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Case Laws
Showing 81 to 100 of 146 Records
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1979 (3) TMI 66 - HIGH COURT OF JUDICATURE AT BOMBAY
Order passed on wrong facts — Validity — Strictures against the Department ... ... ... ... ..... s 2 and 3 do not survive and must also be set aside. 14. As done by the Madras High Court in Premraj and Ganpatraj and Co. v. Assistant Customs Collector, A.I.R. 1978 Madras 40 1977 E.L.T. 166, the order of the 1st respondent being patently illegal and clearly unsustainable from any point of view, it is in the fitness of things that the appropriate writ do issue for the grant of refund to the petitioner of the proper amount. 15. On the question of merits, Mr. Dhanuka fairly stated that if his contention of limitation and laches did not find favour with me, then the correct figure of drawback payable to the petitioner would be Rs. 45,197.70, which is acceptable to Mr. Zaiwalla. 16. In the result, the petition is allowed in terms of prayers (a) and (b), save and except that the sum of Rs. 54,308.50 in prayer (b) shall be read as Rs. 45,197.70 which shall be paid to the petitioner within 8 weeks from today. Rule is made absolute accordingly. Each party shall bear his own costs.
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1979 (3) TMI 65 - GOVERNMENT OF INDIA
Proforma Credit - Permissible in the absence of gate pass ... ... ... ... ..... rocedural requirement and secure proforma credit with the approval of the jurisdictional officer. Government also observe that the petitioner-firm had produced evidence before the adjudicating authority, though after the heading was over. This evidence furnished proof of duty payment on the supplies from the main producer duly endorsed by the officer-in-charge of the steel plants. Therefore, there is no case of any penalty on the petitioner-firm. On the contrary the Government are of the view that the petitioners right for substantive justice in the matter of securing proforma credit for the duty paid material used in the further manufacture of goods by them should also be cancelled. 9. In view of the above, Government hereby set aside the order-in-appeal and remands the case to the Collector of Central Excise, Calcutta for examination of the claim of the petitioners in the light of the documentary evidence produced at the appeal stage and to pass appropriate orders thereon.
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1979 (3) TMI 64 - HIGH COURT OF JUDICATURE AT BOMBAY
Walk-in-cooler - Classification - Two views - Effect - Classification - Advertisement ... ... ... ... ..... sions made by the petitioner-company itself. On these aspects the petitioner s challenge to the impugned order must fail. However, the petitioner-company succeeds on the major challenge discussed in the earlier part of this judgment. 29. In the result, that petition is allowed and the Rule is made absolute in terms of prayers (a) and (b) with the proviso that the amount of Rs. 4,10,726.06 shall read as Rs 4,06,862.06 being the difference of the duty of Rs. 3,864/-in respect of Model No. CRG 320 for which the petitioner-company is not entitled to a refund. The respondents shall also refund to the petitioner-company the excise duty paid after 6th March, 1972 other than the duty payable on dutiable parts provided however that such excise duty after 6th March, 1972 was paid by the petitioner-company under protest. 30. Each party shall bear his costs of the petition. 31. Operation of this order shall be stayed for period of four weeks from the date of the signing of the judgment.
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1979 (3) TMI 63 - ANDHRA PRADESH HIGH COURT
Search and seizure - Searches - Legality - Reason to believe - Connotation of - Confiscation and penalty
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1979 (3) TMI 62 - ANDHRA PRADESH HIGH COURT
Refund of duty paid voluntarily - Mistake of law - Scope - Time barred claims ... ... ... ... ..... ) (above) on the facts of the case, it is held that there were no laches on the part of the petitioner company and in my discretion, the writ petitioner is entitled to the refund of Rs. 3,59,113.68. 13. The learned Counsel for the petitioner raised in the course of debate argued with reference to the payment under Rule 52 when the goods were cleared, the petitioner company had made a protest that it was a nil assessment therefore amounts are liable to be refunded and in that connection referred to two decisions The State of Madras v. A.M. Safiulla and Company (10) 21 STC 274 and N.B. Sanjana v. The Elphinstone Spinning and Weaving Co. Ltd., Nirlon Synthesis Fibres and Chemicals Limited Intervener (II) AIR 1971 S.C. 2039. Having regard to the conclusion indicated above, it is not necessary to go into the issue thus raised under Rule 52 of the 1944 Rules. 14. In the result, the writ petition is allowed as prayed for, but in the circumstances there will be no order as to costs.
