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Case Laws
Showing 41 to 60 of 148 Records
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1982 (10) TMI 161
Powers of court to grant relief in certain cases ... ... ... ... ..... Deposits) Rules, 1975, the offence had ceased to be an offence, when the hotel had converted, immediately on a refusal of exemption, the deposits into a charge or secured credit in favour of the depositors. In my view, the conduct in the case of the present petitioners is somewhat better inasmuch as the deposits have been repaid as on the date of the show-cause notice and the date of this petition and there cannot possibly be any complaint against the company by the depositors. This should not be construed as condoning the lapses on the part of the company. Violation of section 58A is a penal offence made as such in public interest and the companies cannot commit the offence with impunity. Therefore, in the circumstances made out in this case, this court, under section 633(2) of the Act, directs the Registrar of Companies to forbear from prosecuting the petitioners for the offence mentioned in the show-cause notice which is at annex.-B. Accordingly, this petition, is allowed.
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1982 (10) TMI 134
Whether the whole of ₹ 50,000 should be demanded or any lesser sum should be demanded from the bank was entirely within the choice of the Electricity Board?
Held that:- Appeal allowed. The bank has, therefore, to pay the amount due under the letter of guarantee given by it to the Electricity Board. On such payment it is open to the bank to have recourse to the securities given by the company in liquidation for the purpose of the issue of the letter of guarantee. The Electricity Board is not concerned with what the bank does in order to reimburse itself after making payment of the amount guaranteed by it. It is the responsibility of the bank to deal with the securities held by it in accordance with law. It was not, however, open to the company judge to make any order under the Companies Act prohibiting the Electricity Board from realising the amount guaranteed by the bank as this had nothing to do with the assets of the company in liquidation, The order of the company judge and the judgment of the Division Bench in appeal are, therefore, liable to be set aside and they are accordingly set aside.
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1982 (10) TMI 126
... ...
... ... ..... , the main idea conveyed is continuation of a thing without break. Even assuming that the word lsquo resume rsquo means lsquo taking up a thing after having given it up, rsquo having regard to the scheme underlying the relevant provisions of s. 24, the words lsquo provided that the business, profession or vocation in which the loss was originally sustained to be carried on by him in that year rsquo are not capable of bearing a construction so as to include restarting a business, in which loss was suffered after its discontinuance. This case was relied upon by Shri Sathe. However, we have already mentiioned that there are number of cases which are in favour of the assessee. Therefore we are upholding order of the CIT(A). We have also had an occasion to deal with a similar issue in I.T.A. Nos.569 and 570/PN/1981 which were also departmental appeals and we have elaborately dealt with the issue on hand. Adopting the reasoning of those appeals, we dismiss the departmental appeals.
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1982 (10) TMI 123
Assessment Year, Carry Forward ... ... ... ... ..... the decision of the Madras High Court was rendered and the facts in that case also show that the returns of losses were filed in time. They were, therefore, valid returns and not returns not non est in law as is in the present case. The artificial distinction sought to be placed between the proceedings under section 148 and the regular proceedings pursuant to return filed under section 139(1) or notice under section 139(2) is clearly misplaced and this submission, therefore, is to be stated to be rejected. In our view, therefore, Commissioner (Appeals) was clearly in error in coming to the conclusion as he did that the assessee was entitled to carry forward and set off of the past losses. The ratio of the Madras High Court decision based on the facts which govern that decision has not been appreciated if we may say so, with respect, by the Commissioner (Appeals). We, accordingly, reverse his decision and restore the orders of the ITO for all the years and allow these appeals.
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1982 (10) TMI 122
Assessment Year, Business Income, Penalty Proceedings ... ... ... ... ..... only to the addition made. In other words, the addition to the goods account has automatically brought into existence an expenditure or investment to which though not for a subsequent assessment year but for the same assessment year 1977-78, the provisions of Explanation 2 will be applicable. Even without any retrospective operation of the provisions or treatment but as a matter of procedure in the years subsequent to 1-4-1976, the above absurd position would face the taxpayer and the department if Explanation 2 is invoked in respect of an estimated addition. We have no hesitation in holding that where set off is claimed as in the present case against an addition to the goods account, Explanation 2 cannot particularly apply. 17. We, therefore, hold that the provisions of Explanation 2 are not applicable in the case and the ITO is not competent to levy the penalty. The penalty levied is cancelled. The penalty amount, if paid, is directed to be refunded. The appeal is allowed.
