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1989 (10) TMI 30 - PUNJAB AND HARYANA HIGH COURT
Advance Tax, Penalty, Reference ... ... ... ... ..... itiate the proceedings under section 210 of the Act. He, however, argued that the notice under section 210 was without jurisdiction. Under this section, the notice for filing revised return could be issued only if the assessment for the previous year 1974-75 was without jurisdiction. We have, with the help of learned counsel for the parties, gone through the order of the Tribunal and we find that this point was not raised there. It has not been considered and adjudicated upon. Therefore, this question does not arise out of the order of the Tribunal. Mr. Sharma then contended that the question as framed was wide enough to comprehend this contention. We regret our inability to accept this contention. The question framed is whether, on the facts and in the circumstances of the case, the notice of advance tax under section 210 was invalid. On the facts brought out, the issue raised by Mr. Sharma does not arise. We answer the question in the negative and in favour of the Revenue.
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1989 (10) TMI 29 - KERALA HIGH COURT
Business Expenditure, Ceiling On Perquisite Given To Employees ... ... ... ... ..... I. T. R. Nos. 439 to 443 of 1985, judgment dated October 18, 1989 (Harrisons and Crossfield (India) Ltd. v. CIT 1990 183 ITR 614 (Ker)) we had held that the entire expenditure incurred by the assessee for the maintenance of the building given for the residence of the employees and the depreciation thereon can be taken into account for the purpose of disallowance under section 40(a)(v)/40A(5) of the Income-tax Act. In the light of the decision of this court in Forbes, Ewart and Figgis (P.) Ltd. 1982 138 ITR 1 FB and also the Bench decision of this court in I. T. R. Nos. 439 to 443 of 1985, (Harrisons and Crossfield (India) Ltd. v. CIT 1990 183 ITR 614 (Ker)), we answer the question referred to us in the affirmative, against the assessee and in favour of the Revenue. The income-tax references are disposed of accordingly. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1989 (10) TMI 28 - KERALA HIGH COURT
Business Expenditure, Ceiling On Perquisite Given To Employees ... ... ... ... ..... collected fair rent (at the rate of the municipal value) cannot be a fetter in applying the provisions of section 40(a)(v)/40A(5) of the Income-tax Act. There is a useful discussion about the scheme of the above provisions of law in Sampath Iyengar s Law of Income Tax, 7th Edition, Volume 2, pp. 2034 and 2035. In this view of the matter, we are of the view that the Tribunal was justified in holding that the entire expenditure incurred by the assessee for the maintenance of the building given for the residence of the employees and the depreciation thereon can be taken into account for the purpose of disallowance under section 40(a)(v)/40A(5) of the Income-tax Act. We answer the question referred to us in the affirmative, against the assessee and in favour of the Revenue. The Income-tax References are disposed of as above A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal Cochin Bench.
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1989 (10) TMI 27 - KERALA HIGH COURT
Business Expenditure, Reference ... ... ... ... ..... t of this court, in Forbes, Ewart and Figgis (P.) Ltd. case 1982 138 ITR 1 F. B. , and so this court may be pleased to allow these petitions and direct the Appellate Tribunal to refer the questions of law formulated in the original petitions for the decision of this court. We are unable to accept the above plea of counsel for the petitioners. The decision of the Tribunal is in accordance with the decision of the Full Bench of this court, vide Forbes, Ewart and Figgis (P.) Ltd. s case 1982 138 ITR 1 . It was not brought to our notice that any other court has taken a different view of the law. In such circumstances, we hold that the question of law formulated in this batch of four original petitions is not a referable question of law. We are satisfied that the decision of the Appellate Tribunal is correct. Therefore, we reject the above four original petitions and decline to direct the Income-tax Appellate Tribunal to refer the question of law stated in the original petitions.
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1989 (10) TMI 26 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... istribution of the cash amount as well as the building value. The Department did not raise any dispute regarding the distribution of the cash amount. However, regarding the share of the building, the dispute was raised. The amount of the share of the building was being included in the return of the assessee which, according to the assessee, was to be treated as that of a Hindu undivided family. In Income-tax References Nos. 1 and 2 of 1986 (CIT v. Sobha Singh Jairam Singh (No. 1) 1990 183 ITR 148 (P and H) ), relating to the assessment years 1971-72 and 1975-76, decided today, it has been held that the majority decision of the Tribunal that, on dissolution, there was no change in the character of the assets of the Hindu undivided family (partner) and the same was to be excluded from the return of the assessee, was correct, and the question framed in the present case is answered in favour of the assessee for the reasons recorded therein. The reference is disposed of as above.
