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Case Laws
Showing 21 to 40 of 84 Records
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1977 (6) TMI 89
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... ... ..... ale dealers whose accounts formed the sheet-anchor of the notice issued to the assessee, he is undoubtedly entitled to cross-examine such wholesale dealers. We do not, with respect, understand the decision of the Supreme Court, as recognising a right of cross-examination as an invariable attribute of the requirement of reasonable opportunity under section 17(3) of the Act. We rather understand the rule to have been stated with sufficient elasticity and amplitude as to make the right depend on the terms of the statute, the nature of the proceeding or of the function exercised, the conduct of the party, and the circumstances of the case. We are clear that on the facts disclosed, the petitioner in these revision cases is not entitled to demand a right of cross-examination of Pappachan either as part of the reasonable opportunity under section 17(3) of the Act, or on the rules of natural justice. We dismiss these tax revision cases with no order as to costs. Petitions dismissed.
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1977 (6) TMI 88
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... ... ..... come exigible to tax under the Act. This is not a case where there was no collection on the ground that no such tax could be levied or collected. We have, therefore, to conclude that the petitioner, who had taken what are called contingency deposits to meet the tax due on the concerned turnover, is not entitled to the exemption under section 10. 6.. The decisions in State of Mysore v. Mysore Spinning and Manufacturing Co. Ltd. 1960 11 S.T.C. 734 (S.C.). and in B. D. Narasimha Setty v. Deputy Commercial Tax Officer, Special Circle, Non-resident, Madras-7 1963 14 S.T.C. 94., and in V. V. Dyavakkalavar and Company v. Commercial Tax Officer, Haveri 1970 26 S.T.C.558., as well as that in Campbell v. Inland Revenue Commissioners 1967 1 Ch. 651. relied on by the counsel for the petitioner have no application. We negative the contention that the petitioner is entitled to exemption under section 10 of the Act. 7.. We dismiss this original petition. There will be no order as to costs.
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1977 (6) TMI 87
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... ... ..... ure. It Is not established that the sale of timber was effected in the course of trade or business. The sale of spontaneously grown timber which had been felled and dressed by the devaswom to facilitate transport cannot be characterised as sale of goods produced by it by manufacture, agriculture, horticulture or otherwise. Whether or not the sale of timber otherwise than in the course of trade or business would make the seller a dealer by virtue of explanation (1) to clause (xxi) of section 2 read with sub-clause (e) of clause (viii) of section 2, is unnecessary for us to decide in the present case in view of the total absence of any evidence to warrant the conclusion that the goods sold by the devaswom were also produced by it. In the circumstances and on the basis of the facts determined by the Tribunal, the petitioner-devaswom is not a dealer as defined under the Act. 17.. The tax revision cases are accordingly allowed with costs. Counsel s fee Rs. 150. Petitions allowed.
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1977 (6) TMI 86
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... ... ..... turnover for the purposes of assessment to Central sales tax. Govindan Nair, C.J., speaking for the Bench, held that in cases where a trade discount has been bona fide granted the consideration for the sale is only the amount which is actually paid or payable after the discount is deducted and that, hence, amounts allowed by the assessee to the buyers by way of trade commission or discount were not liable to be added to or included in the turnover for the purposes of assessment to Central sales tax. With respect, we entirely agree with the said view expressed by the Division Bench. Accordingly, we hold that the Tribunal was right in directing that the amount of Rs. 2,60,327.72 representing commissions deducted by the assessee in the various invoices of sales should be excluded from the taxable turnover of the assessee-company for the year 1961-62. 4.. In the result, we dismiss this tax revision case, but direct the parties to bear their respective costs. Petition dismissed.
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1977 (6) TMI 85
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... ... ..... ed on by the assessee and that is State of Tamil Nadu v. Sri Swamy and Company 1977 39 S.T.C. 85. It was held that the use of the word suppression showed the wilful nature of the non-disclosure and that if it had not been wilful non-disclosure the assessing authority would have used the word omission and that the Tribunal in that particular case was not right in setting aside the penalty on the ground that there was no finding of wilful non-disclosure. In view of the above decision, it follows that when once the word Suppression had been used, it is clear that the authorities had given a finding that there was a wilful non-disclosure of a part of the turnover which was brought to tax under section 16 and the penalty levied, therefore, was proper and the Tribunal was not right in deleting the penalty. The penalty as confirmed by the Appellate Assistant Commissioner is restored. The revision petition is accordingly allowed. There will be no order as to costs. Petition allowed.
