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Case Laws
Showing 81 to 100 of 231 Records
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1989 (4) TMI 177
Validity and legality of the order of detention questioned - Held that:- The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant’s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible.
Allow this Criminal Appeal by setting aside the judgment of the High Court, quash the impugned detention order and direct the detenu to be set at liberty forthwith.
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1989 (4) TMI 176
Import - REP Licence ... ... ... ... ..... considered by the Government or by any other person authorised in this behalf. rdquo In my view, the aforesaid clause would clearly come into play in the facts and circumstances of this case. The Respondents have denied the Petitioners rsquo prayer only on the ground that there is no power. No other reason has been assigned for refusing to grant the Petitioners rsquo prayer. Since I am of the view that the power to revalidate does exist, I see no reason why the prayers contained in the Petition should not be granted. 5. In the result, the Petition succeeds. The 2nd Respondent is directed to revalidate the two Replenishment Licences for a period of six months from the date of the intimation of the revalidation on the Petitioners. The Petitioners would consequently be entitled to open fresh irrevocable Letters of Credit in favour of their foreign suppliers. Rule made absolute in the aforesaid terms. In the facts and circumstances of the case, there will be no order as to costs.
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1989 (4) TMI 175
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... ... ..... price in a particular deal, no matter how large, would not necessarily be acceptable for purposes of valuation under Section 14 of the Customs Act. 10. The question is not at all whether the contracted price is genuine or not. The price may be perfectly genuine and yet since another international price available to all parties normally exists, the latter and not the former would constitute the basis for valuation under Section 14 of the Customs Act. 11. In the order appealed against, the learned Collector has rightly argued that the price at which M/s. Balpahar Refractories Ltd. imported the goods has to constitute the basis of valuation since that is the price fixed by the suppliers for supply of goods to all orders booked after 1-1-1977. The negotiated price of the P.E.C., even though perfectly genuine, does not, therefore, reflect the value of the goods for purposes of Section 14. 12. We therefore see no reason to interfere with the order appealed against, which is upheld.
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1989 (4) TMI 174
Protest - Payment of duty under protest ... ... ... ... ..... n is not available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may within 3 months of the date of delivery of the letter of protest give a detailed representation to the Assistant Collector of Central Excise. On the other hand, where the remedy or appeal or revision is available to him, he may file an appeal or revision within a period specified for filing such appeal or revision, as the case may be. Now, as the learned Departmental Representative has pointed out, this is a case where the appellant has obviously not chosen to follow the normal procedure under Central Excise Rules, which would have entitled him to pay the duty under protest under Rule 233B. 7. Without taking any view on whether there is any conflict in the two orders of the Hon rsquo ble Supreme Court, we hold that in the light of the facts of the case, appellants have no right to pay duty under protest under Rule 233B of Central Excise Rules, 1944.
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1989 (4) TMI 173
Demand - Limitation ... ... ... ... ..... w the fourth proviso thereof. Besides, it is pointed out that the department was fully aware that there was only an oil fired furnace in the appellants factory, in view of the declarations and the ground plan submitted by the appellants when they applied for the L-4 Licence and the regular visits of the officials of Central Excise Department. 16. There is no refutation of the factual aspect of these claims. 17. In the light of the catena of decisions of this Tribunal which we have discussed above, there is no doubt in our minds that on the facts of the case, the department cannot invoke the period beyond six months for raising the demand of duty. 18. We would also like to add in conclusion that the orders of the Tribunal in the case of H. Guru Instruments (P) Ltd. Calcutta will have to be interpreted in the larger context of the enunciation of law in various decisions of the Supreme Court, High Court and this very Tribunal, which have been discussed supra. 19. Appeal allowed.
