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Showing 261 to 280 of 286 Records
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1991 (9) TMI 26 - GUJARAT HIGH COURT
Advance Tax, Appeals, Company, Offences And Prosecution ... ... ... ... ..... to consideration the order of the Income-tax Appellate Tribunal and the revised income held therein, the tax payable by the petitioner No. 1 company, under no circumstances, exceeds by 20 per cent. than the tax paid by the petitioner No. 1 company on its paid assessed (sic) advance tax. The difference of 20 per cent. is a sine qua non to constitute breach of section 212 of the Act. Difference is less than 20 per cent. and, therefore, cause for prosecution under section 276C(2) does not survive. If the cause to prosecute does not subsist, the further proceeding on the complaint should not subsist. Therefore, there is no purpose in further prosecuting petitioner No. 1. As the cause does not subsist, the criminal proceedings are liable to be quashed. In view of the above observations, the petition is allowed. Rule is made absolute. The criminal proceeding being Criminal Case No. 134 of 1987, pending in the court of the Additional Chief Metropolitan Magistrate, is hereby quashed.
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1991 (9) TMI 25 - ALLAHABAD HIGH COURT
Limitation For Penalty Proceedings, Penalty ... ... ... ... ..... s which were prepared by the Income-tax Officer were not final orders and were not orders as contemplated by section 275 of the Income-tax Act for the purposes of limitation. In our opinion, when an authority is said to have passed an order which become final only when the said authority, makes up its mind. The facts of the present case will disclose that, on February 20, 1965, the Income-tax Officer had drafted assessment orders tentatively for the approval of the Commissioner of Income-tax and he had not finally made up his mind with regard to the said assessments made against the assessee. In view of the foregoing discussions, in our opinion, the question referred above has got to be answered in the negative by holding that the assessment orders drafted by the Income-tax Officer on February 20, 1965, in law were not final orders so that limitation for drawing up penalty proceedings would commence from that date. The assessee will pay the costs of Rs. 300 to the Department.
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1991 (9) TMI 24 - ALLAHABAD HIGH COURT
Notice, Reassessment ... ... ... ... ..... art of the turnover has escaped assessment. This position, however, does not operate at all in the present case. In the present case since the Tribunal has recorded a finding to the effect that the very initiation of the proceedings under section 147 of the Act by the first notice was without jurisdiction, therefore, it cannot be said that the said proceedings were any proceedings in the eyes of law, what to say, that they were pending. Thus the said authority is of no avail to learned counsel for the petitioner. Moreover, we also find from a copy of annexure-5 to the writ petition that the second notice dated March 29, 1990, was actually served on the assessee on March 30, 1990, on which date the proceedings under first notice under section 147 of the Act were already declared as without jurisdiction and consequently no earlier proceedings will be subsisting on March 30, 1990. No other argument was advanced. In the result, the writ petition fails and is dismissed with costs.
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1991 (9) TMI 23 - ALLAHABAD HIGH COURT
Business Expenditure, Entertainment Expenditure ... ... ... ... ..... to this court for our opinion in accordance with law Whether, on a proper interpretation of the nature and scope of the provisions of section 37(2A) of the Act, the Income-tax Appellate Tribunal was justified in holding that the expenditure incurred by the assessee on providing mineral and aerated water to its foreign customers was in the nature of expenditure on providing hospitality and the same was thus liable for disallowance under the said section ? There shall be no order as to costs.
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1991 (9) TMI 22 - KERALA HIGH COURT
Business Expenditure ... ... ... ... ..... enditure laid out or expended for purposes of business and so not an allowable deduction under section 37 or section 40(a)(ii) of the Income-tax Act, 1961. In view of the above Full Bench decision of this court in A. V. Thomas and Co. Ltd. s case 1986 159 ITR 431 FB , we are of the view that question No. (ii) in Original Petition No. 9262 of 1989 and the sole question in the other three original petitions cannot be said to be a referable question of law. In all the cases, the questions/question posed for Consideration are covered by the Full Bench decisions of this court - Forbes, Ewart and Figgis, (P.) Ltd. s case 1982 138 ITR 1 FB and A. V. Thomas and Co. Ltd. s case 1986 159 ITR 431 FB , against the assessee. So they are not referable questions of law. The answers to the questions, formulated in the original petitions, are self-evident, in view of the Full Bench decisions aforesaid. Therefore, we hold that there is no merit in these original petitions. They are dismissed.
