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Case Laws
Showing 141 to 160 of 280 Records
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1984 (2) TMI 140 - ITAT CALCUTTA-E
Assessment Order, Subject Matter ... ... ... ... ..... use the ITO is not only an adjudicator but also an investigator. He cannot remain passive in the face of a return which is apparently in order but calls for further enquiry. The order becomes erroneous because such an enquiry has not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. The Commissioner (Appeals) had no occasion to consider this aspect of the matter and, therefore, it cannot be held that the ITO s order in this behalf had merged in the order of the appellate authority. 9. Since the Commissioner has already directed the assessing authority to redo the assessment after going into the details of the items mentioned and after giving sufficient opportunity to the assessee to put forward its case in this behalf, we do not find any ground to interfere with this order in this behalf. 10. In the result, the appeal is partly allowed and the Commissioner order in respect of the first count is quashed.
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1984 (2) TMI 139 - ITAT CALCUTTA-D
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... ... ..... ined. The ITO was also not justified in estimating the sales suppression in respect of the period for which he did not examine the purchases and sales made by the assessee. As there was no reasonable basis for making the addition of Rs. 31,243 in the trading account, the addition made by the ITO and confirmed by the CIT (A) in appeal is liable to be deleted. 9. The decisions of the Supreme Court and of the Calcutta High Court referred to above and cited on behalf of the Department do not lay down a principle of the universal application that in every case of non-maintenance of stock book, the accounts must be rejected. Here it would also be pertinent to note that for the asst. yrs. 1976-77 and 1978-79 the book results disclosed by the assessee were accepted by the Department even though no stock book in respect of the miscellaneous goods was maintained by the assessee. 10. For the reasons we allow the appeal. The addition of Rs. 31,243 made in the trading account is deleted.
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1984 (2) TMI 138 - ITAT CALCUTTA-D
Balancing Allowance, Railway Lines ... ... ... ... ..... for storage and stacking. The said platform and shed was dismantled during the year under appeal. Under the above circumstances, if the siding was not a railway siding, it was in the nature of a building which was used for the purposes of the business of the assessee. Under the above circumstances, the assessee was even eligible for relief under section 32(1)(iii), as a building. However, the relief sought by the assessee would be diminished by the estimated cost of the scrap. 11. The objection taken by the departmental representative as to when it was dismantled, is not in dispute and it is clear from the order of the ITO as well as the letter of the assessee dated 3-7-1981, which was addressed to the ITO, that it was demolished during the year under appeal. The other two objections of the departmental representative had been discussed earlier. The ITO, therefore, is directed to allow relief to the assessee as indicated above. 12. In the result, the appeal is partly allowed.
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1984 (2) TMI 137 - ITAT CALCUTTA-B
Advance Tax, Interest Payable By Assessee ... ... ... ... ..... n has arisen. On the ratio enunciated in the decisions of the above cases, the order of the ITO giving effect to the appellate order is also a regular assessment order under section 143. That being the position, the amount of the total income computed after giving effect to the order of the AAC should be the basis for ascertaining assessed tax for the purpose of levy of interest under section 215, on the facts of the present case. In this view of the matter we find that there is considerable force in the submission made on behalf of the assessee. On the facts of the case, as stated in the preceding paragraphs, there was no shortfall of payment of advance tax for the year under consideration and accordingly, interest under section 215 was not leviable. Therefore, the orders of the authorities below on the point are cancelled and the appeal by the assessee is allowed. 10. In the result, the appeal by the revenue is dismissed and the cross-objections of the assessee are allowed.
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1984 (2) TMI 136 - ITAT CALCUTTA-A
Rejection Of Accounts, Time Limit For Completion ... ... ... ... ..... ider that it is necessary that the matter should be restored to the file of the Commissioner (Appeals) for finding of facts before the grounds of appeal are dealt with by him and after giving both sides an opportunity of being heard. 12. The other grounds of appeal relate to the application of net profit rate from contract and from sub-contract, etc. In our opinion, since we have set aside the order of the Commissioner (Appeals) on the reasons recorded by us in the preceding paragraphs, the other grounds of appeal cannot be decided now at this stage unless basic facts, as pointed out in the preceding paragraphs, have been brought on record and have been dealt with by the Commissioner (Appeals). Accordingly, the other grounds of appeal are not considered. The assessee is at liberty to take up such points before the Commissioner (Appeals) when the appeals are being heard afresh by him. 13. In the result, the appeal by the assessee is treated as allowed for statistical purposes.
