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Case Laws
Showing 81 to 100 of 190 Records
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1989 (10) TMI 124
Stay - Demand of differential duty on goods imported ... ... ... ... ..... e been paid back to the appellants to the extent it was admissible, but the full differential duty will still be recovered. The merits of the rival submissions would have to be looked into by the concerned Special Bench. As far as the Stay matters is concerned, we are inclined to agree with the applicants that they have already been put to hardship by having to pay the duty on the goods imported which they failed to obtain as drawback when they exported them and that to insist on the payment of the differential duty for the goods which they do not have and which they are not in a position to use, would cause undue hardship to them. That apart, we feel that the applicants appear to have prima facie case and they may not be liable to pay the differential duty demanded. We leave the issue to be decided by the concerned Special Bench. In the circumstances, we grant the stay prayed for. The Registry may transfer the cases to the concerned Special Bench, Delhi for further disposal.
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1989 (10) TMI 123
Renewal of- Export House Certificate ... ... ... ... ..... inates any remedy of appeal, but prescribes the only remedy for review and that remedy has been pursued by the Petitioner and only after it was exhausted that this petition is filed and thus it is maintainable. There is thus no substance in the contention. 19. Rule made absolute in terms of prayer (a). 20. The impugned order recorded by the 2nd Respondent dated 13-8-1982 rejecting the renewal application and confirming this order of rejection by a separate order dated 16/17-11-1982 are both set aside. The application dated 26-5-1982 given by the Petitioner shall be deemed to have been granted and the 2nd Respondent shall renew the Export House Certificate in favour of the Petitioner in accordance with the law and in particular in accordance with paragraph 180(2) of the Relevant Policy, preferably within two weeks. 21. At this juncture, Shri Master, the learned counsel for the Respondents, asks for stay of execution of this order. Execution is stayed for a period of two weeks.
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1989 (10) TMI 122
Gold - Confiscation ... ... ... ... ..... n question on points such as shape, polishing, finish, age and use and they have opined that the items are ornaments. 19. We, therefore, set aside the findings of the Collector that the 87 bangles, 2 pairs of gold bangles and one pair gold karas are primary gold and hold that they are gold ornaments, not liable to confiscation. 20. As regards the 15 gold mohars and one gold Swastika Coin, we find that the matter is covered by a decision of the Tribunal reported in 1987 (31) E.L.T. 813 in which it was held that gold mohars and habib coins are covered by the definition of ldquo article rdquo and do not fall under primary gold or ornaments. Therefore the gold mohars and gold swastik coin are ldquo gold articles rdquo within the meaning of Section 2(b) of the Gold (Control) Act, 1968 and not liable to confiscation. 21. In the light of the above discussion, we set aside the order of the Collector of Customs and Central Excise, Chandigarh dated 30th June, 1986 and allow the appeal.
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1989 (10) TMI 121
Undertaking granted industrial licence for substantial expansion ... ... ... ... ..... trial production cannot be considered to be commercial production. He has cited Commissioner of Income-tax, Pune v. Hindustan Antibiotics Ltd. - ITR (93) 548 (Bom.) wherein it has been laid down as under ldquo If it becomes necessary for an assessee to produce a trial product at an early stage to verify whether it can be used ultimately in the manufacture of the final article, the commencement of operation for the manufacture of the trial product would not constitute commencement of manufacture of articles for the purposes of Section 15C. rdquo Of course, this is a decision under Income-tax Act, but still, however, ratio of the judgment helps the respondents. 20. So, in view of the above discussion, we are satisfied that the appeal has no substance and requires to be dismissed. As a consequence, six appeals regarding refund claims also require to be dismissed. So, we pass the following order Appeals Nos. 239 to245/89-C are dismissed and impugned orders therein are confirmed.
