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Showing 121 to 140 of 654 Records

• 2007 (11) TMI 592
  
  Issues Involved:
  1. Scope and ambit of the expression "other liability" in Section 138 of the N.I. Act.
  2. Whether the cheques issued by the petitioners were towards discharge of a "debt or other liability" or merely as security.
  
  Summary:
  
  Issue 1: Scope and Ambit of "Other Liability" in Section 138 of the N.I. Act

  The primary issue in this petition u/s 482 of the Code of Criminal Procedure, 1973 is the interpretation of the term "other liability" in Section 138 of the N.I. Act. The court noted that the expression "other liability" cannot be construed as akin to "debt" unless the rule of ejusdem generis applies. However, in Section 138, "other liability" follows only one word, "debt," which does not constitute a distinct genus, thus the rule of ejusdem generis is inapplicable. The Supreme Court in I.C.D.S. Ltd. v. Beemna Shabeer clarified that "other liability" must be given its ordinary and grammatical meaning, encompassing any "liability to pay." The court emphasized that phrases in Section 138 should be understood as they are in the commercial world, meaning "other liability" includes any obligation to pay.

  Issue 2: Nature of Cheques Issued by Petitioners

  The petitioners, directors of Ansal Buildwell Ltd., sought quashing of a complaint and summoning order u/s 138 of the N.I. Act, arguing that the cheques were issued as security, not for discharging a debt or liability. Clause V of the collaboration agreement required Ansal Buildwell Co. to deposit Rs. 138 lakhs as security for due performance, with cheques issued for this amount. The court distinguished between cheques issued as security and those issued for discharging a liability. A cheque given as security is not to be encashed immediately but becomes enforceable if a future obligation is not met. In this case, the cheques were part of the consideration under the contract, making them a liability to pay. The court held that the blocking of the complainant's property asset constituted consideration under Section 2(d) of the Indian Contract Act, making the cheques issued by the accused company a liability to pay at the time of issuance.

  Conclusion:

  The court concluded that the cheques issued by the petitioners were towards a liability to pay and not merely as security. Therefore, no grounds for quashing the complaint or the summoning order dated 23.9.2002 were made out. The petition was dismissed with no costs.

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• 2007 (11) TMI 591
  
  Issues Involved:
  
  1. Validity of the order u/s 158BC.
  2. Limitation of time for making the order u/s 158BC.
  3. Validity of the search u/s 132.
  4. Validity of the assessment order u/s 144 r/w s. 158BC.
  5. Violation of principles of natural justice.
  6. Scope of block assessment and inclusion of undisclosed income.
  7. Reliance on retracted statements.
  8. Validity of the special audit u/s 142(2A).
  9. Specific additions based on seized documents.
  
  Summary:
  
  1. Validity of the order u/s 158BC:
  
  The assessee argued that the order u/s 158BC was bad in law as the notice was issued while the search was still ongoing. The Tribunal admitted the additional grounds raised by the assessee, emphasizing that the notice u/s 158BC should be served after the conclusion of the search. However, following the jurisdictional High Court's decision in Shirish Madhukar Dalvi vs. Asstt. CIT, the Tribunal held that the issuance of notice before the conclusion of the search is a procedural irregularity and not fatal to the assessment order. The AO was directed not to levy interest u/s 158BFA(1).
  
  2. Limitation of time for making the order u/s 158BC:
  
  The Tribunal rejected the assessee's contention that the assessment order was time-barred, holding that the assessment was framed within two years from the end of the month in which the last warrant of authorization was executed.
  
  3. Validity of the search u/s 132:
  
  The Tribunal, following the Special Bench decision in Promain Ltd. vs. Dy. CIT, held that it cannot consider and decide the issue relating to the validity of the search. Thus, the preliminary ground challenging the initiation of the search was rejected.
  
  4. Validity of the assessment order u/s 144 r/w s. 158BC:
  
  The Tribunal noted that the assessee had responded to almost all the letters issued by the AO. The impact of alleged non-compliance would be considered while dealing with specific issues on merit.
  
  5. Violation of principles of natural justice:
  
  The Tribunal observed that the assessee was granted an opportunity of hearing through more than 40 notices/letters issued by the AO. The effectiveness of such opportunity would be considered while dealing with specific issues.
  
  6. Scope of block assessment and inclusion of undisclosed income:
  
  The Tribunal emphasized that undisclosed income for the block assessment is to be determined based on material found during the search. The CIT(A) was found to have misconstrued the scope of block assessment by reappreciating entries in the regular books of account.
  