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1982 (10) TMI 117
... ...
... ... ..... r s. 263 of the IT Act. 4. We have carefully considered the fact and circumstances of the case and the submission on either side. On a perusal of the record it is quite evident that the ITO while giving relief to the assessee has relied on the decision of this Bench of the Tribunal in ITA No. 415-Nag/77-78 dt. 11th Aug., 1978 in the case of M/s Pannalal Hiralal and Co., Akola. If we apply the proposition of law laid down by the Calcutta High Court in the case of Russell Properties Pvt. Ltd. vs. Addl. CIT (1977) 109 ITR 229 (Cal) the order passed by the ITO in the aforesaid case cannot be held to be erroneous as the ITO has followed the decision of this Bench of the Tribunal and gave relief to the assessee. We, therefore, hold that the CIT has wrongly invoked jurisdiction under s. 263 to revise an order passed by the ITO which is not erroneous in the eye of law. The order passed by the CIT is, therefore, quashed. 5. In the result, the appeals filed by the assessee are allowed.
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1982 (10) TMI 114
Capital Asset, Capital Gains ... ... ... ... ..... roperty by registered document to a purchaser, but agree to take the consideration over the next 10 years. In such a case, it is to be held that the transfer is complete on the day the deed was registered irrespective of the non-receipt of the consideration. Similarly, in movable properties the hire-transfer is complete on delivery of possession. 6. Judged in the light of the above propostion it is clear that the assessee obtained possession of the truck on 1-3-1974 itself. He handed over the possession on 15-5-1976. He was, therefore, in possession of the capital asset for less than 36 months. Strictly speaking, he should have held on to the asset for at least 60 months if the capital gains were to be assessed as long-term capital gains. The transfer having been taken place on 15-5-1976, the law as on 1-4-1977 is to be applied. The capital gains have rightly been taxed as short-term capital gains in the assessment year 1977-78. We, accordingly, dismiss the assessee s appeal.
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1982 (10) TMI 113
Development Rebate Reserve, Previous Year ... ... ... ... ..... tion canvassed by the revenue is accepted. On the contrary, if the section is interpreted as to mean that the period is eight calendar years , it would be the same for all assessees and the construction placed by us is fair and reasonable. 8. Next, we consider the argument of the learned departmental representative regarding the application of the principle of ejusdem generis. This principle is not applicable at all. This rule would be applicable when a general word follows specific words. There should be a group of words of a specific nature followed by a general word indicating the class to which the word belongs. No such situation arises here. 9. For the reasons given above, we hold that the ITO was not right in withdrawing the development rebate reserve under section 155(5). The assessee s appeal is accordingly allowed. 10. Reference Application No. 109 (Nag.) of 1981--For the reasons given in our order, we dismiss the reference application of the assessee as infructuous.
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1982 (10) TMI 110
... ...
... ... ..... nly on 24th January 1978. So in this year there is no liability particularly when the Asstt. Collector, Madras by letter dt. 1st October 1975 addressed to the assessee, states that to ensure that clearances are not held up and normal production activity is not hampered, he will permit continuation of provisional asst. on the basis of the values declared by the assessee for approval purely as temporary measure. So, there being no liability there is no question of deduction of this amount in this year. 9. Goa Rs. 30,71,620. Here, also the excise department has not passed any orders. The assessee says at page 3 of the paper book that in respect of Goa factory the excise department has agreed to follow the outcome of their appeal against Kerala High Court judgment. So, there being no liability, there is no question of any deduction. 10. So, in the end, we reject, this excise duty liability of Rs. 63,19,171 subject to what we have stated about Kerala range. Appeal allowed in part.
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1982 (10) TMI 108
High Court, Levy Sugar Price, Purchase Price ... ... ... ... ..... o distinguishable. That case related to the compensatory (city) allowance. It was held that what was incurred by the assessee as compensatory (city) allowance was much less than what he ordinarily spends by reason of his posting at a particular place and it is exempt under section 10(14) of the Income-tax Act, 1961 ( the Act ). In fact section 10(14) is not applicable in the instant case as this is not a case of allowance special granted to meet expenses wholly and exclusively incurred in the performance of the duties of an office. In fact it is not the assessee s case also that he comes under section 10(14). Hence, that decision has no application. Thus, on a careful consideration of the entire facts, we are of the view that the devaluation allowance of Rs. 2,469 received by the assessee is taxable. The AAC is wrong in holding that the sum of Rs. 2,469 is not taxable. We set aside the order of the AAC and restore the order of the ITO. 8. In the result, the appeal is allowed.