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1989 (10) TMI 113
Classification ... ... ... ... ..... ication of parts of machines. According to Rule 2(b) parts suitable for use solely or principally with a particular kind of machine are to be classified with the machine of that kind. The department in its appeal has not shown that this Rule is inapplicable or that the functional design as a criterion would over-rule this criterion in the Section Notes for classifying parts of machines. The Collector (Appeals) rsquo s finding is also supported by the decision of the Hon rsquo ble Bombay High Court in the case of Sealol Hindustan Ltd. v. Union of India -1988 (36) E.L.T. 283 wherein the High Court following the Notes to Section XVI-CTA had held that Mechanical Seals specially designed for use in centrifugal pumps or compressors would be assessable as parts of the pumps or compressor under Heading 84.10(1) and 84.11(1) of Customs Tariff Act, 1975. In the result, we see no reason to interfere with the order passed by the Collector (Appeals) and the appeal is, therefore, rejected.
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1989 (10) TMI 112
Dutiability ... ... ... ... ..... ls) had no occasion to deal with these points because he had allowed the appeals on the issue of classification. In view of our observations on the question of classification, the point about the correctness of the assessable value adopted by the Department may assume relevance. The grievance of the respondents is that the assessable value has been based on the price charged by the respondents on a solitary consignment of 5 kgs. out of the total quantity of goods ignoring the price range at which they were normally selling the goods. We do not wish to express any opinion on this point because we have no material to go by. Furthermore, the Assistant Collector has not given adequate consideration to the respondents contentions. 14. In the light of the foregoing discussion, we set aside the orders of the Lower Authorities and remand the matters to the Assistant Collector for de novo adjudication of the dispute after giving the respondents due opportunity to put forth their case.
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1989 (10) TMI 109
... ...
... ... ..... hbour, who is a Commissioner of the Corporation has given evidence that he had provided electricity and the property had been occupied by the assessee in November, 1975. The fact that the assessee had paid rent for another premises beyond date cannot necessarily mean that the assessee did not occupy this house as the process of shifting could well taken some time. The levy of Corporation tax also is not always from the exact date of the completion. of the construction as it takes some time for the Corporation to process the levy of Corporation tax. Since none of the facts relied on by the Revenue disproves the claim of the assessee that the construction was completed before November, 1975, we agree with the finding of the AAC that the capital gains arising from the transfer must be treated as long-term capital gains and since the proceeds had been re-invested the assessee was eligible for the abatement under s. 54-E of the Act. His order is confirmed. The appeal is dismissed.
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1989 (10) TMI 107
Accounting Year, Assessment Year, Chargeable To Tax, Interest Income, Revocable Transfer ... ... ... ... ..... e of CIT v. Syed Saddique Imam 1978 111 ITR 475 (FB). Applying the above legal position to the facts of the present case, it may be seen that the trust is a valid trust as on its date of execution, namely, 27-12-1979. Subsequently, to the extent a provision is made under Section 40A(11), the trust deed should be deemed to be revoked under the authority of law. By means of revocation of the trust, the monies contributed are liable to be returned to the transferor. The interest and the dividend incomes were no other than the incomes earned on which assets returnable by virtue of the abrogation of the trust deed by means of retrospective legislation. Therefore, in my opinion, the interest and dividend incomes are assessable only in the hands of Company for the assessment year 1982-83. In view of this, I hold that the order of the Appellate Assistant Commissioner does not call for any interference. 8. In the result, the appeal filed by the revenue fails and the same is dismissed.
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1989 (10) TMI 105
... ...
... ... ..... ute a body of individuals and that, therefore, the AAC had rightly annulled there assessment. 5. On a careful consideration of the submissions urged on both sides, I do not see any reason to interfere with the order of the AAC. The issue raised by the Revenue in the present appeal is directly considered and decided by the Appellate Tribunal Madras Bench lsquo C rsquo in the case of FOURTH ITO vs. P. SADASIVAM (1985) 21 TTJ (Mad) 115 (1985) 11 ITD 700(Mad) where in the Bench had occasion to consider whether the persons who buy a lottery ticket jointly win a prize could be treated as a Body of Individuals in view of the latest decision of the Madras High Court in the case of N.P. SARASWATHI AMMAL vs. CIT (1982) 138 ITR 19 (Mad). I, therefore respectfully follow the said decision of the Appellate Tribunal referred to above and hold that the AAC was right in annulling the assessment made on these two individuals as a Body of Individuals. 6. In the result, the appeal is dismissed.
