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Showing 101 to 120 of 220 Records
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1991 (5) TMI 120 - ITAT DELHI-D
Question Of Law ... ... ... ... ..... signed. Instead of presenting appropriate petition praying for the opportunity, cancellation of the order and admission of the appeal by furnishing correct address of respondent, etc., the Revenue chooses to add to the litigation, for no justifiable reason, not only of this Tribunal but also of the Hon ble High Court. In our opinion, no question of law arises. 5. It was submitted at the time of hearing of the Reference Application that the language of Rule 24 of the Appellate Tribunal Rules required the Tribunal to dispose of the appeal on merits after hearing the respondent. It may be stated here that the Tribunal has not passed any order on the basis of Rule 24 of the Tribunal Rules which presupposes admission of appeal under section 253 of the Act besides there was no question of hearing the respondent since none could be notified because of incorrect address given by the appellant and proper particulars not furnished so far. 6. In the result, the application is dismissed
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1991 (5) TMI 119 - ITAT DELHI-D
Applied To, Carrying On Business, Commercial Profit, Double Taxation Avoidance Agreement, Foreign Company, Foreign Enterprise, Permanent Establishment, Technical Services
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1991 (5) TMI 118 - ITAT DELHI-D
Assessing Officer, Being Heard, Natural Justice ... ... ... ... ..... ase also the assessments framed.in the case of Shri Shiv Charan Gupta, insofar as they relate to the various additions made in violation of the procedure prescribed u/s 142(3), are illegal, and that the assessing officer should be asked to proceed from the stage at which the illegality occurred during the course of assessment proceedings. The assessing officer should, therefore, be required to recommence the proceedings from the state at which the illegality has occurred and to assess the assessee in accordance with law, after following the procedure prescribed under the statute. 15. For the foregoing reasons, we would set aside the assessment orders in the case of Shri Shiv Charan Gupta insofar as they relate to the additions made without giving an opportunity of being heard to the assessee in respect of the material gathered by the assessing officer on the basis of which those additions were made. 16. to 52. These paras are not reproduced here, as they involve minor issues.
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1991 (5) TMI 117 - ITAT DELHI-B
Carrying On Business ... ... ... ... ..... cted for arriving at the paid up share capital and reserves as per Second Schedule of the Companies (Profits) Surtax Act. Reference to the Balance Sheet for the assessment year 1982-83 clearly supports the contention of the assessee that to the extent of the amounts paid by the Clark Group shares have been transferred to them, which is not disputed by the Revenue and to that extent the value of investments has got reduced from Rs. 28,43,375 to Rs. 18,81,875. Therefore, deduction made by the Assessing Officer of Rs. 28,43,375 in the first two years for arriving at the paid up capital and Rs. 18,81,875 in the assessment year 1982-83 being wrong in the light of our finding above, he is directed not to deduct the above amounts though shown as investments. The Assessing Officer is directed to deduct 15 of the Total paid-up Share capital, reserves surplus and Investment allowance reserve without deducting the investment on shares, as above. 6. In the result, the appeals are allowed
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1991 (5) TMI 116 - ITAT DELHI-B
Advance Tax, Late Filing, Reasonable Cause ... ... ... ... ..... was also placed on an observation of the Hon ble Supreme Court in the case of Good Year India Ltd. v. State of Haryana 1991 188 ITR 403 at page 424, where the Hon ble Supreme Court observed that it is well settled that a precedent is an authority only for what it actually decides and not what may remotely or even logically follow from it. These observations, as a matter of fact, go against the assessee because in the light of these observations the ratio of Ganesh Dass Shree Ram cannot be extended to penalties under section 271(1)(a) and the direct judgment of the jurisdictional High Court in the case of Bhabuti Contractor has to be followed. 14. No other point was raised before us and for the reasons discussed above, we affirm the findings of the authorities below that the delay in the filing of the returns of income by the assessee for the two years under consideration was without a reasonable cause and we, therefore, uphold the penalties in question. 15. Appeals dismissed
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1991 (5) TMI 115 - ITAT DELHI-A
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... ... ..... lable for the assessment year 1986-87. As such the contention on behalf of the assessee that by virtue of Amnesty Scheme penalty under section 271(1)(a) was not imposable, is not well founded. The same is accordingly rejected. 13. With regard to the merits of the case, it was sought to be explained that the delay was caused due to ailment of one of the partners of the firm. Except a certificate attached to the paper book at page 5 certifying the ailment of the partner between 29-8-1986 to 2-9-1986, there is nothing on record to establish that the assessee was prevented by sufficient cause from 31-7-1986 to 3rd of September, 1986 in filing the return of income. Though the delay in filing the return is only of one month. There being no material on record to establish that it was for reasonable cause, we confirm the levy of penalty for late filing of return, of Rs. 2,860. 14. For statistical purposes ITA No. 6177/Del/87 is partly allowed whereas ITA No. 6178/Del/87 is dismissed.