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1989 (4) TMI 172
MODVAT credit wrongly availed of ... ... ... ... ..... t. Ltd. v. Collector of Customs and Central Excise, Vadodara. 3. Heard Shri C.P. Arya, the learned SDR. He contended that reference to Rule 173Q clearly indicates that the extended period is applicable in this case. He also contended that in the case of MODVAT credit no time limit is prescribed for recovery. 4. After hearing both sides, we agree with Shri Willington Christian that the notice is prima facie time-barred. If it is to be held that extended period has been invoked, there should have been specific allegation of misdeclaration etc. which are not found in the show cause notice. In case such an allegation is said to have been made, then the show cause notice should have been issued by the Collector. This Bench has already taken a view that even in respect of recovery of MODVAT credit, the time limit prescribed under Section 11A is applicable. In the above view of the matter, we satisfied that the demand is prima facie time-barred. Hence we grant an unconditional stay.
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1989 (4) TMI 171
Export - Under replenishment licence ... ... ... ... ..... benefits under the CCS scheme. If the petitioners were required to be debarred, resort could have been had to Clauses 6(1) (d) and (dd) of the Imports (Control) Order, 1955. No such thing was done. Indeed, the letter dated 19-3-1985 indicates that no action was taken against the petitioners-company and it was on that ground that the department refused to entertain any correspondence made on behalf of the petitioners. Since no departmental enquiry or action has been taken against the petitioner, there can arise no occasion for piercing through the corporate veil. If the entitlement of the petitioners is clear and cannot be assailed on any legitimate ground, the rights of the petitioners cannot be defeated on technical grounds such as of not filing of second appeal or filing of the petition after some delay. 7. The petition thus succeeds. Rule is made absolute in terms of prayer clauses (a), (bi), (biii) and (biv). The petitioners will be entitled to the costs of this petition.
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1989 (4) TMI 159
Proforma Credit ... ... ... ... ..... excisable goods for the manufacture of which such material or component parts were permitted to be brought into the factory under sub-rule (2) of Rule 56A (emphasis supplied). Mark the word ldquo duty rdquo . This word has been used in contradistinction to the term ldquo auxiliary duties of excise rdquo used in the beginning of the notification. We have seen that, for the purpose of the rules, the term ldquo duty rdquo has been defined as the duty leviable under the First Schedule to the Act, that is, basic excise duty There can, therefore, be no doubt that Notification No. 4/78, dated 10.1.78 permits the utilisation of the credit of auxiliary duties paid on inputs lying unutilised, for the payment of basic excise duty on finished products using such inputs. In this view of the matter, we respectfully agree with the Tribunal rsquo s view in the Hindustan Lever Ltd. case 1983 E.L.T. 1266. 8. In the result, we vacate the show cause notice dated 8.10.82 and dismiss this appeal.
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1989 (4) TMI 156
Assessment Year ... ... ... ... ..... is assessable in the hands of the settlor because the trust is a specific trust and valid trust in terms of the legal authority cited and therefore they are not justified in concluding that the entire income is to be assessed in the hands of the settlor. Since the position of the beneficiaries and their shares is to be ascertained only as on the last date of the financial year, viz. 31-3-84 and if it is done so, there is no question of the beneficiaries being indeterminate or the shares being indeterminate or unknown. On the contrary, the beneficiaries are known and determinate and their shares also are known and determinate. Since this is a specific trust, provisions of sec. 161(1) applies in view of the decision of the Supreme Court and Madras High Court cited. Consequently, we reverse the order of the CIT(A) and direct the ITO to assess the income substantively u/s 161(1) and not protectively u/s 161(4) of the Income-tax Act, 1961. 15. In the result, the appeal is allowed.
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1989 (4) TMI 153
Assessment Year, Investment Allowance ... ... ... ... ..... explanation. We shall record our decision in respect of non-creation of reserve of the assessee necessary for investment allowance and its effect for computation. It is not disputed that during the year the assessee showed a loss of Rs. 1,61,716, naturally, therefore, no reserve could be created under the law. The CIT(A) rightly pointed out that by virtue of provisions of section 32A(4) it is not open to the assessee in such circumstances to create necessary reserve in the year in which it earns adequate profit to cover such reserve and this position has also been clarified by the CBDT in its Circular No. 305 dated 12-6-1981. This opinion of the CIT(A) is unassailable. Therefore, if all other conditions are satisfied, the assessee is entitled for carry forward of investment allowance in subsequent years and get the benefit of such allowance when the profit is earned and necessary reserve is created. 25 to 27. These paras are not reproduced here as they involve minor issues .
