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Case Laws
Showing 141 to 160 of 185 Records
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1981 (7) TMI 45 - BOMBAY HIGH COURT
Income From House Property, Income From Other Sources ... ... ... ... ..... of Mr. Pradhan is, therefore, devoid of any merit and cannot be accepted. In the circumstances stated above, the order of March 23, 1978, passed by the Commissioner is without an authority of law and the same is without jurisdiction and hence liable to be quashed. The impugned order of the Commissioner further suffers from an error apparent on the face of the record. To go behind the certificate issued by the Commissioner himself and to consider as to whether the petitioners case falls under any of the sub-sections of s. 3 of the said Act, in our judgment, is not permissible. It is clearly an error apparent on the face of the record to go behind the certificate. Accordingly, the order passed by the Commissioner withdrawing the certificate deserves to be quashed. In the result, the rule is made absolute with costs. The judgment and order dated March 23, 1978, passed by the Commissioner of Income-tax, Pune-II, Pune, in Case No. Pn/V.D.S./A/16-9/75-76 are quashed and set aside.
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1981 (7) TMI 44 - GAUHATI HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... nnection. As, in the present case, the learned Commissioner has ordered to reduce the penalty to 25 without giving any reason, the same cannot be sustained. No doubt the section in terms does not require the recording of reasons, but as the action taken under the provision is not purely administrative in character, being not based on policy, the thinking of the authority has to find a place in the order. This would provide a check on the arbitrary use of power as well. Any order passed under this section is also of some moment for the assessee which is yet another reason to pass reasoned order, so that if the assessee be aggrieved by it, he may ventilate his grievance before the appropriate forum. Accordingly, the impugned orders are set aside and the learned Commissioner is directed to apply his mind afresh to the facts of the case and to arrive at such conclusion relating to the prayer for a waiver of penalty, as he may deem lawful. The petitions stand allowed as aforesaid.
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1981 (7) TMI 43 - BOMBAY HIGH COURT
Estate Duty, Property Passing On Death ... ... ... ... ..... their own right and their shares in the goodwill of the firm could not be said to be property which passed on the death of the deceased. It may further be pointed out that at the time when the said partnership was formed the deceased was about 82 years old and he would most certainly require the time and energy of younger partners if the business were to be carried on. It was on this ground that this High Court held in CED v. Kantilal Nemchand 1978 115 ITR 89, that in such a case there was sufficient consideration for the father taking his son as a partner with a share in the business and even increasing his share later on. In the result, we answer the two questions referred to us as follows Question No. 1 in the affirmative, that is, in favour of the accountable persons and against the department. Question No. 2 in the affirmative, that is, in favour of the accountable persons and against the department. The applicant will pay to the respondents the costs of this reference.
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1981 (7) TMI 42 - MADRAS HIGH COURT
HUF, Partial Partition In HUF ... ... ... ... ..... oice citations of cases from the law reports. It has, however, become quite unnecessary to refer to them, since the answer to the question of law referred to us has already emerged on our consideration of the true nature of the assessee s transactions, which we have been able to arrive at on a construction of the assessee s own documents. Nothing else remains in this case excepting to set out the question of law referred to us and return our formal answer to the question. The question is as under Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the amounts of Rs. 6,057, Rs. 6,550, Rs. 6,000 and Rs. 5,111 paid by the assessee were an admissible deduction in computing the total incomes for the assessment years 1966-67, 1967-68, 1968-69 and 1969-70? For the reasons earlier stated, our answer to the question is in the negative and against the assessee. The department will have their costs. Counsel s fee Rs. 500, one set.
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1981 (7) TMI 41 - ORISSA HIGH COURT
Best Judgment Assessment ... ... ... ... ..... ion could arise. Since the notice itself was defective, statutory action conditioned upon it could not have been taken. We have already held that the defect was of no consequence and once it was rectified, the original notice became operative with the corrections. On the view we have taken in the matter, reference to the decisions cited before us becomes unnecessary. Two other contentions had been advanced before the Tribunal which were not examined as, in its opinion, the answer to the first contention was sufficient to dispose of the appeal. Since we have not agreed with that view, the other two questions, particularly the second one relating to actual valuation of the property on the date of the transaction, should be examined by the Tribunal. The appeal is allowed, the appellate order of the Tribunal is vacated and the Tribunal is called upon to dispose of the appeal afresh, keeping the observations made above in view. Costs shall abide the event. B. N. MISRA J.-I agree.
