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Showing 41 to 60 of 200 Records
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1979 (7) TMI 218
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... ... ..... se of due diligence and the facts should not have been within the knowledge of the applicant. Further, the facts should be such as could not be produced by the applicant when the order was made. The non-production must also be due to some inability after the exercise of due diligence. Only if after the exercise of due diligence the applicant did not have knowledge of, or was not in a position to produce, the facts, the applicant can avail himself of the remedy of review. In either event, the facts must be such which came to the knowledge of the assessee subsequently and which could not be produced after the exercise of due diligence. The requirement of exercise of due diligence applies to both the limits, viz., knowledge and inability to produce. The result is that the construction sought to be placed by the applicant on section 36(6) is not correct. The result is, the revision petitions fail and are dismissed with costs. Counsel s fee Rs. 250 (one set). Petitions dismissed.
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1979 (7) TMI 217
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... ... ..... ears to proceed on the basis that the appellant will have to raise only questions of law for the decision of the High Court. The form, as prescribed, cannot control the jurisdiction of the court which is conferred by the statute. This part of the form has to be understood as applying to those cases where any question of law as such is raised and will not apply to a case where the appeal is against an order of the Board of Revenue on a question of fact. It is quite understandable that the legislature has provided for a right of appeal on fact as well as law to the High Court, because the Board was interfering with an order of a subordinate authority in revision and the appeal to the High Court is in effect a first appeal. In these circumstances, the jurisdiction of the court will have to be understood in its wider scope, both on question of fact as well as on question of law. The appeal is partly allowed. The reduction is modified accordingly. No costs. Appeal Partly allowed.
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1979 (7) TMI 216
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... ... ..... o revision consequent on the purchase tax having been levied thereon. The Tribunal does not appear to have considered this contention properly. The Tribunal has proceeded only on the basis of certain decisions of other courts and of the Supreme Court. The Tribunal has not found that no part of the purchase price of cotton seeds has entered into the determination of the turnover of Rs. 85,25,638. The assessee s claim that part of the purchase price relating to cotton seeds is embedded in the turnover taxed requires examination. As the Tribunal has not looked into this aspect, we direct the Tribunal to go into the question and examine the matter in accordance with law and the provisions of section 4-A of the Act. Nothing said here is to be construed as expressing any opinion on the merits of the claim. Both the parties will have every opportunity to make any factual or legal submission on this point. This revision is allowed accordingly. No order as to costs. Petition allowed.
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1979 (7) TMI 215
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... ... ..... 4 in the Second Schedule to the Act. If the word machinery or accessory of a machinery, used by the legislature in item 20, included the tractor-trailer, there was no necessity to include it as an independent item particularly because the rate of tax provided for both the entries was six per cent . Subsequent amendment could be a guide for the interpretation of earlier provisions of statute see S.V.P. Cement Co. Ltd. v. General Mining Syndicate Pvt. Ltd.A.I.R. 1976 S.C. 2520. 11.. In the result, we hold that tractor-trailer is neither a machinery nor an accessory of a machinery and, therefore, is not liable to tax under item 20 of the Second Schedule to the Karnataka Sales Tax Act, 1957. 12.. For the reasons aforesaid, we make the following order (i) The appeal is allowed. (ii) The order dated 30th July, 1976, passed by the Commissioner of Commercial Taxes is set aside and the order of the Commercial Tax Officer, II Circle, Hubli, is restored. (iii) No costs. Appeal allowed.
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1979 (7) TMI 214
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... ... ..... ing-aids could not be made use of without these dry-cells, they were accessories of electrical hearing-aids and, therefore, they would come within the scope of item 41 of the First Schedule to the Tamil Nadu General Sales Tax Act. Dry-cells do not cease to be accessories of electrical hearing-aids merely because they are capable of being used as accessories for other purposes. What one has to find out is as to what is the purpose for which the said goods were imported and how they were intended to be sold? Considered in this background, it is clear that, in the present case, the import was only as accessories of hearing-aids and the transactions by the assessee were also only as accessories of electrical hearing-aids. The turnover was rightly exempted by the Appellate Assistant Commissioner and was erroneously brought to tax by the Board of Revenue. This tax case is, accordingly, allowed and the assessee will be entitled to its costs. Counsel s fee Rs. 250. Petition allowed.
