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1978 (3) TMI 13 - CALCUTTA HIGH COURT
... ... ... ... ..... hat the imposition of the penalty was bad in view of the provisions of s. 297. The answer that we will give, will also be subject to the Tribunal being satisfied that the ITO was justified in imposing the penalty after considering that the default was not good or sufficient reason. We, therefore, answer by saying that if notice of demand under s. 156 has been served upon the assessee, a fact which has to be found by the Tribunal clearly, then the Tribunal was not right in holding that s. 297(2)(f) of the I.T. Act was applicable and was not right in holding that penalty under s. 221 of the Act was not validated under s. 297(2)(j) of the Act. But this finding of the Tribunal must be subject to the further finding of the Tribunal that the default of the assessee was not for good and sufficient reason. With these observations we answer the question as indicated above. In the facts and circumstances of this case, there will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (3) TMI 12 - ALLAHABAD HIGH COURT
Rate Purpose ... ... ... ... ..... this court in Arun Kumar Sarraf v. CIT (.1976 .104 ITR 90. In that case, it was hold that income could be included in the total income of the assessee for rate purposes only under s. 66. Under s. 66 only such income on which no income-tax is payable can be included in the total income of the assessee. Hence, the income of a minor assessee which has been assessed in the hands of his father and mother under s. 64 could not be included in the assessment of the minor for rate purposes. In view of this decision, the question referred to us is answered in the negative, in favour of the assessee and against the department. The assessee will be entitled to costs which are assessed at Rs. 200.
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1978 (3) TMI 11 - CALCUTTA HIGH COURT
Appeal To AAC ... ... ... ... ..... er under s. 237 would be appealable under cl. (n) of s. 246 of the I.T. Act, 1961. If the assessee had applied for refund then the question would arise whether he was entitled to apply under s. 237 or not and if so whether he would have any right of appeal from any order of the ITO and this consequence in our opinion is beside the point and, even if he has any right of appeal under the procedure prescribed by s. 237 of the I.T. Act, 1961, read in conjunction with cl. (n) of s. 246 of the I.T. Act, 1961, in our opinion, it does not affect the question whether in view of sub-s. (1A) of s. 214 of the I.T. Act, 1961, the assessee has, in the facts and circumstances of the case, a right of appeal. We are of the opinion that in view of the said provisions he has, in the facts and circumstances of this case, the right of appeal. Therefore, we answer the question in the negative and in favour of the assessee. Parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (3) TMI 10 - CALCUTTA HIGH COURT
Reassessment ... ... ... ... ..... is quite clear. Once the initiation of reassessment proceedings is held to be invalid whatever follows thereafter must also necessarily be invalid and none of the additions could have been sustained by the Tribunal. It is surprising that the Tribunal having proceeded to determine the matter only on the question of invalidity of the initiation and postponing the hearing of the appeals and on merits, went on to consider the merits of the additions. For the reasons stated above we answer the questions as follows The question of the assessee is answered in the negative and in favour of the assessee. The question No. 1 raised by the department is answered in the affirmative and in favour of the assessee. In view of the answer to the above questions, question No. 2 as raised by the revenue does not call for any answer. Question No. 3 is answered in the affirmative and in favour of the assessee. In the facts and circumstances, there will be no order as to costs. BANERJEE J.-I agree.
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1978 (3) TMI 9 - ALLAHABAD HIGH COURT
... ... ... ... ..... We do not find any substance in this submission. It is true, we have held above that the AAC as well as the Tribunal were justified in holding that the returns filed by Manohar Lal could not be treated as that of Shyam Lal Moti Lal, but that does not deprive the department of its jurisdiction to pass an order of assessment on that basis for the purposes mentioned above. It is not correct that on the findings recorded by the Tribunal and the AAC the only thing which could be done was to annul the assessment proceedings. An annulment may be permitted in case where the proceeding is without jurisdiction. But, in the instant case, the same does not suffer from this defect. Accordingly, we are unable to hold that the order of annulment made by the Tribunal was correct. In the result, the question referred to us is answered in the negative in favour of the department and against the assessee. The revenue would be entitled to get costs of this reference, which we assess at Rs. 200.
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1978 (3) TMI 8 - MADRAS HIGH COURT
Business, Loss, Set Off ... ... ... ... ..... has not purchased any such immovable property at any time before or after. He has also not developed even the plots which he purchased. He had only divided the same and sold as smaller extents and the development of the plots, such as laying roads, etc., were done by the assessee s vendors. There is no evidence to show that there was any increase of prices of immovable property during that period. But even assuming that such general rising trend in prices were there, we are unable to hold that that is enough to rebut the presumption that the property could not be treated as purchased for the purpose of business. The facts in this case could only lead to one conclusion and that is the one reached by the Tribunal that the transaction was not an adventure in the nature of trade or any kind of business. We, accordingly, answer the first question in the negative and in favour of the revenue and the second question in the affirmative and against the revenue. No order as to costs.
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1978 (3) TMI 7 - CALCUTTA HIGH COURT
Double Taxation Relief ... ... ... ... ..... e money had been brought to Pakistan by the managed companies and the assessee derived income from money lent on interest and brought into that Dominion. Pakistan in that case would be entitled to claim 100 per cent. of the income. Clause 9 of the agreement is a residuary clause. The assessee could be brought under this clause had there been no intention of application of the money borrowed for the management or development of the companies situated in Pakistan. Thus, from the facts and circumstances of the case, it appears to us that the transaction of moneys, though they had been made in Calcutta, was for a specific purpose, namely, to be diverted to Pakistan for the management of development of their companies situated in East Pakistan and thus entitling the assessee to take the benefit of cl. 5(f) of art. IV of the Indo-Pakistan Agreement. The question is thus answered in the affirmative and in favour of the assessee. No order as to costs. SABYASACHI MUKHARJI J.-I agree.
