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Showing 101 to 120 of 135 Records
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1980 (11) TMI 35 - CALCUTTA HIGH COURT
Building, Depreciation ... ... ... ... ..... to motor vehicles it was merely a part of the setting where petrol was supplied. It merely provided shelter and played no part in the commercial process in the context of cl. 68 of s. 48 of the Finance Act, 1971. There the decision really rested on whether the canopy could be considered to be a part of the plant which was used by the assessee. As we have said, in view of the decisions of this court, it is indisputable that the factory compound could form part of the building which is used for the purpose of the business and if the residential quarters for the factory employees is an obligation of the employer being the assessee, then, in our opinion, roads of such residential quarters should also be allowed depreciation computed at the same rate as applicable to first class buildings. In that view of the matter, the question referred to us is answered in the affirmative and in favour of the assessee. Parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (11) TMI 34 - DELHI HIGH COURT
Capital Gains ... ... ... ... ..... sguided in making the application, so was the appellant in making a claim for refund. The order of the Tribunal clearly indicates that it was the assessee s own case that the surplus was subject to capital gains and not business profits. This case of the assessee the Tribunal accepted in appeal. The ITO, accordingly, revised the assessment. There is no question of refunding the amount to the appellant which she had willingly paid knowing fully well as part of her positive case that she was liable to pay capital gains tax. The order of the Tribunal is final, no doubt. But to say that on this finality the appellant s claim to refund is well founded is to misread the final order of the Tribunal. There is no justice in the appellant s claim. Finality is a good thing but justice is better. Lord Atkin has told US. (Rash Behari Lal v. King Emperor 1933 LR 60 IA 354, 361 AIR 1933 PC 208, 210). For these reasons the appeals are dismissed. The parties are left to bear their own costs.
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1980 (11) TMI 33 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... . 144B is procedural provision and the object behind this section is to give a comprehensive opportunity in cases where the variations proposed by the ITO in the income returned are in excess of Rs. 1 lakh. If the draft order issued is capable of giving full opportunity to the assessee to meet the proposed variations, it cannot be said that the defect in the draft order makes the entire proceedings invalid. At any rate, no question of jurisdiction is involved in such cases. Any non-compliance with s. 144B can be set right by the Tribunal by remanding the proceedings to the ITO. For the reasons given above, we answer the questions referred as follows 1. The Tribunal was right in holding that the assessment was not nullity and there was substantial compliance with s. 144B. 2. The Tribunal was justified in setting aside the assessment order passed by the ITO and the order passed by the AAC and in directing the ITO to make a fresh assessment. There shall be no order as to costs.
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1980 (11) TMI 32 - KERALA HIGH COURT
Agricultural Income Tax, Limitation ... ... ... ... ..... limitation prescribed under sub-s. (4) of s. 41 is attracted only by the order commencing proceedings for recovery. That order is the certificate issued under sub-s. (3) of s. 41. It is that certificate which commences recovery proceedings, although the recovery as such is made by recourse to the machinery under the Revenue Recovery Act. Consequently if, as in the instant case, the certificate was issued within the three years prescribed under s. 41(4) of the Agri. I.T. Act, proceedings for recovery can thereafter continue even beyond three years. In the present case, proceedings were delayed and protracted owing to proceedings in court. It was for that reason that recovery could not be had for many years. The recovery has still not been made owing to the present proceedings. All this delay could have been avoided if the petitioner had not caused the delay by contentions based on technicalities. I see no merit in the petitioner s contentions. The O.P. is dismissed. No costs.
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1980 (11) TMI 31 - ALLAHABAD HIGH COURT
Commissioner, Firm, Registration, Revision ... ... ... ... ..... rned judges appear to us to be in consonance with the view which we are taking, viz., that continuation of registration for subsequent years on the basis of a declaration that the firm in question has not undergone any change in its constitution or in the shares of the partners as evidenced by the instrument of partnership on the basis of which it was registered, does not require the passing of any order and the firm continues to be registered, if factually there has been no such change in the constitution and a declaration to that effect has been filed by the assessee. In the result, we answer the first question referred to us in the affirmative and in favour of the assessee. In view of our answer to the first question, it is not necessary for us to answer the second question which becomes academic. We, accordingly, return the second question unanswered. The assessee will be entitled to receive the costs of this reference from the Commissioner which are assessed at Rs. 250.
