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Showing 1 to 20 of 48 Records
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1972 (6) TMI 72 - KERALA HIGH COURT
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... ... ..... ndication in support of the above conclusion. The said provision which I have extracted earlier, enacts that in computing the thirty days prescribed for appeal, the time taken to obtain a certified copy of the order appealed against shall be excluded. This special provision would be unnecessary if Section 29(2) in the absence of express words of exclusion were to attract Section 12, of the Limitation Act providing for exclusion of time for obtaining a certified copy of the judgment. The provisions of Section 18(1)(b) therefore show that the Kerala Buildings (Lease and Rent Control) Act, was meant to be a self-contained code in the matter of prescribing the periods of Limitation and granting exemption therefrom. 18. The view taken by the appellate authority is correct and calls for no interference. These revisions are dismissed with costs. T.C. Raghavan, C.J. 19. I agree. BY THE COURT 20. In accordance with the majority opinion, the revision petitions are dismissed with costs.
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1972 (6) TMI 71 - ORISSA HIGH COURT
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... ... ..... e next question for consideration is how to safeguard the interest of the plaintiffs in their 2/5ths share in the amount payable under the policy, The best course would have been for the plaintiffs to make a prayer before the trial Court to call upon the defendant to give an undertaking to pay 2/5ths of the amount payable if the suit is decreed. It is not necessary to further the litigation on this account. I, therefore, direct the trial Court to call upon the defendant to furnish security to its satisfaction to the tune of 2/5ths of the amount pays able under the policy. 6. The learned trial Court is directed to dispose of the suit within three months from today with intimation to this Court. 7. In the result the Civil Revision is dismissed, subject to the direction that the defendant would be called upon to furnish security to the satisfaction of the trial Count as indicated above, after which she would be allowed to receive the amount. There would be no order as to costs.
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1972 (6) TMI 70 - MADRAS HIGH COURT
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... ... ..... as the defendant challenged the trial court's order directing him to pay Court-fee on the sum of ₹ 3000. The revision petition was dismissed, Satyanarayana Rao, J. accepting the decision of the trial court. It is pointed out that only in respect of the sum of ₹ 2200 and odd claimed as damages for breach of warranty, the defendant was entitled to claim the same without paying Court-fee because it is the amount which could be considered in diminution of the price that was claimed by the plaintiff. As I said earlier, in the present case, if the defendant proves the defects in the construction of the brick kiln pleaded in the written statement and the additional written statement, then the plaintiff's claim would get negatived. Therefore, in my opinion, what is pleaded in this case is only a defence to the plaint claim and not a set-off. The defendant need not pay Court-fee on the written statement. 6. Repost the suit for further trial. 7. Order accordingly.
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1972 (6) TMI 69 - MADRAS HIGH COURT
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... ... ..... ient to clothe such movement with the character of an inter-State transaction. In this case, the learned counsel for the petitioner places very strong reliance on the lorry waybills and states that from the entries made therein it is possible to infer that there should have been a prior contract of purchase. As already stated, from the mere fact that the buyer s name is mentioned in the lorry way-bills, it is not possible to assume that there should have been an anterior contract of purchase. At the most, it will show that the goods are intended to the assessee. The learned counsel for the assessee further contends that there were earlier contracts of purchase but they were oral. But we do not find that any argument was put forward before the authorities that there were oral contracts of purchase. We, therefore, feel that the order of the Board cannot be interfered with in this case. The tax case is, therefore, dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1972 (6) TMI 68 - GAUHATI HIGH COURT
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... ... ..... is, therefore, a case of mere change of opinion about the chargeability of certain turnover to tax. That being the position, the impugned notices are without jurisdiction and must be quashed, which we hereby do. 14.. The view we have taken receives support from the ratio decidendi of the decision of the Supreme Court, The Commissioner of Income-tax, West Bengal v. Dinesh Chandra H. Shah and Others 1971 82 I.T.R. 367 (S.C.) A.I.R. 1972 S.C. 29. Although that was a case under section 34(1)(b) of the Income-tax Act, 1922, the said section is substantially similar to section 19-A(1) of the Assam Sales Tax Act, 1947. 15.. In view of our decision, it is not necessary to deal with the second submission of Mr. Lahiri, which was not even seriously advanced by him. 16.. In the result, the application in each of the Civil Rules Nos. 214, 215, 216 and 217 of 1968 is allowed. Rules nisi made absolute. We will, however, make no order as to costs. BINDRA, J.-I agree. Applications allowed.
