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Case Laws
Showing 61 to 80 of 117 Records
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1977 (4) TMI 57 - ITAT DELHI-B
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... ... ..... articulars required for completion of the assessment proceedings at the time of original assessment proceedings and hence it cannot be held that there had been any omission or failure on the part of the assessee for invoking the provisions of s. 147(a) of the Act. It is, no doubt, true that the learned Departmental Representative relied on several decisions of various Courts in support of the claim that the notice issued under s. 148 is legal. We find that the facts in those cases are entirely different. As far as the case before us is concerned, it is clear that he has furnished full details regarding the credits at the time of the original assessment proceedings. In the circumstances we hold that the question of application of s. 147(a) of the Act will not apply. In the result, the Appellate Assistant commissioner was justified in coming to the conclusion that the notice issued under s. 148 in this case was bad in law. 6. In the result, the Departmental appeal is dismissed.
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1977 (4) TMI 56 - ITAT DELHI-B
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... ... ..... th of the assessee was much less as is apparent from the working reproduced above. When the total wealth of the assessee is lesser than the exempted limit, the bonafide belief of the assessee that he has no obligation to file the returns is a well placed bonafide belief, and the artificial inflation of the wealth by the counsel cannot visit the assessee by way of penalty under s. 18(1)(a) because the mistake on the part of the assessee rsquo s counsel cannot land the assessee within the mischief of s. 18(1)(a). Finding as we do, that the total wealth of the assessee in both the years was below the taxable limit, we hold that the failure to file the return of total wealth within the time allowed was because of a reasonable cause based on the bonafide belief of the assessee as mentioned above, and the penalties are not exigible on the facts because the failure was not without a reasonable cause within the meaning of s. 18(1)(a). The penalties are deleted and the appeal allowed.
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1977 (4) TMI 55 - ITAT DELHI-B
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... ... ..... see s opening cash balances on each of the dates from 12th Oct., 1970 to 20th Oct., 1970 was clearly above Rs. 5,048 which was the balance over and above the dasti loan of Rs. 5,000 required for meeting the demand of Rs. 10,048. The assessee s case is that entries were made on20th Oct., 1970when a full accounting was given by Radhey Shyam of the dasti loan of Rs. 5,000 and the payment out of cash balance to the extent of Rs. 5,048, both towards the liability of Rs. 10,048 met on12th Oct., 1970. We do not see on the facts of the case that there is any improbability about this explanation in view of the sufficiently high cash balance from12th Oct., 1970onwards. In any case, while the explanation of the assessee may be rejected for the purpose of assessment such rejection by itself cannot from the basis for penalty. In our view, the Department has failed to bring home the charge of concealment. The penalty, therefore, lacks a valid basis and is deleted. 7. The appeal is allowed.
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1977 (4) TMI 54 - ITAT DELHI
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... ... ..... acter of meat. 34. Although the learned assessing authority agreed that the interpretation to a provision in a taking statute rendered years back and accepted and acted upon by the department should not be easily departed from, he does not appear to have followed the previous decisions of the departmental authorities. 35. The sales to grocery shop and Air Force Canteen are not very substantial and there is no evidence that the same were really effected in favour of the Ministry of Defence itself. The plea of the dealer in this respect cannot be accepted. 36. In view of the discussion made above, appeal No. 78/STT is allowed and the impugned order dated 24th May 1972 is set aside. 37. Appeal No. 79/STT is dismissed. 38. Appeal No. 80/STT is allowed in part and the impugned order dated 23rd June, 1972 is modified to the extent that the sales of cooked pressed ham and salami are held to be goods exempted from levy of sales tax. In other respects the impugned order is confirmed.
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1977 (4) TMI 53 - CUTTACK
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... ... ..... ing that the accounts books are nor properly maintained. In another decision reported in Muralimanohar Prabhudayal vs. State of Orissa(2) it was held that if the books of accounts are found to be correct the rate of profit shown by the assessee should ordinarily be accepted unless it is specifically proved that in such line of business a high rate of profit is obtained. In the facts and circumstances of this case, the above principles are applicable. The forums below have not assigned valid reasons for rejection of purchases and sales accounts. Their finding that the margin of profit disclosed by the assessee was low is based on surmises and conjectures which cannot be accepted according to law. I, therefore, find that it is a fit case where the books of accounts should be accepted and the assessment should be reduced to returned figures. 6. In the result, the appeal is allowed and the assessment is reduced to the returned figures. Excess tax, if realised, should be refunded.
