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Case Laws
Showing 61 to 80 of 153 Records
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1978 (9) TMI 93 - ITAT INDORE
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... ... ..... rh(1). Where land was used as a public high way as an access to a public garden. The Trust came to end with the garden ceasing to be public. Though technically it would be still possible to fulfil the objects of the Trust by selling off portions of the Trust properties to wipe out the tax liabilities, it would not really be an execution of the purpose of the Trust, if the liability is to mount up every day. On the record we have no data to find out the exact liabilities of the Trust but assuming that the liabilities had exceeded the actual income in every year the applicability of s. 77 and the effect of the resolutions above referred to may have to be considered afresh and the finding of this Bench in the earlier appeal cannot be a guide for all times to come. 2. In the result, we send the case back to the AAC for examining the merits of the appellant s claim in the light of our aforesaid discussion. For statistical purposes this appeal shall be deemed to have been accepted.
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1978 (9) TMI 92 - ITAT INDORE
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... ... ..... ales-tax are entered in the trading accounts. In this behalf the counsel for the assessee relied upon the 104 ITR 783 where interest on account of U.P. Sugar Cane Cess and Purchase-tax Act was allowed and treated at par with the tax itself. Somewhat similar is the decision in 107 ITR 172 wherein money paid for default in fulfilling an export obligation had been described as a penalty in the bond executed between the assessee and the Government, but the amount actually paid to the Textile Commissioner was held to be on account of non-fulfilment of the assessee s export obligation, and therefore a business expenditure allowable under the Law. We see no reason to disallow the interest in question because in any case if the assessee had paid the interest in time, he would have to borrow money and get the benefit of interest paid on the borrowing itself. 11. The net result is that the appeal of the Department is dismissed and the appeal of the assessee is allowed in part as above.
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1978 (9) TMI 91 - ITAT GAUHATI
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... ... ..... quantity though recording less by way of set off against possible shortage due to lossess in weight, dust etc. Hence the trading results of the assessee cannot be accepted as correct. The question that remains is whether the addition sustained by the AAC is reasonable. We find that after the addition, the rate of profit comes to about 15 per cent as against 3.6 per cent shown in the preceding assessment year. In the circumstances, we do not see any reason to consider the addition sustained by the AAC to be either excessive or unreasonable. We have, therefore, no hesitation in confirming the addition of Rs. 5,000 made in the potato account. 18. In the result, the ITO is directed to recompute the total income for the asst. yr. 1975-76 and he is also authorised to amend the assessments of the partners as a consequence. The appeal for the asst. yr. 1975-76 is party allowed. 19. The re-assessment made for the asst. yr. 1974-75 is cancelled and the appeal for that year is allowed.
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1978 (9) TMI 90 - ITAT DELHI-D
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... ... ..... ) includes the exchange of an asset or any right therein. But, it has to be a capital asset which is defined in s. 2 as property of any kind held by an assessee. In 1971 simply allotment letters were issued by the D.D.A. to the assessee and his father. No lease deeds were executed in their favour and registered upto7th July, 1973when the exchange took place with the approval of the D.D.A. As pointed out by the assessee s ld. Counsel, even the D.D.A. did not treat it as a transfer and charged 50 percent as unearned increase which, it would have charged if it had been a transfer. No interest in this property passed to the assessee or his father until and unless the lease deed was executed and registered. Therefore, the ownership in these plots vested in the D.D.A. on7th July, 1973when the allotment was exchanged. We are, therefore, of the view that the AAC was right in holding that no question of capital gain was involved in this case. 7. In the result, the appeal is dismissed.
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1978 (9) TMI 89 - ITAT DELHI-C
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... ... ..... . Lakhotia, the AAC was not justified in allowing the claim. The learned counsel for the assessee apart from relying on the order of the AAC contended that Shri Lakhotia had rendered services, for which the commission had been paid but he was not able to substantiate contention with reference to any documentary evidence. 8. After hearing both the parties, we are of the view that the claim had rightly been disallowed by the ITO. There was no agreement between the assessee and Shri S.L. Lakhotia which would indicate the basis of the commission. In the absence of any documentary evidence to show Shri S.L. Lakhotia rendered any services to the assessee, we are of the view that the commission as claimed was rightly disallowed by the ITO. We, therefore, reverse the order of the AAC and restore that of the to upholding the disallowance of Rs. 15,780. The Departmental appeal is allowed. 9. In the result, ITA No. 4567/76-77 is partly allowed as above and ITA No. 4910/76-77 is allowed.
