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2001 (3) TMI 98
Adjudication - Remand ... ... ... ... ..... ring the DRI officers to issue show cause notice has been over-looked by the Tribunal. We clarify that it shall be open to the assessing officer, acting pursuant to the order of remand, to examine, if by virtue of certain notification, the show cause notice issued by the DRI officers was valid and competent, and if that be so, then, to record a finding accordingly. 2. Subject to these observations, the appeal is dismissed.
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2001 (3) TMI 97
Why the gold in question should not be confiscated and penalty imposed under the Customs Act?
Whether the High Court was justified in reversing the finding of fact recorded by the statutory authorities?
Held that:- Both the authorities below also rejected the document produced by Balan on the ground that the gold mentioned in that document could not be correlated to the gold recovered from the possession of the respondent. We do not find any perversity in the appreciation of this evidence by the original authority and the tribunal. It is based on these facts and circumstances that the gold seized from the possession of the respondent was confiscated by the order of the original authority as confirmed by the appellate authority. These findings of the authorities below to which we have made a brief reference to show that the findings are based on the material on record and, in our opinion, are arrived at on a reasonable and legitimate assessment of the evidence on record.
The High Court, however, by the impugned order came to the conclusion that the initial burden of proving that the goods in question were smuggled, lay on the Department which according to it, was not discharged by the Department. This conclusion of the High Court is obviously based on a misappreciation of the evidence that was already considered by the lower authorities. The High Court, in our opinion, not only erred in reappreciating the evidence already considered by the authorities below and in that process committed a further error of substituting its subjective opinion in the place of the findings of the authorities below. Therefore, we are of the opinion that the finding of the High Court that the concurrent conclusions of the statutory authorities were either not based on evidence or were perverse, is unsustainable. Appeal allowed.
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2001 (3) TMI 96
Contempt proceedings initiated against the judicial officer - Held that:- The officer is holding a responsible position of a Civil Judge of senior Division. Even a new entrant to judicial service would not commit such mistake assuming it was a mistake. Despite these glaring facts, we assume, as pleaded by the judicial officer, that he could not understand the order and, thus, on that assumption it would be a case of outright negligence, which, in fact, stands admitted but wilful attempt to violate the order for any extraneous consideration or dishonest motive would, therefore, be absent. In this view, we drop these contempt proceedings against the officer by issue of severe reprimand.
WIt cannot be ignored that the level of judicial officer's understanding can have serious impact on other litigants. There is no manner of doubt that the officer has acted in most negligent manner without any caution or care whatsoever. Without any further comment, we would leave this aspect to the disciplinary authority for appropriate action, if any, taking into consideration all relevant facts. In the special leave petition we grant leave. We feel it appropriate to make absolute the order as we had proposed in order dated 27th March, 2000. It is, therefore, ordered accordingly and, thus, the order of the High Court under challenge is modified and it is directed that the entire amount would be withdrawn only against furnishing security to the satisfaction of the trial court. The contempt petitions and appeal are disposed of accordingly.
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2001 (3) TMI 95
Whether benefit of the notification No. 155/86-Cus., dated 1st March, 1986 be denied to the appellants as serviceable parts out of the dismantled furnace were used besides some indigenous parts along with the imported parts and, therefore, new furnace has not come into existence?
Held that:- It is evident from the notification that the expression 'assembly' has been separated from the expression 'initial setting up'. These expressions are intended to cover different situations. We are unable to accept the contention of learned Attorney General that the expression 'assembly' is to take colour from the expression 'initial setting up' and, therefore, without new article coming into existence, the question of claiming benefit under the notification would not arise. The language of the notification is clear and plain. The notification is to be construed reasonably and rationally and not in a manner which deprives the benefit thereof. The expression 'assembly' in the context and setting in which it has been used cannot be construed to mean bringing into of a new article. This expression cannot be equated with the expression 'manufacture'. If the construction as placed by the Tribunal is accepted, it would render the expression 'assembly' in the notification redundant. The expression 'assembly' has been used as opposed to dismantle. The notification does not contemplate denial of its benefit on the ground of reuse of certain parts and/or use of some indigenous parts with the imported parts. Thus, the appellants are clearly entitled to the benefit of the notification. In favour of asseesee.
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2001 (3) TMI 94
Whether the import of Thyristor Converter and the ceramic wool by the appellant as parts of the Temper Mill and Bright Annealing Furnace is in contravention of the import permit issued to the appellant?
