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Case Laws
Showing 141 to 160 of 228 Records
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1983 (12) TMI 88 - ITAT BOMBAY-B
Penalty For Failure To File Advance Tax Estimate ... ... ... ... ..... the penalty is the presence of guilty mind and in this case the onus of proving the guilty mind existed at the relevant time is upon the revenue and the same has not been fully discharged. The revenue has also not brought to our notice any facts as to whether the assessee is habitual defaulter in complying with the requirements of law. For non-filing of the revised estimate and non-payment of advance tax recoupment in respect of loss of revenue must have been already made under the applicable provision embodied in Chapter XVII of the Act. Therefore, it is required to be proved by the revenue beyond doubt that mens rea was present. The case of the assessee would be covered by the decisions relied upon by the Commissioner (Appeals). On this aspect of the matter we fully uphold the conclusions of the Commissioner (Appeals) in paragraph 4 of his order and hold that no interference is called for in the decision of Commissioner (Appeals). 11. In the result, the appeal is dismissed.
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1983 (12) TMI 87 - ITAT BOMBAY-B
Industrial Undertaking, Investment Allowance ... ... ... ... ..... aking. If the assessee s business is not an industrial undertaking, then it cannot be considered as qualifying for investment allowance contemplated in section 32A. In our view, the decision of the Gujarat High Court in Ajay Printery (P.) Ltd. s case is clearly distinguishable on facts, as in the said case, the assessee was entrusted with the work of printing balance sheets, profit and loss account, dividend warrants, pamphlets, share certificates, etc., required by companies. We cannot extend the ratio of this decision by analogy to the facts of the present case. We are, therefore, of the view that the Commissioner (Appeals) was in error in accepting the assessee s contentions and in directing the allowance of investment allowance to the assessee under section 32A in both these years. Accordingly, we reverse the orders of the Commissioner (Appeals) on this point in both the years and restore the disallowance made by the ITO. 18. In the result, the appeals are partly allowed.
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1983 (12) TMI 86 - ITAT BOMBAY-B
Withdrawal Of Development Rebate ... ... ... ... ..... period of eight years, irrespective of the fact as to whether the said machinery could or could not be used for the original purpose for which the assessee installed the same. We do not find any scope for having two views on the matter or any debate or long drawn out reasoning for arriving at the conclusion. The language of the provision is indeed clear and categorical and admits of no ambiguity or doubt. We feel fortified in our decision by the oft-quoted dictum of Justice Rowlett in Cape Brandy Syndicate v. IRC 1921 2 KB 403 to the effect that In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. For the above reasons, we uphold the order of the Commissioner (Appeals) for all the three years under consideration. 8. In the result, the three appeals are dismissed.
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1983 (12) TMI 85 - ITAT BOMBAY-A
Cash Basis, Cash System, Foreign Company, Mercantile System, Revised Returns, Right To Receive
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1983 (12) TMI 84 - ITAT AMRITSAR
Reassessment, Non-Disclosure Of Primary Facts ... ... ... ... ..... n Officer. As we have already indicated above, evaluation by the Valuation Officer, however, professionally competent, will only be considered and treated as an opinion on the valuation. It will not enable an ITO to reopen the assessment which does not permit him to proceed on the basis of a change of opinion. 9. In whatever way, we may look at, whether from a consideration of the failure of the assessee to disclose the material particulars or from the consideration of the Inspector s estimate after he had visited the site and surveyed the property in the year 1972, and which had been depended upon by the ITO in making the original assessment or from that of the estimate made by the Valuation Officer, we cannot accept the plea of the revenue that the Commissioner (Appeals) arrived at an incorrect finding that the ITO had no material to hold that the income had escaped when he proposed to reopen the assessment. Accordingly, we decline to interfere. 10. The appeal is dismissed.
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1983 (12) TMI 83 - ITAT AMRITSAR
Income Of HUF, Individual Income, Interest Income, Minor Child ... ... ... ... ..... other married male members of the HUF. A reading of the above extract also supports the view expressed by me and it is clear that even if the policy is financed from HUF funds, it cannot belong to the HUF when a policy is taken under section 6 of the Married Women s Property Act. 7. Further, it may be observed that there is no deeming provisions in section 64, which could make the interest income to belong to the HUF of the lady s husband. The wealth-tax case of Liladhar Jajoo has been rightly distinguished by the revenue. That was a case where an individual paid the premium for securing a policy under section 6 of the Married Women s Property Act and the deeming provisions of section 4(1)(a)(iii) were held to be attracted but this is not the position under the Act in the facts and the circumstances of this case. Consequently, I reverse the order of the AAC and restore the order of the ITO in each of the two cases and allow the appeal of the revenue. 8. The appeal is allowed.