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1991 (5) TMI 114 - ITAT DELHI-A
Foreign Company, Permanent Establishment, Technical Know-how ... ... ... ... ..... , therefore. follows that the payment made by the assessee company to the German company does not fall within the definition of term royalty under the Avoidance of Double Taxation Agreement between India and Federal Republic of Germany. That being so, the receipts in the hands of German company would be taxable only under Article V of the said agreement. Since it is admitted case of the parties that the German company was not having a permanent establishment in India, the receipt by the German company would be taxable in Germany and not in India. In view of what has been held above, we are satisfied that there was no obligation upon the assessee to deduct tax in respect of payment made to the German company by virtue of the agreement for the transfer of technical know-how etc. The appeal of the assessee is allowed and the Assessing Officer is directed to refund the tax collected from the assessee in accordance with law. 14. In the result, the appeal of the assessee is allowed
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1991 (5) TMI 113 - ITAT DELHI-A
Amnesty Scheme, Authorised Capital, Being Heard, Income From Undisclosed Sources, Orders Prejudicial To Interests
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1991 (5) TMI 112 - ITAT DELHI-A
Default In Payment ... ... ... ... ..... erest on fixed deposit was highly inflated and did not relate to the year under appeal but related to several other years and since it is correct in law only to take the income relatable to this year and if by taking that income alone, there was no liability to pay tax at all, the question of paying self-assessment tax on the basis of such a wrong return does not simply arise and to levy a penalty for not paying the tax not due on the basis of a wrong return was itself unjust and unfair and is not required by law nor can it be said that the law requires payment of taxes in such circumstances. We are, therefore, of the opinion that the authorities below were not justified in confirming the levy of tax when there was no liability to tax at all. Merely on the basis of highly technical interpretation of section 140A of the Income-tax Act, without having regard to the pith and substance and the care and object of section 140A. We, therefore, cancel the penalty and allow the appeal
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1991 (5) TMI 111 - ITAT DELHI
Export Business ... ... ... ... ..... nance Minister as also the Memorandum explaining the provisions contained in the Finance Bill, 1983, I am of the opinion that a proper interpretation of clause (b) of section 80HHC would be that in a case where the export turnover in the immediately preceding previous year is nil, the assessee would be entitled under clause (b) to a deduction of 5 per cent of the entire eligible turnover during the previous year as that would represent the incremental turnover of the year in addition to the deduction of 1 per cent of the eligible turnover under clause (b). In this view of the matter, I hold that the order of the Income-tax Officer on the point is neither erroneous nor prejudicial to the interests of revenue and, therefore, the CIT was not justified in revising the order on the point and withdrawing the deduction allowed by the ITO under clause (b) of section 80HHC(1). In this view of the matter, I cancel the order of the CIT passed under section 263. 10. The appeal is allowed
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1991 (5) TMI 110 - ITAT DELHI