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1979 (7) TMI 213
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... ... ..... ce of the transaction and the intention of the parties. We are afraid, from this point of view, the Tribunal had not approached this question at all. A re-examination of the question is called for, namely, the question as to whether the transaction is assessable as a contract of sale of material or whether it is exempt from taxation as being a contract for work and labour. 6.. But even if it was assessable, we think that it cannot be assessed under item 5 of the First Schedule at the higher rate of 7 per cent. We cannot hold that rubber seals are rubber products within the meaning of this item. If assessable at all, they would be assessable only at 3 per cent under section 5 of the Act. For a proper determination of the question, we would set aside the order of assessment and remand the matter back to the Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs. Ordered accordingly.
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1979 (7) TMI 212
Company when deemed unable to pay its debts, General ... ... ... ... ..... t and competent. They have acted in a high handed manner and tried to deprive citizens of India of their legitimate dues taking advantage of being an officer of a government undertaking. Therefore, I have no other alternative but to make the following orders The winding-up petition is admitted and to be advertised once in Statesman, once in Jugantar and once in Calcutta Gazette but the same not to be published before the 31st of July, 1979. If the company satisfies the claim of the petitioning creditor by paying the value of the said goods being Rs. 64,958,16, together with interest thereon at the rate of 9 per annum from 8th December, 1978, until repayment, and the assessed costs of 30 GMs. before 31st July, 1979, the winding-up petition would remain permanently stayed and compliance with rule 28 of the Companies (Court) Rules, 1959, is dispensed with. In default, the winding-up petition would be advertised and the same will appear in the list on the 10th of September, 1979.
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1979 (7) TMI 204
Directors - Power of ... ... ... ... ..... Allahabad High Court judgment in CIT v. Security Printers of India (P.) Ltd. 1972 86 ITR 210, in which it was held that the provision for taxation and provision for proposed dividends by a company are entitled to be treated as reserve for the purpose of rule 1 of the Second Schedule to the S.P.T. Act, 1963, and included these amounts in the computation. We are not inclined to agree with the views taken by the Allahabad and Calcutta High Courts and, relying upon the judgments of this court and other High Courts, we hold that the Tribunal was wrong in holding that the amounts of Rs. 2,40,966 and Rs. 2,09,999, respectively, for provision for taxation and provision for dividends sh6uld be treated as a part of the reserve for the purposes of rule 1 of the Second Schedule to the S.P.T. Act, 1963. Accordingly, this question is answered in the negative, i.e., in favour of the revenue and against the assessee. The references are disposed of accordingly. B.S. Dhillon J. mdash I agree.
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1979 (7) TMI 203
Winding up - Appeals from orders ... ... ... ... ..... ks under the control of the learned company judge is the best judge as to whether the restaurants of company under liquidation can be run more profitably through the servants and agents of the company or through contractors. Such a decision regarding the mode of running the future business of the company must necessarily be left to the subjective discretion, as distinguished from the objective discretion of the liquidator under the control of the learned company judge. In Shankarlal Aggarwala v. Shankarlal Poddar 1965 35 Comp. Cas. 1 AIR 1965 SC 507, the Supreme Court laid down that if in making the decision, the authority concerned has to go on a subjective consideration rather than objective one, the decision would, more often than not, be administrative in nature. Applying this ratio to the facts of this case, we have no hesitation in holding that the impugned orders are administrative in nature and hence not appealable. The two appeals are, therefore, dismissed in limine.
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1979 (7) TMI 202
Compromise and arrangement ... ... ... ... ..... Sunderlal Saraf (chartered accountant) for and on behalf of the company (and/or its new management) the entire undertaking of the company including all its properties, immovable, movable and cash and all books of account, documents, papers and vouchers. Upon the official liquidator doing so he shall stand discharged as liquidator of the company. 10.Within a period of 3 months from the date the said Shri Rusi Sethna and Sunderlal Saraf receive the charge of the property and records of the company from the official liquidator, the company will issue a notice convening an extraordinary general meeting of the shareholders of the company for the purpose of electing the directors of the company and containing such other business as the said Rusi Sethna and Sunderlal Saraf may deem proper. Thereafter the said Rusi Sethna and the said Sunderlal Saraf will hand over the charge of the property and the records and the under taking of the company to the board of directors of the company.