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1989 (10) TMI 25 - MADHYA PRADESH HIGH COURT
Appeal To Supreme Court, Reference, Wealth Tax ... ... ... ... ..... e has gone in appeal to the Supreme Court and special leave petition is pending? This application was rejected. Hence, the present application before this court. The Tribunal held that no referable question of law arises, since the question has already been answered by this court in Miscellaneous Civil Case No. 75 of 1982, by its order dated March 19, 1983 (Princess Usha Trust v. CIT 1983 144 ITR 808). We do not find that, on the mere fact that a special leave petition has been preferred, the order passed by this court stands modified or annulled. There is no interim order passed by the Supreme Court, nor was any such order brought to our notice staying the operation of this order of this court in Miscellaneous Civil Case No. 75 of 1982- 1983 144 ITR 808. The question referred is covered by the decision of this court in Miscellaneous Civil Case No. 75 of 1982 - 1983 IL 44 ITR 808, and no referable question of law arises in this case. This application is, therefore, rejected.
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1989 (10) TMI 24 - PUNJAB AND HARYANA HIGH COURT
Appeal To Tribunal, Firm, HUF ... ... ... ... ..... gistered as held by the Supreme Court in CIT v. Juggilal Kamalapat 1967 63 ITR 292 as under (at page 298) The deed of relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partner ship firm in favour of the Kamala Town Trust, and, consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. On dissolution, the partners would get their respective share in the assets. Since two Hindu undivided families were partners in the said firm, on dissolution, the character of their share remained as that of the Hindu undivided family and such share was rightly to be excluded from the assessment of the assessee in the income-tax case as well as in the wealth tax case. Thus, in the facts and circumstances stated above, question No. (2) is also answered in favour of the assessee. This disposes of the references mentioned above.
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1989 (10) TMI 23 - MADRAS HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... ence to the defaulting conduct. The position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law, he continues to be guilty of the infraction and exposes himself to the penalty provided by law. In the light of the above principles laid down by the Supreme Court, we are of the view that the decision in CGT v. C. Muthukumaraswamy Mudaliar 1975 98 ITR 540 (Mad), referred to above, cannot be considered good law. Consequently, the decision of the Tribunal which applied the principle laid down in C. Muthukumaraswamy Mudaliar s case 1975 98 ITR 540 cannot also be sustained. In the result, we answer the question referred to us in the negative and against the assessee. The Revenue is entitled to costs. Counsel s fee Rs. 500. One set.
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1989 (10) TMI 22 - RAJASTHAN HIGH COURT
Exemptions, Wealth Tax ... ... ... ... ..... s remanded the case for reconsideration to the Tribunal in the light of the principles laid down in the said decision. The submission of Shri Singhal is that, in the present case, the Tribunal has not considered the matter in the light of the principles laid down by this court in the aforesaid decision. Taking into consideration the facts and circumstances of the case, we are of the opinion that question No. 2 does require consideration by this court. The Income-tax Appellate Tribunal is, therefore, directed to draw up the statement of the case and refer the following question for consideration of this court Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the firm, Gumanmal Umraomal, is an industrial undertaking within the meaning of section 5(1)(xxxii) and, consequently, in holding that the value of the assessee s interest in that firm is exempt under section 5(1)(xxxii) of the Wealth-tax Act, 1957 No order as to costs.
