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1992 (2) TMI 90 - HIGH COURT OF JUDICATURE AT MADRAS
... ... ... ... ..... llate Authority passed in May, 1991 and issue licence to the petitioners as per the orders of the Appellate Authority if no stay has been obtained by the Department before the CEGAT so far. It is well settled that pendency of appeals alone will not do unless an order of suspension of stay has been obtained by the Department against the orders of the Appellate Authority in these cases. The order has been passed as early as in May, 1991 and after receipt of the orders in August, 1991, the petitioners have applied for the licence. Now more or less six months have elapsed and if the Department has not chosen to file appeal and obtain stay from the Appellate Authority, I am of the view that the principle laid down by the Apex Court of the Land in 1991 (55) E.L.T. 433 has to be applied and the Authority should follow unreservedly the orders of the Appellate Authority. The first respondent is directed to pass orders on or before 1-4-1992. The writ petitions are ordered accordingly.
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1992 (2) TMI 89 - HIGH COURT OF JUDICATURE AT MADRAS
Adjudication ... ... ... ... ..... , on behalf of the respondents having regard to the pendency of the issue before the Customs Excise and Gold (Control) Tribunal at the instance of the respondent/department. In the light of the above, in my view, the only order that is required to be passed in the interest of justice and in order to safeguard the interest of both parties is that further action pursuant to the impugned notices shall be deferred by the respondent No. 2 pending final disposal of Appeal No. E/1933/88-B1 by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, with liberty to the respondents to pursue further action if they so desire after the disposal of the said appeal depending upon its outcome. Equally it shall be open to the petitioners to raise whatever objections they have, in accordance with law and the respondents shall, before proceeding further, deal with such objections, if any, raised. With these directions, the writ petitions shall stand finally disposed of. No costs.
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1992 (2) TMI 88 - HIGH COURT OF KARNATAKA AT BANGALORE
Demand - Substitution of old Rule ... ... ... ... ..... 6th August, 1977, between 6th August, 1977 and 17th November, 1980 and after 17th November, 1980 power vested in the proper officer to issue notice to show cause why a person should not pay duty or charges short-levied and power vested in the Assistant Collector of Central Excise to determine whether any amount was in fact payable by such person. 15. In these circumstances, we are respectfully inclined to agree with the aforementioned judgment of the Division Bench of the Madhya Pradesh High Court and, respectfully, to disagree with the view taken by the two Division Bench judgments of the Gujarat High Court and the Division Bench judgment of the Allahabad High Court aforementioned. In our view, therefore, the contention raised on behalf of the writ petitioners that the Assistant Collector of Central Excise could not continue proceedings against it subsequent to 6th August, 1977 must fail. 16. The writ petitions are accordingly dismissed. There shall be no order as to costs.
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1992 (2) TMI 87 - HIGH COURT AT CALCUTTA
Import policy ... ... ... ... ..... ficates are not acceptable to the Calcutta Port Trust Authorities, the respondent authorities will reimburse the petitioner the demurrage charges in respect of the goods paid by the petitioner upon the production of proof by the petitioner before the concerned authority of such payment having been made and of the refusal of the Port Authorities to accept the Wharfage Rent Exemption Certificate. The payment must be made within seven days from the date of refusal if any by the Port Authorities to accept the Wharfage Rent Exemption Certificates. 38. The writ petition is disposed of accordingly. There will be no order as to costs. 39. Stay is prayed for by the Customs Authorities. Partial stay is granted limited only to the payment of demurrage charges by the Customs Authorities. Such stay will continue till 9th March, 1992. 40. Let a xerox copy of this judgment be given to the parties upon undertaking to apply for the certified copy of the judgment and payment of usual charges.
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1992 (2) TMI 86 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Related person - Holding Company - Remand - Interpretation of Statute ... ... ... ... ..... pay to the first respondent a sum of Rs. 35,00,000/- with interest at 12 per annum from 14th December, 1983 till payment and accordingly the bank guarantee to the extent of 25 of Rs. 54,00,748.00 initially furnished by the petitioner company was reduced to the extent of the amount paid by the petitioner company to the first respondent. It is hereby directed that the bank guarantee of Rs. 20,35,748.90 furnished by the petitioner company to the first respondent will continue pending the hearing and final disposal of the enquiry before respondent No. 2. Petitioners through Mr. Bharucha undertakes also to keep the said bank guarantee alive during the above period and four weeks thereafter. It is agreed between the parties that the Petitioners/Advocates will appear before Respondent No. 2 on 24th February, 1992 at 11 A.M. for fixing the date of hearing of the matter. 45. Rule is accordingly made absolute as aforesaid. 46. In the circumstances, there will be no order as to costs.