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1977 (6) TMI 84
SALE OF GOODS — SPECIFIC OR ASCERTAINED GOODS — TERRITORIAL WATERS — INTER-STATE SALE — GOODS IMPORTED FROM ABROAD AND KEPT IN BONDED WAREHOUSE SUPPLIED TO FOREIGN GOING SHIPS UNDER SUPERVISION OF CUSTOMS AUTHORITIES — WHETHER INTER-STATE SALE OR LOCAL SALE.
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1977 (6) TMI 83
Company when deemed unable to pay its debts ... ... ... ... ..... eaded and proved in a company petition for winding up of an incorporated company on the ground that it is unable to pay its debts. The existence of the debt alone may not be sufficient as in the instant case the defence was one of discharge. If a plea of discharge is set up, as already stated by us, and if it is prima facie established, it implies that the debt as claimed is disputed. The jurisdiction to wind up a company incorporated the Companies Act is discretionary and all the circumstances have to considered by the company court before it exercises its judicial discretion face the existence of a corporate body. We are not satisfied that the as claimed by the petitioning creditor and on the foot of which petition for winding up was filed under section 433(e) of the Companies sustainable. This is because there is a bona fide dispute about the once of the debt and its quantum. The learned judge rightly dismissed application for winding up. The appeal fails and is dismissed.
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1977 (6) TMI 74
Oppression and mismanagement ... ... ... ... ..... e meeting at his chambers in the High Court premises before 1.30 p.m. on June 23, 1977. So far as the extraordinary general meeting scheduled for June 24, 1977, which is the subject-matter of the prayer at clause (o) is concerned, by consent of both the parties, there will be an order staying the said meeting. In the result, this application in so far as interim reliefs prayed for in clauses (n) and (o ) are concerned is disposed of in the light of the directions contained in this order. There will be no order as to costs. In respect of other interim prayers contained in the application, first respondent-company will file its counter on or before 4th July, 1977. Let the application be posted for further order on 8th July, 1977. In the meanwhile applicants will take out emergent notices to the other respondents. Copies of this order be made available to Sri M.P. Chandrakantaraj Urs and to the learned counsel for the applicants and of the company before 2 p.m. on June 23, 1977.
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1977 (6) TMI 65
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... ... ..... deleting the income from property from the hands of the husbands is, therefore, upheld for all the years under consideration. We also uphold the deletion of the unexplained investments on the assessments of the assessee as no material has been brought to show that the husbands contributed towards this additional investment in the properties standing in the manes of the ladies. We, may mention that the question of cost of construction which has been upheld by the AAC is not in dispute before us in these appeals and we, therefore, leave the matter there. 14. In the result the departmental appeals for all the five years are dismissed. The cross-objections filed by the assessee merely support the orders of the Appellate Asstt. Commissioner and it has been further pointed out that the income from property has been assessed in the hands of the ladies in the later years. Thus cross-objections do not raise any fresh grounds for our consideration. They are also, therefore, dismissed.
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1977 (6) TMI 62
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... ... ..... essee, has no application. In the case before us the question was of delay in the filing of the application and not of the application being found to be defective. Even if it is accepted that lsquo delay rsquo also constituted a lsquo defect rsquo in the application we do not see how the same could be rectified even if an opportunity as contemplated under s. 185(2) was given by the ITO to the assessee. The AAC was, therefore, wrong in observing that the assessee should have been granted necessary opportunity to rectify, the mistake in the application, in view of the provisions of s. 185(2) and in directing the ITO to give the assessee such an opportunity while reframing the assessment. We would instead leave the matter of registration open to be decided by the ITO on merits while making the assessments in presuance of the directions given by the AAC in the quantum appeal. In the result, appeal No. 3332 (Del) 75-76 is dismissed and appeal No. 3334(Del)/75-76 is partly allowed.