Held that:- While coming to the conclusion that the Thyristor Converter is an absolute necessity the Collector relied on the Inspection Report of M/s. Dona Electricals Pvt. Ltd. The observation in the Inspection Report relied upon by the Collector clearly shows that the Temper Mill would be incomplete and be of no use without the import of Thyristor control system. Therefore, the finding of the tribunal that the report of M/s. Dona Electricals does not support the view taken by the Collector also cannot be sustained.
In regard to the import of the ceramic wool, it is to be noted that the Collector came to the conclusion that the said ceramic wool is a component which is fitted into the furnace as a periodically replaceable part and in the normal course has a life span was only five years. Therefore, in his opinion, while importing second-hand annealing furnace if the importer has replaced the periodically replaceable ceramic wool with a new one which also has a limited life span, same cannot be construed as importing a new machinery because in the opinion of the Collector there is nothing improper in importing second-hand machinery with certain parts which require periodical replacement with new parts so long as the nature of the basic machinery so imported remains to be a second-hand machinery. The tribunal though agreed with the finding of the Collector that the ceramic wool is a periodically replaceable part still held prior permission of the Board was necessary for such machinery which we find difficult to sustain in the view taken by us herein above. Hence we are in agreement with the view expressed by the Collector. Appeal allowed.
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2001 (3) TMI 92
Reference, Question Of Law, Assessing Officer ... ... ... ... ..... der under challenge should be set aside and the Tribunal directed to refer to the High Court for its consideration a question or questions reframed to bring out the precise point of law involved, after drafting an appropriate statement of case. For the purposes of reframing the questions, the Tribunal shall give notice to both the parties. The civil appeal is allowed accordingly. No order as to costs.
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2001 (3) TMI 91
Nature and character of the levy of "dharmada"
Held that:- The levy is specific, definite and positive in terms, with a definitely disclosed object leaving no room for any doubt or any exercise to clear such assumed doubts. Carefully going through the original notification in the vernacular published in the Gazette dated May 13, 1968, it is find that the rates of the levy under challenge have been notified as part and parcel of one and the same schedule to the said notification and not by any different or more than one schedule and that too by means of a simultaneous exercise of powers under section 104(2) of the Act and not on different occasion or time. Though it is seen that some of the classified items or commodities enumerated in various entries overlap those found in the other entries under different captions including dharmada, they are not mere mechanical repetitions in toto, viewed either from their classification, enumeration or determination of the rates as well as the measure or quantity with reference to which the actual levy is to be made and collected. Therefore, the mere stipulation of plurality of rates in respect of some or the other of the commodities/goods under different classified groups for different purposes by itself will not render it to be dubbed or castigated as "double taxation" for spearheading a challenge on them. The notification under consideration cannot, in our view, be said to involve the imposition of any double tax and the High Court has gone wrong in proceeding upon such an erroneous assumption and declaring thereby the levy for dharmada purposes to be bad and illegal. Appeal allowed.
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2001 (3) TMI 90
SALE — GOODS, MEANING OF — TRANSFER OF RIGHT TO USE GOODS — SOFTWARE PROGRAMME — BRANDED OR UNBRANDED
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2001 (3) TMI 89
Legislative Powers, State Legislature, Agricultural Income Tax, Interpretation OF STATUTES, Legislative Powers
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2001 (3) TMI 88
Assessment, Revision ... ... ... ... ..... te that if it is accepted, as contended by Mr. Lodha, that notwithstanding the setting aside of the order of the Commissioner of Income-tax, the order still remains operative and live and binds the Assessing Officer to give effect thereto within the period prescribed under section 155(2A), if the matter is sub judice then such limitation for making assessment in pursuance of the order of the Commissioner of Income-tax, then the said period has already expired. However, I refrain from making any comments on the question of limitation for completing the proceedings in case the Revenue becomes successful in the pending proceedings ultimately and the treatment of the period during which the order of the Commissioner of Income-tax remained inoperative because of its setting aside. Accordingly, this petition is allowed and the respondents are restrained from continuing with the proceedings in pursuance of the order passed by the Commissioner under section 263 on February 20, 1998.
