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1991 (5) TMI 20 - ALLAHABAD HIGH COURT
Appeal To Tribunal ... ... ... ... ..... eed, on such a plea being taken, the Tribunal is under a statutory obligation not only to entertain the plea but also to decide the same after providing sufficient opportunity of being heard to the other side. There is nothing in the instant case to show that the Tribunal had not provided sufficient opportunity to the Revenue before it allowed the assessee to raise the plea of validity of reassessment proceedings based on the notice under section 148 of the Act being without jurisdiction. By the two questions proposed in this application, the findings recorded by the Income-tax Appellate Tribunal on merits have not been challenged, the answer to the question being self-evident. In our opinion, no statable question of law arises on which the Tribunal should be required to submit a statement of the case to this court. In view of the above, this application is without any merit and is, accordingly, rejected. The assessee shall be entitled to its costs which we assess at Rs. 125.
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1991 (5) TMI 19 - ALLAHABAD HIGH COURT
Application For Directing Reference ... ... ... ... ..... our opinion, is wholly misconceived. We may refer to a decision of this court in Govind Singh Bhagwan Singh v. ITO 1972 84 ITR 214, in which the view taken was that where an application under section 256(1) of the Act made to the Tribunal to state a case and refer it to the High Court is rejected on the ground that it is barred by limitation, no application under section 256(2) of the Act to the High Court to direct the Tribunal to state the case lies. In that case, it was noticed that sub-section (2) of section 256 entitles an assessee to apply to the High Court for an order requiring the Tribunal to state the case and refer it where the application under section 256(1) had been refused by the Tribunal on the ground that no question of law arises. The view taken by us finds support from the earlier decision of this court. For what has been stated above, this application is rejected as not maintainable. The assessee shall be entitled to its costs which we assess at Rs. 125.
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1991 (5) TMI 18 - ALLAHABAD HIGH COURT
Reassessment ... ... ... ... ..... s, no statable question of law survives. We may observe that, at this stage, we are not called upon to express any opinion on the merits of the question raised in the application. However, we feel that, if question of law does arise, this court may not be justified in refusing to require the Tribunal to refer the case merely because the view taken by the Tribunal on the question of law is either correct or the ultimate decision upon the point of law may be in favour of the assessee. We may also not be justified in declining the reference only on the ground that the matter stands decided by one or more High Courts and the view taken by the Tribunal is in consonance with those decisions. We do not agree that no statable question of law survives. For what has been stated above, we direct the Income-tax Appellate Tribunal, Delhi Bench E , Delhi, to draw up a statement of the case and refer the aforesaid question for the opinion of this court. There shall be no order as to costs.
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1991 (5) TMI 17 - ALLAHABAD HIGH COURT
Reassessment ... ... ... ... ..... r that he made the deposit of Rs. 3,000 with the Telephone Department under the 0. Y. T. Scheme on February 11, 1970, and the telephone connection was given to him on February 21, 1970. It is submitted that since there was not a completed month between the said two dates, no interest was payable or paid. Similarly, it is stated that the sum of Rs. 1,068.40 deposited by the petitioner with the U. P. Electric Supply Company was in respect of bills spread over the years 1960 to 1971 and that there is no provision for payment of any interest thereon nor was it paid. As pointed out hereinabove, the reasons recorded do not mention that any interest was payable on such deposits with the U. P. Electric Supply Company. We must, therefore, hold that the impugned show cause notice was issued mechanically and without proper application of mind to the relevant circumstances. It must accordingly be held to be bad and is quashed herewith. The writ petition is allowed accordingly. No costs.
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1991 (5) TMI 16 - ALLAHABAD HIGH COURT
Appeal To AAC, Assessment ... ... ... ... ..... ax Officer s powers to make a fresh assessment tinder an order of remand passed by the appellate authority has come up for consideration in numerous cases. This court in J. K. Cotton Spg. and Wvg. Mills Co. Ltd. v. CIT 1963 47 ITR 906, laid down that where on an appeal from an assessment, the Appellate Assistant Commissioner set aside the assessment and directed the Income-tax Officer to make a fresh assessment, the Income-tax Officer is bound by the directions of the Appellate Assistant Commissioner in making the fresh assessment . . . . In view of the above observation of this court, we think that the contentions raised on behalf of the assessee have no merit and the Income-tax Officer was bound by the directions made in the order of the Appellate Assistant Commissioner dated September 27, 1973. For the foregoing reasons, we answer the referred question as framed in the affirmative and in favour of the Department and against the assessee. There will be no order as to costs.