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1989 (4) TMI 151
... ...
... ... ..... ch further arises is whether the air-conditioner is to be considered to be an office appliance within the meaning of s. 32A(1)(b). in the case of MADRAS RACE CLUB the air-conditioner was installed in a conference room used for deliberations and taking of policy decisions and discussion. It was, therefore, clearly held to be installed in office premises. Such is not the case here. The computer has been installed in the factory. It is necessary to have an air-conditioner so that the computer works at peak efficiency. As a matter of fact, sometimes due to excessive heat and humidity, the computer could also fail if proper temperature control is not maintained. Therefore, the air-conditioner kept in the factory for keeping the computer in good working condition cannot be termed to be an office appliance. The assessee rsquo s claim is not hit by the provisions of s. 32A(a)(b) also. The result is the decision of the CIT(A) is in the order and the appeal of the Revenue is dismissed.
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1989 (4) TMI 149
Assessment Year ... ... ... ... ..... its natural meaning, namely the act of physically residing. This only an individual human being can do. A Hindu undivided family is incapable of doing this. We are fortified in our view that what is contemplated is physical residence and not any statutory concept because the proviso states that the exemption is applicable only for a period of seven successive assessment years commencing with the assessment year next following the date on which such person returned to India. Hence the requirement of ordinarily residing in a foreign country and returning to India with the intention of permanently residing in India can only be satisfied by a human being and cannot be satisfied by a Hindu undivided family and the assessee therefore does not satisfy this requirement also. 11. The satisfaction of the requirements of the section has to be considered qua the assessee and not qua the karta of the assessee. Hence the appeal of the assessee does not succeed and is accordingly dismissed.
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1989 (4) TMI 147
... ...
... ... ..... lawful to impose fine, but looking to all the facts we do not think that a fine should be imposed merely because it is lawful to do so. We accordingly cancel the fine as imposed for each of the assessment years under consideration. 12. On the view that we have taken, we do not propose to dwell further on the contention of the assessee that the Commissioner should have spelt out with reference to each default the quantum per day of fine which he was seeking to impose. Adverting to the argument of the learned Deptl. Rep., that the fines levied were only token fines, we would only state that from the angle of the contract value the penalties may appear to be insignificant, but considering that the fines were all imposed at the same time in respect of defaults communicated to the assessee by a single show cause notice, the fines aggregating to Rs. 35,000 cannot be considered to be just a nominal fine. 13. In the result, the fines imposed are cancelled and the appeals are allowed.
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1989 (4) TMI 144
... ...
... ... ..... an appeal does not lie against the order passed under s. 217 levying interest, however, since the assessee denied his liability to be assessed under this Act which goes to the root of the matter, the appeal preferred by the assessee to the CIT(A) is in order and the exercise of appeals jurisdiction by the CIT(A) is justified. 10. On merits, it is seen that the total tax as determined by the ITO was Rs. 2,97,480. 75 of this amount comes to Rs. 2,23,110. Since the tax deducted at source, i.e., Rs. 2,57,757 is more than this amount, no interest is leviable. Even otherwise, the assessee has claimed Investment Allowance of Rs. 1,98,476. Since this claim is allowed in this appeal, there would be no liability to pay advance-tax in view of the deduction of Rs. 2,57,757 at source. Therefore, the question of levying interest under s. 217 does not arise for consideration. The any interference. This ground of appeal is, therefore, rejected. 10. In the result, these appeals are dismissed.
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1989 (4) TMI 141
Assessment Year, Charitable Purpose, Income From Property, Public Charitable Trust, Religious Trust
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1989 (4) TMI 139
... ...
