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Showing 141 to 160 of 654 Records
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2007 (11) TMI 572
Tooth pastes - whether or not medicated or as defined under the Drugs and Cosmetics Act, 1940? - Held that:- We do not find any justifiable ground to accept the contention of the petitioner to hold the items in question as medicinal preparation by the mere application of the decision relied on by the assessee-petitioner herein without any factual basis to hold so.
Considering the fact that the proceedings challenged before this court are at the stage of assessment, the contention now raised before this court merits to be taken before the assessing authority concerned for consideration on merits. If there is any delay on the part of the petitioner in filing the objections on the said date, it is open to the assessing officer to pass necessary orders on merits and complete the proceedings.
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2007 (11) TMI 571
Entry of goods to the local area - Whether the authorities were right in holding that the petitioner had caused entry of chassis on behalf of the K.S.R.T.C. and liable to pay entry tax for causing the entry of chassis into local area, wherein in fact, the petitioner had not caused the entry of chassis into the local area? - Held that:- If the petitioner has not done anything except building the body on the chassis supplied by the K.S.R.T.C. within its premises, we are of the opinion that sub-section (2) of section 3 of the Act and the Explanation thereto does not attract the petitioner to pay tax since it has not caused any entry of goods to the local area. The authorities by misappreciation of the facts of the case, have wrongly called upon the petitioner to pay the tax.
In the circumstances, we answer the question of law raised in this petition in favour of the assessee
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2007 (11) TMI 570
Discretion exercised by the Commissioner of Commercial Taxes - Held that:- Where statute provides that an individual should be given a reasonable opportunity before any decision is taken, then the decision taken by the authority can be termed as quasi-judicial. In the absence of any specific provision laying down a procedure of affording an opportunity, there is no need to provide personal hearing before deciding an application under section 28A of the Act. The decision of the Commissioner of the Commercial Taxes, dated July 24, 2006 cannot be termed as arbitrary or unjust. Therefore, in the absence of any procedural violation, the discretion exercised by the Commissioner of Commercial Taxes, is reasonable, fair and in conformity with section 28A of the Act, do not find that any valid reasons to hold that the impugned clarification is arbitrary and illegal.
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2007 (11) TMI 569
Levy tax at the rate of eight per cent on the compact discs sold - Held that:- Recourse to a remedy under article 226 of the Constitution of India is permissible, if the petitioner applies for enforcement of the fundamental rights; where there is violation of the principles of natural justice or where the orders of proceedings are wholly without jurisdiction or vires of an Act is challenged. Whether the petitioner had sold "writable compact disc" or "video compact disk" is a matter of evidence and therefore, this court would not venture to deal with the factual aspects. The order impugned in this writ petition cannot be termed as unfair or unreasonable or defies reason. Where factual adjudication of the matter is necessary, writ petition would not be the proper remedy. The petitioner has not satisfied any one of the parameters to avail the extraordinary remedy provided under writ jurisdiction. W.P. dismissed.
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2007 (11) TMI 568
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the plastic boxes sold by the dealer are taxable at the rate of 2.5 per cent as jewellery boxes ?
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to accept the account books of the dealer despite the adverse material found at the time of survey on July 24, 1998 indicating otherwise ?
Held that:- In the present case, there is no evidence to establish that the so-called jewellery boxes which were actually plastic boxes were being sold along with the jewellery. That could only have been so if the jeweller who was selling ornaments was selling the jewellery boxes along with the ornaments. In the absence of any evidence to establish this fact that the packing material, i.e., the alleged jewellery boxes were being sold with the jewellery, it was not justified on the part of the Tribunal to come to the conclusion that in this case the benefit of section 3AB could have been given to the assessee.
Therefore, the conclusion of the Tribunal on both counts is bad and not justified. There is no finding whatsoever on record that the plastic boxes were the packing material which was being sold along with the jewellery. Therefore, hold that the order of the Tribunal is bad and not justified. Both the questions are thus answered in favour of the revisionist and against the assessee.
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2007 (11) TMI 567
Tax on differential turnover - whether the Pioma Industries, i.e., the petitioner herein and M/s Rasna Private Limited are related or they are two independent concerns in order to bring them within the purview of section 2(1)(s)(iv) of the APGST Act?
Held that:- In order to bring within the scope of the amended provisions of section 2(1)(s)(iv) of the APGST Act the Revenue is required to establish the case as indicated in Atic's case [1984 (6) TMI 51 - SUPREME COURT OF INDIA]. It has been further made clear that the dealer sought to be brought under the amended provision must have interest in the business of the dealer alleged to be the related person and in turn the dealer alleged to be the related person to the petitioner-appellant should have interest in the business of each other, which means mutuality of interest.