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1991 (9) TMI 21 - KARNATAKA HIGH COURT
Investment Allowance, Plant
... ... ... ... ..... t and machinery for the benefit of allowance as is clear from the second proviso to section 32A(1)." The concept of plant is quite wide and whatever is normally used as an instrument or as a means or is incidental to the activity of the assessee has been considered as a plant. In fact, in Scientific Engineering House P. Ltd. v. CIT 1986 157 ITR 86, the Supreme Court has given a very wide meaning to the term " plant At page 96" the Supreme Court formulated the test thus " In other words, the test would be Does the article fulfil the function of a plant in the assessee's trading activity ? Is it a tool of his trade with which he carries on his business ? If the answer is in the affirmative, it will be a plant." Having regard to the principles stated in the aforesaid decisions, we have no hesitation in upholding the view taken by the Appellate Tribunal. Consequently, the question referred to us is answered in the affirmative and against the Revenue.
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1991 (9) TMI 20 - ALLAHABAD HIGH COURT
Exemptions, Industrial Undertaking, Wealth Tax ... ... ... ... ..... nder the Wealth-tax Act. This decision has later on been followed by another Division Bench of this court in the case of CWT v. Dinesh Prakash 1988 173 ITR 520 (All) 1988 Allahabad Tax judgments 255. It has been held in this case that the business of printing and dyeing involves several processes, namely, bleaching, dyeing, printing, calendering, etc. Therefore, the interest of the assessee in the aforesaid two firms which were involved in the said two businesses which were in the nature of industrial undertakings is exempt under section 5(1)(xxxii) of the Act. In view of the aforesaid decisions of this court, we are of the opinion that the Tribunal was right in law in holding that the interest of the assessee as partner of the aforesaid two firms was exempt under section 5(1)(xxxii) of the Act and that the business activities of the said two firms were those of an industrial undertaking. Since none has appeared on behalf of the assessee, there shall be no order as to costs.
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1991 (9) TMI 19 - MADRAS HIGH COURT
Agricultural Income, Agricultural Income Tax ... ... ... ... ..... Revenue has drawn our attention to the judgment of a Division Bench in Kanthimathi Plantation Ltd. v. State of Tamil Nadu by the Agricultural Income-tax Officer (T. C. Nos. 392 and 393 of 1982 and 1692 of 1981, decided on January 4, 1984), where the same agreement was involved between the assessee and Union Traders and this court upheld the order of the Commissioner remitting the matter to the assessing authority for the purpose of determining the value of the latex and scrap and for assessing such value as agricultural income. That judgment is totally distinguishable as, in the instant case, the final fact-finding authority has, on the basis of the material on record, rendered the finding that no latex was available for extraction at the relevant time. It is, therefore, not necessary to remand the case to the assessing authority. Thus, for what we have said above, we find no merit in this revision. The tax case is accordingly dismissed. There would be no order as to costs.
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1991 (9) TMI 18 - BOMBAY HIGH COURT
Transfer Of Case ... ... ... ... ..... to bring to notice any error, illegality or injustice. We, therefore, see no merit in any of the five propositions put forth before us on behalf of the Department. In our view, the impugned order is vitiated because of absence of hearing and recording of reasons. We may, before coming to the close, hasten to add that no hard and fast rule can be laid down about the extent and manner of hearing and reasons to be recorded. All depends upon the facts and circumstances on each case. Under the circumstances, the petition is allowed and the impugned order passed by the Commissioner dated January 14, 1991, is quashed and set aside. In order to curtail the delay and procedure, we direct the petitioner to appear before the Commissioner on September 25, 1991, for fixing a suitable date for hearing. Needless to mention the Commissioner is free to pass an appropriate speaking order after hearing the petitioner in accordance with law. Rule made absolute accordingly. No order as to costs.
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1991 (9) TMI 17 - CALCUTTA HIGH COURT
... ...