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1992 (2) TMI 85 - SUPREME COURT
Whether cylinder liner manufactured by the appellant out of iron casting identifiable as machine part was exigible to duty under Tariff Item No. 68 or it continued to be iron casting and thus exempt under Notification issued under sub-rule (1) of Rule 8 of Central Excise Rules?
Whether the authorities were precluded from issuing notice and adjudicating if the cylinder liner was a machine part, even though for an earlier period the classification list claiming it as iron casting, thus exempt, had been approved?
Held that:- The Tribunal in the circumstances was justified in recording the finding that by the time the goods cleared from factory they had ceased to be casting, and had assumed the character of fully machined cylinder liner or fully machined or proof machined cylinders which were identifiable as such. Since duty under Excises and Salt Act is leviable on manufacture of goods produced the cylinder liner became exigible to duty under Entry 68.
Once the Tribunal found that cylinder liner ceased to be cast iron it is obvious that the department could not be precluded from levying duty on it subject to the law of limitation. Since show cause notice which resulted in these proceedings was for a period other than for which proceedings had been dropped, it was not review as urged by the learned counsel for appellant. Thus if an item was found dutiable then the department could not be prevented from levying duty on it because it had earlier approved classification as there is no estoppel against statute. Appeal dismissed.
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1992 (2) TMI 84 - HIGH COURT AT CALCUTTA
Refund (Customs) - Writ jurisdiction ... ... ... ... ..... es where interest rates are calculated on principles applicable in those situations. There shall, accordingly be a Writ absolute in the nature of Mandamus directing the Respondents to refund forthwith to the Writ petitioner the said sum of Rs. 20,97,487.35 being an excess customs duty paid on import of 82 and 37 cases of Stainless Steel mentioned in the Writ petition and the annexures thereto. 18. The refund shall in any event not be delayed beyond four weeks from the date of service of a copy of this order upon the concerned respondents. 19. Mr. Mitra wants to record that the allegations in the Writ petition are not admitted. I am unable to make any recording to that effect as I have proceeded not upon any disputed allegations in the Writ petition but only upon admitted facts as contained therein. 20. Stay of operation of this order is prayed for. The same is refused. 21. All parties are to act on a signed copy of the minutes of this dictated order on the usual undertaking.
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1992 (2) TMI 83 - HIGH COURT AT CALCUTTA
Refund - Statutory bar of unjust enrichment ... ... ... ... ..... me, we direct the Appellants to refund a sum of Rs. 10 lakhs within 4 weeks from date upon the respondent s furnishing a bank guarantee of the like amount to the satisfaction of the Collector of Central Excise, Calcutta-I. Such bank guarantee shall be initially for one year and shall be renewable from year to year until this appeal is disposed of. Such bank guarantee shall be renewable within 3 weeks before the date of expiry of the same and if not, in that event the Bank shall pay the entire amount in enforcement of the bank guarantee to the Collector of Central Excise, Calcutta-I. 10. Let the Paper Book be filed by the Respondent including therein all papers used in the Trial Court and the papers relied on as well as the application made before the Appeal Bench within 4 weeks from date. Notice of Appeal is waived. Settlement of Index is dispensed with. 11. Liberty to mention. 12. All parties concerned to act on a signed copy of this dictated order on the usual undertaking.
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1992 (2) TMI 82 - CALCUTTA HIGH COURT
Investment Company, Quoted Equity Shares ... ... ... ... ..... tlement Commission the same administrative powers for issue of instructions to subordinate authorities for the proper administration of the Income-tax Act as are available to the Central Board of Direct Taxes. Suffice it to say that, presently, for reasons mentioned above, there is no scope for the Commission to exercise its statutory powers to reduce or waive interest chargeable under sections 234A, 234B and 234C for the assessment year 1989-90 and onwards except in those cases which fall within the class of cases or class of incomes covered under the instructions, directions, etc., issued by the Central Board of Direct Taxes. Having regard to the aforesaid discussion, the Principal Bench of the Settlement Commission at Delhi may pass an appropriate order to dispose of the request of the applicant, Shri Ashwani Kumar Aggarwal, for waiver of interest under sections 234A, 234B and 234C of the Act in respect of his application No. 1/A/280/89-IT for the assessment year 1989-90.
