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Showing 241 to 260 of 291 Records
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1990 (9) TMI 51 - ORISSA HIGH COURT
HUF, Wealth Tax ... ... ... ... ..... s, if, during the course of the regular assessment, it would be found that any particular assessee has not earned the profit at the rate specified in section 44AC, the same shall be duly taken care of. Section 44AC would, therefore, cease to be arbitrary and would not be unreasonably restrictive of the freedom to carry on trade or business. We summarise our conclusions as below (1) Parliament was within its competence to enact sections 44AC and 206C. (2) Section 44AC is violative of articles 14 and 19(1)(g) of the Constitution. (3) Despite this, we do not strike down section 44AC but read it down to state that it is merely an adjunct to and explanatory to the provision in section 206C with the result that a regular assessment has to be made in respect of the assessees in accordance with sections 28 to 43C, i.e., the non obstante clause of section 44AC shall not be operative. The petitions are allowed accordingly. There shall be no order as to costs. A. K. PADHI J. - I agree.
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1990 (9) TMI 50 - KERALA HIGH COURT
Capital Gains ... ... ... ... ..... al 1990 186 ITR 499), etc. In the light of the above Bench decisions of this court, it is too late in the day to contend that capital gains arising out of the sale of agricultural lands is not liable for levy of tax under the Income-tax Act. Moreover, the amendment made by section 3 of the Finance Act, 1989, to section 2(14) of the Income-tax Act with retrospective effect, will show that tax on capital gains is exigible on the sale of agricultural lands. In the light of the above Bench decisions, we are of the view that the Appellate Tribunal was in error in holding that the consideration received on the sale of agricultural lands is not exigible to capital gains tax. We answer the question referred to this court in the affirmative, against the assessee and in favour of the Revenue. The references are answered 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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1990 (9) TMI 49 - KERALA HIGH COURT
Agricultural Income, Capital Gains ... ... ... ... ..... rt. In such a case, where two statutory authorities have concurrently held that 30 of the total sale value of timber represents the estimated capital gains, we are of the view that it is largely a question of fact and no question of law arises on that score. Therefore, we hold that the determination of the percentage of the capital gains is largely a question of fact and that the said question has been concurrently found in this case by the Commissioner of Incometax (Appeals) and the Appellate Tribunal, at 30 of the total sale of timber. We are of the view that no question of law arises on question No. 2 that had been formulated and forwarded to this court. We answer question No. 2 referred to us in the affirmative, against the Revenue and in favour of the assessee. The income-tax referred case is disposed of as above. 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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1990 (9) TMI 48 - PATNA HIGH COURT
Reassessment ... ... ... ... ..... e assessment year 1972-73 were pending when notice under section 148 was issued by the Income-tax Officer. Therefore, the notice for reassessment issued during the pendency of the assessment proceedings cannot be held to be valid. Income cannot be said to have escaped assessment if, at that time, proceedings for the assessment of the assessee s income have not yet culminated in a final assessment thereof. Moreover, as observed by the Tribunal, the record did not disclose any reason whatsoever for issuing notice under section 148. In our opinion, therefore, the Tribunal was right in holding that the assessment deserved to be quashed. Our answer to the question referred by the Tribunal to this court is, therefore, in the affirmative and against the Revenue. In the circumstances of the case, there shall be no order as to costs. Let a copy of this judgment be communicated by the Registry of this court to the Assistant Registrar, Income-tax Appellate Tribunal, Patna Bench, Patna.
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1990 (9) TMI 47 - KERALA HIGH COURT
Accounting, Business Expenditure ... ... ... ... ..... e an admissible deduction for the year 1978-79 in the appeal filed by the Department against the assessment made for the year 1977-78. The Tribunal should not have made the observation contained in paragraph 17 of the appellate order. In this connection, the unreported decision of this court in I. T. R. No. 14 of 1987, dated June 22, 1990 since reported in CIT v. Chackola Spinning and Weaving Mills Ltd. 1991 188 ITR 532, paragraph 6, is relevant, where the law on the subject has been discussed in detail. We answer question No. 3 in the negative, against the assessee and in favour of the Revenue. In view of our answers to questions Nos. 1 and 2, the Tribunal should restore the appeals to the Me and decide the matter afresh in the light of the directions contained hereinabove. The income-tax reference is answered 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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1990 (9) TMI 46 - PATNA HIGH COURT
Burden Of Proof, Penalty ... ... ... ... ..... e Act was on the assessee and it was for him to prove that the failure to return the correct income was not due to any fraud or any gross or wilful neglect on his part. In the instant case, as already observed, no explanation whatsoever was given by the assessee. The total income returned by the assessee was less than 80 of the total income as assessed. The presumption arising by virtue of the Explanation to section 271 (1) (c) of the Act was not rebutted by the assessee. Under the circumstances, therefore, the Tribunal, in our opinion, erred in setting aside the order of penalty passed under section 271(1)(c) of the Act. Our answer to the question referred to this court by the Tribunal is, therefore, in the negative and in favour of the Revenue. In the circumstances of the case, the parties shall bear their own costs of this reference. Let a copy of this judgment be sent by the Registry of this court to the Assistant Registrar, Income-tax Appellate Tribunal, B Bench, Patna.