... ... ..... een introduced. Therefore, no part of the consultation could be disallowed. He placed reliance on M.P. Udyog Ltd. vs. ITO (1989) 28 ITD 85 (All)(TM). The learned Sr. Departmental Representative placed heavy reliance on the orders of the authorities below. 6. On this issue, after carefully considering the rival submissions, we are of the view that since s. 80VV envisages and covers expenses incurred in regard to proceedings before any IT authority, meaning thereby, the charges that are paid for making appearance before the IT authority. Since consultation does not involve appearance in regard to any proceedings under the Act they are clearly out of the ambit of s. 80VV. This has been so held in the Third Member decision reported in 28 ITD 85 at p. 109. Respectfully following the Third Member ruling, we hold that to the extent of Rs. 4,800 they cannot be disallowed under s. 80VV but are allowable under s. 37. We hold accordingly. 7. In the result, the appeal is allowed in part.
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1989 (4) TMI 137
Assessment Year, Revenue Expenditure ... ... ... ... ..... t of enduring nature to the assessee firm. On the other hand the amounts were representing annual rent payable, installation charges and conversion of direct lines into junction lines. In our opinion all these items represent only revenue expenditure and not one item of it represents capital expenditure. Lower Authorities had not the advantage of the documents now produced before us and therefore, on a misconception they held that the whole of Rs. 9,250 represents capital expenditure, simply because this item of Rs. 9,250 was entered under the head telephone deposit in the accounts of the assessee firm. Therefore, the Lower Authorities held that this expenditure secures an enduring advantage to the assessee. But as we have seen from the cash bill the amount spent only mostly for yearly rent and hence revenue in nature. Therefore, the disallowance of Rs. 9,250, in our opinion, should be cancelled. 15. As all the points are held in favour of the assessee, the appeal is allowed.
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1989 (4) TMI 136
... ...
... ... ..... ch has been protracted for so long. 20. The Department has also come up in appeals for both the years against the same order of the then D.C.(A) dt, 9th Dec., 1985. But it was unfortunate that these departmental appeals have not been clubbed together with the assessee s appeal dealt with earlier, by he Tribunal. These departmental appeals are still pending for disposal. The departmental appeals involve determination of G.P rate from contract work and also in valuation of the assessee s D.H. Since the point of, remand relates to the service of notice as mentioned earlier on which a remand report has been called for from the ITO, the merits of the case as brought out by the assessee as well as by the Department will be clubbed for disposal by the Tribunal on receipt of the remand report from the ITO indicated earlier. The ITO is requested to submit the report with in the time mentioned above. 21. The Asstt. Registrar will fix up the case out of turn on receipt of remand report.
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1989 (4) TMI 135
... ...
... ... ..... thwa vs. CIT (1944) 12 ITR 59 (Pat) and also in the case of Ramnarayan Das Mohan Lal vs. CIT (1950) 18 ITR 660 (Ori). In fact in the case of Meal Ram and Sons at page 619, the Hon ble Supreme Court held we should be show to adopt a construction which deprives parties of valuable rights . As indicated by me above, the order of the CIT(A) in the present case rejecting the appeal by the assessee on preliminary issues tantamount to confirmation of assessment order and, therefore, the grounds of appeal by the assessee as reproduced by me above in para-1 above can be agitated before the Tribunal and the Tribunal has not only the jurisdiction but also the obligation to dispose of those grounds so that substantive justice is not frustrated. In that view of the matter, I am one of the opinion that the Tribunal should hear the parties no the grounds taken by it before us. Accordingly, I direct the Asstt. Registrar to fix up the hearing of the case of disposal on the merits of the case.
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1989 (4) TMI 134
House Property ... ... ... ... ..... that the matter has been processed and finalised without proper appreciation of the facts and without considering those relevant points which should have been taken or verified by the Assessing Officer at assessment stage. It is required to be ascertained the period or the duration of the construction work, so that investment made during a particular year can be considered for that particular year for income-tax purpose. But in the absence of basic materials and facts, we cannot decide this dispute finally. In the circumstances of the case, we deem it fit to set aside this part of the matter to the file of the Assessing Officer for fresh disposal after bringing material facts on record, after making specific verification and enquiries on the points raised by the assessee and to dispose of the matter afresh in accordance with law and after giving the and concerned parties opportunities of being heard. 21. In the result, the appeal by the assessee is treated as partly allowed.
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