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1983 (12) TMI 82 - ITAT ALLAHABAD-A
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... ... ..... nts were validly earmarked for charity. In other words, right from the inception, those amounts were received and held by the assessee under an obligation to spend them for charitable purposes only, with the result that these amounts were not its trading receipts. The mere fact that the assessee had not made a proper use of dharmada cannot be a ground for treating the receipt itself as chargeable to tax. The assessee might have violated the provisions of some other Act, but that by itself cannot make him taxable with reference to an amount, which is not a trading receipt. We, therefore, delete the addition of Rs. 1,451 also. 11. The next contention relates to the disallowance of Rs. 11 being donation debited to Bareilly branch. For the reasons given by the lower authorities, we confirm the disallowance of amount. 12. The next contention relating to addition of Rs. 150 was not pressed before us and is, therefore, not sustained. 13. In the result, the appeal is partly allowed.
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1983 (12) TMI 81 - ITAT ALLAHABAD-A
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... ... ..... (1). Again the Court observed at p. 578 of the report as under We also make it clear that the power of the CIT to levy fine is not mandatory, but only directory. But this being a statutory discretion, the CIT has to apply his mind judiciously in each and every case taking into consideration the facts and circumstances of each case. Where the CIT finds that the omission or default on the part of the assessee is only technical or due to any reason beyond in his control, he may consider it just and proper not to levy any fine. 9. Applying the above principles to the facts of the present case, we are clear in our mind that the CIT had erred in imposing the fine of Rs. 7,800 on the assessee under s. 285A(2) of the Act, particularly when he found that there was only a technical default on the part of the assessee and that it had been complying with the requirements of the section carefully, thereafter. We, therefore, remit the entire fine. 10. In the result, the appeal is allowed.
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1983 (12) TMI 80 - ITAT ALLAHABAD-A
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... ... ..... . It is clear from this decision that the evidences, which have been gathered, though after the assessment order was passed, but which are already there on the records, should be considered before this appeal is decided. The representative of the assessee had also drawn our attention to the fact that a certificate has been issued by J. P. Woollen Mills, Delhi in which it has been certified that the assessee did not have any account in that concern during the relevant period. This certificate has not been examined by the ITO and it has not gee seen whether the certificate was reliable and if so to what extent. All these issues have to be examined and the assessee has to be allowed proper opportunity to have his say. The above additional evidences are allowed by us to be considered. 4. The assessment, therefore, which has been made, without giving roper opportunity to the assessee, is hereby set aside to be passed afresh according to law in the light of our above observations.
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1983 (12) TMI 79 - ITAT ALLAHABAD-A
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... ... ..... e matter did not relate to registration, but only to cash creditors, where it is for the assessee to establish the genuineness of the cash credits. That decision, therefore, does not help the Revenue. So far as the decision of Delhi Bench of the Tribunal in the case of M/s Tekaram Hakumati Rai is concerned, the source of investments of the partners had been doubted and there were two lady partners, who were sleeping partners and had not contributed anything. It is on the peculiar facts of that case that the Tribunal had held that the firm was not a genuine entity. No such facts exists in the present case. Considering all this and looking to the totally of all the facts and circumstances, we are, therefore, of the opinion that there was no basis or justification before the ITO to doubt the genuineness of the firm and that the ld. AAC was eminently justified in accepting the firm to be genuine and to be entitled to registration. We hold accordingly. 6. The appeal is dismissed.
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1983 (12) TMI 78 - ITAT AHMEDABAD-C
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... ... ..... esult of that statement. We are also in agreement with the Commissioner s reasoning on this point. For reasons stated above we set aside the order of the Commissioner and send the matter back to the ITO. He should ascertain the number of members of assessee s family dependent upon him and allow deduction in respect of value of only one set each for the assessee and for the said members of his family dependent upon him. In the case of common items i.e. coffee set, assorted utensils and water jugs, the items allowable for deduction should be taken in the same proportionas the number of persons (i.e. assessee plus the said members of his family) to the total number 48. The appeal is partly allowed for statistical purpose. ORDER P.J. GORADIA, A.M. This order had been cause of frequent mutual discussions between us. The Revenue has not brought on record conclusive evidence to justify denial of little relief granted in this order. Hence, I agree with the decision of my ld. brother.
