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Showing 181 to 200 of 259 Records
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1992 (8) TMI 85 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Refund - Unjust enrichment - Tax collected without authority of law - Writ jurisdiction ... ... ... ... ..... on in the case of the petitioner while they have discharged the same obligation in the case of others who are similarly situated with the petitioner. This would clearly result in violation of Article 14 of the Constitution of India. Such a situation cannot be allowed to come into existence as a result of failure on the part of the respondents to discharge their statutory obligation to refund the tax which was illegally collected by them, Sou moto, when the Act itself provide for such action at its own. As a result of aforesaid discussion, the petition is accepted. The respondents are directed to refund the amount of excise duty which became refundable to the assessee-petitioner as a result of order Ex. 1 dated 22nd January, 1986, with interest at the rate of 12 per cent per annum from the date of actual payment to date of refund. The respondents are further directed to make payment of refund with interest as aforesaid, within a period of 2 months from the date of this order.
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1992 (8) TMI 84 - HIGH COURT OF JUDICATURE AT BOMBAY
Rayon tyre cord warpsheet nothing but rayon cord - Writ jurisdiction ... ... ... ... ..... to the Tribunal, this writ petition should not be entertained by this Court under Article 226 of the Constitution of India. This submission is merely to be stated to be rejected for the simple reason that Rule was issued after hearing both the parties in the year 1979 and it is too late in the day at the stage of final hearing of the petition in the year 1992 to take a preliminary objection for the exercise of our extra-ordinary powers under Article 226 of the Constitution. Even otherwise, we find that our order is based on the Supreme Court s decision cited above and the decision of the department itself, leaving no scope for further discussion. 16. In the result, the petition succeeds. The impugned order at Exhibit Z-A is quashed and set aside. There shall be no order as to costs. 17. Conditional order of furnishing Bank Guarantee from time to time is hereby withdrawn. The petitioners are not required to furnish any Bank Guarantee. 18. Issue of certified copy is expedited.
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1992 (8) TMI 83 - HIGH COURT OF JUDICATURE AT BOMBAY
Writ Jurisdiction - Premature ... ... ... ... ..... his Court that they will keep the bank guarantee given to this Court, pursuant to the order dated 23rd March 1982 in Writ Petition No. 549 of 1982, alive until expiry of period of six months from the date of order of the Tribunal. Petitioners through their Counsel further undertake to this Court that they shall move the 1st Respondent - B.P.T. with proper application within two months from the date of order in case they want to seek any relief as regards demurrage charges undertakings accepted. If such an application is made by the petitioners, the 1st Respondent-B.P.T. to dispose of the same within six weeks from the date of receipt of the application in accordance with law. 8. Writ Petition No. 799 of 1982 is disposed of in the above terms. In view of this order, no separate order on Chamber Summons No. 174/91 is called for. All contentions taken in the Chamber Summons are kept open. No order as to costs. Copy of this order, if applied for, to be furnished within two weeks.
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1992 (8) TMI 81 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Writ Jurisdiction ... ... ... ... ..... cts and appreciation of evidence thereon which cannot be done by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 6. There is another aspect of the matter, namely, the petitioners have approached this court rather prematurely without even answering the show cause notices issued to them. Hitherto no orders adverse to them have been passed. 7. Ordinarily, jurisdiction under Article 226 of the Constitution of India ought not to be exercised to obstruct a course prescribed by a valid statute. 8. For the foregoing reasons, we are not inclined to interfere in the matter at this stage. However, considering the fact that the period stipulated in the impugned notices for furnishing reply has expired, we permit the petitioners to file reply within thirty days from today and if they so file their reply, the same shall be treated to be within time. 9. Subject to the observations and directions made above, the petition is dismissed.
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1992 (8) TMI 79 - HIGH COURT OF JUDICATURE AT BOMBAY
Reference to Larger Bench when there are contrary decisions of two High Courts - Copper scrap
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1992 (8) TMI 77 - HIGH COURT AT CALCUTTA
Stay - Refund ... ... ... ... ..... . I have been referred to a Division Bench decision of Bombay High Court in the case of Vidarbha Vineer Industries v. Assistant Collector of Central Excise, 1991 (55) E.L.T. 167. The Division Bench of the Bombay High Court has held in that case that mere filing of an appeal in the Supreme Court does not operate as a fetter on the effectiveness of the order under appeal. I respectfully agree with the view expressed in that judgment. 5. In that view of the matter, the writ petition succeeds. There will be an order in terms of prayer (a) of the writ petition. The amount is to be paid to the petitioner within four weeks from date. The interest will be paid at the rate of 10 per cent from the date of the order of the Appellate Collector till date. 6. There will be no order as to costs. The department is directed to supply xerox copy of this order to the Advocates appearing for the parties on usual charges and on an undertaking to apply for and obtain certified copy of this order.
