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Showing 61 to 80 of 168 Records
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1985 (11) TMI 122 - CEGAT, NEW DELHI
Exemption - Strict proof of use when not necessary ... ... ... ... ..... ers and Reinforcements for Plastics rdquo by Henry S. Katz and John V. Milewski, also describes precipitated silica as a filler and extender. The departmental representative contended that the respondent should be put to strict proof of the use of the substance for the purpose of exemption under the notification. Looking at the notification, it does not appear to us that such use should be proved. What appears to be relevant is that the substance should be known to be used or employed as extender, suspending agent etc. There are several exemption notifications under Central Excise Rule 8(1) which set out specific procedures to be complied with in order that exemption may be earned. In the present notification, there is no such stipulation. 26. emsp Summing up, we hold that the precipitated silica manufactured by the respondent was eligible for the benefit of Notification No. 23/55 dated 29-4-1955. We uphold the impugned order of the Collector (Appeals) and dismiss the appeal.
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1985 (11) TMI 121 - CEGAT, NEW DELHI
Suo motu Review - Revenue not empowered to expand ... ... ... ... ..... 1982. In para No. 4 of the said Review show cause, the Reviewing Authority viz. the Government of India has given the reasons for the proposed Review of the Order. The only reason which has been given is that the Appellate Collector to Central Excise has overlooked the fact that the judgment of the Hon rsquo ble Gujarat High Court is the subject matter of S.L.P. There is no mention that there was non-compliance with the provisions of Notification No. 48/77-C.E. dated 1-4-1977. We find that there is substance in the arguments of the learned Advocate for the respondent that the Revenue cannot expand the contents of the Review Show Cause Notice issued under the erstwhile Section 36(2) of the Central Excises and Salt Act, 1944. Accordingly we reject the argument of the learned Departmental Representative that the respondent should now produce evidence of having satisfied the other conditions of the Notification No. 48/77-C.E. dated 1-4-1977. In the result, the Appeal is rejected.
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1985 (11) TMI 109 - ITAT MADRAS-C
... ...
... ... ..... f the Tribunal referred to, we have, therefore, to hold that there was a merger in the present case of the order of the ITO with that of AAC. However, the issue is academic in the present case. This is because the Tribunal has been holding that income from capital gains arising in Malaysia cannot be included in the Indian assessment for the reasons stated in the order of the Tribunal already referred to in ITA No. 1381/Mds/83 of December, 1983 and earlier orders. When such income cannot be included, by omitting to include that income, it cannot be said that the ITO had committed an error prejudicial to the Revenue. Therefore, on merits, the CIT was not justified in passing the order that he did. 6. In the view that we have taken, we do not propose to adjudicate on the contention whether the provisions of s. 54-B were applicable in the case of an HUF to not. We accordingly set aside the order of the CIT and restore the order of the ITO. 7. In the result, the appeal is allowed.
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1985 (11) TMI 107 - ITAT MADRAS-B
Apparent From Record, Rectification Of Mistakes ... ... ... ... ..... V. Thomas and Co. s case which distinguishes the earlier decision in K. P. Abdul Kareem Hajees case, we here to hold that the order of the learned Commissioner passed under section 263 which is assailed before us is bad under law and, therefore, has to be set aside. As regards the arguments that the CBDT s Circular No. 334 dated 3-4-1982 levy of interest under section 220(2) was permissible when the original assessment is set aside, we can do no better than citing the decision of the Kerala High Court in CIT v. Malayala Manorama and Co. Ltd. 1983 143 ITR 29 which expressed the following about the said circular ... The court will have to put its own construction upon the provisions of the Act regardless of the practice of the department and the directions for the guidance of the officials.... In view of all of the above, we set aside the order of the Commissioner and restore the order of the ITO dated 30-7-1981 passed under section 154. 3. In the result, the appeal is allowed.
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1985 (11) TMI 104 - ITAT JAIPUR
... ...
... ... ..... not considered the matter from this angle at all. The ITO has subjected the sale to capital gains tax on the short ground that it is situated within the municipal area. The AAC has deleted if following the decision of the Bombay High Court decision in Manu Bhai AA. Sheth and Ors. vs. Union of India (1981) 22 CTR (Guj) 4 (1981) 128 ITR 87 (Bom). According to that decision, no capital gains tax was leviable in respect of agricultural land which was sought to be sold as such. The proper order in the circumstances would be to ascertain the purpose for which the land was purchased by the vendee. If it was agricultural, no capital gains would be leviable. On the other hand, if the sale was with a view to exploit the land for any non-agricultural use tax may be leviable. Accordingly, the matter is restored back to the file of the ITO for a fresh decision in the light of our aforesaid observations. 6. For statistical purposes, the appeal shall be deemed to have been allowed as such.