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1990 (9) TMI 45 - ORISSA HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... are not impressed with the submission in view of the clear finding of the Tribunal that the assessee did not file a return earlier but described the return filed late as a revised one. The assessee knows well whether he had filed a return earlier. When, without filing a return earlier, he makes a misstatement that the return filed late is a revised return, there is no unreasonableness in the finding of the Tribunal that he is liable for penalty. Mr. Mohanty submitted that the assessee has, in the meantime, expired. Since we are affirming the view of the Tribunal, death of the assessee would not, in any way, affect his legal representatives. In the result, the question is answered by stating that, on the facts and in the circumstances of the case, imposition of penalty under section 18(1)(a) of the Wealth-tax Act for the year 1972-73 is correct in law. Our answer is in the affirmative and against the assessee. There shall be no order as to costs. K. C. JAGADEB ROY J. -I agree.
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1990 (9) TMI 44 - KERALA HIGH COURT
Capital Gains ... ... ... ... ..... 3, 1989 and Income-tax Reference No. 121 of 1984 ( CIT v. Glory Paul 1990 186 ITR 496 (Ker)), judgment dated July 5, 1989. In the last decision, the amendment made by section 3 of the Finance Act, 1989, to section 2(14) of the Income-tax Act, 1961, was noticed, by which retrospective effect was given to the amendment. The amendment made it clear that capital gains on the sale of agricultural lands is exigible to tax. In the light of the above Bench decisions of this court, as also the amendment referred to above, we are of the view that the Tribunal was in error in holding that the consideration received on the sale of urban agricultural lands is not exigible to capital gains tax under the Income-tax Act. We answer the question referred to this court in the affirmative, against the assessee and in favour of the Revenue. 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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1990 (9) TMI 43 - PATNA HIGH COURT
HUF, Partition ... ... ... ... ..... ve thus put an end to the common holding, they would naturally enjoy the benefit of section 171 ...... I respectfully agree with the aforesaid observations. In the absence of any claim having been preferred by the assessee under section 171 of the Act and in the absence of any finding recorded under that provision, the Tribunal, in my opinion, was not justified in holding that 50 of the income from the business and property of the Hindu undivided family had to be assessed in the hands of the assessee and that the balance had to be assessed in the hands of Nand Kumar Prasad Sah in the status of an individual. My answer to the question referred to this court by the Tribunal is, therefore, in the negative and against the assessee. In the circumstances of the case, parties shall bear their own costs of this reference. Let a copy of this judgment be sent by the Registry of this court to the Assistant Registrar, Income-tax Appellate Tribunal, B Bench, Patna. G. BHARUKA J. -I agree.
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1990 (9) TMI 42 - DELHI HIGH COURT
Business Expenditure, Interest, Sales Tax Liability ... ... ... ... ..... ears that the decision not to call for a reference was by reason of the fact that the controversy in question really stood concluded by reason of the judgment of the Supreme Court in the case of Kedarnath Jute Mfg. Co. Ltd. v. CIT 1971 82 ITR 363. In that case also, there was a claim for deduction on account of sales-tax, which was payable, though it had been challenged in appeal. The Supreme Court held that, despite the challenge made, the liability and deduction should be allowed even though an appeal may be pending and a challenge made to the assessment in question. In the present case, notwithstanding the pendency of the writ petition, the operation of the notification has not been stayed and, therefore, the assessee was liable to pay the tax and deduction was allowable in view of the decision of the Supreme Court in Kedarnath Jute Mfg. Co. Ltd. 1971 82 ITR 363. For the foregoing reasons, this petition is dismissed. There will be no order as to costs. Petition dismissed.