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1991 (5) TMI 15 - ALLAHABAD HIGH COURT
... ... ... ... ..... n the right perspective. In this view of the matter, we are unable to sustain the impugned order. The matter requires fresh consideration by the Commissioner of Wealth-tax. We do not think it necessary to address ourselves to the submission of the petitioners based on the Explanation attached to sub-section (1)of section 18B of the Act. The petitioners shall be at liberty to raise this plea before the Commissioner of Wealth-tax himself in the remand proceedings. In view of the above, we quash the impugned order dated December 21, 1979, to the extent it concerns the assessment year 1968-69. We also direct the Commissioner of Income-tax (Wealth-tax), Meerut, the first respondent, to reconsider the application for waiver/reduction for the assessment year 1968-69 and to pass a fresh order in the light of the observations made above and in accordance with law. In the result, the petition succeeds in part. The petitioners will be entitled to their costs which we assess at Rs. 300.
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1991 (5) TMI 14 - ALLAHABAD HIGH COURT
Business Expenditure, Firm ... ... ... ... ..... transactions on which interest is paid to, or received from, the partner by the firm are shown to have the element of mutuality and are referable to the funds of the partnership as such, section 40(b) of the Income-tax Act, 1961, does not preclude the quantifying of the interest on the basis of such mutuality. In such circumstances, the interest paid to a partner by the firm in excess of what is received from the partner could alone be included under section 40(b), in computing the firm s profits. It may be stated that a contrary view taken by the Madras High Court in CIT v. O. M. S. S. Sankaralinga Nadar and Co. 1984 147 ITR 332 was disapproved. The view taken by the Tribunal in the instant case is in consonance with the decision of the Supreme Court referred to above and is liable to be upheld. In this view of the matter, we answer the question referred to this court in the affirmative, in favour of the assessee and against the Revenue. There shall be no order as to costs.
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1991 (5) TMI 13 - ALLAHABAD HIGH COURT
... ... ... ... ..... of the Inspecting Assistant Commissioner even in respect of matters which had already been referred to him by the Income-tax Officer prior to April 1, 1976, and the Inspecting Assistant Commissioner had no jurisdiction to pass the penalty order under section 271(1)(c) on or after April 1, 1976. As in the instant case, the Inspecting Assistant Commissioner had passed the impugned penalty order on February 15, 1977, which is subsequent to the amendment brought about by the Amending Act of 1975, the order was clearly without jurisdiction and void. In this view of the matter, in our opinion, the Income-tax Appellate Tribunal was justified in taking the view that the Inspecting Assistant Commissioner had no jurisdiction to pass the order of penalty on the date on which it was passed. The question referred to us is, accordingly answered in the affirmative, in favour of the assessee and against the Department. The assessee shall be entitled to its costs which we assess at Rs. 250.
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1991 (5) TMI 12 - ALLAHABAD HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... nalty proceedings against the assessee for the assessment years 1968-69 to 1972-73 under section 18(1)(c) of the Act. He referred the matter to the Inspecting Assistant Commissioner to impose penalties on the assessee for each of those years. In the appeal before the Tribunal, the assessee contended that, in view of the amendment by the Taxation Laws (Amendment) Act, 1975, with effect from April 1, 1976, the Inspecting Assistant Commissioner had no jurisdiction to impose the penalties as the orders had been passed in March, 1977. The Tribunal accepted the contention of the assessee and cancelled the penalties. On a reference, affirming the decision of the Tribunal, it was held that the Inspecting Assistant Commissioner ceased to have jurisdiction to pass the orders of penalty. In view of the above discussion, we answer the question in the affirmative, in favour of the assessee and against the Department. The assessee shall be entitled to its costs which we assess at Rs. 250.