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2001 (3) TMI 87
Advance Tax, Refund, Interest ... ... ... ... ..... ter, the right to receive the interest accrued to the assessee only on October 24, 1988, when the Assessing Officer gave effect to the order of the first appellate authority dated December 11, 1987, by which the assessee s appeal came to be allowed. Therefore, the amending Act, 1984, would apply to this case. Lastly, a bare reading of section 214(1A) indicates that the said section 214(1A) would apply to all cases where interest becomes payable as a result of an order under section 147 or section 154 or section 250 or section 254 or section 262 or section 263. Therefore, the Taxation Laws (Amendment) Act, 1984, is applicable to this case and we do not find any merit in the contention of the Department that the said amending Act is not applicable to the facts of this case. Accordingly, the above question is answered in the affirmative, i.e., in favour of. the assessee and against the Department. The appeal is, accordingly, dismissed with no order as to costs. C. C. expedited.
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2001 (3) TMI 86
Appeal, Reassessment, Interest ... ... ... ... ..... (Kar). In that case the Assessing Officer had directed levy of interest under section 139(8) and 215 but in reality interest was computed for the first time when reassessment order under sections 147 and 148 of the Act was passed. The High Court held that levy of interest could not be questioned in appeal against the order in the reassessment proceedings. If the assessee wanted to question the levy of interest, appeal should have been filed against the regular assessment. In our view, the legal position has been laid (town in the proper perspective in the said case. The case of the Revenue stands on a better footing in the case at hand, since no appeal was filed earlier in terms of section 246(m) challenging the levy of interest under section 216 of the Act, though an appeal had been filed on some other grounds. These aspects have not been taken note of by the Tribunal. The answer to the question referred is in the negative in favour of the Revenue and against the assessee.
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2001 (3) TMI 85
Business Expenditure, Disallowance ... ... ... ... ..... and has taken the view that no such expenditure could be disallowed under sub-section (3A) of section 37. He further submits so far the expenditure on samples is concerned, the issue is now concluded by the Supreme Court in the case of Eskayef v. CIT 2000 245 ITR 116 wherein their Lordships have taken the view that in the case of expenditure on samples the provisions of sub-section (3A) of section 37 is applicable. Considering the submission and aforesaid undisputed facts following the decision of the apex court in the case of Eskayef (2000) 245 ITR 116, we answer the question on medical samples in the affirmative, i.e., in favour of the Revenue and against the assessee. So far the expenditure on distribution on technical literature is concerned, following our view in the case of Griffen Laboratories Ltd. 2000 244 ITR 68 (Cal), we answer the question in the negative, i.e., in favour of the assessee and against the Revenue. The reference application is accordingly disposed of.
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2001 (3) TMI 84
Revision, Condition Precedent, Business Expenditure, Firm, Goodwill, Interest ... ... ... ... ..... section 263 of the Income-tax Act. In the present matter, the above facts clearly show that the assessees claimed deduction in respect of the interest amount paid to the trust on the goodwill during the assessment years 1986-87, 1987-88 and 1988-89 whereas under the partnership deed, the goodwill amount was payable by incoming partners and, therefore, no amount was payable by the firm as and by way of interest for the liability of the goodwill and, therefore, the firm was not entitled to claim any deduction in respect of the interest paid to the trust. under the order of the Assessing Officer, the relevant facts have not been examined. The order of the Assessing Officer was erroneous. The order of the Assessing Officer was prejudicial to the interests of the Revenue. In the circumstances the above question is answered in the negative, i.e., in favour of the Department and against the assessees. Accordingly, both the above appeals stand disposed of with no order as to costs.
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2001 (3) TMI 83
Agricultural Development Allowance, Weighted Deduction ... ... ... ... ..... the goods, services or facilities provided to the agriculturist or a cultivator consist of tools or implements like an electric pump, the assessee-company is certainly entitled to claim depreciation because the value of the asset, viz., the electric pump gets diminished by its use in connection with the services or facilities provided to the cultivator and, consequently such reduction in its value would have to be treated as an expenditure while arriving at the taxable income of the assessee. This is the ratio of the judgment of the Andhra Pradesh High Court in the case of CIT v. Vazir Sultan Tobacco Co. Ltd. 1990 184 ITR 64 as also of the judgment of the Calcutta High Court in the case of Indian Leaf Tobacco Development Co. Ltd. v. CIT 1982 137 ITR 827. We agree with the view expressed by the aforestated judgments. Accordingly, the above question is answered in the affirmative, i.e., in favour of the assessee and against the Department. Reference is disposed of accordingly.