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1977 (4) TMI 52 - CUTTACK
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... ... ..... the impugned order quoted in para three above that the assessee was able to satisfy him by production of the books of accounts and other evidence that the transaction were not inter-state sales but were branch transfer from the branch factory at Jaipur Road to the main factory at Calcutta. As the assessee discharged the burden or proof in the above manner and s. 6-A being directory and not mandatory in nature, in my considered opinion despite non-production of declaration in Form F it must be held that the transactions were not inter-state sales but were branch transfers from the branch factory at Jaipur Road in Orissa to the main factory at Calcutta. This being the position, the assessee is not liable to be assessed with Central Sales Tax. Consequently, the question of imposition of penalty does not arise. 11. For the reasons stated above, the appeal is allowed and the assessment of tax and penalty is annulled. Central Sales Tax and penalty, if realised, should be refunded.
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1977 (4) TMI 51 - ITAT CUTTACK
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... ... ..... nts in the IT Act almost every year sometimes more than once in a year, it can be legitimately presumed that it is not possible for every person to be conversant with the provisions of new law immediately after its amendment. In this case, the amendment came into force w.e.f. 1st Oct., 1975 and the assessee filed the appeals on 1st Jan., 1976. Therefore, in our considered opinion, the short delay, twelve days should have been condoned by the AAC on the facts and in the circumstances of the case. The fact that the assessee suo muto paid the undisputed tax within a fortnight after filing the appeals before the AAC cannot be lost sight off. Viewed thus, we think it is necessary in the interest of justice, that these cases should go back to the AAC for his reconsideration on merits. Accordingly, we set aside the order of the AAC and restore the cases to his file for his redecision on merit. 5. In the result, the appeals shall be treated as allowed for the purposes of statistics.
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1977 (4) TMI 50 - ITAT CUTTACK
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... ... ..... decision in the case referred to above had no application to the facts to the present case. As against this, the learned Deplt., Rep. contended that it was in view of the clear provisions of the Act every estate shall include all income accrued upon the property included therein down to and outstanding at the date of the death of the deceased. 7. Having heard the submission of both the parties and after considering the facts of the case, we are of the opinion that the submission of the learned Deplt., Rep. is well-founded. Sub-S. (4) of S. 34 has provided for inclusion of income accrued upon the property which is includible under the fiction of law. We find that the gifted amount was actually put to use till the death of the deceased and income, in fact, accrued thereon. We, therefore, uphold the order of the Appellate Controller of this point. 8. No other ground was pressed by the learned Counsel appearing on behalf of the accountable person. 9. The appeal is partly allowed.
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1977 (4) TMI 49 - ITAT BOMBAY-E
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... ... ..... ed in the past, I see no reason why a small ad-hoc addition should have been sustained by the AAC. It was open to the ITO to go into the details of personal expenditure and investments of the assessee and then break down the assessee s case or impugne his receipts, if the circumstances so warranted. As pointed out in the Allahabad decision cited above it would not be proper to ignore the pecularities of the professional and make an addition merely for the heck of it. I would, therefore, delete the addition of Rs. 2,000. 4. The assessee next argued that the disallowance of the motor-car expenses on account of personal user of the car was excessive. I find that no such plea was taken up before the AAC and the present ground of appeal does not arise out of the AAC s order. Reference may be made in this connection to the Gujarat decision in the case of Karamchand Premchand Pvt. Ltd.(2) I, therefore, decline to go into the question. 5. In the result, the appeal is partly allowed.
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1977 (4) TMI 48 - BOMBAY HIGH COURT
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... ... ..... t the case is governed by the Supreme Court Judgment in M/s. Binani Bros. (P) Ltd. and Others(3) and K.G. Khosla s case does not apply. The Assistant Commissioner has upheld the same reasoning. The above position would show that the action of the assessee is showing the turnover as sales in the course of import was on account of a bona fide impression held in the light of the Supreme Court judgment in the case of M/s. K.G. Khosla(1) which held the filed during the material period. It may be that subsequently in Binani Bros(3). and M/s. Mod Serajuddin s(2), cases, in certain respects the law underwent a change. These factors by themselves are not sufficient for bringing the case within s.36(2)(c) or the Explanation. Mr. Chhatre was unable to show that the action of the assessee could be said to fall within the penalty provision. 8. As a result the appeal succeeds and is hereby allowed. The orders of the lower authorities levying penalty under s.36(2) (c) are hereby set aside.