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1979 (7) TMI 182
Oppression and mismanagement ... ... ... ... ..... the company or not. The opposition to the compromise has in fact come from the heirs of Major Jagtar Singh who are the majority shareholders of the company. The affidavit that has been filed on behalf of the company opposing the compromise is in effect and substance an affidavit of opposition from the majority shareholders and not an affidavit from the company itself. I am not here concerned with the interests of the majority shareholders per se but with the larger interests of the company. I have, therefore, not examined the point of view of the majority shareholders of the company except in so far as it pertains to the interests of the company as such. In the premises, an order cannot be passed in terms of the compromise. Mr. Zaiwalla who appears for the company asks for vacating the order for costs passed against the company on June 15, 1979. As the company has substantially succeeded I am vacating the order for costs. Petition to be on board for hearing on August 2, 1979.
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1979 (7) TMI 181
Compromise and arrangement ... ... ... ... ..... wer to relax the time limits on such terms and conditions as it might think fit to impose. Having given an anxious thought to the advisability of making such a broad reservation, I have reached the conclusion that such reservation, if any, might, in all probability, defeat the very object behind the imposition of time-limits. I shall, however, reserve to the court the power to relax both the aforesaid time-limits only in two cases first, to meet with cases of marginal over-stepping of time-limits under exceptional circumstances and, secondly, to overcome an extraordinary situation such as the one where all schemes sponsored are likely to fall or have fallen through for one reason or the other. Under such circumstances, the court might relax the time-limits subject to such terms and conditions as it might think it just, fit and proper to impose in the circumstances of the case. Beyond this no other and further reservation, in my opinion, requires to be made. Order accordingly.
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1979 (7) TMI 166
Natural justice - Breach of principles ... ... ... ... ..... 12. emsp I have therefore, no hesitation in striking down the two impugned orders dated 17-9-1976 as they are passed without giving a reasonable opportunity to the petitioners as stated earlier. If the second respondent still desires to hold an enquiry, she will do so according to law after following the principles of natural justice as stated above. It is made clear that the petitioner had confined their challenge only to the two impugned orders both dated 17-9-1976 and had not challenged the proceedings adopted by the Customs authorities for challenging which the petitioners rsquo revision proceedings are pending before the proper authorities. The interim order passed by this Court on 11-10-1976 will continue to operate for four weeks from today. The respondents will not dispose of the goods for a period of four weeks from today. 13. emsp The petition is allowed and the rule is made absolute accordingly. In the circumstances of the case, there will be no order as to costs.
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1979 (7) TMI 163
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... ... ..... ssued a show-cause notice to the assessee for 8th May, 1973 and the assessee did not appear before him on that date, yet the fact remains that Shri M.P. Dubey did not pass the penalty orders on that date and the case remained pending. If the case remained pending for about two years after 8th May, 1973 and meanwhile Mr. Dubey was transferred it would have been only fair that Shri C. Merwar should have issued a notice of hearing to the assessee in the interest of justice before passing the penalty orders, specially when he was not at all aware of the background of the case. After all, reasonable opportunity of being heard, as contemplated under s.274(1), has to be real opportunity and not a mere formality. Since the penalty orders under consideration were passed by Shri C. Merwar, WTO, without giving an adequate opportunity of being heard to the assessee, we are unable to confirm the same. The penalty orders are, therefore, cancelled. 7. In the result, the appeals are allowed.
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1979 (7) TMI 162
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... ... ..... e of the assessee it would be difficult to hold that the assessee concealed the income of Rs. 78,000. The IAC correctly has only relied upon the assessment order but he has not brought any material to indicate that the HUF, though was assessed for the asst. yrs. 1968-69 to 1972-73, but did not have found to give loan to the assessee because the fund owned by the HUF was spent away. Further it has also not been indicated that the assessee was having income from some source. In short, no material has been brought on record to justify the concealment of Rs. 78,000. Therefore, simply disbelieving the statement of the assessee and adding the amount for tax purposes, penalty could not be imposed. This view is supported by the decision of the Supreme Court in 76 ITR 696. Under the circumstances, even second ground of the assessee is accepted and the order of the IAC is set aside. The ITO is directed to refund the penalty if already collected. 6. In the result, the appeal is allowed.