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1992 (2) TMI 81 - DELHI HIGH COURT
Clubbing Of Income Of Minor Child, Interest On Deposit By Minor, Interest Paid By Firm To Partner
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1992 (2) TMI 80 - KARNATAKA HIGH COURT
Investment Company, Quoted Equity Shares ... ... ... ... ..... mber 27, 1991, but also to settlement applications filed before September 27, 1991, which were pending as on September 27, 1991. 5. In view of the foregoing discussion, our answer to the question referred to us (vide para 1.3 above), is as follows In a case where the settlement petition made under section 245C before September 27, 1991, is pending as on September 27, 1991, the objections raised by the Commissioner of Income-tax to the admission of the petition under section 245D(1A) have not to be considered and disposed of under the proviso to section 245D(1A), but the question of admission or rejection of such a petition has to be decided having regard only to the provisions of section 945D(1) in view of the fact that subsection (1A) of section 245D has been omitted by the Finance (No. 2) Act, 1991. 6. Having regard to the aforesaid discussion, the respective Benches of the Settlement Commission may pass appropriate orders under section 245D(1) on the settlement petitions.
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1992 (2) TMI 79 - GUJARAT HIGH COURT
Income From Undisclosed Sources, Transport Business ... ... ... ... ..... so-called owners. It does appear from the material on record that the source of capital for the purchase of these trucks came from the assessee, their control and management vested in the assessee and the usufruct was enjoyed by the assessee. All these indicate that the assessee was the real owner who enjoyed the income from these trucks. We, therefore, agree with the decision arrived at by the Tribunal. In view of the above discussion, we answer question No. 1 in the negative and against the assessee, question No. 2 in the affirmative and against the assessee, question No. 3 in the negative and against the assessee, question No. 4 in the negative and against the assessee, question No. 5 in the affirmative and against the assessee, question No. 6 in the negative and against the assessee, question No. 7 in the negative and against the assessee and question No. 8 in the negative and against the assessee. The reference stands disposed of, accordingly, with no order as to costs.
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1992 (2) TMI 78 - ALLAHABAD HIGH COURT
Additional Tax, Appeal To AAC, Circulars, Writ ... ... ... ... ..... of alternative remedy, as submitted on behalf of the petitioner and we find force in the said submission. In view of the facts, circumstances and position in law as indicated above, we do not accept the contention of counsel for the opposite parties that the petition be dismissed on the ground of alternative remedy. In the result, we allow the writ petition and set aside the order contained in annexure-6 to the writ petition in so far as it raises a demand for additional income-tax as a result of disallowance of investment allowance. Immediately after dictation of the judgment, learned counsel for the opposite parties made a prayer for grant of certificate of fitness for filing an appeal before the Hon ble Supreme Court. We feel that no important question of law, much less a substantial question of public importance, is involved which may require consideration by the Hon ble Supreme Court. The position under the law is also clear. The leave prayed for is, therefore, refused.
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1992 (2) TMI 77 - ORISSA HIGH COURT
... ... ... ... ..... s court in the case, of Govinda Choudhury and Sons v. CIT 1977 109 ITR 497. It was observed in the said case that the interest component of an arbitration award is not taxable, being in the nature of a capital receipt. We are in agreement with the view expressed by this court in Govinda Choudhury s case 1977 109 ITR 497. Following the ratio laid down in the said case, our answer to the question referred to us is in the negative, in favour of the assessee and against the Revenue. The reference is, accordingly, answered. No costs.