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1992 (8) TMI 76 - HIGH COURT OF JUDICATURE AT BOMBAY
Natural Justice ... ... ... ... ..... at the said petition was in respect of classification list prior to the amendment of relevant entry by Finance Bill of 1992. This is also clear from the classification list itself which is to be effective from 1-3-1992. On merits, it is clear that no hearing was accorded to the petitioner before the classification list in question was modified by the respondent No. 3. Even no show cause notice was given to the petitioner in that regard. Since the principles of natural justice are violated, we do not think that this is a fit case to relegate the petitioner to the remedy of appeal. 4. We, therefore, allow the instant writ petition and set aside the impugned order of the respondent No. 3, dated 10-3-1992 and direct him to pass a fresh order after giving show cause notice to the petitioner and after giving him an opportunity of being heard. The Assistant Collector shall pass the order within two months from the date of this order. Rule made absolute in the above terms. No costs.
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1992 (8) TMI 75 - HIGH COURT OF JUDICATURE AT MADRAS
Writ jurisdiction - Refund - Bar of unjust enrichment ... ... ... ... ..... cording to law within three months from the date of receipt of the application for refund. It is needless to say that the question of limitation prescribed under Section 11B does not arise in this case, because admittedly the duty was paid by the respondent during the relevant period under protest. Further, the order of the Collector (Appeals) (the 3rd appellant herein) dated 8-5-1989 in appeal No. 48/89 (CBE) rejecting the appeal filed against the order of the first appellant dated 18-8-1988, will not stand in the way of the competent authority considering the respondent s application claiming refund afresh, because the order of the third appellant dated 8-5-1989 was not passed on merits and the said appeal was dismissed by the third appellant on the ground that the same matter was pending before this court in W.P. No. 6260 of 1987. 11. In the result, the writ appeal is allowed and the order of the learned single Judge is set aside subject to the above directions. No costs.
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1992 (8) TMI 72 - SUPREME COURT
Whether the concession or exemption from auxiliary duty under Notification No. 41/80 can be claimed only in respect of goods which are partially or wholly exempt by virtue of Notification No. 35/79?
Held that:- The parts in the present case as well as the principal article of which they are part are both assessable to basic duty at the same rate. Since the duty payable on the part, even without invoking the notification, is not in excess of the duty payable on the article, the assessee cannot be said to have got a partial or complete exemption of basic duty by virtue of Notification No. 35/79. Consequently, the assessee cannot claim any benefit under Notification No. 41/80. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41%, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39% or 40%, he would have to pay the auxiliary duty because the Notification does not apply to it in terms. Counsel, however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation.
It seems absurd to say that when the part suffers a basic duty of 40% and the whole a duty of 40%, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41% or more but reduced to 40% because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty. Appeal dismissed.
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1992 (8) TMI 71 - DELHI HIGH COURT
Rectification ... ... ... ... ..... ax paid is allowable as a deduction, there can be no manner of doubt that, with a score seven is to one, the point involved is highly debatable, to say the least. Under these circumstances, the principle of law enunciated by the Supreme Court in Volkart Brothers case 1971 82 ITR 50 is clearly applicable. The application under section 154 of the Income-tax Act was itself, therefore, not maintainable. If the assessee had any grievance, the remedy would have been either to file an appeal against the assessment order or to file a revision to the Commissioner of Income-tax. Under no circumstances, could an application under section 154 be filed. For the aforesaid reasons, question No. 1 has to be answered in the affirmative and against the assessee. The result of this is that the application under section 154 was rightly held to be not maintainable and, as a consequence thereof, question No. 2 does not survive and, therefore, need not be answered. Parties to bear their own costs.