W.P. allowed and remanded. Set aside the impugned order dated March 31, 2007 passed by the first respondent and remit the matter to the first respondent with a direction to pass appropriate orders in accordance with law with reference to the findings of the Supreme Court in Atic's case [supra] as directed by the Tribunal, within a period of eight weeks from the date of receipt of a copy of this order. Counsel for the petitioner is given liberty to produce necessary material to satisfy the first respondent on the point whether the two concerns viz., Pioma Industries and Rasna Private Limited come within the purview of clause (iv) of the Explanation to section 2(l)(s) of the Act or not
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2007 (11) TMI 566
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... ... ..... nsignment was sent to them. The petitioner or Birla Tyres did not even take care to retain or preserve the unused transit declaration and could not produce the said declaration at the time of hearing of the penalty proceeding. The petitioner 39 s conduct is also blameworthy although it did not result in any possibility of loss of revenue or actual loss of revenue. For the reasons aforesaid we exercise our discretion and set aside the impugned order of penalty subject to the condition that the petitioner will pay a sum of Rs. 30,000 to the Commissioner of Commercial Taxes as a measure of deterrence. The petitioner will deposit said sum of Rs. 30,000 by December 31, 2007 in favour of the Commissioner of Commercial Taxes. Our order setting aside the impugned order of penalty will, however, take effect on and from the date of payment of aforementioned amount of Rs. 30,000. Application is thus disposed of. No order as to costs. DEB KUMAR CHAKRABORTI (Technical Member). - I agree.
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2007 (11) TMI 565
Power of the State to levy purchase tax under section 7A on goods purchased, the sale of which enjoyed exemption under the notification issued under section 17 and sent on consignment basis to outside the State otherwise by way of sale under section 7A(1)(c) of the Tamil Nadu General Sales Tax Act, 1959 - Wheteher is unconstitutional and beyond the legislative competence of the State under entry 54, List II of the Seventh Schedule to the Constitution of India and ultra vires entry 92B of List I of the Seventh Schedule to the Constitution and void as repugnant to article 14, violative of article 301 and not saved by article 304(b) of the Constitution of India?
Held that:- The charge under section 7A need not be necessary to check exemption but certainly it is pointing at the loophole caused by the circumstances stated under section 7A. If the goods are not available in the State for subsequent taxation by reason of the circumstances mentioned in section 7A(1)(a),(b),(c), then the purchaser is made liable under section 7A.
Taxation, as such, is not an infringement of the freedom guaranteed by article 301. Yet, it is settled law that tax laws are not outside the purview of Part XIII of the Constitution.However, where the levy is not discriminatory or restrictive or having a direct and immediate restriction on the trade and intercourse, on a mere inconsequential indirect remote impediment, the levy cannot be struck down under article 301. The flow of trade and commerce depends upon a variety of factors like location, availability of market, materials and other infrastructural facilities. In the circumstances, we do not find any basis to sustain this objection that the levy is restrictive of the trade and commerce. As to the contention based on article 304(b), unless and until the petitioner is able to show that the provisions of article 301 or 303 are offended, the question of invoking article 304(b) does not arise. The contentions of the petitioner cannot be upheld and the same is rejected.
As already held "that section 7A is at once a charging as well as a remedial provision. Its main object is to plug leakage and prevent evasion of tax". Assessee appeal dismissed.
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2007 (11) TMI 564
Sales Tax Incentive Scheme - interpretation - Proceedings under clause 9(b) of the Incentive Scheme, 1987 - breach of conditions contained in clause 4(e)(i) - Held that: - In view of the subsequent amendment in the Scheme, the very foundation of the recovery proceedings initiated against the petitioner vide communication dated September 15, 2007 issued by the Additional Commissioner (VAT and IT), Commercial Taxes, Jaipur, for alleged breach of condition does not survive. The impugned communication/notice issued by the Additional Commissioner (VAT and IT) and District Level Screening Committee ignoring the said amendment is not sustainable in the eye of law - petition allowed.
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2007 (11) TMI 563
Whether section 5 of the Limitation Act would be applicable, when an application is moved under the first proviso to sub-section (1) of section 61 of the Act?
Held that:- The Act expressly and/or by necessary implication excludes the power of the High Court to condone the delay in making application beyond the period of limitation of 90 days, except to the extent of sections 4 and 12 of the Limitation Act. This being the position, the mere fact that the law was understood otherwise is immaterial. On a reading of the provisions of the Act, the court has no jurisdiction to entertain an application beyond 90 days, except to the extent of considering the period under sections 4 and 12 of the Limitation Act. In the light of above discussion, the notice of motion for condonation of delay of 130 days is not maintainable and consequently the motion is dismissed. As the motion is dismissed, consequently, the application for reference is dismissed as not maintainable.