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1984 (2) TMI 135 - ITAT BOMBAY-E
Reopening Assessment at instance of assessee ... ... ... ... ..... assessment is made and it is not open to him to consider and adjudicate upon whether the assessment was properly made under section 144 which could be considered only in an order under section 146 and against which a separate appeal is provided under clause (d) of sub-section (1) of section 246. Besides, before the AAC decides an appeal against an assessment order, he has to wait for the order of the ITO on the assessee s application under section 146 and the appeal filed by the assessee against the order under section 146, if any, in which case the appeal against the order under section 146 has to be taken up simultaneously or earlier than the appeal against the assessment order. This has not been done in the present case. Considering all this and looking to the totality of the facts and circumstances. The order of the AAC is set aside and the appeal is restored to his file for a decision afresh keeping in view the observations in this order. 6. The appeal is partly allowed.
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1984 (2) TMI 134 - ITAT BOMBAY-E
Disposition In Favour, Family Hotchpot, Joint Investment ... ... ... ... ..... y Act, 1953. This would indicate where the transaction was completed more than two years before the death as in the present case, the property is not includible. The next case strongly relied upon by Shri Alphonso is the decision of the Supreme Court in the case of CED v. Kantilal Trikamlal 1976 105 ITR 92. That was a case of unequal partition. However, again the headnote would show . . . . A little within two years before his death he effected a partition taking a smaller share instead of his legal half, benefiting the others to the extent of the difference In our opinion, the value of the estate in dispute before the Court was includible essentially because it became within the prohibited period of two years which is not the case before us. 20. Considering from all angles, we find that even though the appellate order is short, the Appellate Controller has considered every aspect properly and that there is no reason requiring any interference. As such, we dismiss the appeal.
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1984 (2) TMI 133 - ITAT BOMBAY-E
Charitable Institution, Income From Property, Religious Trust ... ... ... ... ..... children of an employee of the member may in effect add up to the remuneration of the employee. The employees of the members also have made, though indirectly, their contribution to the silk industry and to the objects of the main trust. Even if the scholarship scheme is regarded from a purely narrow point of view, it cannot be taken out of the charitable sphere of the main association. The cases referred to by the authorities below are cases of private employers giving benefit to their employees only through the medium of a charitable trust. The present case is entirely different from these firstly, because the benefit is not to the employees of the institution secondly, the institution itself is a charitable one and an addition to its employees would only mean an extra expenditure of the institution on salaries. The cases cited, therefore, do not help the revenue even seen from a narrow point of view. 7. The assessee s appeals are allowed subject to the above observations.
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1984 (2) TMI 132 - ITAT BOMBAY-D
Assessment Year, New Industrial Undertaking, Profits And Gains ... ... ... ... ..... od of five consecutive years could be counted only from 1971-72 and, thus, it would end with the assessment year 1975-76. In other words, the relief to the assessee under section 80J would be available from the year in which all the conditions were satisfied i.e., the assessment year 1973-74 and the remaining period of the five year term i.e., up to and including the assessment year 1975-76. This aspect of the matter is also clearly enunciated by the Gujarat High Court in the aforesaid case of Satellite Engg. Ltd. (vide concluding portion of the first para on page 222). The Commissioner (Appeals) was, therefore, in error in holding that the assessee was entitled to the relief under section 80J in the assessment year 1976-77. The department, thus, succeeds in its appeal insofar as the direction of the Commissioner (Appeals) to allow relief under section 80J in the assessment for the assessment year 1976-77 is vacated by us. 6. In the result, the department s appeal is allowed.
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1984 (2) TMI 131 - ITAT BOMBAY-D
Capital Gains, Gross Total Income ... ... ... ... ..... hich would form a part of the gross total income though not forming a part of the total income . The amount assessed in the hands of beneficiary has been excluded from the total income by virtue of section 161. Section 161 is one of the provisions of the Act not prohibited in the definition of section 80B(5). Hence, the amount assessed under section 161 also goes out of gross total income as it goes out of total income . Respectfully following the aforesaid decision of the Bombay High Court, I hold that the decision of the AAC is quite in order and so I uphold the same. 10. Coming to the cross-objection filed by the assessee, I find that the ground taken before me has not been adjudicated upon by the AAC in his order dated 13-9-1983, which is now in appeal before me. Hence, the said ground cannot be said to arise out of the aforesaid order. Consequently, I reject the same as such. 11. In the result, both the departmental appeal and the assessee s cross-objection are rejected.