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1983 (12) TMI 77 - ITAT AHMEDABAD-C
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... ... ..... 26 (1980) 126 ITR 654 (Guj) the Gujarat High Court had laid down the principle that so far as the partnership is concerned only an individual can be a partner and so the interest paid to the HUF would not come within the scope of disallowance u/s 40(b). In the latter case of Divanchand Dilipkumar I.T. Ref. No. 128 of 1976), the Gujarat High Court has followed its earlier decision in the case of Sajjanraj Divanchand. The ld. Departmental representative tried to distinguish these cases on the ground that the partners were maintaining separate individual accounts also. In our view this will not make any difference. If the interest is paid to the HUF accounts then according to the said decision of the Gujarat High Court in the case of Sajjanraj Divanchand, s. 40 (b) would not be applicable. Therefore no part of the interest paid to the HUF accounts amounting to Rs. 1,95,723 can be disallowed. 5. Therefore the assessee s appeal is allowed and the department s appeal is rejected.
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1983 (12) TMI 76 - ITAT AHMEDABAD-C
Expenditure Incurred, Income Tax Proceedings ... ... ... ... ..... l-treatment by the parties which might eventually form the Government. On this reasoning also our view that such gifts are bonafide for the purpose of business get further fortified. Because as held by the Kerala High Court in C.K. Krishnankutty Nair, Olesha Ayurveda Vaidyasala s case and in the case of CGT v. G. Shanmugam 1979 118 ITR 890 (Mad.) that gift under section 5(1)(xiv) would be exempt if two conditions, namely, gifts made in the course of business and made bona fide for the purpose of business are satisfied. All the varied circumstances, not only commercial expediency, are required to be considered. It is not necessary to prove that gift has resulted in advantage. Even gifts made to preserve capital assets of business would be exempt under this section. We, therefore, do not find any infirmity with the order of the Commissioner of Gift-tax (Appeals). 9. In the result, the appeal filed by the revenue is dismissed and cross-objection filed by the assessee is allowed.
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1983 (12) TMI 75 - ITAT AHMEDABAD-B
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... ... ..... ee s conduct showed absence of mens rea would not apply in the case of R. Ochavlal. Secondly in that case it was found that as a result of seizure of certain documents the assessee had earned income which was not disclosed by its books of accounts produced before the ITO and such undisclosed transactions were reflected in some other books which were not produced before the ITO. Thus although in that case the refund of tax was due to the assessee, it was not merely such a simple case and the Hon ble High Court has stated that the facts showed that the conduct of the assessee was obviously consummations and dishonest (Ref. P. 529). This separate finding has been given by the High Court in order to reject the plea that the breach was technical or venial which comes to the same thing as absence of mens rea. This Tribunal in ITA No. 524/Ahd/1982 vide its order dt. 6th April, 1983 has expressed a similar view. 5. For the above reasons, we delete the penalty. The appeal is allowed.
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1983 (12) TMI 74 - ITAT AHMEDABAD-B
Mutual Concern ... ... ... ... ..... eficit arising in course of carrying on mutual activity. Therefore, the loss as claimed by the assessee cannot be allowed against income from bank interest. The income from bank interest is not covered by the mutuality principle and is taxable as income derived by the assessee-club. It is true that the expression income includes loss but in order to allow the claim of loss such loss as pointed out earlier should arise in course of commercial activity which if resulted in profit would have been taxable as income. The principle of mutuality, therefore, which excludes surplus from taxation on the ground that such surplus is not in the nature of income. On parity of reasoning it must be held that a loss or deficit in course of carrying out the activities of the club cannot be treated as a loss which could be set off against income from any other source or sources. We, therefore, agree with the conclusion reached by the authorities below. 5. In the result, the appeal is dismissed.