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1985 (11) TMI 103 - ITAT JAIPUR
... ...
... ... ..... pecial circumstances pointed out be the assessee as a result of which the lower rate was considered to be reasonable. In the case of Sujlam Construction Co. ltd. also lower rate was considered to be reasonable but higher rates have been applied in certain other case. After looking to consideration, the various explanation furnished and the all other facts and circumstances of the case, we are of opinion that a net profit rate of 7.5 per cent on gross receipt of Rs. 7,23,101 for which there is apparently no reasons to disturb the figures, shall be applied in estimating the profits of the assessee from this business. The Departmental appeal is allowed in these terms and the cross objection is also allowed to the context that the gross receipts of the assessee are restored to the figures disclosed by it. 6. In the result the appeal No. 94, is dismissed and the cross objection No. 51 is allowed where as ITA No. 95 and cross objection No. 52 are allowed in part as mentioned above.
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1985 (11) TMI 102 - ITAT JAIPUR
Assessment, Power Of IAC ... ... ... ... ..... eard as required under the Act, the assessment from the stage of the illegal direction is not proper. Now the question that remains is to whether the assessment could be revived at all or not. As has been held by their Lordships of the Supreme Court in the case of Guduthur Bros., the IAC would be well within his jurisdiction to continue the proceedings from the stage at which the illegality has occurred. The other cases relied upon by the assessee before the Commissioner (Appeals) as well as before us are not directly on the issue. They are all on issues where the ITO fails to make an assessment within the period of limitation which is not the issue before us at all. We are of the view that the department must succeed in appeal and we, accordingly, set aside the order of the Commissioner (Appeals) and direct the IAC to proceed afresh with the examination of the case from the time reference was made to him. We, therefore, allow the departmental appeal for statistical purposes.
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1985 (11) TMI 101 - ITAT JABALPUR
Exemption, Special Allowance ... ... ... ... ..... employer had an office or branch in India and if the assessee had been transferred to that office, or branch, the position would have been different. In the present case, the assessee had come to do specific work entrusted by his employer. Consequently, his ordinarily place of work continued to be in Czechoslovakia. Thus, the first condition was not satisfied. The second condition is about ordinary residence. The place where the assessee ordinarily resided was in Czechoslovakia and not in India. Consequently, the second condition was also not satisfied. It follows that the Explanation was not applicable and that the main provision applied. The original orders of the ITO were not erroneous. Consequently, the learned Commissioner was not justified in setting aside the said orders and directing the ITO to make addition. We, accordingly, set aside the order of the Commissioner under section 263 and restore the original assessment orders. 5. In the result, the appeals are allowed.
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1985 (11) TMI 100 - ITAT INDORE
Cash Credits ... ... ... ... ..... n Mittal s version of this state of affairs. If that be so, how can the statement of the same person in the case of the present assessee be disbelieved. 8. The nature and extent of evidence required in a particular case depends on the particular circumstances of that case. Where in a case like the present one the direct witnesses are dead and those available at the proper time were not examined, we cannot expect strict standards of proof. 9. Having given our careful consideration to the entirety of circumstances and the legal position, we hold that the aforesaid gifts were satisfactorily proved and even if for some reason it is held that the gifts are not proved, the amount cannot be taxed in the hands of the present assessee who was a young lad having several years to go before he attains majority and who is not shown to have any other independent source of income. 10. In the result, the appeals are allowed and the aforesaid additions of Rs. 24,500 and Rs. 4,950 are deleted.
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1985 (11) TMI 99 - ITAT HYDERABAD-B
Depreciation, Allowance Or Rate Of ... ... ... ... ..... at very case, a cold storage building which has got a better right for being considered as a plant was only considered as a factory building. 21. Shri Ratnakar had also submitted that we will have to follow the ratio of the Madras Tribunal s decision in the case cited above. In another case, Progressive Hotels (P.) Ltd. IT Appeal No. 846 (Hyd.) of 1984 , the very same matter had come up before us earlier. We have observed Though, ordinarily, we are bound by precedent, we are of the opinion that the precedent is not binding when it ignores a patent provision of law and therefore we are not following the Madras decision and having regard to section 32(1)(v) we have to hold that there is no scope to hold that a hotel building should be considered as a plant for granting depreciation. 22. For the above reasons, we allow the departmental appeal and restore the order of the ITO on this point. 23. In the result, the assessee s appeal is dismissed and the department s appeal allowed.