Due Time, Late Filing, Reasonable Cause ... ... ... ... ..... ng and there could be no reason why the returns of the present assessees could not have been filed in time. 10. For the reasons discussed above I find that the delay in the filing of the returns of the present assessees for the three years under consideration was without any reasonable cause. The finding of the learned DC(Appeals) to the contrary is hereby reversed and setting aside his orders under appeal, the penalties, as levied by the assessing officer, are hereby restored. The appeals of the revenue stand allowed. 11. As regards the cross objections filed by the assessees, they are, in my view, not maintainable. Under section 253(4) a cross objection can be filed against any part of the order under appeal, meaning thereby that the cross objection must attach some part of the order. The objections of the present assessees to not attack the order. The support the order. Such objections are unnecessary and are not authorised by section 253(4). They are, therefore, dismissed
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1991 (5) TMI 109 - ITAT DELHI
Interest Payable ... ... ... ... ..... issue of an administrative circular. Patently, it took them more than 6 years to give the intention of the circular a statutory form by the addition of the said Explanation and yet the Legislature did not think it proper to give the said Explanation retrospective effect. So much so, that it did not even make the Explanation operative from the first day of the assessment year and made it operative from 1-6-1987 with sufficient prior notice to all concerns. Therefore, the circular issued by the Board cannot change the meaning and the purpose of the statute and could not have been relied upon by the authorities below for holding that in the circumstances of the case the assessee was liable to deduct tax from the amount of interest credited to interest payable account and for failure to do so, the assessee was liable to pay interest under section 201 (1A). 6. For the reasons discussed above, the assessee s appeal is allowed and the levy of interest in question is hereby cancelled
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1991 (5) TMI 108 - ITAT COCHIN
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... ... ..... ry to the equal amount credits in the names of the employees. On the other hand it was noticed that there were deficits of cash balances on the relevant dates. Hence the explanation offered by the assessee was rightly rejected by the ITO. But the view of the CIT(A) is that the alleged credits in the name of the employees are not cash credits but only credits by way of adjustment. This view of the CIT(A) is not supported by any material on record. Hence, we are unable to agree with the CIT(A) on this point and his finding is thus modified. 15. Having regard to the fact that the assessee is entitled to deduction of gratuity coupled with the presence of unexplained cash credits of Rs. 55,300 and also the fact that the assessee had gone out of business in the immediately succeeding year, we estimate the income of the assessee at Rs. 3 lakhs for the year under consideration. The ITO is directed to modify the assessment accordingly. 16. In the result, the appeal is partly allowed.
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1991 (5) TMI 107 - ITAT COCHIN
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... ... ..... the levy of penalty on the assessee under s. 271(1)(c)is not sustainable in law. The assessee s estimate of advance tax was in accordance with the income originally returned. The higher income was admitted in the revised return on agreed basis only. The assessee s contention right from the beginning is that he was not aware of the mistake committed by the Accountant. Therefore, it cannot be held that the assessee had reason to believe that his estimate of current income for advance tax purposes was incorrect or untrue. In this view of the matter, we hold that the levy of penalty under s. 273(2)(c)is not justified. Thus we cancel both the penalties. 8. Since we have already found that the levy of penalty under s. 271(1)(c)and under s. 273(2)(c)is not justified in the light of the above decision of the Supreme Court, we are not inclined to go into the question as to whether the revised returns are filed under the Amnesty Scheme. 9. In the result, both the appeals are allowed.