  7. Reliance on retracted statements:
  
  The Tribunal held that the statement of Mr. Neeraj Khanna, recorded during the search, was not voluntary and could not be relied upon solely for making additions. The Tribunal emphasized that retracted statements require corroborative evidence.
  
  8. Validity of the special audit u/s 142(2A):
  
  The Tribunal held that the special audit report obtained without providing an opportunity of hearing to the assessee could not be used against the assessee. It was also noted that loose papers, not regular books of account, were audited, which was not permissible.
  
  9. Specific additions based on seized documents:
  
  The Tribunal deleted several additions made based on seized documents, holding that the AO had failed to establish that the entries in the seized documents were not reflected in the regular books of account. The Tribunal emphasized that the AO must bring positive evidence to prove that the entries in the regular books were false.
  
  Conclusion:
  
  The Tribunal allowed the assessee's appeal partly, deleting several additions made by the AO, and dismissed the Revenue's appeal. The Tribunal emphasized the importance of following procedural requirements and providing adequate opportunities to the assessee while making assessments based on seized documents.

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• 2007 (11) TMI 590
  

  Whether the order of the Labour Commissioner dated 12.4.2007 allowing the respondent-company to withdraw its closure application dated 1.2.2007 should be deemed to be an order refusing to grant permission, and hence a fresh application under Section 25-O(1) could not be filed before the expiry of one year from the date of the said order?

  Wheyher Section 25-O(5) only applies when an order is passed on merits either granting or refusing to grant permission for closure?

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• 2007 (11) TMI 589
  

  Whether as the respondent sought unconditional voluntary retirement, he was not entitled to get pension in view of the decision taken by the Accountant General, Haryana, appellant No.4 herein and conveyed vide communication dated 03.08.1996 to appellant No. 3.?

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• 2007 (11) TMI 588
  

  Whether bank guarantee furnished is an unconditional and irrevocable one or a conditional one?

  Whether invocation of the bank guarantee furnished by the appellant to the respondent valid?

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• 2007 (11) TMI 587
  
  ... ...
  ... ... ..... nment note in respect of the goods manufactured by the applicant at its factory were produced at the time of interception. In the circumstances, we are of the view that there was even no possibility of evasion of tax since all these were duly recorded. In the circumstances, we hold that the seizure was not properly made and, therefore, we set aside the order dated May 30, 2006 of the Sales Tax Officer, Kharagpur Range regarding the impugned seizure and subsequent orders dated June 1, 2006 of the Sales Tax Officer, Kharagpur Range, dated November 6, 2006 and May 30, 2007 of the Assistant Commissioner of Sales Tax, Kharagpur Range and Deputy Commissioner of Sales Tax, Kharagpur Range in the matter of penalty imposed upon the applicant. We further direct that the penalty realized from the applicant should be refunded within three months from the date of communication of this order. The petition, thus, stands disposed of. No order as to costs. PRADIPTA RAY (Chairman). - I agree.

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• 2007 (11) TMI 586
  
  ... ...
  ... ... ..... the nomenclature of the receipt, the amount received by the petitioner has to be treated as rent or hire charges for letting out the marriage hall. Therefore, we do not see any reasons to interfere with the findings of the Tribunal in regard to taxing the petitioner under the Act in respect of the amount collected by it as donation instead of rent charges. It is no doubt true that prior to the amendment, the person who has to represent the trust has not been mentioned. Even if it is not defined, when the marriage hall constructed by the petitioner is capable of taxing, there is no prohibition for the taxing authorities to collect the tax either in the name of the trust or from the manager of the trust. Whoever represent the trust has to answer for the purpose of tax. In the circumstances, the points raised by the petitioner is held against the assessee. Accordingly, this petition is dismissed. Sri Gangadhar Sangolli is permitted to file memo of appearance within four weeks.

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• 2007 (11) TMI 585
  

  Statutory remedy of appeal available before the appellate authority - Maintainability - Whether the respondents are entitled to demand increased sales tax at the rate of 16 per cent, by way of second clarification, after the assessment is completed?

  Held that:- On account of the pre-conclusion by the superior authority, namely the first respondent, there cannot be any efficacious alternative remedy and hence, we are of the considered view that the writ petitions are legally maintainable.