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1984 (2) TMI 130 - ITAT BOMBAY-D
Assessment Year, Income Tax Proceedings, Not Ordinarily Resident, Wealth Tax ... ... ... ... ..... essee may not have appealed against the income-tax assessment order because of absence of substantial tax liability. That would not estop him from raising the point in the wealth-tax proceedings. As already stated, the finding in the wealth-tax proceedings should be recorded independently on the basis of material in that proceeding. 19. Before parting, we may mention that the assessee was being assessed as non-resident even in the income-tax proceedings for last several year and nothing was brought to our notice on behalf of the department to show as to in what manner the status suddenly changed in the assessment year 1976-77. 20. For reasons given above, we uphold the claim made on behalf of the assessee to the effect that he was not citizen of India and non-resident in India in the year ending on the relevant valuation date and, as such, rule 3 of Part II of Schedule I applied to him. The order of the AAC must be upheld. 21. In the result, the appeal fails and is dismissed.
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1984 (2) TMI 129 - ITAT BOMBAY-C
Deduction, Royalty ... ... ... ... ..... fined under section 80B(5) of the Act means the total income computed in accordance with the provisions of the Act before making any deduction under Chapter VI of the Act. Evidently, this definition includes income from all heads. Hence, the sum of Rs. 15,990 assessed under the head Income from other sources was definitely a part of the gross total income. Hence, I come to the conclusion that the assessee is entitled to relief on the gross receipt of Rs. 7,04,225 without deduction of any expense therefrom but, the relief is to be limited only to the gross total income, which I hold is Rs. 5,59,707 as computed by the ITO in the assessment order itself. Hence, I direct that the relief under section 80-O should be given to the extent of Rs. 5,59,707 so that the total income for the year becomes nil. I direct that the assessment be modified accordingly. In view of the above decision, no further question survives for consideration. 8. In the result, the appeal is allowed as above.
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1984 (2) TMI 128 - ITAT BOMBAY-C
Residential House Property ... ... ... ... ..... It would be evident from the perusal of the aforesaid section that, in order to get the benefit of section 54(1), it is not a condition precedent that the assessee must necessarily reside in the house as an owner for two years immediately preceding the date of transfer. All that is necessary is the residence of the assessee (or his parent) in the house. It is immaterial whether he resides in the house as an owner or as a tenant. Now, in the present case, it is not in dispute that the assessee had been residing in the flat in question since the year 1972---first as a tenant up to 17-7-1976 and then as an owner up to 17-10-1977. That being so, we are of the opinion that the assessee has satisfied the condition of personal residence in the house for two years immediately preceding the date of transfer. He is, therefore, entitled to claim the benefit of section 54(1). We, accordingly, confirm, the impugned order of the AAC on this point. 5. In the result, the appeal is dismissed.
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1984 (2) TMI 127 - ITAT BOMBAY-C
Assessment Year, New Industrial Undertaking, Profits And Gains ... ... ... ... ..... penditure for the company. Such an argument, to our mind, is without any merit. 10. We are also unable to accept Shri Trivedi s submission that unless there are certain rules framed, the perquisites mentioned in section 17(2)(iii) cannot be brought to tax. As Shri Anjani Kumar pointed out, if the perquisite granted is squarely caught within the statutory provisions, then the statute would take over and it will be brought to tax. On the point whether this represents perquisites or not, we have already quoted the Madras High Court decision in A.K. Lakshmi s case. The fact that no rules have been framed cannot stop the operation of the statutory provisions. Probably the Government thought that there could be no universal rule in these matters. Each case has to be decided on its own peculiar facts. That was why probably no rules had been framed. 11. We are, therefore, satisfied that the amount had been properly brought to tax. 12. In the result, the appeals would stand dismissed.