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1983 (12) TMI 73 - ITAT AHMEDABAD-A
Business Loss, Chargeable To Tax ... ... ... ... ..... assed by Shri Shah that breakage as in transit or pilferage are inevitable in the nature of the business carried on by the assessee. But the material point at issue is whether necessary material or proof has been placed before the authorities below to support such a claim. Now when the records maintained by the assessee are admittedly defective and are not capable of verification in the manner required, it is difficult for us to accept the assessee s claim for shortages on the broad proposition canvassed before us. Even the auditors of the company have not been satisfied with the manner in which the inventory of stocks, etc., have been maintained. Therefore, in view of the inherent lack of details to support the claim for shortages, we are afraid we cannot admit the claim of the assessee. We are, therefore, left with no alternative but to uphold the decisions of the authorities below on this point. 14. In the result, both the appeals as also the cross-objection are dismissed.
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1983 (12) TMI 72 - HIGH COURT AT CALCUTTA
Trucks - Interpretations - Taxing statute ... ... ... ... ..... y restrictive and it restricts the preceding words to the words following. 36. I respectfully agree with the view taken by the Division Bench of the Bombay High Court in Chemicals and Fibres India Ltd. 1982 E.L.T. 917 and hold that under item 34B it is not permissible to levy excise duty on all types of mechanically propelled works trucks generally and further that under the said item excise duty can be levied only on forklift trucks and platform trucks. 37. For the reasons as aforesaid this application succeeds. The rule nisi is made absolute. There will be no order as to costs. 38. The operation of this order is stayed for one week after the winter-vacation. It is, however, made clear that the petitioner will not be required to renew the bank guarantee already furnished and after the expiry of the stay the petitioner will be at liberty to apply for return of the original bank guarantee dated 8th January, 1980, renewed on 22nd December, 1981, as furnished by the petitioner.
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1983 (12) TMI 71 - HIGH COURT OF JUDICATURE AT BOMBAY
Caustic soda ... ... ... ... ..... , it should be struck down. I am not inclined to grant this relief in the present petition, because the exemption was granted to the State Chemicals and Pharmaceuticals Corporation in the year 1979 and the import was made in pursuance thereof immediately. Now, more than five years had lapsed from the date of import and by striking down the notification, the petitioners would derive no advantage, save and except, satisfaction that even State Chemicals and Pharmaceuticals Corporation is required to pay duty. In my judgment, it is not necessary to grant such relief, even assuming that the notification is not valid under sub-section (2) of Section 25 of the Act. In view of this, the petition must fail. 5. Accordingly, rule is discharged. Taking into consideration the fact that the Union of India has not cared to file the return in spite of adjournment, in my judgment, this is a fit case where respondent No. 1, Union of India, should be directed to bear the costs of the petition.
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1983 (12) TMI 70 - HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYD.
Redemption fine justified if the goods were not accounted for in the R.G. 23 Register ... ... ... ... ..... able to agree with this assertion of the firm. It is seen the firm did not account for the goods produced by him. In that seven gate passes ,238 to 244 on March 19, 1976 are not properly recorded in R.G. 23 record. There was thus deviation of Clause (B) of Rule 173-Q. Having regard to this deviation the issue was whether the authorities were entitled to levy the redemption order. On a reading of Rule 173-Q and other cognate rules, the authorities have power to levy penalty as well as to order confiscation. In the instant case for one reason or the other, the authorities have found penalty is not sustainable. We do not wish to interfere with such a conclusion. The authorities held further goods were not appropriately accounted within the meaning of Clause (B) of Rule 173-Q. Therefore, the fine in the impugned order is passed. On the above conclusion the impugned order suffers from no vice, whatever. The writ petition for the aforesaid reasons fails and is dismissed. No costs.
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1983 (12) TMI 69 - HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH
Search and seizure should be made on 'reasonable belief' and not on suspicions ... ... ... ... ..... ng the sale proceeds of smuggled goods. For this stand of his he makes a reference to sections 121 and 123 of the Act. This submission of Mr. Brar appears to be wholly fallacious. It is not the case of the authorities that the amount in question is the sale proceeds of the smuggled goods and, rather, as has already been pointed out above, no part of the record has been shown to me wherein it is stated by the authorities that the petitioner had at any stage imported any goods in pursuance of the licence noted above. In the absence of this amount being the sale proceeds of any smuggled goods, the authorities obviously are not entitled to take custody of that money. 4. As a consequence of the above conclusion of mine, I direct the respondent-authorities to return the amount in question forthwith. It is, however, made clear that this order would not in any way disentitle the respondent-authorities to invesngate into the matter in accordance with law. I pass no order as to costs.
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