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Case Laws
Showing 81 to 100 of 187 Records
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1978 (8) TMI 107
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... ... ..... d had specifically excluded the retiring partners from the right to the goodwill it may be possible to argue that the point is foreclosed against the Department. But we do not find any such material. 7. It was then submitted relying on a decision of the Madras high Court in Addl. CGT vs. Annamala Nadar (1) that there was no gift because there was adequate consideration. We are unable to agree that the cited authority is applicable to the facts of this case. Therein, one of the partners taken in was a major partner who had been in their partnership as an employee. Consideration for the transfer was his continuing attention to the business and his acceptance to share all losses. This too would not however be available to the assessee before us because only minors had been admitted as partners. 8. In view of the above matters we are compelled to set aside the AAC s order and remit it back to him for fresh disposal. For statistical purposes, the appeal will be treated as allowed.
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1978 (8) TMI 106
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... ... ..... land. When the Tribunal set aside the order of penalty, it did not go into the question of constitutionality of s. 140A(3). That section was already declared ultravires by a competent High Court in the country and an authority like an Income-tax Tribunal acting anywhere in the country had to respect the law laid down by the High Court, though of a different State, so long as there was no contrary decision of any other High Court on that question. 10. Since the said decision of the Allahabad High Court is the only decision in the matter of interpretation to be given to the provisions of the s. 35(3) of the Act, the said decision, in view of the ratio of the aforesaid decision of the Bombay High Court in the case of Smt. Godavari Devi Saraf (2) is binding on us, laying down the law on the subject. 11. We, therefore, hold that the impugned order of the Commissioner of Income Tax is bad and the same is hereby cancelled. 12. In the result, the appeals by the assessee are allowed.
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1978 (8) TMI 105
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... ... ..... e dismissed . 13. From and out of the aforesaid facts, it would be clear that the Tribunal had come to its conclusion in the light of the principles laid down by the Supreme Court in the two decisions cited above. It has held that it had no reason to differ from the view taken by the Tribunal for the earlier years. The Department has not challenged the finding of the Tribunal on the ground that it is unreasonable or perverse or on the ground that the Tribunal had taken irrelevant materials into account or ignored relevant factors. Therefore, the decisions of the Supreme Court in the case of Ashoka Marketing Co. (83 ITR 439) and in the case of Dalmia Jain and Co. Ltd. (83 ITR 438) take the issue out of the pale of referability. We may further observe that in the earlier years, the Tribunal and rejected the reference applications. For all these reasons, therefore, we would likewise reject the reference applications. 14. In the result, the reference applications stand rejected.
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1978 (8) TMI 104
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... ... ..... d to levy the penalty by issuing a cyclostyled order without filling in all the blanks and exposed himself to the charge of completing the penalty proceedings without the necessary care excepted of him. After all, the W.T.O. is expected to discharge his duties fairly and reasonably and he exercises his powers under s. 18(1)(A) in a quasi-judicial capacity. He is expected to write a speaking order detailing the offence committed by the assessee, if any, in respect of the default. Where the penalty order itself does not bring home the charge of default in a proper manner, it would be vitiated. Even on merits, we find that the explanation put forth by the assessee was not verified or put to test by the lower authorities. We have already brought out the submissions made by the assessee before out above, there was a good cause for not levying the penalty. At any rate, the A.A.C. should have cancelled the penalty order. We, therefore, cancel the penalty order and allow the appeal.
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1978 (8) TMI 103
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... ... ..... ld not be imposed merely because there is a default, unless the conclusion that the assessee s conduct was contumacious or that she deliberately omitted to file her returns of wealth is justified, we have to consider whether such a conclusion is justified in the case before us. For this purpose it is necessary to take inter alia into account that the assessee was an old and illiterate lady that she was not represented by any counsel before the income-tax authorities that even if the valuation of property was done by applying a multiple of 20 to the net rental income, her wealth would not be taxable that the returns were filed absolutely voluntarily and that she co-operated with the WTO in the wealth-tax proceedings. On the aforesaid facts, we are inclined to hold that the default herein was without any motive and not without reasonable cause and, therefore, penalty proceedings under s. 18(1)(a) are not attracted in this case. 8. The Departmental appeals are, thus, dismissed.