... ... ..... ten liability on the assessee in respect of the market value of the seized assets as made by the Customs Authority on the date of seizure. The assets no doubt belong to the assessee but his right on the valuation date was in jeopardy being subjected to confiscation proceedings. Such a right has to be valued. This aspect of the matter was not adverted to by the Tribunal. The Tribunal proceeded on the legal contention as to whether the assessee was the owner of the seized goods on the relevant valuation date. We, therefore, decline to answer but remand the matter to the Tribunal for fresh disposal in accordance with law bearing in mind the right the assessee had over the seized assets on the valuation date. The Tribunal will allow reasonable opportunity of being heard to the parties and determine the valuation, if any, of the seized assets taking into account all the relevant facts and circumstances of the case. There will be no order as to costs. SHYAMAL KUMAR SEN J. -I agree.
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1991 (9) TMI 16 - CALCUTTA HIGH COURT
Charitable Purpose, Charitable Trust, Exemptions ... ... ... ... ..... exemption under section 80T on the capital gains which arose to the trust. There, this court held that the income from the property held under trust has to be arrived at in a normal commercial manner and there is no scope for computing the income from property by complying with the provisions of section 14 of the Act. In other words, the real income has to be taken into account for the purpose of considering the exemption, under section 13 of the Act. If there be any loss that cannot form part of the real income of the trust and necessarily it has to be excluded from consideration. We, therefore, reframe the question as follows Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the loss on sale of investment of Rs. 54,982 is not allowable in computing the income of the assessee ? We answer the reframed question in the negative 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 (9) TMI 15 - MADRAS HIGH COURT
Agricultural Income, Agricultural Income Tax ... ... ... ... ..... which suggests that shade trees are not helpful for realising the best yield from the tea plants. On the question whether the trees sold were of spontaneous growth or planted and cultivated, the Tribunal rendered a finding on the basis of the assessees own grounds of appeal that the trees in question were not of spontaneous growth. The Tribunal finally rendered a finding that the trees had been planted purposely for the purpose of deriving income by cutting and selling the same at a later stage. Thus, the sale proceeds were found to be taxable under the Tamil Nadu Agricultural Income-tax Act. On such clear findings, the law as adumbrated in the Division Bench judgment in T. C. Nos. 720 to 722 of 1981 (see 1991 191 ITR 397 (Mad)), makes the petitioner/assessee clearly liable to pay agricultural income-tax on the turnover of Rs. 52,381. We, therefore, uphold the orders of the statutory authorities and dismiss the revision petition. There will, however, be no order as to costs.
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1991 (9) TMI 14 - GUJARAT HIGH COURT
Business Expenditure, Firm ... ... ... ... ..... round that it was remuneration, since no such contention was raised before the Tribunal nor is any such question referred to us for our opinion. For the aforesaid reasons, we answer questions Nos. 1, 2 and 4 in the negative and against the assessee. The question, whether the payment made to the partners by the firm was a device to manipulate the profits of the firm or not, is directly linked with the question of the genuineness of the expenses which may have been incurred by the partners for the work of the firm. Since we do not have sufficient material on record to come to the conclusion as to whether payment of any of these two amounts was a device to manipulate profits or not, we refuse to answer question No. 3. It will be open to the Tribunal to decide this aspect in the light of the observations of this court and on the basis of the material on record including additional evidence that may be led before it. The reference is answered accordingly with no order as to costs.
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1991 (9) TMI 13 - CALCUTTA HIGH COURT
Business Expenditure, Liability For Sales Tax ... ... ... ... ..... s squarely covered by the decision of the Tribunal, Ahmedabad Bench, in the case of ITO v. K S. Lokhandwala 1989 31 ITD 305. Following the aforesaid decision, the Tribunal found no merit in the Revenue s appeal. However, the Tribunal found that out of the total amount disallowed by the Income-tax Officer of Rs. 5,41,987, the assessee paid only Rs. 5,04,316 leaving a balance of Rs. 37,671. As result, the disallowance to the extent of Rs. 37,671 was restored and, in respect of the remaining amount, the order of the Commissioner of Incometax (Appeals) was confirmed. An identical question was considered by a Division Bench of this court in the case of CIT v. Sri Jagannath Steel Corporation 1991 191 ITR 676 in Income-tax Reference No. 104 of 1989, where the judgment was delivered on December 20, 1990. Following the said decision, we answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. SHY KUMAR SEN J.-I agree.
