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Showing 81 to 100 of 145 Records
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1978 (11) TMI 65
Bars, flats and rods of copper ... ... ... ... ..... ppear to be in the shape of bars, flats and rods. So far as bars and flats are concerned, these are covered by the expression bars in Sub-item (1). In so far as rods are concerned, one may say that rods of copper are not specifically included in Sub-item (1). Govt. observe that if some of the goods are not covered by the expression bars in Sub-item (1), these would be covered by expression wire rods in Sub-item (1a). For the purpose of the revision application before government, it is not necessary to decide which particular products would fall under Sub-item (1) and which under Sub-item (1a). It is sufficient to hold that none of these products, merely because these are smooth and finished, would go outside the scope of Item 26A of the Central Excise Tariff. The classification under item 68 of the authorities below is not sustainable and is hereby set aside. 3. Govt. of India accordingly allow the revision application. Consequential relief may be granted to the petitioners.
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1978 (11) TMI 64
Revision - Erroneous refunds - Order of Annulment - Effect - Amerio Plate Freezer ... ... ... ... ..... would now contend, that was actually imported by it, was not an assembled unit, but only parts of a freezer plant, then the assessment to duty would or should have been at the higher rate of 50 ad valorem under Section 29A, clause (3), and not at the lower rate of 40 under Section 29A(1). Counsel for the Union of India stressed before us that having obtained the benefit of an assessment to duty at the lower rate under Section 29A(1), the 1st Respondent was now making an ingenious attempt to build up a case for refund by pleading a case which would actually attract Sec. 29A(3) to the levy of Customs duty. The argument appeals to us. 9. On the materials disclosed, and on the facts and the circumstances presented we see no ground in Article 226 proceedings to interfere on the merits with Ext. P12 order. In the result, we allow this appeal, and set aside the order of the learned Judge and direct that O.P. No. 4274 of 1973 will stand dismissed. There will be no order as to costs.
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1978 (11) TMI 63
Valuation - Packing of durable and returnable nature - Scope - Sales made in Drums ... ... ... ... ..... the show cause notice. Besides the fact that the price is charged from the customers and so drums cannot be treated as returnable, is one of the reasons given by the Assistant Collector for treating them as not being returned to the factory. This is not the enough ground and the drums have to be treated as durable and returnable. In the show cause notice the only ground for issue of show cause notice was that the charges are recovered on an equated basis on different trips that the drums made between the premises of the appellants and the customers. Since the appellants were recovering the charges and were doing so in a number of instalments instead of one instalment, it would not mean that no charges were recovered from the buyers. The durable and returnable nature of the drums being established and the fact that the charges are being recovered makes these charges deductible from the assessable value. The order of the Assistant Collector is set aside. The appeal is allowed.
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1978 (11) TMI 62
Simplified Procedure - Non-option ... ... ... ... ..... 4/76. 5. In the reply to the Show Cause Notice and at the time of personal hearing, it was submitted that as the assessees were always within the exemption limit of Rs. 5 lakhs, there was no occasion to pay any duty. The delay in applying for simplified procedure was due to ignorance, lack of proper guidance and direction. Notification No. 14/76 applies to new assessees and those who held a licence for less than 12 months and as the Notification has no application, the proviso cannot also apply in the present instance. The demand for duty therefore should be dropped and the order-in-appeal up-held. 6. Government of India accept the above pleas of the party. The party, required to work under physical control during the specified period, in terms of Sub-clause (1) of Rule 173RJ, cannot be debarred from availing of the benefit of exemption conferred by Notification No. 158/71. Government of India therefore uphold the order-in-appeal and review proceedings initiated are dropped.