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1977 (6) TMI 59
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... ... ..... imate had been filed the only question can be whether the estimate was true or not. The proceedings had not taken that course. On the other hand, from the figure estimated it would appear that the estimate was more or less equal to the income returned. Where an estimate has been filed but tax has not been paid, s. 273(c) does not apply. The penalty provisions are attracted only where the assessee does not file an estimate of advance tax in accordance with s. 212(3A). It does not cover a case where the assessee having filed a valid estimate does not pay the tax. Such a contingency is not covered under this section. On analogous provisions it was held in the case of M.V.N. Nagappa Chettiar and Ors. vs. ITO 34 ITR 583 that for the failure to pay advance tax in accordance with sub-s. (3) of s. 18A of the IT Act, 1922, penalty cannot be levied under sub-s. (9) of that section. In the circumstances, we hold that no penalty can be levied. The appeal is allowed and penalty cancelled.
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1977 (6) TMI 56
Assessing Officer, Assessment Year, Regular Assessment, Undisclosed Income ... ... ... ... ..... pproval of the Commissioner, the same cannot be sustained in law because an assessment order includes various additions. In that view of the matter in our opinion this issue should be reconsidered by the Assessing Officer again. Therefore, we remit this issue back to the Assessing Officer for fresh consideration in the light of the discussion made above. While doing so the Assessing Officer shall give opportunity of hearing to the assessee. 9. The last issue which is relevant for the assessment year 1996-97 only is with regard to the correct amount of deduction on account of deficit in gold and silver. In Annexure XI of the assessment order the amount for deduction on account of this has been mentioned as Rs. 20,64,848, which according to the assessee should have been Rs. 21,42,425. After hearing both the sides, we direct the Assessing Officer to verify the figure from the records of the case and rectify the mistake accordingly. 10. In the result, the appeal is partly allowed
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1977 (6) TMI 53
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... ... ..... -Hindu taking less than an absolute interest on the death of her husband. 16. For the above reasons, we hold that s. 32 is not applicable in the instant case and the contrary view taken by the Appellate Controller is not correct. We, therefore, hold that the value of the property in question is includible in the assessment. 17. As already stated the accountable person has claimed exemption under s. 33(1)(n). Admittedly, the deceased was residing in the property in question. It is true that she had only a limited interest in the property, but nevertheless the property could said to have belonged to her in view of the decision of the Andhra Pradesh High Court in CED vs. Sanka Simhachalam. There is no decision taking a contrary view. Applying the principle laid down in the above decision, we held that exemption of Rs. 1 lakh has to be granted under s. 35(1)(n). We direct that the assessment be modified in accordance with our findings recorded above. 18. Appeal is partly allowed.
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1977 (6) TMI 51
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... ... ..... erence that there was gross negligence on the part of the assessee can be drawn having regard to the number of items that are omitted. The assessee can at best be penalised on the basis of this omission and not in respect of other addition. 7. It has been stated by the learned representative of the assessee that the total omission would work out to Rs. 300 at best as the receipts are in respect of small amounts. Unfortunately there is no record. The learned Departmental Representative has not been able to tell us that what are the exact amounts which are found to be omitted. In such circumstances we can say the amount of penalty should be with reference to the total of the amounts found to be omitted as per the order of the ITO. The ITO will verify those items and the penalty should be to the total of those items. In the result the penalty is directed to be reduced. 8. The appeal for the asst. yr. 1972-73 is allowed and the appeal for the asst. yr. 1973-74 is allowed in part.
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1977 (6) TMI 50
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... ... ..... arly liable to taxation. 6. It has been held in 1971 VKN (IV) page 328 that due to acidic action and despite the polythene lining gunny bags in which fertilizers are packed become useless and have no resale value. Therefore, in view of my conclusion that the finding of the learned Deputy Commissioner of Sales tax that there was an implied sale of gunny bags was based on a surmise and also because of the fact that gunny bags in which fertilizers are packed have no resale value after the contents have been emptied, it becomes obvious that the assessing authority wrongly made the appellant liable to taxation on this account. The learned Deputy Commissioner also had no sufficient reasons for upholding the assessment made by the assessing authority. In the result, this appeal is allowed and the order in the first appeal is set aside and the case is remanded to the assessing authority for providing relief to the appellant by not taxing him on account of the value of the gunny bags.