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1978 (9) TMI 88 - ITAT DELHI-C
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... ... ..... habad High Court itself in Kallkhan vs. Kamrul Nisa (6). Their Lordships, therefore, held that on29th Jan., 1971, when the IAC passed final order imposing penalty, his jurisdiction to do so had been taken by the amendment in s. 274(2) of the Act and that, therefore, the order passed by him was without jurisdiction. 10. No doubt the decisions of the Madras High Court in the case of Continental Commercial Corpn (5), is in favour of the Revenue. 11. In view of the divergence of opinion among the various High Courts, we would prefer with respect to follow the above mentioned decisions of the Orissa and Allahabad High Courts and hold that the penalty order passed on 30th Nov., 1976 by the IAC was without jurisdiction and hence illegal and invalid. In this view of the matter, it is not necessary for us to consider the submissions of the learned Chartered Accountant on the merits of the case. 12. We, therefore, cancel the penalty of Rs. 31,220 levied by the IAC and allow the appeal.
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1978 (9) TMI 87 - ITAT DELHI-B
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... ... ..... 189 of the ITO having jurisdiction over the area where the dissolved firm existed had alone jurisdiction under s. 189 of the Income ndash tax Act, 1961. Since the Commissioner did not determine the question of jurisdiction but asked both the ITOs to make the assessments, he evidently abdicated his functions and did not act in accordance with the provisions of s. 124(4). In other words, there was a complete failure of compliance with the provisions of s. 124(4) and on the ratio of the decision of the Allahabad High Court in the case of Dina Nath Hem Raj (2), the assessment is illegal. 20. For the foregoing reasons, we agree with the AAC that the assessment on this assessee is without jurisdiction and illegal. Therefore, the Department rsquo s appeal fails. 21. The cross objection, which is in affirmation of the order of the AAC becomes infructuous. 22. In the result, the Revenue rsquo s appeal is dismissed and the cross objection is also dismissed as having become infructuous.
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1978 (9) TMI 86 - ITAT DELHI-A
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... ... ..... e assessee did not do so, as it was contesting its liability to such sales tax on several grounds before the sales-tax authorities. It did not make any provision for it when it received demand notice in Jan., 1971 from the Sales-tax Officer, but claimed the same for the first time only for the year under appeal when its revision petition was finally dismissed by the Financial Commr. on12th Sept., 1972. It is, therefore, clear that the assessee had rightly claimed this amount when its liability became finally settled in the year under appeal. The AAC was not right in observing that the assessee should have claimed it in the year when it received the demand notice from the Sales-tax Officer. Similarly the ITO was not right in observing that the assessee should have claimed it on28th Feb., 1972. We, therefore, accept the contentions of the ld. Counsel for the appellant and allow a sum of Rs. 8,184 as an admissible deduction for this year. 6. In the result, the appeal is allowed.
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1978 (9) TMI 85 - ITAT CUTTACK
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... ... ..... lid jurisdiction he cannot be divested of the same because of the subsequent amendment of law. 4. After amendment of s.18 of the WT Act in 1975, which came in force with effect from 1st April, 1976 the penalty under s.18 can be imposed by the WTO alone and as such the IAC has no jurisdiction to levy penalty under that section after 1st April, 1976. The matter of jurisdiction being procedural it is to be guided by the law as it exists on the date of its exercise. Even if a proceeding is pending before the IAC on a day because of the change of law altering or taking away his jurisdiction to deal with such type of cases, he will have no jurisdiction to complete the pending proceeding in view of the decision of the Orissa High Court in the case of Dhadi Sahu (1). Respectfully following the aforesaid decision we hold, the order of the IAC suffers from a legal infirmity and cannot, therefore, be sustained. Consequently the penalty is cancelled. 5. In result, the appeal is allowed.
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1978 (9) TMI 84 - ITAT COCHIN
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... ... ..... sults are fair and no addition should have been made. We are of opinion that the matter has to be seen from an overall point of the gross profit returned. For the prior years a gross profit rate of 14.4 per cent and 14.9 per cent has been returned. For the asst. yr. 1971-72 the ITO adopted 15 per cent and for the asst. yr. the gross is 13.22 per cent. We find that in an earlier year also there has been lower gross profit. For instance in 1970-71 a gross profit of 13.8 per cent had been shown. The assessee has an explanation for a slightly lower gross profit shown this year. The explanation is that they had to dispose of certain types of umbrella clothes at lower rates. Full details of such sales have been furnished before us and also before the lower authorities. We do not see why this explanation cannot be accepted. We direct that the addition sustained by the AAC should be deleted. 25. In the result, the departmental appeals are dismissed and the assessee s appeal allowed.