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2007 (11) TMI 562
Undervaluation - non payment of duty - Held that:- In view of the orders passed by the Commissioner of Income-tax (Appeals), Chennai, dated March 31, 1998 holding that there are contradictory statements made by the witnesses examined by the Central excise authorities, reliance placed on such statements, by the assessing officer to revise the taxable turnover, is not proper. Therefore, in the interest of justice, the petitioner should be given an opportunity to place before the Appellate Tribunal, the orders passed by the CEGAT and the Commissioner of Income-tax (Appeals), Chennai in Appeal Nos. 198 and 199/199798, dated March 31, 1998 to prove their case that there was no undervaluation.
In so far as issue relating to removal of veneers without payment of duty, during the year 1991, local sales made to Tvl. Duoesty, Madras were not billed and accounted for and treated as suppression under the Tamil Nadu General Sales Tax Act for the year 1990-91, the petitioner shall pay a sum of ₹ 50,000 towards the tax element and on such payment, the appellate authority shall consider the issue afresh. Appeal allowed and the matter is remitted back to the appellate authority to dispose of the appeal in accordance with the statutory provisions, within a period of six weeks from the date of receipt of a copy of this order.
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2007 (11) TMI 561
Revision of assessment - denial of the copies of the records and an opportunity of cross-examining the persons, on whose statements the enforcement authorities had arrived at their conclusions to fasten the liability on the dealers such as the petitioners?
Held that:- Considering the submissions made by the learned counsels appearing on behalf of the parties concerned and on analysing the cases cited and in view of the facts and circumstances in which the present writ petitions have arisen, this court is of the considered view that the petitioners have an alternate appellate remedy in accordance with law to seek for the reliefs sought for by them. Once it is accepted that the petitioners have the appellate remedy, it is not open to them to come before this court by way of filing the writ petitions under article 226 of the Constitution of India, unless it is clearly shown that the impugned orders have been passed by the respondent by following the law, which is ultra vires or in violation of the principles of natural justice.
Thus the petitioners have not shown sufficient reason or cause for this court to interfere by setting aside the impugned orders of the respondent, while a statutory appeal remedy is available to the aggrieved parties
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2007 (11) TMI 560
Participation in auction - Notification dated June 11, 2007 challenged - Held that:- High Court shall not adopt any generous and casual approach in applying the right to livelihood under article 21 of the Constitution of India to a case involving contractual dispute. In this case, the petitioner, having agreed to the terms and conditions of the notification and consciously participated in the auction and his bid was also confirmed is estopped from seeking any relief contrary to the tender notification. The tender conditions cannot be altered after the parties entered into the arena.
The petitioner failed to comply with the conditions mentioned in the tender notification dated July 11, 2006, besides that the period of licence already expired and that the impugned notification dated June 11, 2007 was cancelled and fresh tender notification dated June 21, 2007 was issued by the third respondent in which the fourth respondent has offered the highest amount, this court is of the view that both the writ petitions are liable to be dismissed and accordingly, they are dismissed.
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2007 (11) TMI 559
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... ... ..... ticular model of the multifunctional digital copier is printing, i.e., the value of the printing components of the machine is more than the value of the other components together, it would be a computer peripheral falling within the description of HSN code 8471 appearing in entry No. 3 of Schedule C, Part II of the West Bengal VAT Act, 2003. The Commissioner in the impugned order committed error in holding that all kinds of multifunctional digital copier machines were not computer peripheral falling within the description of the HSN code No. 8471. So the impugned order needs modification. In modification of the impugned order we direct that if printer of any particular multifunctional digital copier is connectable with computer and if the principal function of the machine is printing, it would be a computer peripheral falling under HSN code 8471 appearing in entry No. 3 of the Schedule C, Part II of the W.B. VAT Act, 2003. DEB KUMAR CHAKRABORTI (Technical Member). - I agree.
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2007 (11) TMI 558
Reassessment proceeding under section 12(8) of the Orissa Sales Tax Act, 1947 challenged - Non-communication of reason for reopening of the assessment in writing to the petitioner - Held that:- As discussed the petitioner had rightly treated the royalty paid to the Government for procurement of tamarind from the leased out area as "purchase turnover" of the tamarind for the purpose of payment of tax under the Act.
the reason for reopening of the assessment has been indicated to the petitioner by the STO and only on that basis it has filed the present writ petition. It makes no difference even if the reason is not indicated in writing, but communicated to the dealer on its appearance before the assessing officer. Hence, the petitioner's challenge to the notice issued under section 12(8) of the Act on the ground of noncommunication of the reason for re-opening in writing fails.
But, the writ petition is allowed on the grounds discussed and the notice purported to have been issued under section 12(8) of the Act vide annexure 1 is quashed. There shall be no order as to costs.
