impost leviable or extractable by the States under different Acts?
Whether the power to levy excise duty in case of indust trial alcohol was with the State legislature or the Central legislature? what is the scope and ambit of Entry?
Held that:- Appeal allowed. Entire basis for striking down the levy that even though the State had plenary power to impose tax on sales/purchase of goods can exercise taxing power under Entry 54 of List II so long as it does not militate against the legislative field occupied by the Central Government under the IDR Act or any other enactment made under Entry 52 of List I proceeded on complete misconception of taxing powers of State. In fact as stated earlier the entire theory of occupied field or State legislation being repugnant to Central legislation is available when the two legislatures exercise their powers under Concurrent List. Therefore, the order of the High Court striking down the levy cannot be upheld.
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1991 (7) TMI 296 - DELHI HIGH COURT
Newsprint was imported by the respondent-dealer on behalf of actual user licensees holding actual user licenses issued by the Chief Controller of Imports and Exports on the basis of letter of authority issued to the latter. The letter of authority contained a condition that the dealer was to act only as an agent and the goods were to be imported for the licensee and it was the licence-holder who was to have the title tin the goods both at the time of clearance through the customs and subsequent thereto. Newsprint was also imported and supplied by the respondent-dealer to licensees through the State Trading Corporation, the canalising agent. On the basis of licenses issued by the Chief Controller, orders were placed with the State Trading Corporation.
Held that:- in the case of import under actual user licences, the ownership of the goods was transferred by the foreign seller to the licensees. There was no principal to principal contract of sale between dealer and the licensees. As the goods belonged to the licensees, there could obviously be no question of the dealer selling those very goods to the licensees.
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1991 (7) TMI 295 - CEGAT, NEW DELHI
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... ... ..... f Notification 52/86 to claim the benefit of exemption. Since Serial Number 10 does not differentiate between woven and non-woven fabrics, the exemption granted under the said notification will be applicable equally to non-woven fabrics also as it was rightly argued by the appellants rsquo Counsel. All goods other than glass fabrics impregnated, coated, covered or laminated with plastics or varnish under Serial Number 11 of the said notification which attracts 20 ad valorem may be applicable to yarn and other goods with which we are not concerned for the present. In view of the clear finding that the goods are non-woven fabrics and in the absence of mention of woven or non-woven fabrics in Serial Number 10 of the said notification, we hold the goods in question are covered by Serial Number 10 of the Notification and accordingly the appellants are entitled to the benefit of exemption. 9. emsp In the result, we set aside the impugned order and the appeal is allowed accordingly.
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1991 (7) TMI 287 - HIGH COURT OF RAJASTHAN
Oppression and mismanagement – Right to apply under sections 397 and 398 ... ... ... ... ..... eing properly maintained and it does not appear from the record that the affairs of the company are being conducted in the manner prejudicial to public interest or prejudicial to the interest of the company, rather the company contested the proceedings in the Income-tax Department initiated against it under section 269UD(1) of the Income-tax Act, 1961, vacated the tenants of the property, rather it appears that it is the petitioner who filed a suit for injunction against the company. There is another suit also and the main dispute between the parties appears to be in respect of Rs. 3,00,001 which according to the petitioner was payable to him by the company and, as per the company, it is not payable to him. The petition does not appear to be a bona fide petition under section 398 of the Act. Even otherwise, as stated earlier, the petitioner has not been able to make out any case. Consequently, I find no merit in this petition. It is hereby dismissed with no order as to costs.
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1991 (7) TMI 286 - HIGH COURT OF BOMBAY
Meetings and Proceedings – Quorum for meeting, Inherent powers of Court ... ... ... ... ..... case is made out for grant of ad interim relief, such applications are straightaway rejected. It does not happen and it should not happen that in every case, the application for interim relief is fixed for final hearing on a future day when ad interim relief is declined. In a given case, the court may decline ad interm relief and fix the application for interim relief for final hearing on a future date. In another case, the application itself is rejected straightaway. It all depends on the facts of each case. I am not persuaded to keep the notice of motion pending and make it returnable to some other date for a further hearing. Having regard to the totality of facts and circumstances and non-maintainability of the motion, the notice of motion is dismissed with costs. The plaintiffs are directed to pay to the contesting defendants a sum of Rs. 3,000 towards cost of the notice of motion. The prothonotary and senior master shall issue certified copy of this order expeditiously.
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1991 (7) TMI 275 - CEGAT, NEW DELHI
Dutiability ... ... ... ... ..... e binding on all Courts an Tribunals and all other authorities throughout the country. 12. emsp Hence, we hold that the learned Collector (Appeals) was justified in applying the aforesaid judgment in the present case. 13. emsp The fact that similar matters involving the same issue are pending before Hon rsquo ble High Court of Guwahati does not make any difference as the department has not been able to produce or show any direction or order of the Hon rsquo ble High Court of Guwahati staying the present proceedings before us. No order contrary to the one cited by the learned Counsel for the respondent and relied upon by the Collector (Appeals) has even been cited and there is no reason for a different view. Hence, respectfully following the Hon rsquo ble Calcutta High Court rsquo s judgment (which, as aforesaid is itself based on Supreme Court judgment) we reject the appeal and confirm the order of Collector (Appeals). 14. emsp The C.O. is also disposed of in the above terms.
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1991 (7) TMI 267 - HIGH COURT OF DELHI
Application of sections 269, 310, 311, 312 and 317 to managers ... ... ... ... ..... e out the element of arbitrariness in a decision. The rule requiring the reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirements of law . The impugned order in our opinion, can also be set aside on the grounds of arbitrariness and violation of principles of natural justice. In view of the above, we allow the writ petition and make the rule absolute. The impugned order dated December 28, 1981, is quashed and a writ in the nature of mandamus is issued to the respondents directing them to treat the petitioner-company s contribution to provident fund, gratuity and superannuation benefits as relatable to salary plus commission subject to a ceiling on commission of Rs. 12,000 per annum inclusive of bonus. There shall be no order as to costs.
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1991 (7) TMI 260 - HIGH COURT OF MADRAS
Balance sheet - Default in filing copies of ... ... ... ... ..... , no such presumption can be drawn that the petitioner did not continue to be a director during the relevant period. I do not find any legal infirmity in the complaint. In the ruling in A. Anantalakshmi Ammal v. Indian Traders and Investments Ltd. 1952 22 Comp Cas 324, it was held that directors due to retire at the next annual general meeting ceased to be directors after the last day on which the meeting is due. A director may retire but at the same time, he can be re-elected. That is, simply by saying that he would retire by the end of that year, the complaints cannot be quashed when there are positive, allegations that he is a director as per the particulars submitted by the company. Looking at the case from any angle, I am clear that these complaints cannot be quashed in limine at the threshold. It is for the petitioner to establish during the course of the trial that he had retired and that there was no re-election. In view of the above, both the petitions are dismissed.
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