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1972 (6) TMI 67 - MADRAS HIGH COURT
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... ... ..... S.R. Factory P. Ltd. v. Deputy Commercial Tax Officer 1967 20 S.T.C. 419. and Hindustan Steel Ltd. v. State of Orissa 1970 25 S.T.C. 211 (S.C.)., it has been clearly laid down that the power to levy the penalty being a discretionary one, the authority should give reasons before proceeding to levy penalty and that the finding on the non-disclosure of the assessable turnover by the dealer is a sine qua non for the authority levying penalty under section 16(2). We find in these cases that the assessing officer has not given any such finding. Now, that we have construed the order of assessment as one made under section 16, the order levying the penalty without a finding of wilful non-disclosure by the petitioner could not be upheld. In this view, we set aside the order as regards the penalty alone in respect of both the assessments. In other respects, the assessment orders are upheld. The tax cases are partly allowed. There will be no order as to costs. Petitions Partly allowed.
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1972 (6) TMI 66 - MADRAS HIGH COURT
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... ... ..... counts is nearly 10 percent. of the value of the goods sold. It could not, therefore, be stated that the containers were of insignificant value. The goods were sold as packed and, therefore, the price includes the value of the container also. The Tribunal has also found that the sale price included the value of the packing material. The learned counsel for the petitioners contended that there will be no resale value for the containers to the purchasers and, therefore, it could not have been the intention of the parties to purchase and sell the containers. Apart from the fact that there is no evidence to show that the containers had no value to the purchasers, since the sale was as packed with the container and since we have found that the value of the container had also gone into the determination of the price, this ground is not available to the petitioners. In the result, the revision petition fails and it is dismissed with costs. Counsel s fee Rs. 150. Petition dismissed.
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1972 (6) TMI 65 - MYSORE HIGH COURT
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... ... ..... erused some of the bills given by the assessee to the cane growers. They show that in addition to the minimum price, transport charges were added to the said price. The substance of the transaction between the assessee and the cane growers is that the original contract has been varied by enhancement of the price for the sugarcane supplied. The additional amount paid by the assessee cannot be regarded as ex gratia payment since it is directly related to the quantity of sugarcane supplied. The term turnover has been defined to mean the aggregate amount for which goods are bought by a dealer vide section 2(v). In our opinion, the aggregate of all amounts including additional amounts paid by the assessee towards harvesting and transportation charges is the assessee s turnover and the view taken by the Sales Tax Appellate Tribunal was right. For the reasons stated above, these revision petitions fail and are dismissed, but in the circumstances, without costs. Petitions dismissed.
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1972 (6) TMI 64 - CALCUTTA HIGH COURT
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... ... ..... urt. I have found that the Commercial Tax Officer had no jurisdiction to assess sales tax and the assessed taxes may be irrecoverable. Therefore, in such a case, a writ of certiorari should issue almost as a matter of course as there was patent error of jurisdiction, and the existence of an alternative remedy by way of appeal against the impugned assessment order cannot be a bar to the maintainability of this writ petition. Accordingly, the impugned assessments should be quashed and the respondents should be restrained from proceeding with the certificate cases for realisation of the said purported taxes from the petitioner. I, accordingly, make this rule absolute and quash the impugned assessment orders so far as the same imposed sales tax upon the three said transactions of Linotype machines set out in the petition. I also quash the impugned certificate proceeding for realisation of the said taxes from the petitioner. There will be no order as to costs. Rule made absolute.
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1972 (6) TMI 63 - ANDHRA PRADESH HIGH COURT
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... ... ..... ason it is difficult to hold that the essential character of iron has been lost. Nor is the fact that the raw material and the articles resulting on processing that are sold under different and distinct names in the commercial market, would be decisive of the fact that the galvanised plain or corrugated sheets are different from iron, the raw material which still exists in them. B. P. sheets are mere sheets of steel and hence a fortiori they are forms of iron and steel . Hence we agree with the Tribunal that galvanised plain or corrugated sheets and B.P. sheets fall within entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act. Since the sales of those articles are not the first sales effected by the dealers but are the second sales, the dealers are not liable to pay the sales tax thereon. The references are accordingly answered. The State shall pay the costs of these references to the dealers. The tax revision cases are dismissed. Petitions dismissed.