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1990 (9) TMI 41 - KERALA HIGH COURT
Banking Company, Business Expenditure, Income ... ... ... ... ..... ed in detail by the Appellate Tribunal which only followed its earlier decision in Federal Bank Limited s case (I. T. A. No. 3(Coch)/ 1978-79). The Tribunal had a duty to forward its earlier judgment in Federal Bank Limited s case along with the statement of the case herein. It failed in its duty to do so. Be that as it may, in the absence of the said order of the Tribunal, we are not in a position to know the reasons for holding that the interest representing commission received on purchase of inland bills is not includible in the chargeable interest. Therefore, we decline to answer the second part of the question regarding the commission received on purchase of inland bills. We direct the Tribunal to restore the appeal to file on that part of the case and decide the matter afresh. The reference is 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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1990 (9) TMI 40 - ORISSA HIGH COURT
Appeal To AAC, Firm ... ... ... ... ..... ision of this court in CIT v. Pohop Singh Rice Mill 1981 132 ITR 390 the settled position should not be unsettled so far as this court is concerned. In support of the second contention, Mr. Sharma has relied upon decision of this court in CIT v. Narayandas Satyaranjan 1987 167 ITR 280, where the decision in New Orissa Traders v. CIT 1977 107 ITR 553 (Orissa) was distinguished. In this decision the declaration was not rejected on the ground that it was not furnished within the time allowed. There was a defect in the application and on that ground, the order under section 185(3) was passed. It was held that an appeal lies against such order. The said decision has no application to the facts of this case since the defect envisaged under section 185(3) is a defect in the declaration but does not include a delayed declaration. In view of the aforesaid discussion, both the questions are answered against the assessee. There shall be no order as to costs. J. M. MAHAPATRA J. -I agree.
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1990 (9) TMI 39 - ALLAHABAD HIGH COURT
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... ... ..... o vacate under section 33B the order passed by the Income-tax Officer on March 29, 1951, in respect of the assessment year 1946-47. The second objection of the learned advocate, being not clarified, cannot be accepted. The assessment order for the year 1946-47 is, accordingly, vacated for reasons given in paras 2 to 4 above. It is thus clear that the Commissioner s order limits the Income-tax Officer s jurisdiction only to two items mentioned above. If so, the Incometax Officer had no power to add other amounts or to make other additions to the assessee s income. His enquiry was limited only to the two items mentioned above. This is what the Tribunal has stated and we agree with it. The decision of this court in Chittarmal Narain Dass v. CST 1969 24 STC 451 affirms the same principle. For the above reasons, question No. 2 is also answered in the affirmative, i.e., in favour of the assessee and against the Revenue. The income-tax reference is disposed of accordingly. No costs.
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1990 (9) TMI 38 - ALLAHABAD HIGH COURT
Assessment, Revision, Writ ... ... ... ... ..... ade in the assessment orders of Mool Chand Sharbati Devi Hospital Trust, Meerut, which are not relevant for exercising power under section 263. Be that as it may, it was open to the petitioner to have submitted an explanation to the said notice and if any orders adverse to him are passed, the statute gives him a right of appeal to the Income-tax Appellate Tribunal. Indeed, as per section 263, orders in pursuance of the notice dated December 6, 1988, must have been passed on or before March 31, 1989 (see the limitation prescribed in sub-section (2) of section 263). If any such orders have been passed, the petitioner has a remedy by way of appeal which he can always avail of, if not already availed of. If no orders have been passed within the period prescribed in pursuance of the notice dated December 6, 1988, the notice may itself fall to the ground. In the above situation, no orders are called for in this writ petition. The writ petition is, accordingly, dismissed. No costs.
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1990 (9) TMI 37 - ALLAHABAD HIGH COURT
Advance Tax, Failure To File Estimate ... ... ... ... ..... have been different but since he has not done so, we are of the opinion that the exercise of discretion by him is vitiated by non-consideration of relevant material. The matter must go back to him for reconsideration. Yet another circumstance relied upon by the petitioner is that his application for waiver of penalty levied for the same default has been allowed by the Commissioner of Income-tax holding that there were sufficient grounds for waiving the said penalty. The petitioner says that the grounds urged by him for waiving the penalty and for waiving the interest are identical. This argument may also be considered by the Commissioner subject to its relevancy and evidentiary value. For the above reasons, the writ petition is allowed and the order of the Commissioner impugned herein is set aside. The matter is remanded to the Commissioner for reconsideration of the revision petition filed by the petitioner afresh in accordance with law. There shall be no order as to costs.