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1978 (11) TMI 61
Electric stove can not be considered as hot plates ... ... ... ... ..... fy a product for duty but what is important is the name by which the item is known in the trade. 4. Government also observe that the electric stoves such as those manufactured by the petitioners in which the heating element is exposed are covered by IS 2994-1965 for heating any liquid or cooking food. The specification for hot plate as laid down by lSI envisaged that the element should be enclosed or embedded or within tubular sheaths and covered by a plate. However, the construction of an electric stove is different. Govt. also agrees with the description of the product manufactured by the petitioner as electric stove in view of the opinion given by technical experts like National Physical Laboratory. 5. In the light of the above, Govt. hold that the product manufactured by the petitioner is more appropriately an electric stove rather than a hot plate. The order passed by the Appellate Collector is correct and is hereby confirmed, and further review proceedings are dropped.
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1978 (11) TMI 60
Whether Wolfram ore be classified under Item 87 of the Indian Customs Tariff and charged duty at the rate of 60 per cent ad valorem amounting to ₹ 62,871.03 P., instead of classifying the imported ore either under item 26 or Item 70 (7) which are free from duty?
Held that:- There is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under Item 26 or Item 70(7) of the Import Tariff, and as such, no duty was leviable on them. The appellants are, therefore, entitled in the refund of the duty paid by them on the goods in question. In favour of assessee.
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1978 (11) TMI 59
Business Expenditure, Single Business ... ... ... ... ..... ever, required to be supplied through the Corporation at cost. There is no stipulation that the over-head cost in the import of printing paper shall be borne by the Corporation. The argument made by the learned counsel for the department must, therefore, fail. Now, therefore, the established facts being that,-- (i) the paper import business and the manganese ore export business are so inter-connected as to form one single business, (ii) the expenditure was incidental to the assessee s business in manganese ore, the profit of which was being computed, (iii) the amount in question was spent by the assessee as a trader in manganese ore for the purpose of that business, and (iv) the expenditure was incurred during the relevant previous year, it follows that the expenditure in question was clearly admissible as a business expenditure. The question is accordingly answered in the affirmative and against the department. There would be no order as to costs. S. SARWAR ALI J.--I agree.
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1978 (11) TMI 58
Appeal To AAC, Appellate Assistant Commissioner, Assessment Order, Assessment Year, House Property, Rectification Proceedings
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1978 (11) TMI 57
Capital Loss, Capital Or Revenue Expenditure, Manufacture And Sale, Purchase And Sale, Trading Loss
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1978 (11) TMI 56
Firm Registration, Income Tax Act ... ... ... ... ..... dverted to the conflict of decisions as between the Gujarat High Court, the Andhra Pradesh High Court and the Kerala High Court on the one hand, and the Mysore High Court and the Allahabad High Court on the other and expressed his preference for the view of the Mysore and the Allahabad High Courts. It appears to us that on the facts disclosed in the instant case, the decision could safely be rested without resolving the conflict of decisions as between the several High Courts. We are of the opinion that there is no specification of the shares of the loss of the two minor partners either expressly or impliedly and there was nothing on which the officer could be satisfied that the shares of the minors in the losses had been specified. Being so, we are of the opinion that the registration of the firm ought to be refused. In the result, we answer the question referred in the negative, that is, in favour of the revenue and against the assessee. There will be no order as to costs.
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1978 (11) TMI 55
Industrial Undertaking, Reconstruction Of Business, Tenancy Rights ... ... ... ... ..... k on cl. (ii) of s. 84(2) and sought to contend that in the instant case the industrial undertaking of the assessee had been formed by transfer to a new business of buildings, machinery and plant previously used. This aspect of the matter was never raised on behalf of the revenue before the Tribunal. In any event, by reason of the language in which the question No. 1 has been framed it is in our view not open to the revenue to agitate this question in the present reference. Accordingly, we answer question No. 1 in the affirmative and in favour of the assessee. So far as question No. 2 is concerned, Mr. Sen submitted that in view of the aforementioned observations of the Tribunal in its order as to how the ITO would deal with the claim of the assessee under s. 84 in future, he will not press for an answer to the same. Accordingly, we decline to answer question No. 2. The reference is disposed of accordingly. There will be no order as to costs. BIMAL CHANDRA BASAK J.--I agree.