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1989 (10) TMI 102
Accounting Year, Assessment Year, Deduction Of Interest, Higher Rate, House Property ... ... ... ... ..... y else and repays X , according to the stand of the Revenue, the interest on the money borrowed by Y to honour his commitment to X cannot be considered as an admissible deduction. We are unable to subscribe to such a strict interpretation. In our view, what is to be seen is whether the transaction is colourable. As long as the transaction is not colourable and is entered in good faith and the loans are genuine and the loans subsequently taken are to discharge a loan originally taken in the normal course, the deduction under the provisions of sec. 24(1)(vi) cannot be restricted. In the present case, there is no material to suggest that the transaction was clourable or there were any of the other deficiencies to which we have referred. On the other hand, the entire material shows that the transactions have been accepted to be genuine. In such circumstances, we hold that the assessee is entitled to the full relief claimed under sec. 24(1)(vi) of Rs. 50,826. The appeal is allowed
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1989 (10) TMI 100
... ...
... ... ..... 1985) 155 ITR 448 (Cal), Southern Publications Pvt. Ltd. vs. CIT (1982) 31CTR (Mad) 26 (1982) 137 ITR 822 (Mad) and CIT vs. National Insurance Co. Ltd. (1989) 78 CTR (Cal) 187 (1989) 179 ITR 101 (Cal) and submitted that in these circumstances no penalty could be imposed on the assessee. 2. We have carefully considered the arguments of the learned counsel and looking to the facts and circumstances of the case, we agree with the learned counsel that it is not a fit case for imposition of penalty because firstly the default has not been pinpointed by the ITO while imposing the penalty and secondly, even if there was any default, in view of the additions made to the income of the assessee, it can be said that the assessee had a reasonable cause for filing the estimate of advance tax on the basis of income on which he did and hence no penalty is sustainable in law. Accordingly, the penalty imposed by the ITO is directed to be cancelled. The appeal filed by the assessee is allowed.
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1989 (10) TMI 99
... ...
... ... ..... ion, it was contended, also did not arise nor any other situation existed where from it could be inferred even impliedly that there was any intention of any one of the partners to secure termination/dissolution of the firm. 11. We find sufficient force in the submissions made on behalf of the assessee before us. Death of a man, uncontrollable as it is, did not cause any rupples in the present partnership. Everything went on quietly. The exit of the deceased partner was made good by admission of his minor son to the benefits of the partnership. The partnership thus remained in tact. These circumstances, do drive us to infer that an implied contract existed amongst the partners that the demise of any one of them shall not dissolve the partnership. Dissolution was debated amongst them and reduced to writing in the form of paragraphs 11 and 12 of the deed reproduced above. 12. That being so, we are unable to find any legal infirmity in the impugned order. The appeal is dismissed.
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1989 (10) TMI 98
Assessment Year, Bona Fide, In Part, Partnership Deed, Rectification Of Mistakes, Registered Firm, Total Income, Two Partners, Unregistered Firm
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1989 (10) TMI 97
Assessing Officer, Assessment Year ... ... ... ... ..... ew the various decisions of the Hon ble Supreme Court and other High Courts as indicated earlier. That being the position, we cannot agree with the A.A.C. to say that initiation of the assessments under section 147(b) for both the years should be treated to be in order as the assessee did not rely on this point specifically as the main basis of appeal by the assessee and that the assessee has not sought leave to adduce additional grounds. 34. In view of what we have decided above, the orders of re-assessment purported to have been made by the ITO for both the years under sec. 147 cannot be upheld. Thus, the orders of the authorities below for both the years are cancelled. 35. In the result, the appeals by the assessee being ITA Nos. 34 and 35 (Gau.) of 1989 are allowed. As indicated in the earlier paragraphs of this order, the appeals by the revenue being ITA Nos. 247 (Gau.) and 248 (Gau.) of 1986 relating to the earlier order of the A.A.C. have been dismissed as infructuous.