  Subsequent clarification withdrawing concessions, which was given earlier could be done only prospectively and not with retrospective effect. In the instant case, admittedly, as per the clarifications made by the respondents for the assessment year 2002-03, for the aforesaid items sales tax at four per cent was made and the same was completed during October 2003, as clarified by the respondents herein. By subsequent clarification, dated May 18, 2004, made by the first respondent, the second respondent had issued the impugned order, dated March 4, 2005 to the petitioners, demanding the tax at 16 per cent. In fact, the demand made by the respondents is nothing, but an order imposing additional burden of indirect tax on the petitioners with retrospective effect, which is not legally sustainable.

  Thus to meet the ends of justice, all the writ appeals have to be allowed, setting aside the impugned orders passed by the respondents.

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• 2007 (11) TMI 584
  
  ... ...
  ... ... ..... s discretion relating to quantum of penalty imposed. It is not in dispute that during pendency of the writ petition the petitioner had been directed to deposit 25 per cent of the penalty levied. Having regard to the fact that the matter relates to about 30 years back, we feel interest of justice would be served by modifying the quantum of penalty to the amount already deposited by the petitioner. In such view of the matter, while setting aside the order of the learned single judge, we direct that the amount already deposited shall be the penalty payable and such deposited amount, which is still lying in deposit with the Department, shall be adjusted towards penalty payable and no further amount would be payable by the present respondent. Similarly, it is made clear that the direction of the learned single Judge relating to refund of the amount along with 12 per cent interest shall not be operative. The writ appeals are allowed in part to the extent indicated above. No costs.

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• 2007 (11) TMI 583
  

  Interest levied for belated payment of tax - Held that:- In this particular case it is neither a case of failure to include turnover in the return nor escapement of turnover, but wrong classification of turnover in the return. In the original return filed by the petitioner, turnover was declared as exempted turnover. When sales tax exemption was withdrawn, the return should have been revised by transferring turnover on which exemption was claimed to taxable turnover and the petitioner should have paid the tax thereon. Failure to do so is also a situation covered by sub-section (3A) of section 23 because on account of misclassification, escapement of self-assessment and payment of tax on taxable turnover happens which attracts interest under the said section.

  In the circumstances since the petitioner's is a case squarely falling under sub-section (3A) of section 23 as held above, the impugned orders are to be necessarily upheld. The writ petition is devoid of any merit and is dismissed. However, the interest paid during pendency of writ petition should be adjusted and only the balance should be recovered from the petitioner.

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• 2007 (11) TMI 582
  

  Taxability on sale of oxygen gas - Held that:- Only respondent No. 7, TISCO, is competent to explain to the prescribed authority as to how oxygen gas, which was all along treated and mentioned as goods as per annexure B, has suddenly become raw material. In the same way, the prescribed authority alone is competent to decide about the same. Hence, the petitioner's claim, on the basis of the notification referred to above, which is quite contrary to the earlier stand, is not sustainable under law. We think it fit not to refer to any of the authorities cited by both the parties as those decisions would be of no use as the specific issue in question has not been dealt with therein.

  Thus as per the registration certificate issued under section 13(1)(b) of the Act, oxygen gas was treated as goods as mentioned in annexure B. The purchasing dealer has to pay sales tax at three per cent treating oxygen gas as goods mentioned in annexure B and the selling dealer has to merely collect and deposit the same as per the certificate with the Government. Unless it is established before the prescribed authority, which, in turn, will decide the nature of the goods, the purchasing dealer cannot claim payment of sales tax at the concessional rate of two per cent treating oxygen gas as raw material under the garb of the two notifications dated September 9, 1983 and February 3, 1986. Therefore, demand notices are perfectly justified. Appeal dismissed.

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• 2007 (11) TMI 581
  

  Inter-State sales originated from Pondicherry to the State of Bihar in execution of works contract - whether are exigible to sales tax to Pondicherry jurisdiction under Central Sales Tax Act, 1956?

  Held that:- As noticed, the goods in question which was sent from Pondicherry to Bihar are admittedly iron and steel being declared goods under section 14 of the Central Sales Tax Act, 1956 and the same was taxed under the provisions of section 5 of the Act. Further, at the time of movement of goods from Pondicherry to Bihar, no proper mechanism was evolved under the local law for assessment in respect of the works contract. Therefore, the order of assessment passed by the assessing authority is illegal, arbitrary and cannot be sustained in law.