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1978 (11) TMI 54
Actual Cost, Amalgamating Company, Depreciation Actually Allowed, Written Down Value ... ... ... ... ..... tion in the instant case, it is not necessary to determine the actual cost in the hands of the present assessee. It will be enough if the amalgamation is ignored and written down value in the books of the other company, i.e., the amalgamating company is taken. Such written down value clearly would be the cost of such assets to the amalgamating company less the depreciation actually allowed to it. Under s. 43(6) read with Expln. 2A, all depreciation actually allowed on the assets whether in the hands of the amalgamating or the amalgamated company in our view has to be taken into account in determining the written down value. The overall effect of s. 34 has also to be kept in view. We hold, accordingly, that Expln. 2A to s. 43(6) is the more appropriate section to be applied in the facts of this case and, to the extent as indicated above, we answer the question in the affirmative and in favour of the assessee. There will be no order as to costs. BIMAL CHANDRA BASAK J.-I agree.
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1978 (11) TMI 53
A Firm, Fact By Tribunal, Finding Of Fact, Income Tax Act, Necessity Of Question Of Law ... ... ... ... ..... Rs. 1,795, i.e., about Rs. 150 per month, though according to the books the share of profit in the name of Raja Ram was credited to the extent of Rs. 15,000. Learned Tribunal has further held that after having gone through the entire statement of Raja Ram it was also clear that he did not have really the knowledge of the partnership business. If may to some extent be correct as contended by the learned counsel for the petitioner that each one of these circumstances taken into account separately may not be sufficient to hold that the partnership was not a genuine one, but when all the facts and circumstances existing at the inception of the partnership and facts immediately leading thereafter, are taken into account, there remains no manner of doubt that the Tribunal has arrived at a correct conclusion. In any view of the matter, we do not find that any question of law arises from the order of the Tribunal. In the result, the petitions are dismissed with no order as to costs.
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1978 (11) TMI 52
Mining Business, Motor Lorry, Road Transport Vehicle ... ... ... ... ..... were being put by the assessee. All these are relevant aspects of the enquiry which it will be necessary to undertake in order to arrive at the correct answer. In our view, the decision of the Supreme Court in the case of Bolani Ores Ltd., AIR 1975 SC 17, has no application in the facts and circumstances before us. We cannot take into account the facts as found by the Supreme Court and import the same into this reference. In any event, the question whether a dumper is a motor vehicle within the meaning of a State Motor Vehicles Taxation Acts or not has no bearing on the question before us, which is whether a dumper is a road transport vehicle within the meaning of s. 33 of the I.T. Act. For the reasons given above, we decline to answer the question. We direct the Tribunal to dispose of the matter in accordance with law after enquiries on the lines indicated earlier. The reference is disposed of accordingly. There will be no order as to costs. BIMAL CHANDRA BASAK J.-I agree.
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1978 (11) TMI 51
Assessment Year, Mercantile System ... ... ... ... ..... the 10 years, for which period the assessee had paid Rs. 77,000. The character of the payment was rent. The system being mercantile, it was evident that the liability accrued in each of the years for which the payment was made now. The liability hence could not be deemed to be postponed just because there was some difference of opinion as regards the quantum of the rent. In our opinion, the Tribunal took a perfectly correct view. At the instance of the assessee the Tribunal has referred the following question of law for our opinion Whether, on the facts and in the circumstances of the case, the assessee was entitled to claim a deduction of lease rent of Rs. 77,000 paid in the accounting period ending on 31st October, 1969, for the assessment year 1970-71 ? In view of what we have said above, the question referred to us is answered in the negative, in favour of the department and against the assessee. The Commissioner would be entitled to costs, which are assessed at Rs. 200.
