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Showing 41 to 60 of 183 Records
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1978 (2) TMI 194
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... ... ..... ticle made of stainless steel. Perhaps such an article could be said to be made of stainless steel, though the handle part of it was made of wood. This is so because the article with the handle is still substantially made of stainless steel. But the same, we do not think, can be said of a fountain-pen nib. The tip of nib can be either platinum or some other valuable substance. In this case, iridium has been used and it is the most important part of the nib and without it the nib becomes useless or becomes of much less use as the nib of a fountain-pen. In fact, as we said, the iridium part of it is the most important part and the value of it must be much more than the value of the steel that has been used in the nib. In any view of the matter, it is impossible to say that the fountainpen nib is substantially made of stainless steel. Such articles we do not think would fall under item 109 of the First Schedule. We, therefore, dismiss this tax revision case. Petition dismissed.
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1978 (2) TMI 193
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... ... ..... ularly so in the case of goods which are in the vehicle at the time of the inspection. In respect of goods which are not in the vehicle, but are alleged to have been sold and removed in the course of transit, verification may have to be done (unless of course the entries in the bill books are accepted by the officers without question) with the alleged purchasers of the goods. 11.. It is in fact a verification of that type which was done by the officers in the discharge of their official duties. That being the position, there is no doubt in my mind that the act and the duty were so interconnected (whether or not the petitioners acted in excess of the powers under the Act) that the previous sanction of the Government in terms of section 51 was undoubtedly required. This was not done. 12.. Accordingly, the present petition is allowed, and the proceeding in C. C. No. 411 of 1977 on the file of the judicial Magistrate of the Second Class, Alwaye, stands quashed. Petition allowed.
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1978 (2) TMI 192
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... ... ..... missioner is, therefore, beyond the period of six years prescribed in respect of the escaped turnover. We, therefore, hold that the lower authorities were in error in holding that the question of limitation did not arise in making the addition by the Assistant Commissioner of Commercial Taxes. Therefore, the addition of Rs. 43,550.70 or whatever be the correct amount made by the Assistant Commissioner is set aside. The result would be the assessment order of the Deputy Commercial Tax Officer is confirmed. In view of the fact that we have set aside the addition made by the Assistant Commissioner of Commercial Taxes, which was confirmed by the Tribunal, we set aside the impugned order levying penalty on the petitioner and direct the Tribunal to reduce the same proportionately. In the result, T.R.C. No. 61 of 1977 is allowed and T.R.C. No. 62 of 1977 is remitted back for disposal to the Sales Tax Appellate Tribunal. No costs. Advocate s fee Rs. 200 in each. Ordered accordingly.
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1978 (2) TMI 191
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... ... ..... and to another decision of that court in State of Madras v. Jeewanlal (1929) Ltd. 1973 32 S.T.C. 649. on analogous, if not practically identical, facts. It referred also to the decision of the Allahabad High Court in Baidya Nath Ayurved Bhawan (P.) Ltd. v. Commissioner of Sales Tax, U.P. 1970 26 S.T.C. 171. We have examined these cases. We agree with the Tribunal that the principle of these decisions supports the case of the assessee. The learned Government Pleader has not been able to attack the principle of these decisions. He cited to us the decision of the Andhra High Court in Hyderabad Chemicals and Fertilizers Ltd. v. State of Andhra Pradesh 1968 22 S.T.C. 298., which seems to have little application to the controversy raised here. In the result, we see no ground to interfere with the order of the Sales Tax Appellate Tribunal. We confirm the decision of the Sales Tax Appellate Tribunal and dismiss the tax revision case. We make no order as to costs. Petition dismissed.
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1978 (2) TMI 190
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... ... ..... the question as to what would be the position in law where a miller purchases a part of the turnover of groundnut for milling and the rest for sale. The burden is upon the assessees to show that they purchased a part of the turnover for milling and the rest for sale. The Tribunal has not chosen to give any finding on this question, that is to say, how much of the turnover was intended for milling and how much was intended for sale. We are, therefore, constrained to remit back the case to the Tribunal to decide the question as to how much of the turnover in each case was purchased by the assessee for milling and the rest for sale. If the Tribunal finds that any part of the turnover was purchased by each of the assessees here with the intention of resale, to that extent the Tribunal will give them relief. The three revisions are accordingly remitted back to the Tribunal for disposal afresh in the light of our decision. No costs. Advocate s fee Rs. 200 in each. Cases remitted.
