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Judgments

Bharath Rock Products, Represented By Its Managing Partner, V. V. Devassykutty vs Commercial Tax Officer, Angamaly and others  [KERALA HIGH COURT, 22 Aug 2014]

Eureka Forbes Limited vs Assistant Commissioner Special Circle-II, Cochin and others  [KERALA HIGH COURT, 21 Aug 2014]

K. V. Johny vs State of Kerala, Represented by Secretary to Government and others  [KERALA HIGH COURT, 08 Aug 2014]

Kuchhal Enterprises vs Commissioner of Trade and Taxes  [DELHI HIGH COURT, 07 Aug 2014]

S. Muthiah and others vs S. K. Prabakar and others  [MADRAS HIGH COURT, 06 Aug 2014]

Asstt. Commercial Taxes Officer vs National Agriculture Co-operative Marketing Federation of India Limited  [RAJASTHAN HIGH COURT, 04 Aug 2014]

Exide Industries Limited vs State of Maharashtra and others  [BOMBAY HIGH COURT, 04 Aug 2014]
Sales Tax - Indirect Tax - Bombay Sales Tax Act, 1959 - Central Sales Tax Act, 1956, s.5(3) - Sale Tax - Applicability - Petition was filed u/art.226 of the Constitution of India challenging the order of revision dt. 25-5-2011 passed by respondent No.3 and the consequent demand notice of the same date, demanding an amount of Rs.2,16,98,270/- under the 1959 Act - Challenge was also laid to the order of Tribunal in appeal confirming the demand of sales tax - Whether the sale of Submarine Navy Batteries by the petitioner to M/s Crown would fall within the purview of section 5(3) of 1956 Act, being the penultimate sale to the one that actually occasioned the export of the Submarine Navy Batteries -

Held, keeping in mind the provisions of ss.5(3) and 2(g) of 1956 Act, HC had to decide whether the purchase order/agreement dt. 5-3-2004 placed by M/s Crown on the petitioner would be a 'sale' as contemplated u/s.5(3) r/w s.2(g) of 1956 Act as contended by the Revenue, or whether selling and supplying the Submarine Navy Batteries to M/s Crown on 14-9-2004 would fall within the word 'sale' as contemplated under the said provisions - It was clear that the purchase order/agreement dt. 5-3-2004 between the petitioner and M/s Crown could never be construed as a 'sale' as contemplated under the provisions of s.5(3) of 1956 Act - S.2(g) of 1956 Act defined the word 'sale' to mean any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration and includes transfers as more particularly set out in s.2(g)(i) to (vi) of 1956 Act - HC did not find that the purchase order / agreement dt. 5-3-2004 could by any stretch of the imagination fall within the definition of the word 'sale' in s.2(g) of 1956 Act - That was for the simple reason that the word 'sale' contemplated inter alia transfer of the goods or a transfer of the right to use any goods for any purpose or delivery or supply of goods by one person to another - In the peculiar facts of the case and after carefully perusing the purchase order/agreement dt. 5-3-2004 between the petitioner and M/s Crown, HC was of the view that there was no 'sale' of the Submarine Navy Batteries by virtue of the said purchase order/agreement - In the facts of the instant case, there was no transfer of goods as contemplated under Section 2(g) of 1956 Act - On a perusal of the said agreement and its various clauses, at the highest, it could be said that the same amounts to an 'agreement to sell', that might be performed at a future date by the petitioner - It was the performance that translated into a 'sale' of the Submarine Navy Batteries - Thus, HC found that in performance of the purchase order / agreement dt. 5-3-2004, the petitioner sold and supplied the Submarine Navy Batteries to M/s Crown on 14-9-2004 - That sale was after the date when the Algerian Navy placed its purchase order on M/s Crown - Purchase order placed by the Algerian Navy on M/s Crown was dt. 22-5-2004 - In that view of the matter, HC found that the sale of the Submarine Navy Batteries by the petitioner to M/s Crown was the 'last sale preceding the sale occasioning the export' as contemplated u/s.5(3) of 1956 Act and the same took place after, and for the purpose of complying with the purchase order dt. 25-5-2004, placed by the Algerian Navy on M/s Crown - In view thereof, the sale of Submarine Navy Batteries by the petitioner to M/s Crown on 14-9-2004 were deemed to be in the course of export as contemplated under section 5(3) of 1956 Act and therefore, could not be taxed as a local sale under the provisions of 1959 Act - Furthermore, in the instant case, the said purchase order/agreement made a reference that the sale of the said Submarine Navy Batteries was for the purpose of export to the Algerian Navy - It was for that reason that the technical conditions of the said purchase order provided that many of the instructions were to be printed not only in English but also in French - Thereafter, the Algerian Navy placed a purchase order on M/s Crown - To fulfill the order placed by the Algerian Navy on M/s Crown, petitioner sold & supplied the Submarine Navy Batteries to M/s Crown on 14-9-2004 - After perusing and construing the purchase orders dt. 5-3-2004 and 22-5-2004 as well as other documents referred to in the petition HC was of the opinion that there was an inextricable link between the contract of sale by the petitioner to M/s Crown on the one hand and the actual export by M/s Crown to the Algerian Navy on the other - In that view of the matter, the inescapable conclusion was that the sale of Submarine Navy Batteries by the petitioner to M/s Crown on 14-9-2004 was in the course of export and covered by the provisions of s.5(3) of 1956 Act - That being the position, HC found that taxing the said sale as a local sale under the provisions of 1959 Act was wholly without jurisdiction and contrary to law - Order accordingly.