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1972 (6) TMI 62 - CALCUTTA HIGH COURT
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... ... ..... of its miscellaneous old and discarded items cannot be considered to be the business of selling those items of goods. The Supreme Court in that case held that the expression "business" in taxing statute is used in the sense of an occupation or profession which occupies the time, attention and labour of a person normally with the object of making profit. It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activities. By the use of the expression "profit-motive" it is not intended that profit must in fact be earned. The Supreme Court in the above case had no occasion to consider the amended new definition introduced by the Act. The concept of business as understood in the ordinary and commercial sense has to yield to the statutory definition given now in the Act. For the reasons stated above, this application fails. The rule is discharged. Interim order, if any, stands vacated. Rule discharged.
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1972 (6) TMI 61 - MADRAS HIGH COURT
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... ... ..... oner has brought in any new or fresh turnover which was not before the assessing authority for assessment as a result of an enquiry made by him. As a matter of fact, we find that the Deputy Commissioner in this case actually relied on the evidence already on record and not on any fresh evidence gathered by making further enquiries. He has not traversed beyond the powers contained in section 12(2) while revising the assessment. To find out whether the order of assessment made by the assessing authority excluding certain turnover from the levy of tax is proper or not, the Deputy Commissioner as revisional authority has to reconsider the evidence already on record and this is what has been done in this case. We cannot, therefore, accept the petitioners contention that the order of revision passed by the Deputy Commissioner could not be brought under section 12(2) of the old Act. The result is the tax case is dismissed, but in the circumstances without costs. Petition dismissed.
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1972 (6) TMI 60 - MADRAS HIGH COURT
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... ... ..... re separate accounts were not maintained in respect of hides and skins purchased locally and from outside, which were later tanned and sold, this court pointed out in Anwaraulla AM. Ghouse and Co. v. State of Tamil Nadu 1971 28 S.T.C. 610 at 614., that Although the assessee has maintained accounts as required by rule 26, still, it is for the assessee to establish the particular raw hides which have gone into the manufacture of tanned hides and skins. But, if he fails to do so, and has mixed up on the ground that it is impossible to keep separate accounts, the assessing authority is left with no alternative but to use its best judgment and estimate the relative turnover to be brought to charge. We are, therefore, of the view that the Tribunal is not justified in allowing the turnover of Rs. 23,557.47 as second sales of oil and setting aside the order of the lower authorities in this case. The tax case is, therefore, allowed with costs. Counsel s fee Rs. 150. Petition allowed.
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1972 (6) TMI 59 - MADRAS HIGH COURT
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... ... ..... passing observe that in view of Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes 1966 17 S.T.C. 473 (S.C.)., Rajeswari Mills Ltd. v. The State of Madras 1964 15 S.T.C. 1. can no longer be regarded as laying down the correct proposition as to the scope of section 3(a) and section 5(2) of the Central Sales Tax Act. As already stated, the Board has taken the view that the sale of cotton to the assessee by Patel and Co. will not be an import sale, following the view in Rajeswari Mills Ltd. v. The State of Madras(3) which is no longer good law in view of Khosla and Co. (P.) Ltd., v. Deputy Commissioner of Commercial Taxes 1966 17 S.T.C. 473 (S.C.).We are of the view that the facts in this case directly attract the principles laid down in Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes 1966 17 S.T.C. 473 (S.C.). We, therefore, allow the appeal and set aside the order of the Board of Revenue. There will be no order as to costs. Appeal allowed.
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1972 (6) TMI 58 - MYSORE HIGH COURT
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... ... ..... es not disclose the basis on which the additions were made. Any such addition cannot rest on the subjective satisfaction of the assessing authority. The material on the basis of which the additions are made should be disclosed to the assessee so that he may have a reasonable opportunity to repudiate the same and the order must state the reasons. In our judgment, the additions made to the gross and taxable turnovers of the dealer are highly arbitrary and cannot be supported. Therefore, we allow this petition and modify the orders of the Tribunal and the authorities below by deleting the additions of Rs. 45,000 and Rs. 40,000 to the gross turnover and the taxable turnover respectively. The result is that the taxable turnover of the assessee should be determined at Rs. 50,627.90. The assessing authority is directed to issue a fresh demand notice on the basis of this judgment. Ordered accordingly. The petitioner is entitled to his costs. Advocate s fee Rs. 100. Petition allowed.