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2001 (3) TMI 82
Business Expenditure, Bonus ... ... ... ... ..... amining as to whether the payment made over and above the statutory maximum made by the employers to the labourers pursuant to an agreement under the Industrial Disputes Act was deductible under section 37 of the Income-tax Act, 1961, and held that such payment for the purpose of commercial expediency and business or profession is allowable under section 37 of the Act. Following the aforesaid decisions, we are of the opinion that the additional amount in the form of ex gratia payment by the assessee-company to the labourers and staff was expended wholly and exclusively for the purpose of the business and profession to keep the labourers satisfied and to buy the industrial peace and to avoid strike and lock out and therefore such expenditure paid in excess of bonus in the nature of ex gratia payment is allowable as business expenditure under section 37 of the Income-tax Act, 1961. We accordingly answer the reference in favour of the assessee and against the Revenue. No costs.
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2001 (3) TMI 81
Income From House Property ... ... ... ... ..... rd to the object of the Income-tax Act, namely, to tax the income, owner is a person who is entitled to receive income from the property in his own right. The require ment of registration of the sale deed in the context of section 22 is not warranted. In CIT v. Kashiram Ramgopal (Agencies) 1998 231 ITR 10 (Gauhati)---Income-tax Reference No. 1 of 1997, the reference was answered in favour of the assessee but we find that the question was not replied in categorical terms. However, in view of the decision in CIT v. Podar Cement P. Ltd. 1997 226 ITR 625 (SC) where it is held that the registration of documents under the Registration Act is not a must in the context of section 22 of the Income-tax Act, we hold that non-registration of transfer documents is immaterial for the purpose of invoking the provision of section 22 of the Income-tax Act. Hence, we find that no substantial question of law arises in the present appeal and as such, the appeal is dismissed at the motion stage.
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2001 (3) TMI 80
Revision, Commissioner, Powers Of, Interpretation OF STATUTES, Retrospective Operation ... ... ... ... ..... x court, in the case of CIT v. Shri Arbufa Mills Ltd. 1998 231 ITR 50, held such Explanation to have retrospective effect. However, the ambiguity, if any, was totally removed by the 1988 amendment where it has included any order passed on or before or after 1st June, 1988 . Hence, relying on the proposition of law laid down in the case of CIT v. Shri Arbuda Mills Ltd. 1998 231 ITR 50 (SC) and CIT v. Mulchand Bagri 1992 108 CTR 206 (Cal), I hold that the Explanation incorporated in section 263(1) of the Income-tax Act, 1961, has its retrospective effect and the impugned notice dated June 22, 1979, issued by the Commissioner of Income-tax is valid and binding upon the parties. In the result, the writ petition fails and is hereby dismissed. The rule nisi issued on July 2, 1979, is discharged. Interim orders passed earlier are vacated. In the circumstances aforesaid, there would be no order as to costs. Urgent xerox certified copy be given to the parties as and when applied for.
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2001 (3) TMI 79
Depreciation, Buildings ... ... ... ... ..... lace the same by having lost its value fully over a period of time. It is well-settled that there cannot be two owners of the property simultaneously and in the same sense of the term. The intention of the Legislature in enacting section 32 of the Act would be best fulfilled by allowing deduction in respect of depreciation to the person in whom for the time-being vests the dominion over the building and who is entitled to use it in his own right and is using the same for the purposes of his business or profession. Assigning any different meaning would not sub-serve the legislative intent. In this case there is no dispute that the assessee has put up the structure. It is also a well-known concept that the property may belong to one person and the structure may belong to another person. In view of the above facts and in the light of the Supreme Court decisions, we answer the question in the affirmative and in favour of the assessee. Income-tax reference is disposed of as above.
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2001 (3) TMI 78
Rectification Of Mistakes, Mistake Apparent From Record ... ... ... ... ..... ed such can only be reopened by the Tribunal and none else. The Revenue accepted the order of the Tribunal, did not proceed with the reference application and allowed the same to be dismissed for non-prosecution. Having done so, the order of assessment passed by the Assessing Officer in compliance with the direction of the appellate authority has been accepted by the Revenue and the same cannot be reopened at this stage in the manner it has been attempted. In the result, the writ petition succeeds. Notice bearing No. PA(II)-000-CY- 6086/ CAL/ C-III/I.S.C. relating to the assessment year 1964-65 appearing at page 57 of the writ petition is quashed and set aside. This order of setting aside and/or cancellation of the said impugned notice would not in any way preclude the Revenue authority from taking any other step if they are so entitled to in law. The writ petition is thus disposed of. Rule is accordingly made absolute. There would be no order as to costs in the instant case.
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