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1982 (10) TMI 107
Capital Gains, Cost Of Acquisition, Original Assessment ... ... ... ... ..... igh Court. It is, therefore, beyond the jurisdiction of the ITO to proceed to disallow the sum of Rs. 94,230 and go against, the original assessment. To concede to the argument advanced on behalf of the department would virtually mean investing the ITO with the power either to reopen the entire assessment in a broad sense or review his own order taking advantage of the opportunity to retouch the assessment to give effect to the order of the appellate authority or rectify a mistake which might appear in the original assessment taking advantage of the appellate decision and giving effect to it. 10. To us, it appears to be totally incorrect and against the law and we direct that the ITO should add the sum of Rs. 94,230 also as was done in the original assessment, whatever may be the consequences, because it is not open to him to disturb the assessment proceedings in any manner other than the manner giving effect to the appellate order. 11. In the result, the appeals are allowed.
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1982 (10) TMI 104
... ...
... ... ..... ) 59 ITR 699 (SC) involving some what similar circumstances and terms of agreement we hold that in present case the agreement, between the assessee and the company is not a mere contract of employment or a contract of service simpliciter, but is a contract also for service and while the fixed salary is referable to the assessee rsquo s role as an employee, the commission and profits on repair and pedicure section contemplated in the agreement do not fall to be charged under the head salaries but either under the head income from business or under the head income from other sources and as claimed by the assessee in either case, namely, whether it is an income from business or income under the head lsquo income form other sources rsquo , all expenditure incurred for earning the amount is deductible in arriving at the income. We, therefore, uphold the order of the AAC allowing the deduction to the assessee, though for different reasons. 4. In the result, the appeal is dismissed.
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1982 (10) TMI 102
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... ... ..... . 3. Departmental appeal dismissed. 4. So the ITO before accepting the corporation figure, and rejecting the rent received, will have to establish that the rent received is always reflective of the annual value. However, it is only proper that the ITO is given an opportunity to go into all these questions we may also say that there is no compulsion like the one seen indicated in the commr rsquo s order. That in case where municipal valuation is higher than the rent received, the annual value should be only on the assessment basis of municipal valuation. 5. There is no substance of limitation raised by the assessee because what is not the order of 1977 but the order of 1979 passed in consequence of the appellate order. Both are orders prejudicial to the interest of revenue because both are on the basis of rent received. But what is revised is ought to be revised are the order of 1979. So there is no limitation in these matters. 6. So both appeals of the assessee are dismissed.
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1982 (10) TMI 101
... ...
... ... ..... ne to purchase till the sales is effected. (7) The Tribunal rsquo s lsquo D rsquo Bench Madras vide its order dt. 30th October 1981 in the case of M/s Anantha Stores, Madurai vs. The 5th ITO, Madurai for the asst. yr. 1979-80 in the case of a dealer in stainless steel and aluminium vessels has held that such a scheme is not a sales promotion scheme. 9. For these reasons we hold that the presentation of silver articles worth Rs. 30 to Rs. 80 is not sales promotion expenditure as found by the CIT. The Commr. had no materials before him to think that it is a sales promotion expenditure. The inference which he drew that it is sales promotion expenditure from the materials available in the case is on inference which is certainly not possible in the case. Speaking in legal phraseology, it is a perverse inference in the case which no reasonable or ordinary man would draw on the facts available in the case. 10. The appeal of the assessee is allowed. The order of the CIT is cancelled.
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1982 (10) TMI 96
A Firm, Adequate Consideration, Deemed Gift, Fair Market Value, Valuation Officer ... ... ... ... ..... tion precedent in any given case, for section 4(1)(a) to apply. The existence of inadequate consideration, a condition precedent for the application of section 4(1)(a) has not been established in this case. The Madras High Court has further laid down . . . if the Legislature had contemplated as a universal rule that the market value should alone be the criterion for testing the adequacy of consideration, the provision would have been differently worded. The wording would then have been, where the property is transferred for less than its market value, then the difference between the market value and the consideration stipulated, shall be deemed to be the gift made by the transferor . . . Thus, the Madras High Court pointed out how unsafe it would be to go merely by the market value for purpose of invoking the provisions of section 4(1)(a) without establishing motive of evasion of tax. 14. We, therefore, reverse the orders passed by the authorities below and allow this appeal.