BRD Finance Limited, Represented by its Authorized Signatory C. Shibu Job vs (1) District Collector, Thrissur; (2) Tahsildar, Thalappilly, Thrissur District; (3) Village Officer, Thrissur  [KERALA HIGH COURT, 01 Aug 2014]
Corporate - Sales Tax - Companies Act, 1956, ss. 529A and 530 - Kerala General Sales Tax Act, 1963, s. 26A - Issuance of certificates - Petitioner purchased an item of property owned by a company in liquidation - Sale of the property was pursuant tender notice issued by the Official Liquidator and the sale was confirmed by HC - Petitioner proposed to establish an industrial unit in the property, for which clearances were required to be obtained from various authorities - However, respondent No. 3 was not issuing the required certificates and instead, the respondent No. 3 issued communication, stating that revenue recovery proceedings were pending against the company in liquidation when the property was purchased by the petitioner and therefore, the validity of the transaction in favour of the petitioner need to be examined before the certificates sought for by the petitioner were issued - Hence, instant petition - Whether respondents be directed to issue the certificates sought for by them -

Held, sales tax dues were to be recovered by the State from the sale proceeds in accordance with the provisions in s. 529A of the 1956, Act - S. 26A of the 1963, Act could not prevail when it comes into collision with the mandates of s. 529A of the 1963, Act - Petitioner, in the circumstances, was entitled to succeed - Communication of the respondent No. 3 was quashed - Respondent Nos. 1 to 3 directed to issue the certificates sought for by the petitioner - Order accordingly.


Neel Kanth Sweets Vivek Khand Gomti Nagar Lucknow vs Commissioner Commercial Taxes Uttar Pradesh  [ALLAHABAD HIGH COURT, 01 Aug 2014]
VAT - Uttar Pradesh Value Added Tax Act, 2008, s. 57 - Preparation of food - Assessment to tax - Non-supply of inspection report - Tax Liability - Legality - Petitioner filed monthly returns as well as annual returns in form-26 which were verified and accepted by the assessing authority in his order in A/y 2008-09 under the Act - A survey of the business premises of petitioner was conducted but due to non-presence of any authorized persons, books of account could not be produced - However, an estimate of the stock was taken and certain loose papers, which were found on the premises were seized - However, Assessing Authority by its judgment assessment assessed the petitioner to a tax of Rs.37,43,116/- - Aggrieved petitioner filed a first appeal before Commissioner (Appeals), which was partly allowed and estimated turnover was reduced, resulting in tax liability being reduced by Rs.13,43,000/- - Aggrieved petitioner filed second appeal before Tribunal u/s. 57 of the Act - Tribunal by impugned order has remitted the matter again to assessing authority - Hence, instant revision petition - Petitioner contended that he was never confronted with the survey report nor a copy of the same was given to petitioner and thus the petitioner was completely in the dark with regard to the findings recorded by Commissioner in his survey report, the Appellate Authority, however, while passing the appellate order allowed a reduction in turn over resulting in a reduction in the tax liability to extent of 13,43,000/- -