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1992 (8) TMI 70 - GUJARAT HIGH COURT
Reassessment ... ... ... ... ..... the income or in passing the order on the return, he has ample power to call upon the assessee, under section 142(1)(ii), to supply such material or to prepare the balance-sheet and to produce the same. If he does not exercise that power or fails to exercise that power and proceeds to assess the assessee on the material which is before him, it can be said that the Assessing Officer did not find that material necessary for assessment and, therefore, he cannot resort to the power under section 147(a) subsequently when he has failed to exercise the power under section 142(1)(ii). In view of the aforesaid position of law, we are of the opinion that the Tribunal as well as the Appellate Assistant Commissioner were justified in holding that the Income-tax Officer was not justified in resorting to section 147(a) of the Act. We, accordingly, answer these references by answering both the questions in the affirmative, i.e., in favour of the assessee and against the Revenue. No costs.
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1992 (8) TMI 69 - GUJARAT HIGH COURT
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... ... ..... such person was deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of the said clause, unless he was able to show that the failure to return the correct income was not on account of any fraud or gross or wilful neglect on his part. Once it is established that the difference between the returned income and the assessed income is more than 20 per cent., a presumption of concealment or wilful furnishing of inaccurate particulars arises against the assessee and, unless that presumption is rebutted, the Revenue would be entitled to levy penalty in accordance with the said provision. In our view, the aforesaid decision of this court squarely applies to the facts of the present case as the facts of both these cases are by and large identical. In the result, the questions referred for our opinion are answered in the negative, in favour of the Revenue and against the assessee. There will be no order as to costs.
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1992 (8) TMI 68 - GUJARAT HIGH COURT
Business, Business Expenditure
... ... ... ... ..... s with fishermen for collection of fish during the monsoon season may not be taken as a first step towards setting up of business, at least from August 15, 1970, when the assessee acquired a godown where the processing of marine products could start when fish became available after the monsoon, it can be said that that was the starting point of the setting up of the business of processing marine products. Actual arrival of fish later on would not postpone the setting up of such business. The Tribunal was, therefore, right in concurring with the view of the Appellate Assistant Commissioner that the expenditure incurred by the assessee after August 15, 1970, and before October 6, 1970, when collection of fish was to actually start, can be treated to be business expenditure and would get covered under section 37 of the Act. In the result, the question referred for our opinion is answered in the affirmative, in favour of the assessee and against the Revenue. No order as to costs.
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1992 (8) TMI 67 - GUJARAT HIGH COURT
Business Expenditure, Disallowance ... ... ... ... ..... ear that the expenditure for purchasing stock-in-trade is one of such outgoings. The value of the stock-in-trade has to be taken into account while determining the gross profits under section 28 on principles of commercial accounting. Therefore, the contention of the assessee before us that the aforesaid payment was made to the aforesaid two parties towards advance payment for purchase of stock-in-trade stands directly answered by the aforesaid observations of the Supreme Court. The submission of Mr. R. K. Patel to the contrary cannot now be accepted. Even otherwise also, the present reference involves pure questions of fact to be answered by this court and we would not have undertaken that exercise of answering pure questions of fact. However, in view of the direct decision of the Supreme Court, we have not declined to answer the question. In the result, the question referred to us is answered in the affirmative, i.e., against the assessee and in favour of Revenue. No costs.
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1992 (8) TMI 66 - GUJARAT HIGH COURT
Developement Rebate ... ... ... ... ..... business charts, plants, processing data and other literature comprised in the documentation service as specified in clause 3 constituted book and fell within the definition of plant in section 43(3) of the Income tax Act, 1961. The court expressly approved the decision of the Division Bench of this court in the case of Elecon Engg. Co. Ltd. 1974 96 ITR 672. The decision of this court in the case, of Elecon Engg. Co. Ltd. 1974 96 ITR 672 was also carried in appeal to the Supreme Court and in the case of CIT v. Elecon Engg. Co. Ltd. 1987 166 ITR 66, the Supreme Court has affirmed the said decision. In view of the aforesaid legal position and in view of the express provision of section 43(3) of the Act which gives an inclusive meaning to the word plant , we are of the opinion that the Tribunal was right in allowing development rebate to the assessee on books. In the result, we answer the question in the affirmative, i.e., in favour of assessee and against the Revenue. No costs.