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1981 (7) TMI 40 - GUJARAT HIGH COURT
HUF, Partition, Patria Potestas ... ... ... ... ..... recognised as valid for the purpose of section 171 of the I.T. Act, 1961 ? 4. Whether, on the facts and In the affirmative and against in the circumstances of the case, the assessee. the Tribunal was right in holding that partial partitions made by a Hindu father in exercise of his patria potestas cannot be recorded as a valid partition under s. 171 of the I.T. Act, 1961 ? 5. Whether, on the facts and In the affirmative and against in the circumstances of the case, the assessee. the Tribunal was right in holding that the partial partition did not amount to a family arrangement in which the father acted as a natural guardian of the two minor sons after he had exercised his patria potestas ? 6. Whether, the income-tax In the affirmative and against department is competent to challenge the assessee. the exercise of powers as patria potestas by a Hindu father in respect of coparcenary property, making a partial partition. Reference answered accordingly with no order as to costs.
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1981 (7) TMI 39 - GUJARAT HIGH COURT
Total Income ... ... ... ... ..... mist s shop, their income to that extent can be clubbed together. Income from a nursing home run by the doctors who themselves treat their own patients as an integral part of the profession must be treated as professional income. If the nursing home is one where patients of doctors other than the partners are admitted and treated, it may be considered a business as discussed in the main judgment provided the tests indicated in the course of the discussion are satisfied. Income-tax Applications Nos. 158/81, 159/81. and 167/81. These three applications are rejected having regard to the fact that the activity carried on is absolutely professional activity and the view taken by the Tribunal is unexceptionable and in accordance with the view taken by us in the course of the discussion hereinbefore. In the result, the three references are answered in the aforesaid manner. The three Income-tax Applications are rejected. There will be no order regarding costs in all the six matters.
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1981 (7) TMI 38 - MADRAS HIGH COURT
"If Sold" In S. 36, Estate Duty ... ... ... ... ..... on by the assessee for earning profit and since a composite fee is paid by way of royalty for all the services rendered by Morganite, there is every justification to disallow portion of the royalty paid as relating to capital expenditure. (6) Since an asset and an advantage of enduring benefit of the assessee s business is thus acquired and brought into existence as a result of the technical aid agreement, it is immaterial that the payment was made once for all or was made periodically. These are the considerations which are relevant to the point in question and cannot be considered as alien to the solution of the problem of the expenditure being partly capital in nature. On the facts herein, we are satisfied that the Tribunal was justified in principle in making an allocation of the royalty paid between capital and revenue. The question is, accordingly, answered in the affirmative and in favour of the revenue. The revenue will be entitled to its costs. Counsel s fee Rs. 500.
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1981 (7) TMI 37 - BOMBAY HIGH COURT
Charitable Purpose ... ... ... ... ..... ff its losses against its income from property. There is no dispute before us that if we had come to the conclusion that the assessee-organisation was not entitled to any exemption under the provisions of s. 4(3)(i) of the Indian I.T. Act, 1922, or under s. 11 of the I.T. Act, 1961, then the assessees would have been entitled to set off its losses against its income from property. It is also not in dispute that this question of set-off does not arise if we come to the conclusion that the assessees are entitled to such exemption. In the circumstances, the first question is answered in the affirmative, that is, in favour of the assessees and against the revenue. The second question does not arise in view of our answer to question No. 1. Had question No. 1 been answered in the negative, the answer to question No. 2 would have been in the affirmative, that is, in favour of the assessees and against the revenue. The applicant will pay to the respondent the costs of the reference.
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1981 (7) TMI 36 - MADRAS HIGH COURT
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... ... ..... Commissioner of Incometax. This being the stand taken by the department as respects the real recipient of the interest, we cannot accept the factual submission put forward by the department s learned counsel that the amount of Rs. 50,000 as well as the interest thereon must be regarded as that of the individual partner concerned and not as that of the joint family. The learned counsel could not otherwise dispute the similarity of the factual situation in this case and that which prevailed in the case which we have earlier cited. We, accordingly, hold that the Tribunal was not correct in upholding the disallowance made by the ITO of the interest paid on the sum of Rs. 50,000 under s. 40(b) of the I.T. Act for both the assessment years 1971-72 and 1972-73 in the hands of the assessee-firm. The answer we return on the question of law referred to us must, therefore, be in the negative and against the department. In the circumstances, however, there will be no order as to costs.