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2007 (11) TMI 557
Constitutional validity of the West Bengal State Tax on Consumption of Goods Act, 2001 challenged - Held that:- The provisions of the West Bengal State Tax on Consumption or Use of Goods Act, 2001 levying tax on entry of goods into any local area from outside the State is violative of article 301 read with article 304 of the Constitution of India and ultra vires.
As the provisions of the impugned Act imposing tax on entry of goods imported from outside the State into local areas are declared ultra vires all impugned orders levying consumption tax on goods imported from outside the State by the petitioners in these applications and consequential demands are also set aside. Bank guarantees, if any, obtained from any of the petitioners in the present applications for securing consumption tax are directed to be released within one month from the date of communication of this order.
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2007 (11) TMI 556
Issues involved:
The judgment involves the interpretation of whether the sales were in the course of export of goods out of India and the applicability of a specific legal precedent to the case.
Interpretation of sales in the course of export:
The assessee exported shoes to USSR through the State Trading Corporation (STC) with all necessary documents submitted after the goods entered the export stream. The Tribunal considered the time taken for a ship to cross India's territorial waters and concluded that since payments were made after the goods crossed the territorial waters, the sales were deemed to have taken place in the high seas and in the exportation stream. A similar procedure was followed for goods sent by air, with payments made only after the goods left the customs frontiers of India by aircraft.
Applicability of legal precedent:
The Tribunal considered the decision in Mod. Serajuddin v. State of Orissa, where it was held that integrated transactions alone could not occasion the sale in the course of export of goods. In the present case, unlike in the mentioned precedent, the facts on record showed that the sale of goods took place after crossing the custom frontiers by both ship and aircraft.
Legal interpretation and conclusion:
Referring to section 5(1) of the Central Sales Tax Act, which deems a sale to take place in the course of export if it occasions such export or is effected after crossing customs frontiers, the Court found that the sales in this case occurred after the goods had crossed the customs frontiers by both ship and aircraft. As the Tribunal's factual determination was not challenged as perverse, the Court held that no sales tax would be leviable on the transactions, answering both questions in favor of the assessee and against the Revenue.
Disposition:
The reference under section 45(1) of the Act was disposed of accordingly, with the Court ruling in favor of the assessee based on the factual findings and legal interpretation presented.
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2007 (11) TMI 555
Whether the Trade Tax Tribunal had properly and correctly applied the test of the user and common parlance as prevalent in the commercial world while deciding the taxability of the goods in question?
Whether the Trade Tax Tribunal was legally justified in placing the reliance upon only literature furnished by the dealer in respect of the goods in question?
Whether the Trade Tax Tribunal was legally justified in holding the taxability of Emami Naturally Fair Cream/Lotion as a medicine?
Held that:- In this case, the second appellate authority has given no reason in coming to the conclusion it has reached that certain items may be classified either as medicines or cosmetics and this too must be done after giving due consideration to the evidences, which have been produced before it. The evidence has been furnished by the assessee by giving specific findings and reason. Therefore remand the matter to the Tribunal to apply "twin test" in the case of the assessee also. The Tribunal on remand may decide the issue in accordance with law, expeditiously.
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2007 (11) TMI 554
Whether the Appellate Tribunal correct in law in not holding that the revision petitioner is entitled for exemption from purchase tax under section 5A of the KGST Act for the turnover on the soft wood consumed for the manufacture of block board considering S.R.O. No. 403 of 99 as also clarificatory letters dated June 8, 2002 and June 29, 2002 from the Government?
Held that:- Taking into consideration the pathetic situation of the assessee and persons similarly placed, the State Government has issued a notification S.R.O. No. 593 of 2004 dated June 7, 2004 which has come into effect from January 1, 2000 granting exemption on the purchase turnover of soft wood, if the same is used in the manufacture of block board and block board frames. The State Government has also issued yet another notification S.R.O. No. 689 of 2007 dated July 6, 2007 which has been given retrospective effect from April 1, 1994 to December 31, 1999.
In view of these notifications, the State Government has clarified that the manufacturers of block board and block board frames who purchases and consumes soft wood are eligible and entitled for exemption under the notifications S.R.O. No. 403 of 1994, S. R.O. No. 593 of 2004 and S.R.O. No. 689 of 2007. In view of the notifications so issued by the State Government it is now difficult to sustain the orders passed by the Tribunal. Accordingly the sales tax revision is allowed. The matter is now remanded back to the assessing authority to redo the assessment in accordance with law and in the light of the notifications S.R.O. No. 403 of 1994, S.R.O. No. 593 of 2004 and S.R.O. No. 689 of 2007.
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2007 (11) TMI 553
Revision - period of limitation - Held that:- As in the present case, the Tribunal has held that the order of rectification passed on September 4, 1984 has been passed suo motu and it was not on any application made before the assessing authority, the order passed after a period of three years from May 30, 1981 was barred by limitation.
The revision has, therefore, no merit and is hereby dismissed.
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9911796707