  For the reasons aforesaid, this application is allowed and the impugned order of assessment is set aside. It is held that no further sales tax is payable in respect of the goods in question used in the works contract.

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• 2007 (11) TMI 580
  

  Imposition of penalty under section 15A(1)(o) of the U.P. Trade Tax Act - Held that:- The order of the Tribunal suffers from no error of law and no question of law arises in this revision.

  The imposition of penalty in the present case under section 15A(1)(o) is fully justified. This revision is dismissed.

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• 2007 (11) TMI 579
  
  Issues involved: Challenge to delay in filing appeals before Appellate Assistant Commissioner u/s 31(1) of Tamil Nadu General Sales Tax Act, 1959.
  
  Summary:
  The petitioner, an unregistered dealer, supplied stone ballast to Southern Railway and received payments during certain years. The assessing officer proposed to assess the petitioner for those years as the petitioner did not file any return or pay tax. The petitioner did not object to the pre-assessment notice or appear before the assessing officer. The assessing officer assessed the tax and levied penalties. The petitioner filed appeals after a delay, citing mental illness as the reason. The Appellate Assistant Commissioner rejected the appeals due to the delay. The Tamil Nadu Taxation Special Tribunal also rejected the petitions filed by the petitioner. The High Court set aside the assessment orders and Tribunal's orders, directing the petitioner to appear before the assessing officer with relevant documents to substantiate the claim for exemption under statutory provisions. Cooperation with the assessing authority was mandated, with consequences for failure to appear. The writ petitions were disposed of with observations.

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• 2007 (11) TMI 578
  

  Garnishee notices/demand notices challenged - Held that:- On a comprehensive examination of the petition pleadings, conduct of the petitioner, contents of the policy and the actions of the respondentauthorities, it emerges that the petitioner is not at all a bona fide person seeking for any valid relief; that the petition is more misusing the process of this court only to stall the recovery of quantified tax that the petitioner had collected from the customers on behalf of the State but failed to remit it to the State treasury, the petition is totally devoid of merits and in such circumstance, this writ petition deserves to be dismissed with exemplary costs, which is quantified at ₹ 1,00,000 (rupees one lakh only).

  In such circumstance, the Secretary to Government, Finance Department and the Commissioner of Commercial Taxes in Karnataka, are directed to cause a proper enquiry into such state of affairs particularly to ascertain who are the officers/officials of the department who are responsible for not realising the tax due from the petitioner for the years 2002-03 and 2003-04 and even up to date and as to their conduct in not realising he amount due to the State and take commensurate action, if it is found that there is any violation or misconduct on their part. A follow-up report is to be placed before the registry of this court in this regard within a period of six months from today. On and after submission of such report, the report may be placed before this court for further orders. W.P. dismissed.

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• 2007 (11) TMI 577
  

  Exemption under section 8(5) of the CST Act - Held that:- The intraocular lenses is exempt from tax and taking note of section 8(2A) of the CST Act, the petitioner has made out a prima facie case, and when the issue is pending before the appellate authority as regards the liability of the petitioner to pay the penalty, it would not be appropriate to impose stringent conditions on the petitioner.

  Having regard to the submissions that the petitioner has already paid 25 per cent of the disputed tax and complied with the first condition imposed in the conditional order of stay and the financial constraint expressed by the petitioner, it is suffice that the petitioner is directed to offer sufficient security in form of personal bond to the satisfaction of the assessing officer, in respect of the amounts due and payable towards balance of tax at ₹ 1,72,449 and penalty of ₹ 5,17,347, totaling of ₹ 6,89,796 (rupees six lakhs eighty nine thousand seven hundred and ninety six only), within a period of three weeks from today, failing which, the writ petition stands dismissed without further reference to this court.

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• 2007 (11) TMI 576
  

  Benefit of sales tax concession withdrawn - Held that:- The HLSC after taking into account all the conditions appears to have issued and approved the case of the petitioner-industrial unit as a new industrial unit eligible for sales tax concession to the tune of ₹ 885.15 lacs which is 100 per cent of total FCI for a period of 10 years from the date of issue of entitlement certificate for manufacturing of automobile accessories namely: catalytic of manufacture converters falling under NIC Board manufacture of parts and accessories NEC for transport equipment NEC. A perusal of letter dated March 18, 2005 (annexure P 14) further shows that the aforementioned decision was taken by HLSC in its 89th meeting held on December 6, 2004.