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1990 (9) TMI 36 - GAUHATI HIGH COURT
Business Expenditure ... ... ... ... ..... nment of India with an average increase of Rs. 51 crores every year, yet, for doing justice, the provisions in the scheme were read down by the court. That decision was reached to do justice to the pensioners. Learned counsel for the company argued, as in Nakara s case, AIR 1983 SC 130, that the facts in the instant case demands the date of March 1, 1984, inserted in sub-sections (10) and (11) to be altered to March 31, 1984. We have earlier held that the writ-petitioner-company is not discriminated against and we are not persuaded to alter the date as suggested by the company. A number of cases were cited as instances to show that whenever justice demanded, courts have read down the statutory provisions. Having regard to the conclusion reached on the question of discrimination, it is not necessary to consider the cases cited in this regard. For all the aforesaid reasons, the writ petition fails and is dismissed. There will be no order as to costs. SMT. M. SHARMA J. -I agree.
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1990 (9) TMI 35 - DELHI HIGH COURT
In Good Faith, Penalty, Voluntarily ... ... ... ... ..... d counsel for the petitioner is that the donor was not examined. We find that the onus of proving the validity of the gift was on the assessee. It was for the assessee to produce the donor for being examined. There is no grievance made by the assessee that such an opportunity was not granted. The question of summoning the donor could have arisen only if the assessee had informed the assessing authority that the assessee was not in a position to obtain the presence of the donor and that summons should be issued. No such request was made to the Income-tax Officer. We are unable to agree With the contention of learned counsel for the petitioner that any cogent material has been disregarded. The finding of the Tribunal treating the amounts in question as the income of the petitioner by not accepting the story of gift is a decision on a question of fact. Any conclusion arrived at by appreciation of evidence on record is a question of fact and no question of law arises. Dismissed.
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1990 (9) TMI 34 - ALLAHABAD HIGH COURT
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... ... ..... t of the appeal or further proceeding for the period commencing after the expiry of three months from the end of the month in which the order referred to in section 241 is passed to the date the refund is granted. According to this sub-section, interest is payable with effect from the date on which the period of three months expired from the end of the month in which the order referred to under section 241 is passed. The material before us, however, does not make it clear as to when the said order stopping the refund of encashment vouchers issued on April 25, 1974, were passed. The first respondent Income-tax Officer is to verify this aspect and pay the interest from the appropriate date till October 6, 1978 at the prescribed rate. The orders shall be passed by the first respondent in pursuance of this order within three months of the date on which a certified copy of this order is produced before him. The writ petition is allowed in part with the above directions. No costs.
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1990 (9) TMI 33 - BOMBAY HIGH COURT
Business, Interest, Reference ... ... ... ... ..... condly, the authorised capital of the assessee was small but the amounts received as deposits were large. Idle amounts were deposited with the bank or given on temporary loans until such time as they were required for construction. Thus, interest was earned on these amounts. The assessee was also required to give a guarantee to the State Bank in respect of the land taken on lease for construction work. For this purpose, certain amounts were kept in fixed deposits on which the assessee earned interest. In these circumstances, the Tribunal has given a finding of fact to the effect that the entire interest sprang from the business activity of the assessee and did not arise out of any independent activity. Accordingly, interest income was considered as the business income of the assessee. In view of this finding given by the Tribunal, the answer to the question referred to us is obvious. We, therefore, discharge the rule which was issued in this case and dismiss the application.
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1990 (9) TMI 32 - BOMBAY HIGH COURT
Firm, Income ... ... ... ... ..... of the new firm. Our court held, relying upon the Supreme Court decision in CIT v. Sitaldas Tirathdas 1961 41 ITR 367, that the true test for the application of the rule of diversion of income by an overriding charge was whether the amount sought to be deducted, in truth, never reached the assessee as income. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of his income. Where as a result of an obligation, income is diverted before it reaches the assessee, it is deductible. As stated by us earlier, in the present case also, the amount of Rs. 2,29,053, the assessee-firm paid to the heirs of late Shri Petigara and late Shri Khambata under a legal obligation and the amount was never received by or reached the assessee-firm as its income. Accordingly, we answer the question referred to us in the negative and in favour of the assessee. No order as to costs.
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