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1978 (11) TMI 50
Plant And Machinery ... ... ... ... ..... e was allowable despite the fact that the entire cost had been allowed by way of deduction. It has not been doubted before us that the items in question were the capital assets of the assessee. The assessee had created the requisite development rebate reserve in respect of them. The fact that their cost had been allowed as a whole by way of deduction but not as a revenue expenditure does not make the actual cost of the asset nil. The actual cost of the asset remains the game for calculating the development rebate reserve. We are hence in agreement with the Tribunal that the assessee was entitled to the development rebate on such items of capital assets. The third question is hence liable to be answered in favour of the assessee. We, therefore, answer the first and second questions in favour of the department and against the assessee and the third question in favour of the assessee and against the department. In view of the dividend success there will be no order as to costs.
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1978 (11) TMI 49
Assessment Year, Change Of Law, Income Tax, Jurisdiction To Levy Penalty, Levy Of Penalty ... ... ... ... ..... 25,000. This view finds support from the decision in CIT v. Om Sons 1979 116 ITR 215 (All). In that case, it was held that even though the proceedings before the IAC may have been valid when they were initiated, yet the amendment of s. 274(2) deprived him of his jurisdiction and he could not exercise that jurisdiction or pass orders subsequent to the amendment. The present is the reverse case. Here, the ITO did possess jurisdiction on the date when he passed the order on 28th February, 1975. At the end of the Tribunal s order, we find observations that, in view of the decision on the legal aspect, they did not consider it necessary to go into the merits of the matter. Since the view on the legal aspect has been reversed, it will be open to the Tribunal to consider the case on merits. We, therefore, answer the questions referred to us in the negative, in favour of the department and against the assessee. The Commissioner will be entitled to costs which are assessed at Rs. 200.
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1978 (11) TMI 48
Firm Registration, Income Tax Act ... ... ... ... ..... d that before taking action under s. 186(2), it was incumbent to give fourteen days notice of an intention to refuse registration. But, in fact, no such notice was given to the assessee. Both these findings were upheld by the Tribunal. We have heard learned counsel. We find that the finding of the Tribunal is that no not under s. 186(2) was given to the firm and the assessee was not guilty or any contumacious conduct. The ITO was in error in refusing to grant the registration. Further, fourteen days notice was necessary before the ITO could act under s. 186(2) of the Act. In our opinion, the finding on the question is conclusive. The Tribunal was, in the circumstances, right in holding that the ITO was not justified in refusing to continue the registration and in cancelling it. In the result, we answer the question referred to us in the affirmative, in favour of the assessee and against the department. The assessee will be entitled to its costs, which are assessed at Rs. 200.
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1978 (11) TMI 47
Capital Expenditure, Income Tax Act ... ... ... ... ..... ct and in law the owner of the improvements of permanent nature effected by the assessee. The purpose for effecting improvements was to earn a better return from the property. It was a business investment in the shape of making permanent improvements in the buildings. The assessee was, in the eye of law, the owner of these improvements so long it had the right to retain the building as a tenant. The fact that, on the expiry of the lease, the improvements would go with the building does not alter the relevant and material aspect that during the duration of the lease the assessee continued to remain the sole owner of the improvements. This view finds support in Addl. CIT v. Lawlys Enterprises (P.) Ltd. 1975 100 ITR 369 (Pat) and also in Y. V. Srinivasamurthy v. CIT 1967 64 ITR 292 (Mys). We, therefore, answer the question referred to us in the affirmative, in favour of the assessee and against the department. The assessee will be entitled to costs which are assessed at Rs. 200.
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1978 (11) TMI 46
High Court, Income Tax Act, Let Out, Question Of Fact ... ... ... ... ..... bservations, it is clear that a mere sale of a commodity which the assessee requires for the purpose of its business will not justify an inference that the business of selling that commodity was intended, unless there is other material existing at the time when the commodity was purchased or which has come into existence later which can establish such an intention. It is plain from the ratio of these authorities that it is the intention from the very beginning which has to be seen and then only it can be said that a particular transaction was intended for the purpose of that business for which the assessee-company was established. From the statement of Shri P. N. Mayor, it is clear that the intention of the assessee-company from the very beginning was to manufacture discs for tractors and not to let the machinery on hire to third parties. For the reasons stated above, question No. 2 is also answered in the affirmative, i.e., against the assessee and in favour of the revenue.
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