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1982 (10) TMI 95
Compulsory Acquisition, Deemed Gift ... ... ... ... ..... he market value. 4. The simple question before us is whether the sale of 14 buses on 1-6-1974 is a sale otherwise than for adequate consideration. We have placed ourselves in the place of a willing buyer as on 1-6-1974. We find it extremely difficult, rather impossible to hold that the sale is otherwise than for adequate consideration. No reasonable man could have paid on that date Rs. 5,23,000. Whether anyone would have paid anything more than Rs. 2,87,950 and if so, how much more is anybody s guess ? However, such a question does not arise. The question is whether Rs. 5,23,000 would have been paid. We are of the definite view that no one would have paid either Rs. 5,23,000 or any amount near about that figure. So we have necessarily to cancel the assessment for deemed gift. In the light of this finding of ours, we do not propose to go into the other questions like deduction of share capital and voluntary liquidation, etc. 5. Appeal allowed. Assessment to gift-tax cancelled.
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1982 (10) TMI 92
Tax At Source ... ... ... ... ..... case was also that of a contractor where normally book results are interfered with. In deciding whether the action of the ITO in attempting to make an assessment was erroneous or not or was prejudicial to the revenue or not, we consider that apart from the fact that ex facie, on the basis of returns of income, refunds may appear to become due consequent to excess tax deduction at source with reference to such returns of income, the other factors referred to by us and the necessity of investigating into them would also merit consideration. On a balancing of these factors, we find it difficult to subscribe to the view that the orders passed by the ITO were erroneous or prejudicial to the revenue. In such circumstances, we set aside the common order of the Commissioner and restore the order passed by the ITO for the two assessment years. The ITO will now refund to the assessee any amount which may become due consequent to our decision. 14. The result is, the appeals are allowed.
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1982 (10) TMI 91
Concessional Rate, Market Value ... ... ... ... ..... impute a market value to such second-hand sales and to bring the difference between the book value and such imputed value to tax. As pointed out by the assessee, the revenue has accepted the decision in employer s hand though the decision was rendered in the limited context of finding by the first appellate authority that the benefit is not in the nature of an expenditure so as to attract section 40A(5) or section 40(c) and that even section 41(2) cannot justify the substitution of market value for the actual sale price. Whatever might be the reason, the fact remains that it has not been considered as a benefit conferred by the employer to the employee in the employer s case and it cannot, therefore, be treated as a benefit in the employee s hands. In other words, we are of the view that the benefit, if any, cannot be treated as a perquisite within the meaning of section 17(2). 4. In the result, the assessee is entitled to succeed. The appeal is allowed. Relief due Rs. 6,100.
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1982 (10) TMI 90
Educational Institutions, Previous Year ... ... ... ... ..... on 10(22) confines the benefit only to institutions which are not run for profit. Here again, we are not in a position to say that the institution is run for purposes of earning profit. There had been loss in one year and surplus in another. Besides, profit contemplated by the law is private profit and not profit for the purpose of implementation of the basic objectives as in this case. In fact, the CBDT in the Circular already referred to in an earlier paragraph also makes it clear by pointing out that all surplus will not be taxable unless there is diversion of such profit for personal use in the following words If the profit of educational institution can be diverted for the personal use of the proprietor thereof, then the income of the educational institution will be subject to tax. 7. Hence, in any view of the matter, we do not find any scope for disallowance of the assessee s claim for exemption under section 10(22). The appeal is allowed and the assessment is annulled.
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1982 (10) TMI 89
Standard Deduction ... ... ... ... ..... niklal s case under the 1922 Act. The Bombay High Court in the case of M. G. Bhatt v. CIT 1980 123 ITR 931 was dealing with a case of a partner paying remuneration, to look after his duties as a partner in the firm of architects and civil engineers. Such remuneration was a percentage of his share of profit. This was found to be deductible in the assessment for the assessment year 1962-63 to which year the 1961 Act applied. Since various High Courts have taken the view that the principle laid down by the Supreme Court in the case of Ramniklal in the context of the provisions of the 1922 Act, continued to apply also to the provisions of the 1961 Act, we are of the view that the assessee should succeed as the payment by the assessee-partner is wholly and exclusively necessary for enabling use of the lorries as a partnership asset, and that such expenses should, therefore, be allowed against the share income. 5. In the result, the appeal is allowed. The relief given is Rs. 7,521.
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