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1978 (2) TMI 189
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... ... ..... artnership law a firm is not a legal entity but in law consists of only persons who are partners for the time being, as far as tax law, both income-tax and sales tax, is concerned, it is a legal entity. The principle was stated in clear terms on an examination of the provisions of the concerned taxing statute. That appears to run through the provisions of the Sales Tax Act, the statute with which we are concerned in the instant case. The definition of the term dealer under section 2(viii) of the Sales Tax Act includes a firm, just as the definition of a person under the Income-tax Act includes a firm. We are of the opinion that the decision of the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate 1966 17 S.T.C. 326 (S.C.). is directly in point and applies to the instant case. Being so, the direction made by the Appellate Tribunal was correct and calls for no interference. 2.. We dismiss these tax revision cases with no order as to costs. Petitions dismissed.
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1978 (2) TMI 188
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... ... ..... seller of the oil was the individual partner, another entity, who would not be a dealer-manufacturer. These decisions clearly indicate that the erstwhile partnership was an entity for the purpose of taxation, and for its tax liability, the members thereof will not be liable, unless they are specifically made liable by some provision in the Sales Tax Act. The Government Pleader has conceded that there was no such specific provision in the General Sales Tax Act of 1125 and it was to meet that lacuna that section 21 of the later Act of 1963 was enacted. Therefore, there is no escape for the revenue in these cases the partners of the dissolved partnership cannot be assessed in respect of the turnover of the partnership. The appeals are allowed, the decision of the single Judge is set aside and the assessments are quashed. The appellants in all these appeals will get their costs in the appeals but, in the writ petitions, we direct both the parties to bear their respective costs.
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1978 (2) TMI 187
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... ... ..... m. The Allahabad High Court pointed out that in common parlance the term sanitary fittings is used in respect of items like wash-basins, commodes, cistern tanks, urinals, etc., and other articles which are used commonly in bath rooms and lavatories. The decision noted that concrete pipes of certain specifications are used for drainage and sewage disposals, but it was pointed out that anything connected with sanitation cannot be brought within the term sanitary fittings . We think that on the same principle and by the same considerations anything connected with water supply cannot be brought within the meaning of the relevant entry. 5.. On the facts disclosed, we are not inclined to interfere with the Tribunal s finding that G.I. pipes are not liable to be assessed under entry 26A of Schedule I of the Act. We affirm the judgment of the Tribunal on this point as well. In the result, we dismiss this tax revision case but, in the circumstances, without costs. Petition dismissed.
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1978 (2) TMI 186
Whether "resale" in section 5(2)(a)(ii) and the second proviso means resale any where without any geographical limitation or it is confined only to resale inside Delhi?
Whether the price of the raw cotton was liable to be included in the taxable turnover of the appellants under the second proviso which was in identical terms with the second proviso in the present case?
Held that:- Appeal allowed. As already pointed out that even where the assessees used the goods purchased as raw materials in the manufacture of goods outside Delhi or having manufactured the goods, sold them outside Delhi, there was no breach of the intention expressed by them in the declarations given to the selling dealers and they could not be said to have utilised the goods for any purpose other than that for which they were purchased so as to attract the applicability of the second proviso. There was no evidence at all before the assessing authority and the order imposing penalty was, therefore, plainly unjustified. It was based on misconstruction of section 5(2)(a)(ii) and the second proviso and it must, therefore, be quashed and set aside.
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1978 (2) TMI 184
Whether 'atukulu (parched rice) and 'muramaralu' (puffed rice) are 'rice' within the meaning of entry 66(b) of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957?
Held that:- Appeal allowed. On a parity of reasoning, the term "rice" as ordinarily understood in English language would include both parched and puffed rice. Thus set aside the judgment of the High Court and answer the question framed above as follows: "Atukulu" (parched rice) and "muramaralu" (puffed rice) are rice within the meaning of entry 66(b) of Schedule I of the Andhra Pradesh General Sales Tax Act, 1957.