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1981 (7) TMI 35 - DELHI HIGH COURT
Advance Tax ... ... ... ... ..... visions of s. 35/s. 154, to give effect to a new interpretation which in his opinion now is the correct one. Before concluding we may mention that Shri Harihar Lal raised an objection that the first question cannot be considered to arise out of the order of the Tribunal at the instance of the applicant in view of the decision of the Supreme Court in the case of CIT v. V. Damodaran 1980 121 ITR 572, but as already mentioned the applicant has not pressed for an answer to this question and it is not, therefore, necessary to consider the maintainability of this objection by the learned counsel for the respondent. In the result, in I.T.R. Nos. 139 to 142 of 1974, we decline to answer the first question and answer the second question in favour of the assessee. In I.T.R. No. 109 of 1975, the question referred is answered in the affirmative and in favour of the assessee. As the assessee has succeeded, it will be entitled to the costs of the reference. Counsel s fee Rs. 350 (one set).
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1981 (7) TMI 34 - MADRAS HIGH COURT
Business Expenditure, Firm ... ... ... ... ..... nterest paid to the HUF. The relevant question of law to which we have returned this answer covers three assessment years, namely, 1971-72, 1972-73 and 1973-74. Of these, assessments for 1971-72 and 1972-73 alone, are assessments in which the ITO happened to exercise his powers under s. 154 of the I.T. Act for making the disallowance of interest. Since, however, we have held that there was no scope whatever to make any disallowance under s. 40(b) of the Act, it is quite unnecessary for us to go into the further question, whether the ITO was right in bringing to bear his powers of rectification for the purpose of effecting the disallowance. This question of jurisdiction, therefore, has to remain unanswered. But, on our answer to the earlier question of law, which is one of substance, this reference is answered in favour of the assessee. Since the assessee has substantially succeeded in the reference, it will have its costs from the Department. Counsel s fee Rs. 500 (one set).
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1981 (7) TMI 33 - GUJARAT HIGH COURT
Gift, Gift Tax, HUF ... ... ... ... ..... he Revenue. The survey was made only to find out whether the machineries supplied by the foreign suppliers were in accordance with the terms and specifications contained in the contract. It had nothing to do with the cost of acquisition. In our opinion, the expenditure was in the course of the carrying on of the business of the assessee-company and formed part of the profit-earning process. The expenditure was, therefore, revenue expenditure. In the result, we agree with the view taken by the Tribunal and answer question No. (3) referred to us in the affirmative and against the Revenue. Reference answered accordingly with no order as to costs. Mr. J. P. Shah, learned counsel for the assessee-company, applies for a certificate of fitness to appeal to the Supreme Court under s. 261 of the Act. In view of the decisions of the Andhra Pradesh High Court and Madras High Court, wherein a contrary view has been taken, we certify this to be a fit case for appeal to the Supreme Court.
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1981 (7) TMI 32 - CALCUTTA HIGH COURT
Business, Capital Gains ... ... ... ... ..... occasion to consider this question as to what would be the consequence of retirement or dissolution of partnership in the case of CIT v. Bhupinder Singh 1981 128 ITR 67 (Cal), where the two previous decisions of the Bombay High Court were noted. As we have indicated before, here that question does not arise at all because there was no question either in the form of a dissolution or by the retirement of any partner. Here the assessee was really getting the damages for the failure of the partnership venture to succeed or to fructify. That sum in the facts and circumstances of the case cannot, in our opinion, be considered as a gain attracting the provisions of s. 45 of the Act. In that view of the matter, in our opinion, the Tribunal was right in the conclusion which it arrived at and the question must be answered in the affirmative and in favour of the assessee. In the facts and circumstances of the case, the parties will pay and bear their own costs. C. K. BANERJI J.-I agree.
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1981 (7) TMI 31 - BOMBAY HIGH COURT
Interest On Refund, Refund ... ... ... ... ..... o the AAC in the present case was competent, answering the question at issue would be academic. It is, therefore, unnecessary to answer the question. Under the circumstances, the questions which have been raised in these references are answered as under Income-tax Reference No. 98 of 1971 (1) It is unnecessary to answer question No. 1, for the reasons which are set out in the judgment. (2) The assessee had a right of appeal to the AAC against the order of the ITO not granting interest to the assessee on the amount of refund for the period of delay in granting refund. (3) The assessee is entitled to interest on the amount of refund due to him for the period of delay after the expiry of six months from 9th November, 1964. Income-tax Reference No. 194 of 1975 Both the questions are answered in the affirmative, that is, in favour of the assessee and against the revenue. The applicant in both these references to pay to each of the respondents herein the costs of these references.