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1979 (3) TMI 61 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Court's jurisdiction - Classification dispute ... ... ... ... ..... he suit. On appeal by the Union of India this Court review the decree and held that the correctness of the assessment of the Excise duty could not be questioned in the Civil Court and the suit was impliedly barred on the principle enunciated in Dhulabhai s case. We are in respectful agreement with the view expressed in the aforesaid case. 14. The exception engraphed in the first proposition laid down in Dhulabhai s case does not arise for consideration since no allegations have been made in the plaint that the Central Excise Officer or the appellate authority or the revisional authority contravend the fundamental principles of judicial procedure. 15. In view of our decision that the suits instituted by the plaintiff Company were barred it is not necessary to express any opinion on the pleas of limitation based on Section 40 of the Act. 16. In the result, the appeals are allowed. The decrees of the court below are set aside. Both the suits are dismissed with costs throughout.
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1979 (3) TMI 60 - GOVERNMENT OF INDIA
Penalty - Held - Scope ... ... ... ... ..... evidence on record, direct or indirect, to show that the petitioner-firm were in collusion with the textile mills for any adventitious benefits that might accrue to the owners of the fabrics by mis-declaration. The petitioner-firm may not derive any benefit from payment of lesser duty as it would be recovered from the weavers, as expressly provided for in the agreement between the parties and petitioner-firm in the bills made out to in respect of the individual lots cleared and delivered after processing. In view of the facts and circumstances of the case, Government remit the penalty of Rs. 15,000/- imposed on the petitioner-firm in full. In so far as the fine in lieu of confiscation as well as the higher duty liability is concerned, Government do not see any justification for a modification as the petitioner-firm have admittedly been reimbursed by the textile mills concerned in pursuance of the agreement between them. 8. The revision application is disposed of accordingly.
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1979 (3) TMI 59 - HIGH COURT AT CALCUTTA
Duty wrongfully collected ... ... ... ... ..... ctor of Customs and thereafter a revision petition to the Central Government. Accordingly, it is not open to the petitioner in case to contend that he has got some other right conferred by the statute. Further, I am of the opinion that when a statute makes such right of refund the petitioner is bound by such conditions imposed by such statute which has conferred such right. My attention has been drawn a Judgment of Madras High Court reported in CENSUS 1978/77D 1977 E.L.T. (J 166) where the learned single judge has held that in view of Article 265 of the Constitution of India irrespective of the period of limitation under Section 27, a citizen has a right to recover such amount. I am unable to accept the correctness of such judgment in view of the Supreme Court decision referred to above which was not even considered by that judgment. 10. Accordingly this application is dismissed. The Rule is discharged. Interim orders, if any, are vacated. There will be no order as to costs.
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1979 (3) TMI 58 - SUPREME COURT
Whether persons collectively doing business in partnership, in the municipality, fulfil the second condition ?
Held that:- There are no words in cl. (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals. To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others. Thus, both the conditions necessary for levying a tax under cl. (b) of sub-s. (1) of s. 61 of the Municipal Act existed in this case. The appellants are " persons " and they are carrying on a trade in Chheharta Municipality.
the entire effort to import the definition of " person " given in the General Clauses Act, into s. 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results. But in the instant case, nothing of this kind has happened. The firm has not been assessed. No question of double taxation or exceeding the constitutional ceiling of ₹ 250 fixed by art. 276(2) of the Constitution arises on the facts of the present case.
The present case is one, where the Municipal Committee acted " under the Act ". It follows, therefore, that the Civil Court's jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein related to the principle of assessment to be followed. Appeal dismissed.