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1978 (2) TMI 170
Custody of documents, etc. ... ... ... ... ..... slightest doubt regarding the nature of Ex. P-4. It is a notice issued in accordance with rule 3(1) of the Adjudication Proceedings and Appeal Rules, 1974. Rule 3(1) enjoins that before proceedings under section 51 are initiated, the adjudicating officer shall in the first instance, issue a notice to the concerned person. Ex. P-4 is undoubtedly such a notice, both by its form and content. It is, therefore, clear that the proceedings under section 51 have been initiated on August 4, 1977 and the initiation of proceedings is based upon the seizure of the documents, which took place on September 16, 1976. There is, thus, valid compliance with the provisions of law by the respondents and the petitioner is not entitled to get back the concerned documents until the proceedings are terminated in the manner and at the stage as laid down in section 41 (i) of the Act. The petitioner is, therefore, not entitled to any relief. In the result, the original petition is dismissed. No costs.
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1978 (2) TMI 161
Company when deemed unable to pay its debts ... ... ... ... ..... e has been to dismiss such petitions. But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order (vide Buckley on the Companies Acts, 13th edn., page 451). We are satisfied that the debt, in respect of which notice was given under section 434 was bona fide disputed by the appellant-company. The appellant-company had received legal advice and it had acted on it. On the facts it seems to us clear that the appellant-company did not dispute the debt in order to hide its inability to pay debts That is the position here. There can be no possibility of doubt that the respondent-company and its present directors have got the necessary means to pay the debt claimed by the petitioner if he can only establish that the company is liable to pay the debt. In the circumstances the ratio of the decision of the Supreme Court is applicable to the instant case on all fours. This petition is, therefore, dismissed with costs.
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1978 (2) TMI 160
Winding up – Power of court to assess damages against delinquent directors, etc. ... ... ... ... ..... ed such debts to become time-barred, and, therefore, commercially accountable and legally responsible for making good that amount. The further special contention of the third respondent is that he was an out-of-station director and, therefore, in any event he is not responsible. This would be the best way for any director to escape from the clutches of law. So long as he is in the cobweb of administration as a director of the company, he has to take the responsibility for such involvement and the consequential accountability that flows from it. He cannot escape on the simple ground that he was outside the region of activity and that it was the first respondent alone who was nominated as the director-in-charge. The collective responsibility would have made him otherwise responsible under the Act, but for the peculiar circumstances of the case under which I exonerate all the respondents. The judge s summons, therefore, fails and is dismissed. There will be no order as to costs.
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1978 (2) TMI 159
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... instalments already paid by her amounting to about Rs. 20,000, and which, according to her, remained unpaid for a period of 21 days after the demand, is an amount which is not payable on such demand by the company. Section 434(1)(a) of the Act raises, no doubt, a fiction as to inability to pay debts if a debt, which is admittedly payable and for which a demand has been raised, is not respected. But in a case where the debt is disputed and also not payable on demand, as made by the creditor then section 434(1)(a) of the Act has no application at all. On the ground that the debt has not yet become payable and the demand is premature and also on the ground that the debt is disputed and disputed questions of fact so as to ascertain the liability of the chit fund holder vis-a-vis the subscriber cannot be entertained by a company court for purposes of granting a relief under section 433(e), I agree with the Office that this petition is not maintainable. It is, therefore, dismissed.
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1978 (2) TMI 137
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... ... ..... eturn as the income was only Rs. 4,000 each year for four years which was below taxable limit. The assessee has also pointed out that his wife was a nurse in the Central Hospital, Dhanbad, and she was getting salary of Rs. 350 per month and the assessee was living in the house of his wife which was provided by the employer and that the assessee had only two children and that third child was born in the year 1974 and so the saving of Rs. 14,000 was easily possible. Similar pleas were taken before the ITO as will be found from the copy of the petition filed before the ITO. We find that the assessee has satisfactorily explained the availability of cash of Rs. 24,000 and we, therefore, hold that the addition of Rs. 14,000 was not justified by the ITO. We hold that the AAC was justified in deleting the addition of Rs. 14,000 as income from undisclosed sources. We, therefore, uphold the order of the AAC deleting the addition of Rs. 14,000. 7. In the result, the appeal is dismissed.