  A review is by no means an appeal as disguised whereby an erroneous decision is reheard and corrected. Review lies only for a patent error as apparent from the face of record. Therefore, we find that the HLSC has admittedly made an attempt to correct erroneous decision particularly the issue, which has been adjudicated upon, therefore, the impugned order dated June 7, 2007 (annexure P 17) is liable to be set aside.

  For the reasons aforementioned, this petition succeeds. Order dated June 7, 2007 (annexure P 17) passed by HLSC in its 99th meeting [withdrawn the benefit of sales tax concession of ₹ 885.15 lacs, granted in favour of the petitioner-company pursuant to the decision of the HLSC that was taken in the 89th meeting, held on December 6, 2004 (P 17)] is hereby quashed and the order dated December 6, 2004 taken by HLSC in its 89th meeting is restored.

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• 2007 (11) TMI 575
  

  Sales tax on palmolive oil - refund claim petition - interest on non late payment of refund - Held that:- . Section 33F(2) lays down that when refund is withheld under the provisions of section 33C, as was done in the present case, the State Government shall pay interest at the aforesaid rate on the amount of refund ultimately determined to be due as a result of the appeal or further proceedings for the period commencing after six months from the date of order referred in section 33C of the Act, to the date the refund was granted.

  It becomes clear that as a result of further appeal, the point of reference would be the order made under section 33C of the Act. So, the interest, in our view, would be payable from a date after six months of the order having been passed under section 33C of the Act, withholding the refund. In the present case, the order withholding the interest was passed on February 4, 1998. W.P. allowed and the petitioner is held entitled to interest at the rate of 12 per cent per annum on ₹ 1,86,811 (Rupees one lakh eighty six thousand eight hundred and eleven only) from August 4, 1998 till January 18, 2006.

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• 2007 (11) TMI 574
  

  Excess tax paid without refunding the same or adjusting the same against the surcharge payable - Held that:- In the present case the tax paid at compounded rate by the assessee is under section 7 of the Act wherein the question of any deduction of tax does not arise. Further the assessee has no option in the matter of deduction at source, since even the statute mandates the awarder to deduct at source. So ultimately if it is found, at the time of assessment, any further tax liability, certainly the assessee will be obliged to pay such excess and if it is found that such tax paid before the completion of the assessment is in excess over his liability, necessarily he should be given refund of the amount after adjusting any balance due or surcharge due under the order of assessment. In this case, there is a further liability on the assessee to pay surcharge. Therefore, whatever excess amount paid by him has to be adjusted against the surcharge payable and if there is any further excess, necessarily the assessee is entitled for refund of the same. The confirmation under section 7(12) of the Act in such circumstances, is wholly unauthorised and without juris- diction. The assessment orders to the extent confirmation under section 7(12) are set aside.

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• 2007 (11) TMI 573
  

  Exemption from payment of sales tax in terms of S.R.O. No. 1729 of 1993 as amended by S.R.O. No. 1092 of 1999 and modified by S.R.O. No. 295 of 2000 denied

  Held that:- The activity carried on by the petitioner in its unit at Kanjikode, Palakkad, engaged in the production of soft drinks is a manufacturing activity within the meaning of S.R.O. No. 1729 of 1993.

  In terms of the scheme for exemption from payment of tax as contained in S.R.O. No. 1729 of 1993, the certificate of eligibility to be issued by the Director is intended only to certify the actual commencement of commercial production of the unit before the cut-off date and the monetary limit of tax exemption that the unit would be eligible for. At the same time the Director of Industries is not required to certify the entitlement of the unit for tax exemption.

  The entitlement of the unit for exemption from payment of tax is to be certified by the Deputy Commissioner of Sales Tax, in S.R.O. No. 1729 of 1993. Such certification of the entitlement is to be contained in the exemption certificate issued by the Deputy Commissioner.

  Exhibit P24 order passed by the Deputy Commissioner cannot be said to be without jurisdiction. It is with jurisdiction and the finding therein to the effect that the petitioner has not satisfied the conditions mentioned in S.R.O. No. 1729 of 1993 as amended by S.R.O. No. 1092 of 1999 and modified by S.R.O. No. 295 of 2000 is correct and justified. The said finding does not require any interference.

  Exhibit P24 is therefore upheld subject to the finding in para (i) above, viz., the activity carried on by the petitioner in its unit for the production of soft drinks is a manufacturing activity within the meaning of S.R.O. No. 1729 of 1993.

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