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1978 (9) TMI 83 - ITAT COCHIN
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... ... ..... est accruing which has not been realised for three years is credited under interest suspense account and not brought to profit and loss account. In these circumstances, we are of opinion that the Commissioners were not justified in holding that the amounts of interest credited to such account should also be brought to tax for the two assessment years under consideration. 14. As already stated, the departmental representative has relied upon the decisions of the Kerala High Court in Catholic Bank of India Ltd. CIT (4), and the State Bank of Travancore vs. CIT, Kerala (1). But, it will be seen from a perusal of the judgements that the contention put forth on the basis of the assessee having changed the method of accounting and having regularly adopted it was not advanced and considered therein. 15. For the above reasons, we set aside the orders of the CIT for both the assessment years under consideration and restore those of the Income Tax Officer. 16. The appeals are allowed.
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1978 (9) TMI 82 - ITAT CHANDIGARH
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... ... ..... ludible in total income as the IT Act itself gives examples of incomes not included in total income as in s. 10 ibid and deductions which already form part of the total income cannot be said to be profits and gains of a company not includible in its total income as a computed under the IT Act. As such r. 4 of the Second Schedule to the Act will have no application to sums allowed as deductions under s. 80J of the IT Act, 1961. 33. For the view adopted by us supra, there are direct authorities in support mentioned in para 31supra out of which the Madras High Court judgment answers the question directly in favour of the assessee. The Revenue has not cited any authority to support its contentions and we find these contentions at variance with out views supported by the judicial pronouncements. The appeals of the Revenue, therefore, must fail. These are dismissed. The AAC s decision on this issue also stands confirmed. 34. In the result the appeals of the Revenue stand dismissed.
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1978 (9) TMI 81 - ITAT CHANDIGARH
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... ... ..... fact been served on him also before 31st March, 1970, the AAC s finding that no service effected, were to be accepted. It was recorded in clear terms that before the Tribunal also, no evidence was placed that the service was effected before 31st March, 1970. The Tribunal accordingly accepted the assessees appeal and held that the AAC should have cancelled the assessment framed by the ITO instead of dismissing the same as infructuous. The Tribunal further held the there was no valid assessment framed and the one framed under s. 144 of the Act was void ab initio. 5. We have practically gone through the entire order of the Tribunal and in fact of the findings of fact by the Tribunal that there was no service effected on the assessment of notices in terms of s. 148 of the Act., before 31st day of March, 1970, the so-called question of law suggested by the CIT simply does not arise out of the Tribunal s order. 6. The reference application is, therefore, dismissed as misconceived.
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1978 (9) TMI 80 - ITAT BOMBAY-C
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... ... ..... strex Gems Pvt. Ltd., Stock Exchange Branch, 351 Collines Street, Melbourne, Australia and lost in transit in Australia. The above loss has been duly certified by the Post Authorities of India and Australia. As this loss of goods has happened in the regular course of the assessee s business, and as the ITO has not pointed out any material to prove his case for disallowance, I accept the assessee s contention in this regard and direct the ITO to allow the same. 12. The Departmental Representative was not able to successfully impugn or challenge the above finding of the AAC particularly in the face of the certificate issued by the postal authorities of India and Australia. The assessee relied ono the findings of the AAC. 13. In our opinion, the AAC s action was right for the reasons mentioned by him. In view of the Postal Certificates issued from India and Australia, we concur in the reasoning and conclusion of the AAC. 14. In the result the Departmental appeals are dismissed.
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1978 (9) TMI 79 - ITAT BOMBAY-C
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... ... ..... strex Gems Pvt. Ltd., Stock Exchange Branch, 351 Collines Street, Melbourne, Australia and lost in transit in Australia. The above loss has been duly certified by the Post Authorities of India and Australia. As this loss of goods has happened in the regular course of the assessee s business, and as the ITO has not pointed out any material to prove his case for disallowance, I accept the assessee s contention in this regard and direct the ITO to allow the same. 12. The Departmental Representative was not able to successfully impugn or challenge the above finding of the AAC particularly in the face of the certificate issued by the postal authorities of India and Australia. The assessee relied ono the findings of the AAC. 13. In our opinion, the AAC s action was right for the reasons mentioned by him. In view of the Postal Certificates issued from India and Australia, we concur in the reasoning and conclusion of the AAC. 14. In the result the Departmental appeals are dismissed.