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1977 (4) TMI 47 - BOMBAY HIGH COURT
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... ... ..... then the Court has no option but to accept the one which is in favour of subject. In The state of Bomabay vs. R.S.Phadtare(1) the Bomabay High Court laid down that in a taxing statute if two constructions are possible the Court must lean in favour of that construction which gives relief to the subject. In the same ruling the further principle laid down is that if the interpretation of the provisions in the taxing statute is not free from doubt or ambiguity, the doubt or ambigunity must be resolved in favour of the subject and not in favour of the State. Other ruling pertinent to the question are Controller of Estate Duty vs. R. Kankasabai and others(1) and Diwan Brothers vs. Central Bank of India Bombay and others(3). 15. In view of all the considerations above stated, it is not possible to affirm the order of the commissioner. It is hereby set aside. The article in question are held as covered within the scope of Schedule C entry 12. They are held liable to tax accordingly.
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1977 (4) TMI 46 - ITAT ALLAHABAD-B
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... ... ..... rding to the Departmental Representative, the disallowance of 1/2 of the expenses was reasonable. In our opinion, the disallowance is excessive and we restrict it to 1/4 only. The depreciation would be disallowed in the same proportion. 8. The last ground is against the disallowance of Rs. 400 being expenses incurred by the assessee in respect of the accident insurance of the Manager, Shri N.K. Jain. Shri Jain is a close relation of the partner of the assessee. According to the ITO, since there was no such condition of employment, this expenditure was not allowable. The AAC has taken the same view. It was claimed before us that it was a business expenditure. We do not agree with this contention. In our opinion, the authorities below have rightly held that this expenditure was not allowable. We therefore, confirm the disallowance. 9. The appeal is, therefore, allowed in part and the ITO is directed to modify the assessment in the case of the firm and the partners accordingly.
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1977 (4) TMI 45 - ITAT AHMEDABAD-A
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... ... ..... IT Act directed as such interest to be charged. 3. The assessee went in appeal to the AAC against the said amendment but the appeal failed. Hence this second appeal. 4.The assessee s argument before us was that as the assessment was not taken up by the ITO for about two years after the receipt of the original return, the failure to complete the assessment within a year could not be attributed to it irrespective of the fact of filing of revised return in 1973 and that, therefore, the case clearly fell within Rs. 40(1) warranting waiver of the interest in question. It was submitted that it was under these circumstances and not from any omission on his part that the learned ITO declined to charge interest in the original assessment. We see force in the assessee s argument and we are unable to agree that there existed a glaring mistake capable of rectification under s. 154(1). As least the existence of mistake was debatable fact. The assessee succeeds. 5. The appeal is allowed.
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1977 (4) TMI 44 - ITAT AHMEDABAD-A
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... ... ..... terest to be charged. 3. The assessee went in appeal to the Appellate Asstt. Commissioner against the said amendment but he appeal failed. Hence this second appeal. 4. The Assessee s argument before us was that as the assessment was not taken up by the ITO for about two years after the receipt of the original return, the failure to complete the assessment within a year could not be attributed to it irrespective of the fact of filing of revised return in 1973 and that, therefore, the case clearly fell within r. 40(1) warranting waiver of the interest in question. It was submitted that it was under these circumstances and not from any omission on his part that the learned ITO declined to charge interest in the original assessment. We see force in the assessee s argument and we are unable to agree that there existed a glaring mistake capable of rectification under s. 154(1). At least the existence of mistake was a debatable fact. The assessee succeeds. 5. The appeal is allowed.