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1991 (5) TMI 11 - ALLAHABAD HIGH COURT
... ... ... ... ..... presumption against him. In our opinion, the Tribunal should have indicated the material rebutting the presumption against the assessee before waiving the penalty. Since the Appellate Tribunal has placed the burden upon the Department wrongly, its approach to the problem under consideration is vitiated in law. In the facts and circumstances of this case, it is necessary to observe that the Tribunal should rehear the assessee and his further explanations and the question of cancellation of the imposed penalty. The Tribunal should also re-examine the books of account in the light of the discussions in this judgment. For the foregoing discussions, we answer question No. 1 in the negative, in favour of the Department and against the assessee. At present, we refrain from answering the second question but it is expected that the Appellate Tribunal shall decide the claim of the assessee hereinafter in the light of the discussions in this judgment. There will be no order as to costs.
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1991 (5) TMI 10 - KERALA HIGH COURT
Accounting, Business Expenditure, Capital Asset, Capital Gains, Gratuity, Retrenchment Compensation
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1991 (5) TMI 9 - CALCUTTA HIGH COURT
Exemptions, Wealth Tax ... ... ... ... ..... icensee. Further, if the ownership had vested in the licensee, there was no need for the licensee to pay any licence fees to M/s. Kanudia Bros. which has been assessed in its hands and it will be apparent on going through the assessment order of M/s. Kanudia Bros. for the assessment years 1982-83 and 1983-84. From the said orders, it would be further found that, while assessing the income from the licensee under the head Other sources , it was allowed depreciation on the assets of the industrial undertaking. In our opinion, there is no reason to deny the benefit of the exemption to the assessee and the Tribunal was justified in vacating the order of the Commissioner under section 25(2) of the Act and allowed the appeal of the assessee. Under such circumstances, we are not inclined to interfere in the decision of the Tribunal. The question, therefore, is answered in the affirmative and in favour of the assessee. There will be no order as to costs. AJIT K. SENGUPTA J. -I agree.
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1991 (5) TMI 8 - CALCUTTA HIGH COURT
Business Expenditure, Disallowance ... ... ... ... ..... benefit of deduction in the case of the provident fund. The principles governing the cases of sales tax dues will apply to the case of provident fund contribution in respect of the last month of the accounting year, and not for any other month. No deduction will be allowed unless the contribution is paid for the last month of the accounting year within 15 days after the closing of the accounting year. We, therefore, answer the question in this reference by saying that the Tribunal was right in holding that Central sales tax and U. P. sales tax, if not statutorily payable in the accounting year, section 43B of the Act will not be applicable but so far as provident fund is concerned, the Income-tax Officer will only consider the payment of contribution, if any, made for the last month of the accounting year within the time prescribed by the statute. No other dues of provident fund will be allowed as deduction. We answer the question accordingly. SHYAMAL KUMAR SEN J. -I agree.
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1991 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT
False Statement In Verification, Offences And Prosecution ... ... ... ... ..... y of credit or the same is patently absurd or inherently improbable. It is obviously not possible to define the expression prima facie case because it will vary from case to case. The complainant has led prima facie evidence which clearly shows case against the accused. The learned Additional Sessions judge by stretching the provisions of law and giving importance to minor and superficial contradictions and deficiencies in the prosecution case discharged the accused. At this stage, prima facie case is to be seen and the prosecution has clearly made out a prima facie case against the accused. The learned Additional Sessions judge has committed an error of law in discharging the accused. The order of discharge dated October 12, 1989, passed by the Additional Sessions judge, Patiala, is set aside and the order of the Magistrate dated September 13, 1988, framing the charge against the accused is restored. The parties are directed to appear before the trial court on July 22, 1991.
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1991 (5) TMI 6 - CALCUTTA HIGH COURT
Deduction, Other Sources ... ... ... ... ..... sessed under the head Other sources . In our view, so long as a company is not formally struck off the Register of Companies, a company continues to have certain statutory obligations. The company has to file various statements and returns. For that purpose and also for the purpose of retaining its status as a company, it has to incur certain expenditure. Admittedly, the company was earning certain income from other sources. For that purpose, it might have been necessary to incur certain expenditure. In our view, on the facts and circumstances of the case, the Tribunal was justified in giving the direction as it did, to the Income-tax Officer to find out the allowability of expenditure and to see whether any expenditure was incurred for earning the income assessed under the head Other sources . For the reasons aforesaid, we answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. SHYAMAL KUMAR SEN J.-I agree.