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1989 (10) TMI 96
Capital Gains, Income From Other Sources, Let Out, Mesne Profits ... ... ... ... ..... t to avail of the opportunity of personal hearing or even to cross examine the witnesses in whose presence the panchanama was made at the time of the seizure. Accordingly, the penalty proceedings were initiated under section 271(1)(c). 22. As mentioned by us in the earlier preceding paragraph, the assessee after being given sufficient time did not want to avail of the opportunities given by the ITO and in fact requested the ITO not to insist on the assessee to produce those witnesses on which the assessee sought reliance. Thus, the assessee had failed to substantiate the claim that the cash sales shown on the concerned date for the year under consideration was not the cash sale proceeds as such but the concealed income of the assessee. 23. In view of our discussions above, the order of the CIT(A) impugned before us cannot be sustained on facts. The order of the CIT(A) is, therefore, reversed and that of the ITO restored. 24. In the result, the appeal by the revenue is allowed
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1989 (10) TMI 95
... ...
... ... ..... bsolutely unreasonable to call upon the company to distribute the amount so transferred to the capital redemption reserve account. We are therefore of the view that the authorities below were clearly in error in not excluding the amount of Rs. 58,779 transferred to the capital redemption reserve account from the available surplus as calculated under s. 109 of the Act. The 10 per cent transferred to general reserve account could be said to have been covered by s. 109 itself, for the Act requires distribution of the 90 per cent of the distributable surplus. The result shall be as follows The gross amount of distributable surplus Rs. 1,24,382 Less Amount transferred to capital redemption reserve account Rs. 58,779 Amount that could be distributed as dividend 65,503 Amount distributed as dividend 72,600 Thus in fact there is no shortfall in the distribution of dividends and therefore, the action of the ITO taken under s. 104(1) is without jurisdiction. 4.3. The appeal is allowed.
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1989 (10) TMI 94
... ...
... ... ..... facts and the conclusion drawn based on those facts. 4.3. The assessee rsquo s arguments on merits that the system of accounting having the sanction of the special bench of the Tribunal in the assessee rsquo s case for the subsequent assessment year, there would be no useful purpose served by remanding the issue back to the ITO is without any substance. The reasons being (a) the method of accounting followed for these assessment years is yet to be determined and (b) and then only the next step of comparison of the system of accounting as adopted and followed for these assessment years with the one decided by the special bench would arise. There can be no short-cut method for the comparison of the two methods without analysing the methods as such. 4.4. The asst. yrs. 1971-72 and 1972-73 becoming time-barred have not been given a finding by the authorities and the same had been so directed in para 11 of the order. 4.5. The miscellaneous application is allowed in part as above.
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1989 (10) TMI 93
Assessment Year, Capital Redemption Reserve, General Reserve, Income Tax On Undistributed Income, Preference Shares
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1989 (10) TMI 92
... ...
... ... ..... when the assessee has made an exercise to segregate such profits from the total profits. We were given to understand at the time of hearing of the appeal by the learned counsel for the assessee that the ITO has not found any fault with the segregated profits and, therefore it was not open to the authorities below to reject the claim. He also referred to proviso below sub-s. (8) of s. 80-I where the Assessing Officer is given the option to estimate the profits and gains from an industrial undertaking on such reasonable basis as he may deem fit. The ITO and the CIT (A) have failed to do this exercise. While accepting the claim of the assessee for deduction under s. 80-I in principle, we set aside the orders of the authorities below and restore the issue to the file of the ITO with a direction that he shall estimate profits and gains from the industrial undertaking on such reasonable basis as he deems fit. 15. In the result both the appeals of the assessee stand partly allowed.
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1989 (10) TMI 91
... ...
... ... ..... d to the statute book which has been given retrospective effect from statutory April, 1970 For the removal of doubts, it is hereby declared that revenue derived from land shall not include and shall be deemed never to have included any income arising from the transfer of any land referred to in item (a) or item (b) of sub-cl. (iii) of cl. (14) of this section. 11. In view of the Explanation, sale of agricultural land cannot be termed as revenue from the agricultural land, i.e., it cannot be treated as agricultural income. However, whether it falls within the ambit of the term capital asset needs to be examined by the AAC. We, therefore, direct the AAC to examine the issue by specifically considering s. 2(14) of the IT Act, 1961. He shall also re-examine the issue of the cost of the agricultural land afresh. The assessee and the ITO shall be at liberty to adduce all the facts before him. 12. In the result, the appeal of the assessee and that of the Revenue are allowed in part.
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