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1992 (8) TMI 65 - BOMBAY HIGH COURT
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... ... ..... any event, the adjustment of the three items made by the Assessing Officer, in our view, was wholly impermissible under section 143(1)(a) as interpreted by a Division Bench of this court to which one of us (Mrs. Sujata Manohar 1.) was a party in the case of Khatau Junhar Ltd. v. K. S. Pathania 1992 196 ITR 55. We are, therefore, of the view that the intimation dated July 22, 1991, under section 143(1)(a) is erroneous and without jurisdiction and is, therefore, required to be quashed and set aside. In the result, the impugned intimation dated July 22, 1991, exhibit F to the petition, is hereby quashed and set aside. Consequently, the claim made for additional tax under section 143(lA) is also set aside. The respondents are directed to issue a fresh intimation order under section 143(1)(a) following the law laid down by the above judgment and to make consequential refund orders, if any, in the circumstances of the case. Rule is made absolute accordingly. No order as to costs.
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1992 (8) TMI 64 - BOMBAY HIGH COURT
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... ... ..... court to which one of us (Mrs. Sujata Manohar J.) was a party in Khatau Junkar Ltd. v. K. S. Pathania 1992 196 ITR 55). The impugned intimation dated January-30, 1990, is therefore, without jurisdiction and is hereby quashed and set aside. Consequently, the additional tax claimed from the petitioner is without authority and is hereby quashed and set aside. The respondents shall issue a fresh intimation under section 143(1)(a) of the Income-tax Act, in accordance with law as laid down by the above judgment and grant to the petitioner refund, if and as found admissible. Since the intimation under section 143(1)(a) of the Income-tax Act was itself without jurisdiction and is being set aside the further proceedings thereupon under section 154 and appeal therefrom are without consequences and any findings made therein shall not operate to the prejudice of either party. In the result, the petition is made absolute in terms of prayer (a). However, there will be no order as to costs.
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1992 (8) TMI 63 - BOMBAY HIGH COURT
Reassessment, Reassessment Notice On Mere Suspicion ... ... ... ... ..... The court also said that the High Court exercising jurisdiction under article 226 has power to set aside a notice issued under section 147(b) of the Income-tax Act, 1961, if the condition precedent for the exercise of jurisdiction does not exist. It is open to the court to ascertain whether the Income-tax Officer had in his possession any information and whether, from the information, the Income-tax Officer may have reason to believe that the income chargeable to tax has escaped assessment. In the present case, the reasons which are recorded clearly show that there is no material at all on the basis of which the Assessing Officer could have reason to believe that any interest income had escaped assessment. No such income had accrued during the assessment year in question. In the premises, in our view, the notice issued under section 148 of the Income-tax Act is without jurisdiction and hence the same is set aside. Rule is made absolute accordingly, with no order as to costs.
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1992 (8) TMI 62 - BOMBAY HIGH COURT
Deduction For Royalty, Fees For Technical Services Rendered Abroad, Royalty ... ... ... ... ..... Mr. Bhujle. In these circumstances, we are of the view that the petitioners should be given an opportunity to furnish the original or a notarised copy of the agreement dated October 19, 1982, and to satisfy the Board on the query which had been raised by it. In the result, the order of the Board dated January 24, 31, 1986, is hereby quashed and set aside. The application made by the petitioners dated September 26, 1984, shall be reconsidered by the Board for approval under section 80-0 of the Income-tax Act as expeditiously as possible, after giving an opportunity to the petitioners for furnishing the original of the concerned agreement or a copy certified by a notary public, which they shall do within a period of four weeks from the date of obtaining the certified copy of this order. The petitioners shall be given a hearing in the matter before the order is made. Rule is made absolute, accordingly, in terms of prayer (a) with no order as to costs. Certified copy expedited.
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1992 (8) TMI 61 - ALLAHABAD HIGH COURT
Business Expenditure, Firm, HUF ... ... ... ... ..... s of the assessee s firm were not these persons in their individual capacity but the Hindu undivided families of which they were karta ? In CIT v. Nitro Phosphetic Fertilizer 1988 174 ITR 269 (All) FB , which completely answered the aforesaid question, the Full Bench held that where a karta of a Hindu undivided family was a partner in representative capacity and money was lent in individual capacity by him to the firm, the interest payable is liable to be disallowed under section 40(b) (prior to April 1, 1985). Following the Full Bench decision, we answer the aforementioned question in the affirmative, that is, against the assessee and in favour of the Revenue.
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