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1977 (6) TMI 49
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... ... ..... f the authorities below. 4. On a careful consideration of the rival submissions, we are of the opinion that the imposition of penalty cannot be sustained. The facts of the case show that though notice under s. 14(2) was served on 9th Sept., 1971, the assessee had applied for extension of time for lack of return forms and had also obtained valuer rsquo s report on 1st Dec., 1971. Thereafter, he has filed the return on 27th Dec., 1971. It is therefore, clear that the delay in filing of the return was due to more than one reasons which the assessee has placed before the authorities below but were never considered by them. The Revenue has not disproved the cause shown by the assessee which were reasonable and have a direct nexus with the delay. In the circumstances, we are satisfied that there was reasonable cause for the delay in the filing of the return and, therefore, the penalty provisions were not attracted. We, accordingly, cancel the penalty imposed. The appeal is allowed.
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1977 (6) TMI 48
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... ... ..... essee, has no application. In the case before us the question was of delay in the filing of the application and not of the application being found to be defective. Even if it is accepted that lsquo delay rsquo also constituted a lsquo defect rsquo in the application we do not see how the same could be rectified even if an opportunity as contemplated under s. 185(2) was given by the ITO to the assessee. The AAC was, therefore, wrong in observing that the assessee should have been granted necessary opportunity to rectify the mistake in the application, in view of the provisions of s. 185(2) and in directing the ITO to give the assessee such an opportunity while reframing the assessment. We would instead leave the matter or registration open to be decided by the ITO on merits while making the assessments in pursuance of the directions given by the AAC in the quantum appeal. In the result, appeal No. 3332 (Del) 75-76 is dismissed and appeal No. 3334 (Del)/75-76 is partly allowed.
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1977 (6) TMI 47
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... ... ..... tion which will lead to absurd incongruous result. No decision of any High Court to the contrary has been brought to our notice by the Revenue. If we construe s. 80J and r. 19A on the above lines there appears to be a clear inconsistency between the provisions of s. 80J and sub-r. (2) of r. 19A in so far as the date on which the capital employed should be taken for purposes of computation of relief. If we look into the provisions of s. 80J, we find that in the parenthesis it refers to the amount of capital employed during the previous year. Since there is no indication in this section that it contemplates capital employed in a particular period and the provision is to be construed liberally, the capital employed during the whole of the relevant previous year should appropriately be the basis for computation of relief as was allowable in the absence of sub-r. (2) of r. 19A. We direct the ITO to recompute the relief accordingly. 8. In the result the appeal is allowed pro tanto.
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1977 (6) TMI 46
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... ... ..... . The Income-tax Officer refused to condone the delay filing the registration application in Form No. 11A by an order u/s 184(4). The assessee appealed against such refusal. The Appellate Assistant Commissioner allowed the appeal after referring to his order on the appeal from the Income-tax Officer rsquo s order u/s 143(3) wherein the assessee was assessed Assistant an unregistered firm. It is against this order of the Appellate Assistant Commissioner, the Revenue is in appeal here. The contention is that the Appellate Assistant Commissioner, erred in entertaining this appeal and that he erred in entertaining this appeal and that he erred further in the directing condonation of delay and allowing registration by his order passed on the quantum appeal. In view of our conclusion recorded supra in I.T.A. No. 2959 of 1974-75 this appeal has become infructuous, raising a purely academic issue. Hence this requires to be dismissed. 12. In the result, both the appeals are dismissed.
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1977 (6) TMI 45
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... ... ..... a small assessee with an income of Rs. 5,000. The object of enacting s.40 A is to see that bogus payments were not passed of as genuine payments. Realising the difficulty in a country like India, where banking facilities are either scarce or not become popular the Legislature in its wisdom made rules giving maximum possibility for the assessee to prove the unavoidable circumstances in which the payments could not but be made in cash. This provision has therefore to be interpreted keeping in view the business needs rather than thinking about alternative suggestions. It is always possible to suggest an alternative possibility but what is to looked id from the interests of the businessmen. The assessee has established the identity of the party beyond doubt. I am therefore, of opinion that the assessee has proved its case and the Appellate Assistant Commissioner was justified in allowing the assessee rsquo s claim. The deletion is therefore confirmed. 5. The appeal is dismissed.
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