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1978 (9) TMI 78 - ITAT BOMBAY-B
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... ... ..... ideration was also filed. The appeal for 1973-74 has been dismissed by an order dt. 13th Feb., 78. The appeal now under consideration was not disposed of so far because the relevant assessment has been made under. s 144 and assessee s application under. s 146 had not been disposed of. 3. We understand that the application under. s 146 has not been disposed of even till now though three years have passed. Be that as it may, having regard to the principle of the decision income the case of Ramlal Iushwardas and others, we, held that the application under. s 146 has become infructuous by virtue of the merger of the assessment order in the orders of the AAC, from which the appeal now under consideration arises. 4. As regards the merits of the appeal, there is no material distinction between the relevant facts of the case for the asst. yrs. 1972-73 and 1973-74. For the reasons stated in the order of the Tribunal dt. 13th Feb., 1978, we, therefore, dismiss the departmental appeal.
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1978 (9) TMI 77 - ITAT BANGALORE
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... ... ..... partner had also become insolvent and in any event there is no material on record for such a conclusion that the assessee was awaiting a formal intimation from the official liquidator that the other partner had become insolvent. The learned counsel for the assessee has placed before us a copy of the order of he Tribunal in the case of the First ITO, Belgaum vs. Messrs V.D. Mehta and Co., Nipani, (6) dt. 24th Sept., 1975, who also were the creditors of M/s. T.P. Swamy and Co, Tirunelveli. The claim of bad debt as allowed by the AAC was upheld by the Tribunal. On the facts of this case, we are satisfied that the debt had become bad and the assessee was justified in writing it off and claiming it as a bad debt in this year. The order of the AAC is correct and calls for no interference. Both the Departmental appeals for 1974-75 and 1975-76 are dismissed. 9. The cross objections for both the years merely support the order of the AAC and are therefore redundant and are dismissed.
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1978 (9) TMI 76 - ITAT AHMEDABAD-A
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... ... ..... hat operation the apparatus performs in the assessee s business. The relevant test to be applied is does it fulfil the function of plant in the assessee s trading activity? Is it the tool of the tax-payer s trade ? If it is, then it is plant, no matter that it is not very long lasting or does not contain working parts such as a machine does and plays a merely passive role in the accomplishment of the trading purpose . Applying the aforesaid, tests to the facts of the case, it is clear to us, firstly, that the electrical fittings are installed in the factory. Secondly, these installations are necessary for the smooth functioning of the assessee s plant and, lastly, they perform an important function of supplying proper light to the workers so as to enable them to run the plant and machinery efficiently. We, therefore, hold that the assessee is entitled to the claim for development rebate as made by it for both the years under appeal. 4. In the result, the appeals are allowed.
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1978 (9) TMI 75 - HIGH COURT OF JUDICATURE AT BOMBAY
Silverware not silver bullion - Burden of proof ... ... ... ... ..... Income Tax Department to take appropriate steps for realization of the arrears of tax by proceeding against the silver articles lying with the Collector of Central Excise (Preventive), Bombay in accordance with the provisions contained in the Income Tax Act should be passed. In view of this affidavit, though the silver articles must be directed to be returned to the Petitioners, the Income Tax authorities must be given an opportunity to proceed against them to recover their dues. 21.In the result, I make the rule absolute in terms of prayers (a) and (b) of the Petition. 22.The Income Tax Department, however, will be at liberty to proceed against the silver articles and ornaments contained in the said 24 wooden boxes for the recovery of any tax dues as stated in the said affidavit of D.S. Prabhu in accordance with the provisions contained in the Income Tax Act, 1961 if they are entitled so to do in law. 23.The Respondents will pay to the Petitioners the costs of this Petition.
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1978 (9) TMI 74 - HIGH COURT OF DELHI
Contempt of Court ... ... ... ... ..... ner company, informing them that they were not entitled to exemption and that the goods they manufacture will not be cleared without payment of Excise under the Government s Notification No. 71/78-D, dated 1st March, 1978. 4.After hearing arguments of both sides, we were of the opinion that the action complained of was an interference with our order dated April 20, 1976. 5.On the last date of hearing Mr. Jaswant Singh Assistant Collector (Headquarters), Central Excise, Collectorate, New Delhi filed an affidavit dated August 29, 1978. In this affidavit he tendered an unqualified apology. He also said that directions may be issued to avoid any unintended conflict between the order made by this Court and the interest of the revenue . 6.Since an unqualified apology has been tendered we accept the same and discharge notice of contempt issued to the respondents. 7.As regards directions the respondents have made separate application which we propose to deal with by a separate order.
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