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1980 (11) TMI 30 - CALCUTTA HIGH COURT
Estate Duty, Property Escaping Assessment ... ... ... ... ..... eral Clauses Act of 1897, was that the pending cases, although instituted under the old Act but still pending, were governed by the new procedure under the amended law. This observation was made in connection with the prosecutions under the Prevention of Corruption Act. In our opinion, it would not be proper for us in disposing of this case to refer to the principles applicable in the construction of purely penal provisions and how they have to be guided. Therefore, we need not proceed to examine the principles enunciated by the Supreme Court in the said decision in greater detail. For the reasons we have already mentioned hereinbefore, in our opinion, the Tribunal was right in holding that the reopening of the estate duty assessment was barred and, in that view of the matter, we answer the question in the affirmative and in favour of the accountable person. In the facts and circumstances of the case, parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (11) TMI 29 - GAUHATI HIGH COURT
Appeal To AAC ... ... ... ... ..... are completely different as also the principles propounded in the decisions. In all the aforesaid decisions, their Lordships construed the appellate order and held that the ITO did not act according to the directions or disregarded the direction or did not follow the direction of the appellate authorities. In all the decisions there were positive, clear, certain and definite directions without any ambiguity, and, accordingly, the orders of the ITO were set aside for not following such positive and firm directions. The principles enunciated in the decisions are not applicable to the instant case. For the reasons set out above, we answer the question in the negative, i. e., in favour of the revenue. Let a copy of the judgment be sent under the seal of the court and the signature of the Registrar to the learned Tribunal, which shall pass such orders as are necessary to dispose of the case conformably to the judgment. We make no order as to costs. D.PATHAK C. J. (Actg.)-I agree.
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1980 (11) TMI 28 - MADHYA PRADESH HIGH COURT
Appeals, Change In Constitution Of Firm, Firm ... ... ... ... ..... did not evidence the change in shares where one of the minors attained majority. In our opinion, the Tribunal was right in holding that when Prakashchandra and Subhashchandra became majors and thus partners in the firm there was a change in the shares of the partners as evidenced by the instrument of partnership within the meaning of prov. (1) to s. 184(7) and the assessee was not entitled to a continuation of registration. For the reasons given above, our answers to the questions referred are as follows (1) The Appellate Tribunal was not right in law in dismissing the appeals as not maintainable. (2) The Appellate Tribunal was right in holding that there was change in the shares as evidenced by the instrument of partnership during the two previous years relevant for the assessment years 1967-68 and 1968-69. (3) The assessee is not entitled to the benefit of continuation of registration for the assessment years 1967-68, 1968-69 and 1969-70. There will be no order as to costs.
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1980 (11) TMI 27 - DELHI HIGH COURT
Co-operative Society, Cottage Industry ... ... ... ... ..... age industry as no industrial activity is involved in the same. For the reasons recorded above, we are of the opinion that the activities of the assessee-society to the extent of its buying and selling products of other societies or individuals cannot qualify for exemption under s. 14(3)(i)(b) of the 1922 Act or s. 81(i)(b) of the I.T. Act, 1961. The manufacture and sale of its own products or products of its members would certainly qualify for the said exemption. Thus, our answers to the questions referred would be that the Tribunal was not right in holding that the income derived by the assessee from running the business of buying and selling of products of outsiders was exempt under s. 14(3)(i)(b) of the 1922 Act or s. 81(i)(b) of the 1961 Act and it was right in holding that the income derived by the assessee from running the business of manufacture and sale of products confined to its own members, was exempt under the said provisions. There will be no order as to costs.
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1980 (11) TMI 26 - CALCUTTA HIGH COURT
Developement Rebate, Rectification, Writ ... ... ... ... ..... ned notice dated 3rd April, 1976. There will also be a writ in the nature of certiorari quashing any proceeding that might have been held on the basis of the impugned notice. The respondents are also directed by writ of mandamus to forbear from giving effect to the impugned notice or any proceeding held in pursuance thereof in any manner whatsoever. Re. C. R. No. 8746(W) of 1976.-In view of my judgment in the case of Mozufferpore Electric Supply Co. Ltd. (C. R. No. 8744(W) of 1976) this rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall, cancel and withdraw the impugned notice dated 10th July, 1976. There will also be a writ in the nature of certiorari quashing any proceeding that might have been held on the basis of the impugned notice. The respondents are also directed by writ of mandamus to forbear from giving effect to the impugned notice or any proceeding held in pursuance thereof in any manner whatsoever.
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1980 (11) TMI 25 - MADHYA PRADESH HIGH COURT
Business Expenditure, Entertainment Expenditure ... ... ... ... ..... entertaining the strangers and friends but if the acts or practice of being hospitable in the sense of providing meals, drinks or other wants of guests are a part and parcel of the express or implied terms and conditions of business, trade or profession or on account of long-standing custom in such trade, business or profession, they would not amount to acts of entertainment. It was further held that hospitality shown on account of obligation of business arising as a result of an express or implied contract or arising on account of the long-standing custom of a trade cannot amount to entertainment . The Tribunal did not commit any error of law in allowing the amount spent by the assessee in showing hospitality to its customers on account of the custom of the trade. As a result of the discussion aforesaid, our answers to the questions referred to us are in the affirmative and against the revenue. In the circumstances, the parties shall bear their own costs of this reference.