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1991 (5) TMI 106 - ITAT COCHIN
Assessment Order, Assessment Proceedings, Kerala Joint Hindu Family System (abolition) Act, Reassessment Proceedings
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1991 (5) TMI 105 - ITAT COCHIN
Interest Payable ... ... ... ... ..... P. to show that the custom prevalent in her community is for the parents to give properties, and jewellery, etc., to the daughter at the time of marriage. The term Parents will include father as well as mother. In view of the above, we hold that the CIT(Appeals) is not justified in holding that the gift executed by the assessee is not exempt from the provisions of the Gift-tax Act. Therefore, we set aside the order of the CIT(A) on this point and hold that the transaction in question is exempt from the provisions of the Gift-tax Act. 13. The next ground in the assessee s appeal and the only ground taken in the revenue s appeal is in respect of the valuation of the gifted property. Since we have held that the transaction is not a gift exigible to tax adjudication on the issue of valuation of the property would be only of academic interest and hence we leave the issue as it is. 14. In the result, the appeal of the assessee is allowed in part and that of the revenue is dismissed
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1991 (5) TMI 104 - ITAT CALCUTTA-B
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... ... ..... is to be added in the hands of such companies. We agree with Sri Tulsiyan that learned CIT on facts of the case could not treat the assessment as erroneous and prejudicial to the interest of Revenue without proving that all subscribers or at least some of them were bogus. The least that could be done for revising the assessment was to show that there was material pointing out to the suspicious nature of subscriptions in question. The material should show that further enquiry and investigation was necessary and was not carried by the Assessing Officer. No such material is available on record. The case is totally based on suspicion and fresh enquiry is directed to remove suspicion only. The assessment order is neither shown to be erroneous nor prejudicial to the interest of Revenue. We, are, therefore, of the opinion that CIT was not correct in invoking or exercising his power under s. 263 of the Act in this case. We vacate his order. 12. In the result, the appeal is allowed.
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1991 (5) TMI 103 - ITAT BOMBAY-E
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... ... ..... on the amalgamating companies were duly received by the amalgamated company. Such notices were acted upon without any demur. It would, therefore, be not correct for the assessee to contend before the CIT(A) and the CIT(A) to accept such contention that assumption of jurisdiction was not valid. In any case, failure to start proceedings on the successor company is not such a defect that cannot be cured and in this connection reliance has also been placed on the provisions of s. 291B of the Act. We are of the view that issue of notice under s. 148 on an assessee-company which did not exist in the sense that it had merged totally in another company, is not a curable defect. It goes to the very root of the assessment. In any case, after the CIT(A) had cancelled the order, the Department had reopened the assessment and had made a fresh assessment on the successor company, in such circumstances, no interference is called for. 20. In the result, the departmental appeal is dismissed.
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1991 (5) TMI 102 - ITAT BOMBAY-E
Revenue Receipt, Total Income ... ... ... ... ..... bove discussion of the facts and circumstances, the provisions of the standard Lease Agreement and the various rulings cited at the Bar, we hold that the sums appropriated by the assessee towards the sinking fund are essentially receipts of revenue nature and are part and parcel and a component of rent received by it for the premises leased out to the lessees. The amounts appropriated towards sinking fund thus continue to occupy their essential character of a revenue receipt and did not constitute a receipt of capital nature. We further hold that the amounts appropriated to the sinking fund were not deductible out of revenue and are includible in the total income of the assessee. The amounts appropriated towards sinking fund shall, for all intents and purposes, be treated as part and component of the rent received by the assessee for the premises leased out to the lessees. In this view of the matter, this appeal by the revenue should succeed. The appeal is, therefore, allowed
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1991 (5) TMI 101 - ITAT BOMBAY-D
Accounting Year, Orders Prejudicial To Interests ... ... ... ... ..... o refer to the decision re-ported in 140 ITR 490. In that case the court has held that jurisdiction vested in the CIT under section 263(1) of the Act is of a special nature and the CIT alone has exclusive jurisdiction under the Act to revise orders of the ITO which are erroneous insofar as they were prejudicial to the interest of the revenue. The court has added that if the assessee could satisfy the Tribunal that the ground for decision given in the order of the Commissioner was wrong on facts or was not tenable in law, the Tribunal would have no option but to accept an appeal and set aside the order passed by the Commissioner. The courts cautioned that the Tribunal could not uphold the order of the Commissioner on any other ground which in its opinion was available to CIT. In the light of the above discussion, we are of the view, that there would be no basis for upholding the order of the CIT and we, therefore, shall cancel the same. 10. In the result, the appeal is allowed
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