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1978 (8) TMI 102
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... ... ..... asked the learned counsel as to what his stand on fact was? He stated that his stand was alternative. On facts it was Dada Hayat Khalandar who had lent money and if this was rejected his contention was that in the eye of law the amounts should be assessed in the hands of the partner and not the firm., We have rejected the factual claim that the loan was genuine and that it had come from Dada Hayat Khalandar. Once the cash credits appeared in the books of the firm, s. 68 applies and whether it is in the name of the partner or a third party, the firm has to explain the source and the amounts can be added if the explanation of the firm is rejected. On the facts we are satisfied that the cash credits were not genuine and the amounts had to be added in the hands of the firm. Accordingly we allow the Departmental appeal in this regard and set aside the order of the AAC and restore that of the ITO. The appeal ITA No. 492 is accordingly partly allowed while ITA No. 493 is dismissed.
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1978 (8) TMI 101
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... ... ..... o pass a speaking order by proper application of mind to the facts and circumstances of each case. Penalty under s. 221 is not automatic merely because the demand due has not been paid. If it was automatic, the first proviso to s. 221 (1) requiring an opportunity of being heard would become a formality and in fact, if the Parliament had desired that penalty should be automatic, there was no reason for it to incorporate the first proviso. Penalty being a quasi-criminal proceeding, it is absolutely necessary that the ITO should apply his mind and pass a speaking order. The order, on the face of it does not show an application of mind and is, unfortunately, passed on a printed form, a practice which must be discouraged and, in which, even the irrelevant portions are not scored out and, cannot certainly, be upheld. We, therefore uphold the order of the AAC cancelling the penalty on this sole ground, without going to the merits. The departmental appeal is, accordingly, dismissed.
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1978 (8) TMI 100
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... ... ..... essee, there were not any stakes involved in the matter of payment of wealth-tax. The WTO enhanced those value on estimate basis and such estimates cannot be anticipated by an assessee. There is nothing on record to show that the assessee knowingly returned lower values of the lands in question. In fact, it is worth pointing out that along with the returns, filed on 7th March, 1972,frad Jamabandi of village Khurla was attached in support of the valuation adopted by Rs. 1,49,800. It is equally true that the bulk of the assessee s wealth is constituted by the value of Khurla agricultural lands. The entirety of the circumstances in the assessee s case leads to the conclusion about the assessee s innocence. In view of this, we consider that no penalty can be imposed for either of the two years either under the main provisions of s.18(1)(c) or the Explanation in s. 18(1). Accordingly, we cancel the penalties and allow these appeals. 7. In the result, both the appeals are allowed.
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1978 (8) TMI 99
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... ... ..... should have clearly stated as to whether the agreed sale consideration has not been truly stated with either of the objects or with both the objects, as stated in cl. (a) or cl. (b) of s.269C(1), and that mere reproduction of the section would not do. He argues that the Competent Authority in this case has reproduced the objects, as stated ion cl. (a) or cl. (b) of s. 269C(1) as such and again he reproduced s.269F(6)(c) as such. He, therefore, argues that the Competent Authority was not firm and decisive at the time of recording the reasons to believe and the satisfaction as to with which object the alleged understatement was made. As we have already concluded on the other legal objection that the impugned order has to be quashed, we do not enter into the last legal objection of the assessee and also the merits of the case. 8. For the reasons, we uphold the contention of the appellants and quash the impugned order. 9. In the result, all the appeals, succeed and are allowed.
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1978 (8) TMI 98
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... ... ..... a, wholly with the concurrence of Shri. L.C. Khanna. In consideration of Shri L.C. Khanna. In consideration of Shri L.C. Khanna not insisting on division of the residential building, Shri M.C. Khanna, the assessee agreed to compensate him by allotment of the entire agricultural land. Thus the allotment of Shri L.C. Khanna has to be seen we have observed that the arrangement between the two brothers cannot be said to be a malafide arrangement entered into with a view to diverting the Revenue by any stretch of imagination the facility given to the younger brother by the assessee could be said to be a gift. We agree with the learned counsel for the assessee Shri N. Srinivasan that it was a mutual arrangement by exchange of their respective rights with a view to avoiding the impracticable partition of the residential building. Thus, the in facts and the circumstances of the case the orders of both the authorities below are reversed and the appeal filed by the assessee is allowed.