Held, Assessing Authority while passing the order had relied entirely upon the SIB report and it was silent so far as material contained in the books of accounts which were produced by petitioner the material contained therein - Before the Tribunal though that matter was agitated but the same was rejected - On the question as to whether preparation of food amounts to 'manufacture' or not, the Tribunal has held that same amounts to 'manufacture' - However, Court need not go into that question at instant stage - In facts and circumstances of case, providing a copy of report of the SIB to petitioner during the assessment proceedings was absolutely imperative in order to enable the petitioner to prepare his defence - Having not done so the assessment order itself stands vitiated - In instant case since the Tribunal has itself remitted the matter to the assessing authority for consideration on certain questions, order of Tribunal deserves to be set aside - Order of Tribunal and the assessment order and Appellate order were set-aside - Matter was remitted to Assessing Authority with the direction that Assessing Authority should make a fresh assessment after providing a copy of SIB report to petitioner and after giving him an opportunity to submit his explanation to the same - Revision allowed.


(1) Bhagwati Prasad Agarwala, Engineering Works Private Limited, Pakur; (2) Ravi Engineering Works, Partnership Firm, through its Partner Raj Kumar Agarwala; (3) Vishal Industries, Partnership Firm, through its Partner Ravi Kumar Agarwal vs State of Jharkhand and others  [JHARKHAND HIGH COURT, 31 Jul 2014]

Poonam Grah Nirman Private Limited, Represented BY R. Anantha Narayanan, Managing Director vs (1) Commercial Tax Officer (Wc), Alappuzha; (2) Deputy Commissioner (Appeals), Kollam; (3) Inspecting Assistant Commissioner, Alappuzha; (4) Commissioner, Commercial Taxes, Thiruvananthapuram; (5) State of Kerala, Represented By Secretary, Thiruvananthapuram  [KERALA HIGH COURT, 25 Jul 2014]

Linde India Limited (Formerly Known As BOC India Limited), Represented by its Lead-Indirect Taxation N. Girish vs (1) State of Kerala, Represented by its Secretary to Government, Thiruvananthapuram; (2) Commissioner of Commercial Taxes, Thiruvananthapuram; (3) Deputy Commissioner (Appeals), Kochi; (4) Assistant Commissioner (Works Contract), Kochi; (5) Inspecting Assistant Commissioner, Kochi  [KERALA HIGH COURT, 24 Jul 2014]

Fort Kochi Hotels Private Limited, Represented by Its Director Praveen Rengaraj, Mumbai vs (1)State of Kerala, Represented by Its Deputy Revenue Secretary Secretariat, Thiruvananthapuram; (2) Special Tahsildar (R.R.), Fort Kochi; (3) Carrit Moran And Company Private Limited (In Liquidation) Represented by The Official Liquidator, Kolkatha; (4) Assistant Commissioner, Special Circle (P), Commercial Taxes, Mattancherry  [KERALA HIGH COURT, 23 Jul 2014]
Sales Tax - Corporate - Kerala Revenue Recovery Act, 1968 - Kerala General Sales Tax Act, 1963 - Revenue recovery proceedings - Petitioner purchased the subject property vide sale deed dtd. 30-11-2007 from respondent No. 3 - Petitioner, after purchase, constructed a building thereon and established a hotel, which was said to have commenced operation from 2009 and was still functioning - Petitioner was issued with revenue recovery notices, attaching the property and threatening sale, for recovery of the sales tax dues, of the respondent No. 3-Company on the basis of assessment orders passed against the respondent No. 3 - Petitioner had challenged the revenue recovery proceedings as provided under the Act - Petitioner's challenge were declined - Hence, instant petition - Whether petitioner was liable to pay -

Held, after 2006 there was no evidence placed on record to evidence any hearing having been conducted or a subsequent notice having been issued; for reason only of passage of time from the proceedings initiated in the year 2006 - Hence, series of assessment orders were passed without affording a reasonable opportunity to the assessee (respondent No. 3) to produce the books of accounts as also the declaration forms - Assessments having been completed without proper notice and without opportunity, series of assessment orders were liable to be set aside - Assessment orders have not been challenged by the assessee and was now assailed by the petitioner, whose concern was with the distress caused on the property, pursuant to the recovery initiated on the basis of the assessment orders - Orders passed by the authorities under the Act, since by the deposit of the amount as directed, the basis of the recovery under the Act, being the assessment orders against the respondent No. 3, stands effaced - Hence, the recovery based on series assessment orders necessary could not be proceeded with - On the assessment being completed after looking into the declaration forms, the liability, if any, would necessarily be a charge on the subject property covered by sale deed - Petition allowed.