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1992 (2) TMI 76 - ORISSA HIGH COURT
... ... ... ... ..... sel for the Revenue that the conclusions of the Tribunal are contradictory. The basic question which was to be adjudicated was whether the amount formed part of the salary or related to business. The Appellate Assistant Commissioner held that the amount did not form part of the salary and was in the nature of an incentive given for procuring additional business. The Tribunal, on the contrary, did not consider that aspect, but held that it was a part of the salary at the same time it directed allowance of expenditure as if it was treating the same to be income from business. The Tribunal was, therefore, not justified in coming to contradictory conclusions. We, therefore, remit the matter to the Tribunal to consider the basic question whether the amount formed part of salary or was earned from business. The entitlement to expenses would be consequential to determination of the basic question about the nature of the income. The reference application is, accordingly, disposed of.
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1992 (2) TMI 75 - DELHI HIGH COURT
Business Expenditure, Gratuity ... ... ... ... ..... payable by it to the CACO in respect of the previous years in question. So far as the second question is concerned, learned counsel for the Revenue has very fairly conceded that the answer to this question stands concluded against the Revenue by a Bench decision of this court in Dalmia Dadri Cement Ltd. v. CIT 1980 126 ITR 851. In this view of the matter, we do not propose to go into greater details of the claim made by the assessee on account of its liability for the payment of gratuity to its employees and record our agreement with the view taken by the Tribunal that liability on this account should be allowed if capable of being worked out on an actuarial basis in the relevant previous years. For all these reasons, we answer both the questions referred to this court by the Tribunal in the affirmative, that is, in favour of the assessee and against the Revenue. As the assessee is not represented before us, we make no order as to costs. Questions answered in the affirmative.
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1992 (2) TMI 74 - GUJARAT HIGH COURT
Education, Exemptions ... ... ... ... ..... Revenue because it was found in that case that only a very small amount was spent for educational purposes by the assessee which was a public charitable trust leaving huge surplus for other charitable purposes and, therefore, it was held that it could not be said that the institution was existing solely for educational purposes in order to attract section 10(22) of the Act. It was found that the said trust was carrying on the business of leasing a cinema theatre out of the income for which a small portion was spent for maintaining an educational institution while a larger portion was spent for other charitable purposes. In view of the above discussion, we hold that the Tribunal was not right in law in holding that the assessee was not entitled to exemption from tax under section 10(22) of the Act for the assessment years 1972-73 to 1977-78 and answer the question in the negative and against the Revenue. The reference stands disposed of, accordingly, with no order as to costs.
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1992 (2) TMI 73 - KARNATAKA HIGH COURT
Investment Company, Quoted Equity Shares ... ... ... ... ..... peal cannot be interfered with since it has correctly applied the Board s circular. Rejected.
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1992 (2) TMI 72 - GUJARAT HIGH COURT
Capital Gains ... ... ... ... ..... of acquisition of the capital asset to the previous owner and not to the assessee. The Tribunal was also not right in observing that the assessee was not required by the Income-tax Officer to exercise an option. It was for the assessee to exercise that option and it was not an obligation of the Income-tax Officer to call upon the assessee to exercise that option. Even though we are of the view that the Tribunal committed these errors, we do not think it fit to direct the Tribunal to refer the proposed question to this court, as it will be a futile exercise in view of the fact that both the Commissioner and the Tribunal have clearly recorded finding that the fair market value of the life, interest in 1964 was much more than that in 1982, And, therefore, if a proper computation had been made, there would have been no profit or gain in the hands of the assessee. Subject to the observations made above, this application is dismissed. Rule is discharged with no order as to costs.
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1992 (2) TMI 71 - GUJARAT HIGH COURT
Deduction U/S 80V, Person Entitled To Claim Special Deduction, Revision ... ... ... ... ..... of the assessee-company and not in the hands of the transferee-company. The Tribunal, therefore, rightly came to the conclusion that the assessee had remained the rightful owner of the profits which had arisen from the said undertaking and business prior to February 28, 1977. Since the profits of the assessment years 1976-77 and 1977-78 were assessed in the hands of the assessee and not in the hands of Elscope Pvt Ltd., the liability for payment of taxes in respect thereto was of the assessee. Thus, the claim of the assessee was well founded and rightly the Income-tax Officer had not committed any error in allowing the claim. The findings which have been recorded by the Tribunal are all findings of fact. It cannot be said that the Tribunal has misconstrued the relevant documents. Therefore, no question of law arose and the Tribunal was justified in rejecting the applicant s application. This application is, therefore, dismissed. Rule is discharged with no order as to costs.
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