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1989 (10) TMI 21 - KERALA HIGH COURT
Association Of Persons ... ... ... ... ..... s not enough that the persons receive the income jointly. It is essential that the persons must join in common purpose or common action and the object of the association must be to produce income. The Income-tax Appellate Tribunal, after adverting to the above relevant decisions has held that this is a case of the assessees just continuing to receive the income from the forest lands and income from dividends and fixed deposits and it is the normal method of enjoying the said assets. The Tribunal also found that the assessees cannot be assessed as an association of persons on these facts. Reading the order of the Appellate Tribunal as a whole, we are satisfied that the conclusion of the Tribunal is justified in law. We, therefore, answer the question in the affirmative, against the Revenue and in favour of the assessees. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1989 (10) TMI 20 - KERALA HIGH COURT
Actual Cost, Depreciation ... ... ... ... ..... ll stand reduced. But it is a far cry to state that though at the time of purchase of the machinery, no person met the cost either directly or indirectly, if, long thereafter debt incurred in that connection is written off, it could be equated to position that the financier met part of the cost of the asset to the assessee. We are unable to accept the plea that the remission of liability by Atlanta Corporation can, in any way, be said to be one, where the Corporation met directly or indirectly the cost of the asset to the assessee. In this view of the matter, we are of the view that the remission by Atlanta Corporation could not be reduced from the cost of the machinery of the assessee for the purpose of income-tax. We answer the question referred to us in the negative, against the Revenue and in favour of the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1989 (10) TMI 19 - KERALA HIGH COURT
Income From Property ... ... ... ... ..... avour of the Revenue. We answer question No. 2, referred to us, also in the affirmative, in favour of the Revenue and against the assessee. The Appellate Tribunal referred to various facts and circumstances in paragraphs 9 and 10 of its appellate order dated May 24, 1985, and after calculation of the relevant details came to the conclusion that the assessee and his wife should be taken to have seven-eighth share in the property income and the assessee herein should bear five-sixth portion and his wife one-sixth. The finding aforesaid is a pure finding of fact, based on material. It is not open to interference by this court, in exercise of its advisory jurisdiction. Therefore, we answer question No. 3 in the affirmative, against the assessee and in favour of the Revenue. The income-tax references are answered accordingly. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1989 (10) TMI 18 - KERALA HIGH COURT
Agricultural Income Tax, Sales Tax ... ... ... ... ..... ention of the State that the objection petition was not filed within 14 days is not factually correct, because the notice, exhibit P-2, was issued on February 19, 1985, and on the very next day, February 20, 1985, exhibit P-3 objection-petition was filed. It is the bounden duty of the second respondent to consider and dispose of exhibit P-3 on merits. For the reasons given above, I hold both the points in favour of the petitioner. In the result, there shall be a writ of mandamus issued directing the second respondent to dispose of exhibit P-3 objection-petition filed by the petitioner. Both the parties will bear their own costs in this writ petition. This court, in C. M. P. No. 8387 of 1985, granted interim stay directing the respondents to stay the revenue recovery proceedings in respect of 688.53 acres of land in Sy. No. 329 of Vythiri village belonging to the fourth respondent. That stay shall continue till the Revenue authorities dispose of exhibit P-3 objection-petition.
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1989 (10) TMI 17 - KERALA HIGH COURT
... ... ... ... ..... accrued to the assessee every year. The fact that the assessee did not credit such amount in the profit and loss account by itself will not absolve the assessee from the liability incurred as a result of the above accrual of interest. We are of the view that the addition made by the Income-tax Officer of Rs. 30,000 being interest on the loan advanced was correctly upheld by the Income-tax Appellate Tribunal. The decisions in Sutlej Cotton Mills Ltd. v. CIT 1979 116 ITR 1 (SC) CIT v. Kerala Financial Corporation 1985 155 ITR 228 (Ker) and State Bank of Travancore v. CIT 1986 158 ITR 102 (SC) are relevant in this context. On the above reasoning, we are of the view that the question of law, formulated in ground D of the original petition and extracted hereinabove, is not a referable question of law and we decline to direct the Income-tax Appellate Tribunal to refer the said question of law for the decision of this court. The original petition is without merit. It is dismissed.
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1989 (10) TMI 16 - RAJASTHAN HIGH COURT
... ... ... ... ..... hand 1990 184 ITR 31 ). Having considered the aforesaid decisions, we are of the view that the questions raised In the reference application which arise from, the order of the Tribunal dated June 5, 1989, require the consideration of this court. The Tribunal is, therefore, directed to draw up the statement of case and refer the following questions for the consideration of this court 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in upholding the order of the Commissioner of Gift-tax (Appeals) that the notice issued under section 13(2) of the Gift-tax Act was beyond time and that, therefore, all proceedings are invalid in law ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating the notice under section 16 as a notice under section 13(2) ignoring the provisions of section 41C and without appreciating the fact that notice under section 16 is not of statutory series notice? No order as to costs.