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1978 (8) TMI 97
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... ... ..... the necessity of producing any evidence whether there was any actual expenditure or not. We do not see how a pensioner can be put to disadvantage by bringing into the statute words so as to restrict the meaning of this deduction as available only to salary derived from personal employment. We do not find any intention of the legislation to deny such a benefit to the pensioners as this benefit is available without either actual incurring of expenditure of production of proof thereof. We, therefore, cannot uphold the contentions of the Revenue that pension cannot be treated as salary against which standard deduction can be allowed. 8. Before we close this case, we would like to observe that pensioners are not the people who can afford litigation of taxation matters and it would be worth while to consider whether it is desirable on the part of the Revenue to act in a shylock like manner to exact a pound of flesh. 9. The appeal of the Revenue deserves dismissal and is dismissed.
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1978 (8) TMI 96
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... ... ..... ought on record the cases where the Revenue has accepted the rate at 6.8 per cent, 6.5 per cent and G.P. rate at 9.5 per cent. Therefore, the gross profit rate estimated by the ITO at 10 per cent is absolutely unjustified under the facts and circumstances of the case. 15. The AAC in deleting the addition made by the ITO has assigned cogent and relevant reasons while the ITO simply presumed that in this line of business, profit is approximately 12 per cent without bringing any material on the record. Therefore, we hold that the order of the AAC was justified and merited no interference while that of the ITO, is without relevant and cogent reasons and rather on presumptions. 16. In view of our above discussion and totality of facts and circumstances of the case, we hold that the net profit rate shown at 6.8 per cent by the assessee respondent was reasonable the AAC was justified in deleting the addition of Rs. 56,674 made by the ITO. 17. In the result, the appeal is dismissed.
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1978 (8) TMI 95
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... ... ..... ut any infirmity in the appellant s accounts at all. The assessee appellant has offered the explanation which shows that it got the kapas ginned through other factories on payment of wages for the same the major portion of it was saw-ginned. It is an admitted fact that saw-ginning always results in low yield than that of roller-ginning. Therefore, we hold that the explanation offered by the assessee-appellant for low yield and shortage was justified and there is no material brought on the record by the Revenue on the basis of which we can conclude otherwise. 9. In view of our above discussion, fact and circumstances of the case, we hold that yield and shortage shown as well as the consideration paid for the processing of bales were reasonable and genuine. Consequently we hold that the authorities below were not justified in making the addition of Rs. 62,150 on account of low yield. Hence the addition made is deleted. 10. The result is that the appeal succeeds and is allowed.
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1978 (8) TMI 94
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... ... ..... manufacture of cotton yarn being considered as manufacture of textiles and as such it would be included in item 32 of the V Schedule. 10. Even if the Revenue could throw a doubt into this issue, that could only bring us to the fact that there are two interpretations possibly with regard to the word textiles used in item 32 of the V Schedule. It is now well settled that in a taxing statute where two interpretations are possible the one that favours the subject should be applied. We thus fined that considered from any angle, the case of the assessee is well founded and the development rebate admissible to the assessee has to be allowed at the rate of 35 per cent. We direct that the ITO should allow development rebate at 35 per cent on the quantum of machinery that has been installed and put to use during the previous year relevant to the assessment year under appeal as held by the AAC after verifying the items thereof. 11. In the result, the appeal of the assessee is allowed.
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1978 (8) TMI 93
Penalty - Liability ... ... ... ... ..... set aside would not in any way render the imposition of penalty on the petitioner illegal or invalid. In this view, I do not think there is any force in the first contention of the petitioner. 8.The next contention urged by the learned counsel for the petitioner is that the finding of the authorities that the petitioner was liable for the removal of the goods is not correct. But this finding is one of fact based upon proper appreciation of the relevant material adduced before the said authority. It is not the case of the petitioner that any principles of natural justice were violated or any reasonable opportunity was not given to him while conducting the enquiry nor is it alleged or established that there was any contravention of any rule in holding the enquiry. In the circumstances, I do not think any grounds are made out for interfering with the concurrent findings recorded by all the Tribunals that the seized excise goods were removed in contravention of the Excise Rules.