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1979 (3) TMI 57 - SUPREME COURT
Interpretation of the various clauses of s. 3(1) of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964
Held that:- Clause (c) of s. 3(1) of the Validation Act is also important and it clearly and expressly provides that no proceedings in relation to the Government dues shall be invalid merely because no fresh notice of demand was served upon the assessee after the dues were enhanced or reduced in any appeal or proceeding. It is, therefore, plain that in neither of the two cases did the certificate proceeding become invalid, in one case by reduction of the demand and in the other by an enhancement. In both the cases notices under s. 7 of the Bengal Act had been served upon the certificate-debtors before the property in question was transferred by them to the company. The transfer was, therefore, void against the certificate claims in both the cases under s. 8(a) of the Bengal Act. Appeal allowed with costs payable by the respondent-company, the judgment and order of the High Court are set aside and it is directed that the certificate case shall proceed to disposal in accordance with law as expeditiously as possible.
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1979 (3) TMI 56 - HIMACHAL PRADESH HIGH COURT
Authorised Capital, Capital Expenditure, Capital Or Revenue Expenditure, Enduring Nature, Income Tax Act
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1979 (3) TMI 55 - HIMACHAL PRADESH HIGH COURT
Business Expenditure, Expenditure Tax, Wholly And Exclusively ... ... ... ... ..... ar in question the applicant-assessee has utilised the land and premises which are subject to the tax under the U.P. Act for conducting their business. Since these lands and premises were necessary to be used for the conduct of the assessee s business and since they were bound to pay the tax in question as occupier of these land and premises, the payment of tax is obviously incidental to the business of the assessee and, therefore, pursuant to the ratio of the Supreme Court decision in Indian Aluminium Co. Ltd. 1972 84 ITR 735, we find that the decision given by the Punjab and Haryana High Court in CIT v. Jai Hind Picture Co. (P.) Ltd. 1973 87 ITR 218 (Punj) would be of no avail to the department. Our answer to the question which is referred to us by the Tribunal is, therefore, in the negative, i.e., in favour of the assessee and against the department. This reference is accordingly disposed of and the matter is sent back to the Tribunal. There shall be no order as to costs.
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1979 (3) TMI 54 - HIMACHAL PRADESH HIGH COURT
Assessment Order, Assessment Proceedings, Composite Order, Penalty Notice ... ... ... ... ..... n of the proceedings regarding assessment, the order was passed for imposing penalty. It is further clear that in the course of this very proceeding the imposition of penalty did commence. The mere fact that the notice was actually issued two days after the said order was passed, was immaterial because the order itself contained a direction for imposition of penalty and that is how the proceedings for imposition of penalty commenced within the very same order. Therefore, there is no difficulty with regard to s. 275 and the proceedings regarding imposition of penalty did not vitiate because of any such argument based on that section. In this view of the matter, we answer the question referred to us by saying that the Tribunal was right in holding that the AAC was not justified in cancelling the order of the ITO under s. 271(1)(a) of the Act. The case shall be referred back to the Tribunal for further action in the matter. No order is made as to costs. T. U. MEHTA C.J.-I agree.
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1979 (3) TMI 53 - CALCUTTA HIGH COURT
Acquisition Proceedings, Appeal To Supreme Court, Tax Liability, Transfer Of Property ... ... ... ... ..... l Acts mentioned in s. 230A or whether a provision has been made for payment of taxes under those Acts. I, therefore, set aside the order dated the 22nd November, 1978, passed by the respondent No. 1and I direct the ITO to consider the application dated 25th September, 1978, in accordance with law, namely, to find out whether there is any tax liability outstanding in respect of the several Acts mentioned in cl. (a) of s. 230A of the I.T. Act, 1961, or whether satisfactory provision for payment of such liabilities have been made under the Act. If the ITO is satisfied either that there is no such liability under those Acts or if he is satisfied that satisfactory provision has been made for payment of liabilities, if any, then he must grant such certificate as quickly as possible and not later than 11th May, 1979. The rule is made absolute to the extent indicated above. There will, however, be no order as to costs. All parties concerned will act on a signed copy of the minutes.
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1979 (3) TMI 52 - ALLAHABAD HIGH COURT
Res Judicata, Valuation Officer ... ... ... ... ..... permitting cross-examination of respondent No. 2 in the proceedings before him. There is yet another reason why the petition must fail. The WTO has no option but to accept and give effect to the valuation report of the Valuation Officer but the assessee in his appeal can challenge the correctness of the estimate of the valuation reported by the Valuation Officer. When the writ petition was presented before us, the assessment had not been completed by respondent No. 3. After he has passed an assessment order in conformity with the valuation given by respondent No. 2 in his report, the petitioner can in appeal challenge its legality and correctness. He thus has an alternative remedy in case he is aggrieved by the proceedings before the Valuation Officer. Under art. 226 of the Constitution as it stands after its amendment by the 42nd Constitution Amendment Act, the petition is not maintainable. For the above-mentioned reasons, there is, in our opinion, no merit in this petition.