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1984 (2) TMI 126 - ITAT BOMBAY-C
Carrying On Business, Industrial Undertaking, Investment Allowance, Profits And Gains ... ... ... ... ..... e in the Bombay High Court s decision in the case of N.U.C. (P.) Ltd. No doubt the said decision was concerned with the question of interpretation of the expression industrial company as defined in section 109(iii) of the Act and section 2(7)(d) of the Finance Act, 1966. The definition of industrial company does not require manufacture or production of an article or thing. It only requires construction of ships or processing of goods. Yet, the High Court held that construction and repair of buildings did not make the company an industrial company . Facts in the two cases before the Tribunal were different. The assessees in both the cases were constructing/manufacturing things/articles rather than repairing them. Having regard to the above discussion, we are inclined to hold that the assessee-company is not an industrial undertaking for the purpose of section 32A or section 80J. Accordingly, we set aside the order of the Commissioner (Appeals) and restore the order of the ITO.
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1984 (2) TMI 125 - ITAT BOMBAY-C
Borrowed Capital ... ... ... ... ..... 0,000 received by the assessee from the Government for its Orissa project, was not capital borrowed but capital provided for, it is evident from the relevant documents including the narration in the assessee-company s balance sheet that the amount in question was a loan from the Government and it was secured on the assets of the assessee-company. We, therefore, agree with the learned counsel for the assessee that the funds obtained by the assessee-company from the Government for its Orissa project was capital borrowed for the purpose of the assessee s running business and, consequently, the amount of interest paid in respect of such capital borrowed was admissible as a deduction under section 36(1)(iii) in computing the assessee s business income for the assessment years 1976-77 and 1977-78. The assessee, thus succeeds so far as its common ground of appeal for the said assessment years is concerned. 5.1 to 11. These paras are not reproduced here as they involve minor issues.
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1984 (2) TMI 124 - ITAT BOMBAY-A
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... ... ..... Supreme Court, it is clear that the assessee and his wife could not form a joint Hindu family in respect of the gifted properties. It was never owned by any joint family in the past. The position will be different after the birth of the son. But, that event did not take place during the two previous years under consideration. In these two years there was only one coparcener and the property was never owned by a joint family in the past. Hence, respectfully, following the decision in the case of Surjit Lal Chhabda, I come to the conclusion that the status of the assessee in respect of the income under consideration was wrongly shown by the assessee and accepted by the AAC as HUF. I, therefore, hold that the assessee should be assessed in the status of an individual in respect of the income under consideration during the two years covered in the present appeals. Hence, I vacate the orders of the AAC and restore those of the ITO. 8. In the result, these two appeals are allowed.
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1984 (2) TMI 123 - ITAT BOMBAY-A
Business Income, Business Loss, Carry Forward And Set Off, Income From Other Sources, Profits And Gains Of Business Or Profession, Set Off Of Loss
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1984 (2) TMI 122 - ITAT BANGALORE
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... ... ..... in CIT vs. Coorg Coffee Growers C.S. Ltd. (ITRC No. 55 of 1973 dt. 28 July, 1975), relied on by the assessee s counsel, is clearly distinguishable. In that case the finding of the Tribunal was that the commission is derived from letting of its godowns for storage of commodities with a view to facilitate marketing of the same. The Hon ble High Court held that on the facts found by the Tribunal, there can be no doubt that the claim for exemption made by the assessee and upheld by the Tribunal is justified in law. The facts in the instant case are different as no income is earned by the assessee from the letting of godowns or warehouses for the purpose of storage, processing or facilitating the marketing of commodities. Thus, in our view, the assessee is not entitled for the exemption under s. 80 P (2)(e). The lower authorities were justified in rejecting the claim of the assessee. We uphold the order of the Commissioner (A). 6. In the result, the appeal fails and is dismissed.
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1984 (2) TMI 121 - ITAT BANGALORE
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... ... ..... the process of filteration and the filtered juice itself did not contain any corrosive substance. Since the facts were distinguishable from those in (1981) 23 CTR (P and H) 6 (1982) 136 ITR 758 (P and H), he urged that the order of the CIT should be set aside. (b) The ld. departmental representative relied on the order of the CIT. 3. The business of the assessee is smelting and not melting. The furnaces used are electrical furnaces capable of generating a temperature of 2,000 to 3,000 degrees. In that high temperature the ores are reduced by the action of limestones mixed with them. The ores contain impurities like sulphur and phosphorus which are converted into sulphurdioxide, etc. It is well known that lime and sulphurous and phosphorus gases are corrosive. The furnaces come into contract with such corrosive chemicals. The assessee is, therefore, clearly entitled to depreciation at the higher rate of 15 per cent. The order of the CIT is set aside and the appeal is allowed.
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