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1977 (4) TMI 43 - HIGH COURT OF CALCUTTA
Bank Guarantee - Release of ... ... ... ... ..... ransferability of the licence. The petitioner states that since this dispute has now been resolved in favour of the transferability, the petitioner is entitled to the release of bank guarantee. 4. After hearing the learned Advocates of the parties I dispose of this application by directing the Collector of Customs, Calcutta to finally dispose of the petitioner s request for release of the bank guarantee within two weeks from today. The disposal of the petitioner s request shall be in accordance with law and the judgment of this Court given by the Division Bench on 14-6-1994. If despite the aforesaid observations, for valid, lawful and legislate reasons the Collector finds that the petitioner is not entitled for the release of the bank guarantee, it shall pass a detailed speaking and reasoned order and communicate the same to the petitioner within a period of two weeks from date. 5. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.
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1977 (4) TMI 42 - HIGH COURT OF CALCUTTA
Writ jurisdiction ... ... ... ... ..... t the relevant section/clause of an enactment which intends to exclude the jurisdiction of this Court under Article 226/227 of the Constitution of India, is unconstitutional. Even while Their Lordships have maintained that it shall be open for a litigant to first approach the Tribunal as a Court of first instance, the decision of the Tribunal however shall remain subject to scrutiny by a Division Bench of the High Court within whose writ jurisdiction the concerned Tribunal falls. Under the Rules of this Court this writ application has been filed before a single Bench of this Court but because of the aforesaid judgment of the Supreme Court, this matter has to be heard by a Division Bench. 4. I, accordingly, make a reference to the Hon ble Acting Chief Justice for placing this matter before the appropriate Division Bench of this Court in the light of the direction of the Apex Court. 5. All parties are to act on a xerox signed copy of this dictated order upon usual undertaking.
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1977 (4) TMI 41 - SUPREME COURT
Whether claim for refund was not time barred inasmuch as on the date when they filed the claim for refund their classification list had not been approved?
Held that:- Any adjustment which is made under sub-rule (5) of Rule 9B dealing with provisional assessments is not governed by Section 11A or Section 11B. The Court has, however, observed that if ultimately the final order passed under sub-rule (5) is questioned in a writ petition or a suit and ultimately the assessee succeeds, the refund claim which arises as a consequence of such decision would be covered by Section 11B. The present case is not a case of any adjustments in the payment of excise duty made under sub-rule (5) of Rule 9B. The refund claim does not appear to be a claim arising under Rule 9B(5). It is an independent claim for refund on the basis of Notification 71/78, dated 1st March, 1978. The appellants challenged the rejection of their claim for refund right upto CEGAT and filed a writ petition before the Andhra Pradesh High Court also. Therefore, the provisions of Section 11B are attracted and the appellants are governed by the ratio of Mafatlal Industries's case [1996 (12) TMI 50 - SUPREME COURT OF INDIA]
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1977 (4) TMI 40 - GOVERNMENT OF INDIA
Factory - An apprentice whether covered under the category of 'worker' ... ... ... ... ..... ye to eventual obsorption in the establishment. There is nothing in law which provides that the number of apprentices should not be more than the number of workers. 3. Government of India observe that the law does not make any difference between apprentices and workers in extending the concession as provided in Notification No. 19/55-C.E., dated 18-4-1955. It is common ground that the Apprentices Act, 1961, did not apply to the factory of the petitioners at the relevant time. Hence whoever was working in the factory, contributing to the production thereat has to be considered as a workman for purpose of the said notification. The total number of workmen employed during a whole day and not during in one shift, is the relevant criterion. 4. Government of India, however, agree that a deduction towards the duty found leviable is permissible from the invoice value. 5. Subject to the modification or order-in-appeal as at para 4 above the revision application is otherwise rejected.
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1977 (4) TMI 39 - GOVERNMENT OF INDIA
Valuation - Revision of prices subsequent to clearance of goods - Effect ... ... ... ... ..... premises before 29-4-1974. On 29-4-1974, there was an upward Revision of the prices in the sense that the distinction between the sale price of O.E. and ordinary tyres was done away with. As the duty has to be levied on the price prevailing on the date of clearance, the differential duty demanded on the basis of subsequent sale at a higher price, is not in order. In the result, the R.A. is allowed.
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1977 (4) TMI 38 - GOVERNMENT OF INDIA
Rules 173Q and 226. ... ... ... ... ..... tent to evade duty. There is no evidence to show that the goods found short were used in the manufacture of excisable goods which were removed without payment of duty. Contravention of Rule 226 is punishable thereunder imposition of a penalty under Rule 173Q is not correct in law. In the result, the revision application is allowed.
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