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1991 (5) TMI 5 - CALCUTTA HIGH COURT
Business Expenditure ... ... ... ... ..... t case, on the basis of facts, we are of the view that the assessee decided to set up a new line of business but it never fructified. The Tribunal was correct in holding that the assessee-company is entitled only to claim expenses in respect of the business which was carried on by it and the profits of which are to be computed and assessed and those expenses should be incurred only after the business is set up. It is only when the unit has been put into such a shape that it can be said that the unit has been set up. Since the business of export and import was never set up, the question of allowing the expenses could never arise. The assessee-company, accordingly, was not entitled to claim any expense in that regard. We do not find any infirmity in the decision of the Tribunal which calls for interference by this court. Accordingly, both the questions are answered in the affirmative and in favour of the Revenue. There will be no order as to costs. AJIT K. SENGUPTA J. -I agree.
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1991 (5) TMI 4 - CALCUTTA HIGH COURT
Disallowance, Intercorporate Dividends, Special Deduction ... ... ... ... ..... income is attributable to the business activity of the assessee, even if such income is assessed under the head Other sources , the nature and quality of such income would not thereby be affected. The expenditure laid out wholly and exclusively for the purpose of business which includes the earning of dividend from stocks and shares held by the assessee is allowable as business expenditure. Merely because a part of the income earned from business activity because of the label it carries has to be assessed under a different head, it cannot be a valid ground for apportionment of a part of business expenditure to the earning of dividend income and thereby reducing the amount of dividend income without, however, affecting the total allowable expenditure and consequently the total assessable income. For the reasons aforesaid, the first question is answered in the affirmative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1991 (5) TMI 3 - BOMBAY HIGH COURT
Law Applicable To Assessment ... ... ... ... ..... that any person who made the application . . . . has not co-operated with the Settlement Commission in the proceedings before it . . . ... (emphasis supplied). The fact that an ingredient of a statutory provision has been picked A up from the past does not mean that the section is retrospective in character. The amendment which brought in section 245HA does not operate in the realm of vested rights. It is purely procedural in character. And it is well-settled that such a provision will apply to pending proceedings. It is unnecessary to burden this judgment with citations of past B decisions on the point including the decision of the Supreme Court in Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915, relied on by the Settlement Commission. We repel the contention of the appellant on this aspect also. As already indicated above, our conclusion would be the same de hors the discussion on the retrospective character of section 245HA. C In the result, we dismiss the appeal.
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1991 (5) TMI 2 - CALCUTTA HIGH COURT
... ... ... ... ..... possible, the court can adopt the method of reinstatement value. In that context, the Madras High Court held that, if the restrictions and prohibitions contained in the Ceiling Act cannot be ignored in valuing the excess land, such lands would have to be valued only after taking note of the restrictions and prohibitions which would have the effect of depressing its value. Hence, the valuation on the basis of compensation receivable under the Act was justified. In our view, the same principles will govern the valuation of vacant land in excess of the ceiling within the meaning of the Urban Land Ceiling Act, taking into account the restrictions and prohibition. For the reasons aforesaid, the question in this reference is answered by saying that the land in dispute owned by the assessee should be valued at Rs. 77,000 as estimated by the Appellate Assistant Commissioner inasmuch as such valuation was not disputed by the assessee before the Tribunal. SHYAMAL KUMAR SEN J.-I agree.
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1991 (5) TMI 1 - PUNJAB AND HARYANA HIGH COURT
Offences And Prosecution ... ... ... ... ..... ail with the evidence produced to come to the same conclusion. It was rightly observed by the Sessions Judge that by simply showing that there was an error in the return furnished or there was false averment, the conviction of the accused cannot be maintained. There has to be something more, i.e., that such an error or omission was false to the knowledge or belief of the accused. No doubt, the second ingredient is to be proved by raising an inference from a given set of circumstances in a particular case and there may not be any direct evidence as has been argued by counsel for the appellant. However, in the present case, when such a finding has been recorded by the Tribunal in the order, exhibit D.A., which was passed during the pendency of the present criminal proceedings, the same being relevant was rightly taken into consideration in coming to the conclusion that the second ingredient of section 277 was not made out. Finding no merit in the appeal, the same is dismissed.
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