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1979 (3) TMI 51 - HIMACHAL PRADESH HIGH COURT
Chargeable Profits, Indian Company ... ... ... ... ..... In the above-noted decision is well preserved when the view that we have taken is sustained. With these observations, we are constrained to follow the view taken by the Madras, Bombay and Kerala High Courts and adhering to that view, we consider that the gross dividend is to be excluded under r. 1 (viii) of the First Schedule from the total income computed for that year under the I.T. Act in order to arrive at the chargeable profits for payment of surtax. We, therefore, answer the question referred to us by saying that the Tribunal was not justified in upholding the action of the ITO in excluding Rs. 13,685 only instead of Rs. 34,212 and Rs. 11,576 instead of Rs. 29,441 for the assessment years 1968-69 and 1969-70, respectively, from the total income for arriving at the chargeable profits under the C. (P.) S. T. Act, 1964. The record shall be sent back to the Tribunal with this opinion for further action in the matter. We, however, leave the parties to bear their own costs.
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1979 (3) TMI 50 - HIMACHAL PRADESH HIGH COURT
Capital Employed, Capital Work In Progress, Income Tax Concession, Industrial Undertaking, Office Appliance
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1979 (3) TMI 49 - HIMACHAL PRADESH HIGH COURT
Capital Or Revenue ... ... ... ... ..... lows that if once it is found that a particular deduction can be claimed as on account of expenditure on advertisement the said deduction squarely falls within sub-s. (3) and that being so the question whether the said expenditure is of capital nature or of revenue nature falls wholly out of consideration. Deduction on account of expenditure on advertisement is qua advertisement and not qua its revenue or capital nature. The Tribunal seems to have missed this aspect of the matter. We, therefore, find that this expenditure falling under sub-s. (3) of s. 37 should be treated as expenditure on advertisement and deduction on that account should be given not on consideration of the question whether it is of revenue or capital nature but on considerations of the conditions and restrictions contemplated by sub-s. (3) itself. We accordingly answer the reframed question and send the matter back to the Tribunal for dealing with it according to law. There shall be no order as to costs.
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1979 (3) TMI 48 - ALLAHABAD HIGH COURT
Assessment Order ... ... ... ... ..... dated November 14, 1973, the ITO did not take up the case for the year 1970-71. On the other hand, he issued notices for the subsequent assessment years requiring the petitioner to submit his returns. This was mala fide. We are not satisfied that the ITO was either biased or was motivated by mala fide considerations. Before he could finalise the assessment for the year 1970-71, subsequent years intervened. The period of limitation for filing of returns was expiring and for that reason notices were issued for those years. By now several more years have gone by. It will be in the interest of justice fit and proper if the ITO takes up the cases of all the years of the petitioner together because the principal question whether the petitioner is exempt from income-tax is common to all those years. Proceedings under the W.T. Act can also be taken up simultaneously. Subject to these observations, the writ petition fails and is accordingly dismissed, but we make no order for costs.
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1979 (3) TMI 47 - CALCUTTA HIGH COURT
Estate Duty ... ... ... ... ..... by mistake had omitted to deal with the basic contention that the business in question did not have any goodwill at all. (e) This mistake should be rectified. So far as this court is concerned the matter has been disposed of on the basis of the statement of the case as drawn up in this reference which includes the order of the Tribunal and as such we cannot go into the question of other mistakes at this stage. We, however, make it clear that this judgment is not intended to shut out the accountable persons and will not stand in their way from proceeding with their miscellaneous application, if any, pending before the Tribunal in accordance with law. This judgment has proceeded on the basis that the firm had a goodwill. If it is ultimately found that the said firm had any goodwill, in that event, only the Tribunal will dispose of the matter in accordance with this judgment. The reference is disposed of accordingly. There will be no order as to costs. C. K. BANERJI J.--I agree.
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