Triveni Engicons Private Limited vs State of Jharkhand and others  [JHARKHAND HIGH COURT, 23 Jul 2014]

AMV Infrastructure and Properties Private Limited, Represented by its Managing Director, Anil Kumar Sharma vs (1) State of Kerala, Represented by its Secretary, Department of Finance, Thiruvananthapuram; (2) Deputy Commissioner, Commercial Taxes, Kochi; (3) Assisstant Commissioner (Works Contract), Ernakulam  [KERALA HIGH COURT, 22 Jul 2014]
VAT - Indirect Tax - Kerala Value Added Tax Act, 2003, s. 16 - Kerala Value Added Tax Rules, 2005, r. 17 - Cancellation of registration - Legality - Petitioner was incorporated with the object of carrying on the business of construction of villas and buildings - Though the petitioner-Company was incorporated on 1-10-2010, no registration under the Act was sought for, since the petitioner did not commence its business - Subsequently, in the year 2013 the petitioner applied for registration under the Act, which was granted - Later on notice was issued, stating that the petitioner had deliberately failed in filing the statutory returns for the return periods 2010-11 to 2013-14 as prescribed u/s. 20(1) of the Act - Subsequently, order was passed cancelling registration - Hence, instant petition - Whether failure on the part of the dealer, to file returns for the earlier periods, was a good and valid reason for cancellation u/s. 16(10) of the Act r/w r. 17(18) of the Rules -

Held, mere failure to file returns could not be considered to be good and sufficient reason; as had been enumerated in r. 17(18) of the Rules - In the instant case, dealer obtained registration only in March, 2014 - Returns, which ought to have been filed by the dealer, related to the earlier periods, since the dealer was declared to have commenced the business from 1-10-2010 - In such circumstance, r. 17(18)(iv) of the Rules could not be relied on by the State to contend that the returns were not filed as stipulated in the Act and the Rules, since the obligation to file the returns for the earlier periods arose only on the subsequent registration granted - Cancellation of registration set aside - Assessing Officer was directed to re-activate the system - Petition allowed.


Godrej and Boyce Manufacturing Company Limited vs State of Uttar Pradesh and others  [ALLAHABAD HIGH COURT, 21 Jul 2014]

Rajsheel Society vs Commissioner of Commercial Tax Counsel  [ALLAHABAD HIGH COURT, 17 Jul 2014]

Johny Paul S/o Paul vs (1) State of Kerala, Represented by Secretary To Government, Department of Local Self Government, Thiruvananthapuram; (2) Commissioner of Land Revenue, Public Office Building, Thiruvananthapuram; (3) Assistant Commissioner (Assessment), Office of The Assistant Commissioner (Assessment), Mattancherry; (4) Assistant Commissioner, Vat Special Circle (Produce), Department of Commercial Taxes, Mattancherry; (5) District Collector, Ernakulam, Collectorate, Civil Station, Kakkanadu, Ernakulam  [KERALA HIGH COURT, 17 Jul 2014]
Sales Tax - Corporate - Revenue sale of properties - Realisation of sales tax arrears - Petitioner was a defaulter of payment of sales tax for the periods 1998-99 and 1999-2000 to the tune of 20,08,440/ as on 22-2-2006 - Petitioner's property were brought to sale by initiating revenue recovery proceedings by the respondent No. 6 dividing the property into four plots - Petitioner alleged that as per Amnesty Scheme, the petitioner was allowed to settle his entire sale tax dues for an amount of 32,34,101/ and, therefore, the said amount to be adjusted towards the sale consideration of 36,10,000/ received out of sale on Plot Nos.2 and 3 and the balance sum of 3,75,899/ to be repaid to the petitioner - (A) Whether benefit of the Amnesty Scheme to be extended to petitioner -

Held, petitioner failed to perform the conditions of the Amnesty Scheme - Petitioner did not remit the first installment in time - Therefore, the authorities had no option, but to proceed with the recovery - As the petitioner did not pay the amount as stipulated in the intimation, the intimation was cancelled with due notice to the petitioner - Therefore, now the petitioner could not state that the benefit of the Amnesty Scheme to be extended to him and the amount arrived at by the authorities concerned to be adjusted against the sale proceeds of Plot Nos.2 and 3.