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1979 (7) TMI 158
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... ... ..... . It was due to this that the assessee had to pay Rs. 1,500 in each month to his employer company for personal use of the car. This clearly goes to show that the car was provided to the assessee by the Company wholly and exclusively in the performance of his duties and the personal use of the car by the assessee was prohibited and if he was to use the car, he was to pay compensation and thus the assessee paid Rs. 1,500 per month for the personal use of the car to a limited extent. Under such circumstances, it cannot be said that the car was provided to the assessee for free personal use and that the circumstances, show that the assessee was provided with the car wholly and exclusively for the performance of his duties. Under such circumstances, the AAC rightly held that the assessee was entitled to the standard deduction of Rs. 3,500. We agree with the reasonings of the AAC and we uphold the order of the AAC. 9. In the result, all the three departmental appeals are dismissed.
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1979 (7) TMI 156
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... ... ..... rm. That amount included the of Rs. 6,000 which was salary payable to him for managing the firm s business. There was no finding that the salary received by the Kartha was directly related to any assets of the family utilised in the firm. The Supreme Court had held that the sum of Rs. 6,000 could not be treated as the income of the HUF. Therefore, such issues have been agitated before the highest Court of law and it cannot be said that s. 247 would be applicable to such cases. I, therefore, hold that the AAC went wrong in dismissing the appeal as incompetent. On the other hand he should have entertained the appeal and considered the issue on merit. As regards the contention that the remuneration received by the Kartha of the assessee HUF is assessable in his individual hands and not in the hands of the HUF. Since the AAC has not considered this issue on merits I direct him to admit the appeal and dispose of the matter on merits. 6. In the result, the appeal is partly allowed.
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1979 (7) TMI 155
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... ... ..... on the part of the Directors to give personal security and also securities of their family properties for the loans raised by the company. In the absence of such a legal obligation the personal security etc., offered by the Directors are undoubtedly detrimental to their personal interests and therefore in determining the quantum of perquisite assessable under s. 17(2)(iii) of the Act, the detriment suffered by the assessee should be taken into account. We therefore set aside the orders of the AAC in all these appeals and restore the appeals to his file with a direction to dispose them of afresh in the light of this over. After verifying the correctness of the plea taken before him by the assessees with reference to the quantum of perquisite and on the basis of the materials which the assessee would produce before him and after affording an opportunity to the ITO of being heard and in accordance with law. 4. For purpose of statistics the appeals are treated as allowed in part.
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1979 (7) TMI 153
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... ... ..... , following the Madras High Court decision, allow the claim of the assessee for exemption. 4. The other argument of the Deptl. Rep. was as we understood him because he was heavily relying on Cambay Elec. Supply. Industrial Co. Ltd. vs. CIT 1978 CTR (SC) 50 113 ITR 84 (SC), that though there may be letting of godowns and warehouses it cannot be said that the receipt of income or the commission received is income derived from the letting of godowns or warehouses. We reject this argument also. Letting is the immediate or proximate case of accrual or receipt of this commission fee. That being so, it is certainly income derived from letting of godowns and warehouses. So all the ingredient of s. 80P(2)(e) of the IT Act, 1961 are satisfied in this case. So the appeals of the assessee are allowed. 5. Therefore, the appeals for asst. yr. 1976-77 and 1977-78 are allowed. The assessment of Government Stockists Commission for both the years will be modified in the light of this judgment.
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1979 (7) TMI 152
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... ... ..... is obvious that it is not a penalty that the assessee has to face but foregoing of certain amount from the customer for delayed supply of good which it cannot be said to be unusual feature in trade or business. In this regard support can be had from the decision of the Orissa High Court in Govind Choudhury and Sons vs. CIT (1971) 79 ITR 423 (Ori). In the light of the above, we are of the view that the amount claimed should be allowed as a deduction. 3. The next ground relates to relief under s. 80J. The assessee contends that the relief should not be restricted to the number of days the unit worked during the year as held by the AAC. We are of the view that in the light of number of decisions that the various benches of the Tribunal have been taking in this regard, the word per annum should be constructed as indicating that the assessee would be entitled to 6 per cent relief annually and, therefore, proportionate relief is not contemplated under s. 80J. The appeal is allowed.
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