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1989 (10) TMI 15 - ALLAHABAD HIGH COURT
Business Expenditure ... ... ... ... ..... wable expenditure ? 2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that interest paid by the assessee-firm on the deposits of a sister concern was allowable expenditure especially when the deposit was out of funds transferred to the sister concern by the partners ? On the first question, the finding recorded by the Tribunal was that the assessee incurred expenditure in distribution of the articles intended for its purchasers, depending on their performance and in the opinion of the Tribunal and rightly so, the amount spent was neither an amount spent in publicity nor for advertisement. This amount was spent under an incentive scheme and, therefore, rule 6B did not apply. In our view, no different view was possible in the circumstances of the case. So far as the second question is concerned, this question is concluded by finding of fact against the Department. The reference application is rejected.
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1989 (10) TMI 14 - RAJASTHAN HIGH COURT
Burden Of Proof, Reference, Wealth Tax ... ... ... ... ..... he Revenue to discharge the said burden and, for that purpose, the matter should be remanded to the Wealth-tax Officer. We find that no such contention was urged by the Revenue before the Tribunal. It was not argued before the Tribunal that even if it be held that the burden lay on the Revenue, the said burden has been discharged in the present case or that the matter should be remanded to the Wealth-tax Officer to enable the Revenue to establish its case. Since no such argument was raised before the Tribunal, the Tribunal has not considered the same and, it cannot, therefore, be said that these questions arise out of the order passed by the Tribunal. Moreover, these questions are not covered by the questions which are sought to be referred by the Revenue in these applications. In these circumstances, we are of the opinion that no ground is made out for referring the questions raised in these applications and the applications are, accordingly, dismissed. No order as to costs.
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1989 (10) TMI 13 - MADHYA PRADESH HIGH COURT
Business Expenditure, Reference ... ... ... ... ..... efore the Tribunal, the Tribunal also upheld the order passed by the Commissioner of Income-tax (Appeals) in this behalf. Aggrieved by the order passed by the Tribunal, the assessee sought reference but as the application filed by the assessee in that behalf was rejected, the assessee has filed this application under section 256(2) of the Act. Having heard learned counsel for parties, we have come to the conclusion that the following question of law does arise out of the order passed by the Tribunal Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the expenditure incurred by the assessee on account of royalty to Jaikishan and Jagdishchander was not allowable in computing the total income of the assessee? The applications are allowed. The Tribunal is directed to state the case and to refer the aforesaid question of law to this court. In the circumstances of the case, parties shall bear their own costs of these applications.
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1989 (10) TMI 12 - MADRAS HIGH COURT
... ... ... ... ..... t year in this case is 1981-82 to which the amended section applies. Mr. R. Janakiraman, learned counsel for the petitioner, relies on the decision reported in Ajit Singh Rais v. CIT 1988 174 ITR 418 (Gauhati). I find from the facts of that case, that that case related to the assessment years 1963-64 to 1967-68. As such, it will not apply to the facts of the present case. It is well settled that levy of interest Is not penal interest in nature and in appropriate cases, therefore, it will be permissible for the assessing authority to levy interest besides imposing a penalty see the decisions reported in Express Newspapers (P.) Ltd. v. ITO 1973 88 ITR 255 (Mad) and Kodur Orange Produce Co. v. CIT 1977 110 ITR 124 (Mad). There are no merits in the contention raised by learned counsel for the petitioner stating that once the assessing authority has extended the time, it should be presumed that penalty is not leviable. The writ petition will, therefore, stand dismissed. No costs.
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1989 (10) TMI 11 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... for the actual period of delay and thus if the delay is one month and ten days, the interest payable will not be for two months, but it will be only for one month and ten days. This decision applies on all fours to the question raised before us. We respectfully agree with the view taken by the Allahabad and Madras High Courts and hold that the assessee is liable to pay interest for the actual period of delay and will not be liable to pay for the whole month as, demanded by the impugned notices. Accordingly, in W. P. No. 13665 of 1987, the assessee would be liable to pay interest only for three days in respect of the delay in April, 1986, one day in November, 1986, and two days in December, 1986. In W. P. No. 11524 of 1987, the assessee is liable to pay interest for the delay of one day in April, 1987, and two days in May, 1987. The impugned notices are quashed only to the extent indicated above. The writ petitions are partly allowed. No costs. Advocate s fee Rs. 200 in each.
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