(B) Whether the sale in respect of Plot No.4 was valid -

Held, Plot Nos.2 and 3 were sold in auction after one year and 8 months from the date of sale of Plot No.4 - Petitioner had no complaint against the sale and centage value of Plot Nos.2 and 3 - Therefore, it could be seen that no prejudice had been caused to the petitioner and no loss was sustained - Petitioner not entitled to get the relief as prayed - Order accordingly.


IRCON International Limited, New Delhi vs State of Uttar Pradesh Through its Secretary Institute Finance, Babu Bhawan and others  [ALLAHABAD HIGH COURT, 14 Jul 2014]

Parisons Agrotech Private Limited, Represented by its Director N. K. Haris, Kozhikode vs State of Kerala, Represented by The Secretary To Government, Taxes Department, Secretariat, Thiruvananthapuram  [KERALA HIGH COURT, 10 Jul 2014]
Indirect Tax - Sales Tax - Kerala General Sales Tax Act, 1963, s. 63 - Appellant was a registered assessee - Assessment in the year in question was completed on 24-1-2009 fixing the total and taxable turnover of Rs.19,90,425/ - Notice dtd. 10-8-2010 was issued proposing to disallow the claim of stock transfer amounting to Rs.6,38,18,405/ and to assess the same as interstate sale - In the original assessment exemption was granted to the appellant on the basis of 'F' Forms issued by the consignment agent of the appellant - Said 'F' Forms were issued and were acted upon by the assessing officer - According to the revenue, subsequently it was understood that 'F' Forms had been invalidated - It was on the said basis that the order was sought to be revised u/s. 37 of the Act - Commissioner by the impugned order found that in the instant case the 'F' Form declaration was invalid at the point of issue itself, but information came about the invalidity only subsequently - Hence, instant appeal - Whether the Commissioner of Commercial Taxes was right in invoking the powers conferred u/s. 37 of the Act on the material which was not available with the assessing authority at the time of passing of the order -

Held, instant was a case where the assessment was completed granting exemption to a substantial turnover on the basis that there was no interstate sale and the matter was covered by 'F' Forms - Assessment was completed by order dtd. 24-1-2009, which was subsequent to the invalidation of the 'F' Forms being intimated was the finding of the Commissioner - This was not a case where at the time of the transaction entered into the F Form was valid as per intimation subsequently received and it was cancelled subsequently and the case of the revenue, on the other hand, was that the invalidation was there at the point of issue and the information was received only subsequently - Subsequent receipt of materials which show the original order to be passed against the interest of revenue, would suffice for the Commissioner to exercise power u/s. 37 of the Act - Impugned order upheld - Appeal dismissed.


Modern Dairies Limited vs State of Haryana and another  [PUNJAB AND HARYANA HIGH COURT, 10 Jul 2014]