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1978 (3) TMI 6 - MADRAS HIGH COURT
Estate Duty, Principal Value Of Estate ... ... ... ... ..... hile examining the scope of ss. 44 and 74 of the Act. In this decision, the said High Court explained the position of law and finally held that the expressions debts and incumbrances in s. 44 of the Act referred to debts and incumbrances created by the deceased during his lifetime and the liability to pay estate duty, even if it were created by statute, could not be said to be an incumbrance nor could it be said to have been created by the deceased, and, therefore, the estate duty was not deductible from the value of the estate passing on the death of the deceased. We are in full agreement with the view expressed by the Gujarat High Court in Shantaben s case 1978 111 ITR 365. We, accordingly, hold that the estate duty payable on the estate of the deceased in the hands of the accountable person is not deductible, and answer the reference in the affirmative and against -the accountable person and in favour of the revenue. The revenue will have its costs. Counsel s fee Rs. 250.
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1978 (3) TMI 5 - MADRAS HIGH COURT
Firm, Registered Firm ... ... ... ... ..... petitioner would point out that the firm has paid annuity deposit on behalf of the deceased, C. S. Loganathan, for the years 1964-65 and 1965-66 amounting to Rs. 1 .58,790 and this also should be given credit to towards the 30 referred to in s. 182(4). We do not see how the annuity deposit paid will amount to a discharge of the liability for payment of income-tax which alone is the subject-matter under s. 182(4). The amount of annuity deposit paid by the firm on behalf of the deceased partner will have to be treated only as an asset of the deceased partner and it is open to the department to adjust the same towards the balance of arrears of tax due by the deceased partner. Therefore, the impugned order of the first respondent as affirmed by the second respondent is quashed. It is, however, open to the first respondent to issue a fresh demand for a sum of Rs. 11,058.37 as against the erstwhile firm. The writ petition is allowed accordingly. There will be no order as to costs.
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1978 (3) TMI 4 - CALCUTTA HIGH COURT
Transfer / extinguishment of leasehold / tenancy rights Section 45(1) of the Act is wholly silent as to the person from whom the consideration money for transferring a capital asset is to be received by the assessee. Moreover, it, inter alia, provides that any profits or gains arising from the transfer of a capital asset shall be chargeable to income-tax under the head " Capital gains ". Transfering the right of the assessee in the monthly tenancy under the landlords or his leasehold interest was extinguished and, therefore, it does not matter in the least that the aforesaid amount was not received from the landlords for the extinguishment of his aforesaid rights in the aforesaid capital asset, for, as already stated, s. 45(1) of the Act does not say from whom the consideration money is to be received for transfer of a capital asset and, further, s. 2(47) of the Act says that the word "transfer", in relation to a capital asset, includes "the extinguishment of any rights therein"
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1978 (3) TMI 3 - CALCUTTA HIGH COURT
Priority Industry ... ... ... ... ..... atio of the decision of this court in the case of Indian Steel and Wire Products Ltd. v. CIT 1977 108 ITR 802 would not be applicable to this case. Counsel further submitted that in case of ambiguity an entry should be construed in favour of the assessee in order to give him larger relief. He drew our attention to the decision of the Supreme Court in the case of CIT v. Kula Valley Transport Co. P. Ltd. reported in 1970 77 ITR 518 at p. 530. This argument also it appears was advanced before this court in the case of Indian Steel and Wire Products Ltd. v. CIT and was rejected as it was found that there was no ambiguity. Applying the ratio of the said decisions of this court, question No. must be answered in the affirmative and in favour of the Revenue and, applying the said decision to the facts of this case, question No. 2 must also be answered in the affirmative and in favour of the Revenue. Parties, however, will bear and pay their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (3) TMI 2 - MADRAS HIGH COURT
Deduction, Donation To Charitable Institution ... ... ... ... ..... o. 292 of 1972 1983 143 ITR 193 (Mad) In the said case, though the copy of the trust deed was produced before the court, such a copy was not annexed to the statement of the case. The Bench, by its judgment dated December 6, 1976, passed the following order Therefore, leaving the Tribunal to go into the entire controversy again, so far as it has got a bearing on section 80G(5)(iii), we return the reference without answering the questions referred to this court. As we have indicated above, the Tribunal has passed its order by following its earlier order passed in the case of M/s. Reliance Motor Co. Pvt. Ltd., which on reference has been remanded by the Bench of this court in T.C. No. 292 of 1972 (Addl. CIT v. Reliance Motor Co. P. Ltd.) 1983 143 ITR 193 (Mad). Accordingly, we return the reference without answering the question referred to this court and direct the Tribunal to go into the entire controversy in this case having regard to all the terms in the trust deed. No costs.
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1978 (3) TMI 1 - ALLAHABAD HIGH COURT
Agricultural Income Tax ... ... ... ... ..... assessment was made against the transferor-company which was defunct on the date of the assessment order and the amount of Rs. 61,577.87 was recovered from the plaintiff-appellant as is evident from Ex. 7 and Ex. 8 on the record, the recovery of the aforesaid amount from the appellant was wholly illegal and without jurisdiction in the circumstances of the present case. Thus, it is abundantly clear from the facts of the present case that the I.T. authorities had failed to comply with the very procedure prescribed by the Indian IT. Act, 1922, and, in such event, a suit in a civil court would certainly be competent. The counsel for the appellant is right in contending that the plaintiff s suit was wrongly thrown out by the court below on the ground of the bar of s. 67 of the Indian I.T. Act, 1922. For the reasons given above, the decision of the trial court is set aside and the plaintiff s suit is decreed. In the result, the appeal succeeds and is allowed with costs throughout.
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