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1978 (2) TMI 136
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... ... ..... the property into the common stock of HUF did not amount to transfer, the objection taken by the AAC is incorrect in view of the Supreme Court decision. Thus, the inclusion of property income in the hands of the assessee individual could not be sustained. 4. The assessee has filed the assessment order of HUF for the asst. yrs. 1970-71 to 1972-73. It is clear from the assessment orders of the HUF that the property income has been subjected to tax in the hands of the HUF and the AO of the assessee individual for the asst. yr. 1970-71 did not include the income from property accepting the position that the property has been thrown into the common hotch-potch of the HUF on 1st Dec., 1969 on the basis of the declaration of the assessee. Thus it is factually proved that the property has been accepted as of HUF since the asst. yr. 1970-71. Considering the above facts, we delete the inclusion of income from the total income of the assessee. 5. In the result, the appeals are allowed.
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1978 (2) TMI 132
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... ... ..... rs under s. 212(3) had already passed. Accordingly, the failure to file the estimates under s. 212(3) for these two years could also be attributed only to the same oversight on account of which the return for the asst. year 1970-71 was delayed by the assessee. As we have already held that such oversight was not the result of any wilful or contumacious conduct on the part of the assessee, the same finding will also hold good for the default committed by the assessee under s. 212(3). Accordingly, we have to hold that the failure of the assessee to file these estimates for the asst. years 1970-71 was also due only to an innocent oversight and not due to any wilful or contumacious conduct. In the results, we also hold that there was no justification for levying the impugned penalties under s. 273 of the IT Act, 1961. The penalties are, accordingly, cancelled. 15. In the result, appeal Nos. ITA. 3072, 3074 and 3075/Del/1976-77 are allowed and ITA. No. 3073/Del./76-77 is dismissed.
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1978 (2) TMI 129
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... ... ..... sion of the Madras High Court in South India Flour Mills (P) Ltd. vs. Central Board of Direct Taxes(1), where it has held that no appeal lay to the AAC under s. 30 of the IT Act, 1922, against charging of interest under s. 18A(6). In C.I.T Gujarat vs. Sharma Construction Co.(2) it has been pointed out that no right of appeal has been given to the assessee to appeal simply against the quantum of penal interest. To the same effect is the decision of the Full Bench of the Bombay High Court in C.I.T vs. Daimler Benz(3). There also it was pointed that where the assessee questions merely the quantum of penal interest, no appeal lay. In the instant case, the assessee merely questions the quantum of penal interest. In view of the above we hold that the AAC was not justified in directing the interest under s. 217 should be charged only for one year. We delete such directions. 14. In the result, I.T.A. Nos. 1077 and 1078/76-77 are allowed in part and I.T.A. No. 1512/76-77 is dismissed.
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1978 (2) TMI 126
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... ... ..... K.T.Wire Products vs. Union of Indian and Ors. (5) and of the Gujarat High Court in CIT vs. Garden Silk Wvg. Factory (6). In the above decisions relied upon by the departmental representative, it has been clearly held that the unabsorbed depreciation of the firm is to be allocated to the partners and after such allocation there is no question of the same being set off against the income of the firm for the subsequent year. The Gujarat High Court has referred to the decision of the Bombay High Court referred to above, but has not followed it. The Tribunal has been following the view taken by the Allahabad High Court and Gujarat High Court the decisions referred to above in preference to that taken by the Bombay High Court, that unabsorbed depreciation of the earlier year cannot be set off against the assessee s income for the assessment year under consideration. We, therefore, set aside the directions of the AAC in this behalf. 10. In the result, the appeal is allowed in part.
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1978 (2) TMI 124
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... ... ..... sted Rs. 13,000 in the firm. No other reason has been given by the ITO for refusing registration. We agree with the AAC that the firm was entitled to registration for this assessment year also. We, therefore, uphold the order of the AAC and dismiss the Departmental appeal Assessment year 1973-74 8. For this assessment year the relevant previous year is 22nd Oct.,1971 to 6th Nov.,1972. The assessee firm had applied for registration in form No.11-A within proper time. ITO, however, refused registration on the grounds as for asst. yr. 1972-73. The learned AAC allowed the assessee s claim relying upon his order for 1972-73. As the circumstances for this year are the same as for 1972-73 assessment year, we hold, following our decision for asst. yr. 1972-73, that the learned AAC was right in holding that the assessee firm was entitled to registration. As such, we uphold his order for this year also and dismiss the Departmental appeal. 9. In the result, the Departmental appeals fail
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