Larsen and Toubro Limited W/o Late V. R. Vidyadhar vs (1) State of Karnataka, REPresented by Principal Secretary to Government Finance Department Government of Karnataka Vidhana Soudha Bangalore; (2) Commissioner of Commercial Taxes Karnataka, Vanijya Therige Karyalaya Gandhinagar, Bangalore; (3) Deputy Commissioner of Commercial Taxes, Yeshwanthpur Bangalore  [KARNATAKA HIGH COURT, 09 Jul 2014]
Income Tax & Direct Taxes - VAT - Practice & Procedure - Karnataka Value Added Tax Act, 2003, s. 39 - Re-assessment - Quashing of - Petitioner filed returns for assessment - Respondent no. 3/Deputy Commissioner of Commercial Taxes passed Re-assessment order - Hence instant petition - Whether impugned order passed by respondent was liable to be quashed - Held, HC perused impugned order - It was noted by respondent no. 3 authority that petitioner had in fact sought personal hearing and in matter, relevant extracts of reply re-made in impugned order - From impugned order, it was not forthcoming as to on which petitioner appeared through its authorized representative before respondent no. 3 - Petitioner has reiterated its stand in personal hearing granted to it - But in absence of there being any personal hearing in matter, recording of fact that there was in fact personal hearing was incorrect and could not be accepted - Petitioner was seeking an opportunity of being heard in person so that case of petitioner could be explained to respondent no. 3 authority and having regard to innumerable details which had to be explained by petitioner, respondent no. 3 ought to have granted personal hearing to petitioner - Impugned order was set aside petitioner was directed to appear before respondent no. 3 - Petition disposed of.
Harvel Agua India Private Limited vs State of Himachal Pradesh and others  [HIMACHAL PRADESH HIGH COURT, 09 Jul 2014]
VAT - H.P. VAT Act, 2005, s. 9 - Code of Civil Procedure, 1908, O.47 r. 1, ss. 114, 151 - Review petition - Tax exemption - Entitlement - Petitioner claimed that he was supplying sprinklers from outside the State for which sale, the invoices were being raised from Gurgoan and the supply was being made to the farmers in Himachal, the same was inter-State sale and fell under the category 'agricultural implement, manually operated or animal driven' and was therefore, specifically exempted from tax under Schedule 'B' notified by the State of Himachal Pradesh u/s. 9 of the VAT Act - Said contention of petitioner was negated by the judgement under review - Hence instant review petition - Whether impugned order could be reviewed as claimed and whether claim of petitioner was exempted from tax -

Held, it was found by the AO that company had created false documents by generating invoices in the names of the farmers from the State of Haryana - While in fact, the goods were transported to the State of Himachal Pradesh and the name of consigner was declared the department of agriculture - Whereas it was proved on record that company was not supplying the agriculture implements i.e. manually operated and animal driven agriculture, rather installing a complete irrigation system which required material like pipes, joints, sockets, sprinklers etc. and these were not exempted from tax (VAT) - Petitioner for all purposes had made intra-State sales, which were liable to payment of VAT - Thereafter by detailed analysis of the factual and legal aspects, HC further came to a categorical conclusion that sprinkler in question was not an agriculture implement nor it was driven manually or by animal and therefore, was not exempted from tax in Schedule-B of the Act and consequently petitioner was not entitled to exemption of tax - Petitioner failed to make out a case within the four corners of s. 114 r/w O. 47 r. 1 and s. 151 CPC - Review dismissed.


Ricoh India Limited Lucknow Through its Branch Finance Manager vs Commissioner Commercial Taxes Uttar Pradesh Vibhuti Khand Gomti  [ALLAHABAD HIGH COURT, 08 Jul 2014]
VAT - Indirect Tax - Uttar Pradesh Value Added Tax Act, 2008, s. 57 - A/y 2009-10 - Reopening of assessment order - Stay - Respondent (authority) reopened the assessment case of petitioner (Company) for A/y 2009-10 and thereafter proceeded to assess the tax - First Appellant Authority on the application granted a stay to the extent of 60% - Order of Appellant Authority was assailed by petitioner before Tribunal on the ground that during inspection by the SIB forms 38 and 39 were found but the same did not belong to petitioner and infact referred to Transporter 'S' - Tribunal granted stay to the extent of 75% - Aggrieved petitioner filed instant revision petition only against the grant of stay to the extent of 75% - Petitioner contended that in Trade Tax Revision no. 70 of 2012, Court had modified order of Commercial Tax Tribunal by order dt.23-5-2012 to the extent that petitioner was directed to furnish the bank guarantee of the remaining 15% amount within a period of 15 days -

Held, since the company was the same and stand taken by petitioner with regard to its financial status was the same as taken in the revision no. 70 of 2012, petitioner being same Company was entitled to the benefit of the relief as granted in the Trade Tax Revision no. 70 of 2012 - Impugned order was modified to the extent that petitioner should furnish bank guarantee of remaining 25% of the amount within a period of 15 days - Revision disposed of.


Carrier Aircon Limited (Now Known As Carrier Air Conditioning and Refrigeration Limited) vs Commissioner of Trade and Taxes  [DELHI HIGH COURT, 07 Jul 2014]



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