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1991 (9) TMI 12 - CALCUTTA HIGH COURT
Company, Debenture Redemption Reserve, Surtax ... ... ... ... ..... debenture account and the interest accrued on those debentures was paid by the company otherwise than out of the debenture redemption reserve account. It was found by the Tribunal that the debenture redemption reserve was created out of the profits of the company and the payment to the debenture-holders on account of principal and interest was made out of funds other than the debenture redemption reserve. It also appears that an amount equal to the cash applied in redeeming debentures was transferred from the profit and loss account to the capital redemption reserve fund in order to conserve working capital. In other words, the purpose of transferring profits to the capital redemption reserve fund is to prevent reduction of capital. On these facts, we are of the view that the Tribunal came to a correct conclusion. We, therefore, answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. SHY KUMAR SEN J.-I agree.
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1991 (9) TMI 11 - CALCUTTA HIGH COURT
Keyword(s) : Business Expenditure, Capital Gains, Depreciation, Disallowance, Export Market Development Allowance, Foreign Exchange, Insurance, Scientific Research, Weighted Deduction
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1991 (9) TMI 10 - MADRAS HIGH COURT
Notice, Reassessment ... ... ... ... ..... laimed by the petitioner to exonerate him from meticulous compliance with the conditions prescribed under the statute to render him eligible to the benefit of a privilege of waiver is the question which really falls for consideration, In my view, a statutory prescription in the nature of a condition precedent cannot be mutilated by taking into account the mistake pleaded or bona fides alleged. Once it is held to be a condition precedent, there is no question of compromising with the compliance with the requirements of the said provision before any one can claim to be entitled to the privilege of waiver. Consequently, on the fact situation before me and having regard to the scope and nature of the stipulation contained in section 273A(1)(iii)(c) of the Act, I am unable to countenance the plea on behalf of the petitioner that the respondent committed any error in the matter of exercise of his discretion. This writ petition, therefore, fails and shall stand dismissed. No costs.
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1991 (9) TMI 9 - ALLAHABAD HIGH COURT
Search And Seizure ... ... ... ... ..... . . . . is given a notice in writing, (i) informing him of the grounds on which it is proposed to confiscate such gold, . . . , and (ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation ... and, if he so desires, of being heard in the matter. It is thus clear that section 79 requires not only a notice being given to the person concerned informing him of the grounds on which it is proposed to confiscate such gold but also giving him an opportunity of making a representation in writing against the confiscation. In the present case, it cannot be said that the said requirements have been complied with. On this ground alone, the impugned order (confiscating the primary gold weighing 5,825 gms.) is liable to be quashed. The writ petition (No. 50 of 1991) is accordingly allowed and the impugned order dated December 31, 1990, is quashed. There shall be no order as to costs.
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1991 (9) TMI 8 - CALCUTTA HIGH COURT
Loss, Speculation Loss ... ... ... ... ..... ircular of the Board which still holds the field that if speculation losses for the earlier years are carried forward and if in the year of account a speculation profit is earned by the assessee, then, such speculation profits for the accounting year should be adjusted against carried forward speculation losses of the earlier year, before allowing an other losses to be adjusted against those profits. In our view, the circular gives effect to the intention of the Legislature as speculation business being distinct and separate, the profit and loss arising therefrom should also be dealt with separately. If there be any speculation profit in the year of account after set off of speculation losses of earlier years, such profit may then be available for adjustment of loss, if any, arising from any other business. For the reasons aforesaid, the question in this reference is answered in the affirmative and in favour of the assessee. No order as to costs. SHYAMAL KUMAR SEN J.-I agree.
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1991 (9) TMI 7 - BOMBAY HIGH COURT
... ...
... ... ..... m of Rs. 49,65,878 thus recovering the tax twice over on the same income. At the interim stage, we are not going into the question of interest on this amount. At any rate the respondents cannot retain the said sum of Rs. 49,65,878 twice over. Mr. P. S. Jetly, learned counsel appearing for the respondents, submitted that refund of the said amount will be given to the petitioners at the stage of final assessment. Looking, however, to the provisions of the amended section 143(3) and the Central Board of Direct Taxes Circular which is binding on the respondents, refund is required to be granted at the stage of section 143(1)(a)(ii). The respondents are, therefore, directed to refund to the petitioners the sum of Rs. 49,65,878 subject to the final orders which may be passed in the petition. The same will be refunded on or before September 27,1991, as the petitioners have to pay further tax before September 30, 1991. Rule returnable on September 24, 1991. Certified copy expedited.
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