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1978 (8) TMI 92
Confiscation - Evidence ... ... ... ... ..... nd the amount to such person without his having to make any claim in that behalf. 18.Lastly I may notice two more arguments feebly advanced but not pursued. The first is that there was no justification for confiscation when personal penalty was remitted. Suffice it to say that there are two independent provisions in Sections 111(d) and 112 of the Act. The order of confiscation of improperly imported goods is not dependent on the personal penalty under Section 112 but it is otherwise. The second is that the copies of the first opinion of the three experts were not supplied to the petitioners and thus the petitioners were handicapped in the cross-examination of the three experts. The substance of the first report of the three experts was available on the record and I see no prejudice caused to the petitioners in the non-supply of the earlier opinions. 20.In view of partial success and the facts of the case, the parties are left to bear their own costs. Petitions partly allowed.
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1978 (8) TMI 91
Confiscation of vessel ... ... ... ... ..... on to pay fine in lieu of confiscation. When the adjudging officer finds that a case before him is within the purview of the section, the owner of the vessel may be asked to pay a fine to escape confiscation. 35.In view of the conclusions we have reached we are unable to hold on the facts and in the circumstances of this case that the order of the Additional Collector of Customs dated the 3rd August, 1975 was unjustified. It was urged before us that the respondent had alternative remedies under the Customs Act, 1962 and its application under Article 226 of the Constitution was not maintainable on that ground. But since we are not inclined to disturb the said order of the 23rd August, 1975, we do not propose to deal with the arguments advanced before us on alternative remedies . 36.In the result, this appeal is allowed. The Judgment and order of the learned Trial Judge are set aside. The Rule is discharged. Interim order if any, are vacated. There will be no order as to costs.
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1978 (8) TMI 90
Exemption Notification - Satisfaction of the Assistant Collector for fulfilment ... ... ... ... ..... to this notification the Assistant Collector s satisfaction can be before or after clearance of the goods and depends only on the fact that the cars are required for use solely as taxis. In this case the cars were cleared on payment of duty at a higher rate but subsequently at the time of first registration those were taken to be taxis. In the circumstances, Government allow the revision application and order consequential refund.
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1978 (8) TMI 89
Plastics - Estoppel - Beckamine and Super Beckamine are resins ... ... ... ... ..... ytylated urea or melamine formaldehyde as manufactured by the party is understood in trade and technology as resin and is therefore covered by the Tariff Item 15A (i) Central Excise Tariff. Further the Paint and Colour Book-year 1970 records both Beckamine and Super Beckamine, categorised as urea resin and maleic resin respectively as synthetic resin . In the Booklet brought out by the party themselves in October, 1963 titled an index of synthetic resins for the surface coating industries , Beckamine and Super Beckamine have been categorised as synthetic resins . The party, therefore, cannot now take a stand that the impugned products are not resins . 7. In view of the foregoing discussions, the order-in-appeal passed by the Appellate Collector of Central Excise, Madras is set aside and Government of India order that the impugned products are assessable under Item 15A (i) Central Excise Tariff, and are not eligible for the benefit envisaged by Notification 153/65 as amended.
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1978 (8) TMI 88
Penalty - Non-accounting of TP-3 - Contravention of ... ... ... ... ..... for obtaining the TP-3 in question was not written by him. There is evidence that the 84 bags of coffee passed through the Sales Tax check post at Sultans Battery, on 21-3-1966, under cover of TP-3 No. 100149 which is confirmed by the statement of the lorry driver Koya Kutty of Lorry MYM-5010 to Mysore. Investigations showed that the consignor one Karayil Devassia did not exist. Government therefore observe the factual position in regard to obtaining of the TP-3 as stated by the petitioner on 4-4-1966 has been sought to be diluted by his subsequent version with a view to escape responsibility under the Excise Law. The charge of contraventions of Rules 9, 31 and 33 of the Central Excise Rules, 1944 are clearly established by facts and evidence on record. The quantum of penalty is also reasonable as compared with the gravity of the offence. 8. In view of the above, Government find no reason to interfere with the order in appeal and accordingly rejects the revision application.
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