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1972 (6) TMI 57 - MADRAS HIGH COURT
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... ... ..... plate. The Tribunal refers to the commercial. practice and states that the words in item 15 have to be understood in a commercial sense. But as we understand, the commercial practice as set out in the objects and reasons of Madras Act 10 of 1963, seems to be the other way. It is not, therefore, possible for us to agree with the Tribunal that silver ingots sold by the petitioner would not fall within item 15. Even if we agree with the Tribunal that the silver ingots sold by the petitioner is not pure or of any particular standard, still it will come clearly under the word alloy . Even impure silver has to be treated as alloy. In our view, the view taken by the assessing officer cannot be sustained. Though the petitioner has asked for a writ of prohibition, in view of the changed circumstances, a writ of certiorari quashing the order of reassessment made by the assessing authority will issue. The petitioner is entitled to his costs. Advocate s fee is Rs. 150. Petition allowed.
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1972 (6) TMI 56 - MADRAS HIGH COURT
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... ... ..... nder section 12(3). We are inclined to agree with the said contention put forward on behalf of the appellant. The power under section 12(2) is a power to make the assessment and that power has been found to have been exercised properly. Neither the appellate authority nor the Board of Revenue has doubted the correctness of the orders of assessment passed against the appellant in respect of these two years. The orders of assessment passed under section 12(2), which alone are the subjectmatters of revision by the Board, have been found to be otherwise legal, and, therefore, they cannot be set aside merely on the ground that the assessing officer overlooked the provisions of section 12(3) and failed to exercise that power while making the assessments. We cannot, therefore, agree with the Board of Revenue in setting aside the orders of assessment in this case for the reasons set out above. The tax case is, therefore, allowed, but under the circumstances no costs. Appeal allowed.
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1972 (6) TMI 55 - CALCUTTA HIGH COURT
The assessee, a manufacturer of linotype machines, was a company incorporated in England and having its works in England. The assessee had an office at Calcutta and it was a registered dealer under the Central Sales Tax Act, 1956. The Government of India placed two orders upon the assessee for sale and supply of linotype machines of certain specifications to the Manager, Government of India Press, New Delhi. Similarly, the Controller of Stores, Punjab, placed an order with the assessee for sale and supply of linotype machines of certain specifications to the Controller of Printing and Stationery, Chandigarh. The contract of sale, inter alia, provided that the prices quoted were provisions and that the buyer would be invoiced at the packed price prevailing at the time of shipment plus all expenses for sea freight, insurance, customs duty, clearing, railway freight and a small charge for erection. - Held, (1) that the assessment imported the machines from England as part of the agreement of sale and in order to fulfil its obligation to sell the machines to the purchasers. Therefore, the sales of the machines took place in the course of import of the goods into the territory of India as the sales had occasioned the imports and those transactions were exempt from payment of sales;
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1972 (6) TMI 54 - HIGH COURT OF KERALA
Winding up - Statement of affairs to be made to official liquidator ... ... ... ... ..... s broke open its office building and attached the movables available in the company s office for the recovery of the arrears of rent due to the Industries Department. Thereafter, the company really ceased to exist, except on the records and there was no question of maintaining any accounts or any other records. I am inclined to believe the first accused, when he says that he is not in possession of any of the old books of account or records of the company, except those which he has handed over to the official liquidator. That being so, the accused would be unable to submit a statement of affairs of the company containing the particulars mentioned in section 454(1) of the Act, after a period of about 10 years since the company ceased to carry on any business and even to exist for all practical purposes. I hold that the default of the accused in submitting the statement is not without reasonable excuse. He is not, therefore, guilty of the offence complained of and is acquitted.
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1972 (6) TMI 45 - HIGH COURT OF GAUHATI
Advertisement of petition ... ... ... ... ..... g the certified copy which has been filed along with the appeal is taken into consideration, the appeal is not time barred. The learned counsel for the appellant submitted that the appellant was under the impression that a certified copy of the order was necessary to be filed in the appeal and therefore the delay, if any, may be condoned in view of the facts and circumstances of the case. We find that there is substance in the submission of the learned advocate for the appellant. That apart, by MA(f) No. 30/72 the same impugned order has been challenged and the delay in filing this appeal has been already condoned by the court s order dated May 12, 1972. In the circumstances we hold that the submission of the learned counsel for the respondents regarding the limitation has no substance. In the result the impugned order of winding up of the company is set aside. Both the appeals are allowed and the case is remanded. We pass no order as to costs. Baharul Islam J. mdash I agree.
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