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1981 (7) TMI 30 - CALCUTTA HIGH COURT
Business Profits, Income Tax ... ... ... ... ..... order. The relief was given by the AAC in view of item No. 21 in Part III of the list of articles and things in the Schedule to the Finance Act, 1965. The departmental representative stated that the AAC was wrong in allowing the relief while the assessee s counsel said that there could be absolutely no two opinions about the AAC s action being right. We have looked up Part III of the Schedule to the Finance Act, 1965, and find that item No. 21 specifically refers to automobile ancillaries. The assessee is clearly entitled to rebate as given by the AAC for reasons mentioned by him in para. 21 of his order. We endorse the reasoning and the conclusion of the AAC on this point as given in para. 21 of his order. In that view of the matter and in the facts and circumstances of the case, question No. 2 must be answered in the negative and in favour of the assessee. In the facts and circumstances of the case, parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (7) TMI 29 - CALCUTTA HIGH COURT
Business Expenditure, Gratuity ... ... ... ... ..... pplied s. 40A(7) of the I.T. Act in respect of the year subsequent to the year in which the provision came into effect. That decision in the case of Peoples Engineering and Motor Works Ltd. was concerned with the assessment year 1973-74 as mentioned hereinbefore. The present assessment year is the assessment year 1972-73 and the West Bengal Payment of Compulsory Gratuity Act came into operation during the said assessment year, that is to say, 1972-73. We have discussed the effect of the coming into operation of a statutory liability created under the said Act in the decision of on, v. Eastern Spinning Mills Ltd. 1980 126 ITR 686 (Cal). If those principles are attracted, as we find in the facts and circumstances of this case, then the Tribunal was right in the conclusion it arrived at. The question, therefore, must be answered in the affirmative and in favour of the assessee. As the assessee is not appearing, there will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (7) TMI 28 - CALCUTTA HIGH COURT
Gift, Gift Tax, HUF ... ... ... ... ..... ally or in the ultimate analysis or result be reduced to or converted into money. There, in a partial partition of the family, provision was made for the payment of an amount to the wife of the karta. It was held that such consideration was money s worth and the payment was not gift. As we have held, being an unmarried daughter of the Hindu family, the daughter has a right to be married out of the joint family expenses, there cannot be any gift. This only strengthens that conclusion and this conclusion is also corroborated by the Madras High Court in the case of Alagammai Achi v. Veerappa Chettiar, AIR 1956 Mad 428. In the aforesaid view of the matter, we are of the opinion that the Tribunal was right in its conclusion that the provisions of s. 2(xii) were not attracted and the question must, therefore, be answered in the affirmative and in favour of the assessee. In the facts and circumstances of the case, there will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (7) TMI 27 - BOMBAY HIGH COURT
Reassessment ... ... ... ... ..... the award was passed. In our judgment, this is a clear case where the ITO has initiated the action because of the change of opinion. From the contents of the two letters, which we have mentioned hereinabove, we have no hesitation in concluding that there was no information worth the name which could have led the ITO to believe that certain income has escaped assessment for the assessment year 1973-74. In our judgment, the impugned notice was totally misconceived and requires to be struck down. Shri Mukherjee informs us that in pursuance of the action taken by the ITO, an order has been passed directing the Valuation Officer to submit his report about the value of the land acquired by the Corporation. As we are quashing the impugned notice, Ex. G to the petition, the subsequent action taken by the ITO must fail. Accordingly, the petition succeeds and the rule is made absolute in terms of prayers (a) and (b). In the circumstances of the case, there will be no order as to costs.
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1981 (7) TMI 26 - MADRAS HIGH COURT
Developement Rebate, Withdrawal ... ... ... ... ..... annot affect the validity of the grant of allowance, having regard to the language of s. 34(3) read with s. 155(5). The section does not prevent the disruption of the family. When it ceases to exist those provisions also cease to operate in relation to it. We would take leave to point out at this stage that the decision of this court in Addl. CIT v. Dalmia Magnesite Corporation 1979 117 ITR 930, would require reconsideration in the light of the decision of the Supreme Court in Malabar Fisheries Co. v. CIT 1979 120 ITR 49. In so far is the Supreme Court has pointed out that the provisions of s. 34(3) could be operated only through the mechanism of s. 155(5), the View taken by this court that even in the original assessment there can be a refusal of development rebate to the assessee would be open to doubt. The result is that the reference is answered in the affirmative and in favour of the assessee. The assessee will be entitled to his costs. Counsel s. fee Rs. 500 (one set).
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