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1985 (11) TMI 98 - ITAT HYDERABAD-A
Depreciation, Allowance Or Rate Of ... ... ... ... ..... led to treat the plant and machinery as movable property and claim depreciation thereon. 19. In the light of our above finding, we are not much persuaded by the decisions of certain Benches of the Tribunal including our own Bench, in respect of buildings and claim for depreciation thereon. In none of the cases cited before us, the decision of the Andhra Pradesh High Court in the case of Nawab Mir Barkat Ali Khan was considered. 20. The above will dispose of the departmental appeals for both the years. 21. We will now consider the assessee s appeal. The only point raised is whether the assessee would be entitled to the deduction of the lease rent amounting to Rs. 10,752. Shri Swamy for the assessee fairly stated that the point has been decided against him by the High Court in Reference Case No. 38 of 1980 dated 4-12-1984. So, this point raised by the assessee stands rejected. 22. In the result, the departmental appeals are partly allowed and the assessee s appeal is dismissed.
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1985 (11) TMI 97 - ITAT HYDERABAD
... ...
... ... ..... ) of the Finance Act, 1968, and a company which carries on such activity will not fall within the definition of industrial company under that provision. The above decision was followed by the Madras High Court in CIT vs. Buhari Sons (P) Ltd. (1983) 144 ITR 12 (Mad) wherein it was held that the expression manufacture dies not connote a trading activity. An activity carried on in a hotel can only be taken as a trading activity and not manufacturing activity. Similar view was taken by the Karnataka High Court in the case reported as Koshy rsquo s (P) Ltd. vs. CIT (1985) 44 CTR (Kar) 175 (1985) 154 ITR 53 (Kar). The ratio laid down therein squarely applies to the instant case. In my view the activity carried on by the assessee in preparing eatables in the restaurant is only a trading activity and not a manufacturing or processing activity. The lower authorities were justified in rejecting the claim of the assessee under s. 80J. 4. In the result, the appeal fails and is dismissed.
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1985 (11) TMI 96 - ITAT HYDERABAD
Investment Allowance, Assessee Was A Clinical Bio-Chemist ... ... ... ... ..... r urine and gives his report. In this process he neither manufactures nor produces any article or thing. The conditions laid down in section 32A have not been satisfied. Hence, the assessee is not entitled to investment allowance. The decision of the Madras High Court in Dr. V.K. Ramachandran s case and the order of the Tribunal in the case of Dr. P. Vittal Bhat are cases of X-ray units where X-ray film is exposed and X-ray photograph is produced which is a different and distinct article from the raw film. Thus, there is production of a new article. Those cases have no application to the instant case as the assessee does not manufacture or produces any article or thing. The decision of the Madras High Court in the case of Dr. P. Vadamalayan has also no application to the instant case as that is a case of a nursing home. Thus, in my view, the lower authorities were justified in disallowing the claim for investment allowance. 4. In the result, the appeal fails and is dismissed.
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1985 (11) TMI 95 - ITAT HYDERABAD
Income From House Property, Deductions ... ... ... ... ..... igh Court in Gulab Singh and Sons (P.) Ltd. v. CIT 1974 94 ITR 537. In CIT v. M.CT. Muthiah 1979 118 ITR 104, the Madras High Court held that it is clear from clause (vi) of sub-section (1) of section 24 that whether the assessee paid the interest or not the amount payable with reference to a particular year would alone represent deduction. The ratio laid down in the above cases squarely apply to the instant case. 4. In my view the interest relating to the earlier years is not allowable as deduction in this year. Only the interest relating to this year is allowable. I reverse the order of the AAC. Since the ITO has not allowed the interest which relates to the previous year relevant to this assessment year, i.e., 1981-82 which is allowable I direct the ITO to allow the interest to the extent it relates to the previous year relevant to this assessment year. I uphold the disallowance of interest which relates to the earlier years. 5. In the result, the appeal is partly allowed.
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1985 (11) TMI 94 - ITAT GAUHATI
Reassessment, Non-Disclosure Of Primary Facts, Unexplained Investment ... ... ... ... ..... s, we find no material to treat that the declaration made by the assessee to the bank for obtaining higher financial assistance, by declaring more stock, was made on a rough estimated basis. As held by the Hon ble Madras High Court in the case mentioned above, the Tribunal is not expected to take judicial notice of such sub-standard morality on the part of the assessees so as to enable them to go back on their own sworn statement given to the bank as to the stock held or hypothecated to the banks. 27. Having regard to the entirety of the facts and circumstances of the case and the discussion made by us above, we are of the opinion that on merits, the Commissioner (Appeals) was not justified and proper in deleting the addition made in the assessment as discussed by us in the preceding paragraphs. We have no hesitation to reverse the order of the Commissioner (Appeals) impugned before us. The order of the ITO is restored. 28. In the result, the appeal by the revenue is allowed.
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1985 (11) TMI 93 - ITAT DELHI-E
... ...
... ... ..... for depreciation. Since the facts brought on record clearly indicate that right from the very beginning the shed had been occupied by the assessee-company for the purposes of its own business and since at the time of the allotment of the shed in the name of the director named Shri Atul Malhotra, the arrangement was that the company was to have the rights of enjoyment over the shed and that Shri Atul Malhotra was to be the nominal of the companey, merely, we would agree with the conclusion reached by the CIT (A) that depreciation was allowable to the assessee in respect of the total value of the shed and building constructed thereon. The reliance placed by the learned Departmental Representative on decision reported in (1976) 103 ITR 455 and (1970) 77 ITR 637 (Cal) does not help the case of the Department in view of the facts found in the present case which are wholly different from the facts which prevailed in the above mentioned two cases. 6. In conclusion, the appeals fail.
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1985 (11) TMI 92 - ITAT DELHI-D
Valuation Of Assets, Unquoted Equity Shares ... ... ... ... ..... n Mahavir Export and Import Co. (P.) Ltd., there is no material with us to hold that the said company was ripe for winding up and accordingly giving due consideration to the totality of the circumstances and following with respect the ratio laid down by the Hon ble Delhi High Court in the case of Sharbati Devi Jhalani we have to hold that the assessee having valued the shares in accordance with the principles of valuation laid down by the Hon ble Supreme Court in Smt. Kusumben D. Mahadevia s case and the said valuation having been made the basis of assessment, assessment order dated 26-2-1982 made by the IAC (Assessment) in the case of the assessee for the assessment year 1977-78 is not erroneous and if that be the position, then it cannot be held to be prejudicial to the interest of the revenue, hence the impugned order of the learned Commissioner stands cancelled and assessment order dated 26-2-1982 stands restored. 6. The appeal by the assessee succeeds and stands allowed.
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1985 (11) TMI 91 - ITAT DELHI-D
Quoted Equity Shares, Valuation Date, Winding Up ... ... ... ... ..... is mandatory (iv) That where the two dates do not coincide then the applicability of rule 1D would be directory and not mandatory. 5. Now on the facts of the present assessee s case, the subject-matter of action by the learned Commissioner under section 25(2) is the shares of (i) Mahavir Export and Import Co. (P.) Ltd., and (ii) Arvind Construction Co. (P.) Ltd. The valuation date of the assessee relevant for the principles of valuation laid down by the Hon ble Supreme Court in Smt. Kusumben D. Mahadevia s case and the said valuation having been made the basis of assessment, assessment order dated 26-2-1982 made by IAC in the case of the assessee for the assessment year 1977-78 is not erroneous and if that be the position, then it cannot be held to be prejudicial to the interests of the revenue, hence the impugned order of the learned Commissioner stands cancelled and assessment order dated 26-2-1982 stands restored. 6. The appeal by the assessee succeeds and stands allowed.
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1985 (11) TMI 90 - ITAT DELHI-C
Income From House Property, Chargeable As ... ... ... ... ..... and method provided for determining the annual value in sections 23, 24 and 25 of the Act. The authorities below, therefore, erred in rejecting the claim of the assessee. The claim of the assessee that income from terrace floor received under the lease deed was to be taxed as income from house property is, therefore, accepted. The orders of the authorities below on this point are set aside. The ITO is directed to compute the taxable income from the letting out of terrace floor treating the annual rent received as if it were to be taxed as income from house property. 8. Before we close, we would like to mention that the judgment of the Hon ble Orissa High Court relied upon by the revenue is of no avail to it because in the said judgment, the Hon ble High Court was considering the term house for the purpose of wealth-tax. The facts of the case before us are entirely different and, therefore, the ratio of the said judgment is not applicable to the case before us. Appeal allowed.
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1985 (11) TMI 89 - ITAT DELHI-B
Assessment, Validity Of ... ... ... ... ..... setting aside the assessment order. He should have annulled the assessment on the ground that the ITO failed to show that Laxmi Chand was managing the estate and could, therefore, be set aside to represent the estate completely. This is because in absence of evidence (brought on record by the ITO before the completion of the impugned assessment) to establish that Laxmi Chand represented the entire estate, the assessment made in his so name as legal representative is a nullity in law. It is the legal duty of the Tribunal, as observed by the Gauhati High Court in Jai Prakash Singh s case to annul such an assessment. As the Court explained there, the appellate authorities cannot nullify the provisions of the limitation for assessment as laid down in section 153 by passing an order setting aside the assessment and directing completion of the assessment by issuing notices on the remaining legal representatives. We would, therefore, annul the assessment. 30. The appeal is allowed.
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