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1980 (11) TMI 24 - MADHYA PRADESH HIGH COURT
Diversion By Overriding Title, Impartible Estate, Income ... ... ... ... ..... ch devolved on the assessee by the rule of primogeniture. Section 27(ii) of the Act provides that for the purposes of ss. 22 to 26 of the Act, the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It is well settled that the income from an impartible estate belongs solely and absolutely to the holder of the estate for the time being. The assessee, who is found to be the holder of an impartible estate is, therefore, liable to be taxed on the income of the estate as an individual and not as the representative of an HUF. Under these circumstances, the Tribunal was right in holding that the status of the assessee should be taken as an individual and not as an HUF as held by the ITO. Our answer to the second question referred to us is, therefore, in the affirmative and against the department. Reference answered accordingly. In the circumstances of the case, parties shall bear their own costs of this reference.
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1980 (11) TMI 23 - CALCUTTA HIGH COURT
Hedging Transaction, Speculation Business ... ... ... ... ..... s paid, will have to be regarded as speculative transactions in view of the language employed in Expln. 2 to s. 24(1). If that be so, the ITO, the AAC and the Tribunal were all right in holding that the loss suffered by the assessee in such transactions could not be set off against its other income but would be required to be considered separately as is provided by section 24(1). As we have mentioned before, in this case, in view of the facts particularly found by the Tribunal in the background of the facts that it is hedging contract and that being not challenged by a separate question, we are of the opinion that the ratio of the said decision would not in any way go against the finding of the Tribunal in this case. In that view of the matter and the reasons mentioned hereinabove, we are of the opinion that the question referred to us must be answered in the affirmative and in favour of the assessee. Each party to pay and bear its own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (11) TMI 22 - MADHYA PRADESH HIGH COURT
Appeals, Penalty ... ... ... ... ..... he department was aggrieved by the non-imposition of any penalty by the IAC under the head of business income, it was for the department to make a grievance against that before the Tribunal in the manner prescribed by law. But this was admittedly not, done and, therefore, the question of imposing any penalty in respect of the addition made under the head of business income did not arise for decision. Since the imposition of penalty by the Tribunal under the new head of business income was beyond the scope of the appeal, the same was levied illegally and has to be set aside. As a result of the Aforesaid discussion, the above quoted question No. 2 has to be answered in the negative in favour of the assessee and against the department. For this reason, question No. 1 does not arise for decision and need not be answered. This reference is, accordingly, answered in the assessee s favour, who also shall get the costs of this reference. Counsel s fee shall be Rs. 300, if certified.
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1980 (11) TMI 21 - KERALA HIGH COURT
Agricultural Income, Deduction ... ... ... ... ..... t no deduction can be allowed to the assessee in respect of such expenditure. The second part of the question concerns the applicability of r. 8D of the Agrl. I.T. Rules to the facts of the present case. Under that rule, all cash donations made towards the works under the community development, national extension service and local development programme shall be deducted in computing the agricultural income of a person. The construction of the bridge in question is not shown to have been undertaken by any authority in charge of community development work, national extension service work or local development programme work. Hence, the assessee cannot invoke for its aid the provision contained in r. 8D for the purpose of claiming deduction of the amount contributed by it towards the expenditure for the construction of the bridge. The second question is answered as above, that is, against the assessee and in favour of the department. The parties will bear their respective costs.
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1980 (11) TMI 20 - KERALA HIGH COURT
... ... ... ... ..... tion can admit of no doubt. That contributions made to the provident fund and pension fund are also deductible items of expenditure has been clearly laid down by the Supreme Court in Purtabpore Co. Ltd. v. State of Uttar Pradesh 1970 2 SCWR 156 AIR 1970 SC 1578. The Tribunal was, therefore, perfectly right in holding that the expenses incurred by the assessee for payment of salary to the manager and by way of contributions to the provident fund and staff pension fund of personnel originally attached to the Edivanna Estate who continued to be the employees of the assessee during the years 1959-60 and 1960-61 are allowable expenses under the Act. Accordingly, we answer both the questions referred in I.T.R. No. 88 of 1979 in favour of the assessee and against the department. The parties will bear their respective costs in both these cases. A copy of this judgment under the seal of the court and the signature of the Registrar will be forwarded to the Tribunal as required by law.
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1980 (11) TMI 19 - MADRAS HIGH COURT
Agricultural Income, Income Tax, Sale Proceeds ... ... ... ... ..... he operations performed could not be tacked on to any such basic operation so as to convert them into agricultural operations the income derived by the assessees from the sale of sal trees of spontaneous growth was, therefore, not agricultural income under section 2(i) and 4(3)(viii) of the Indian Income-tax Act, 1922. Tested in the light of the principles set forth above I am of the opinion that no basic agricultural operations have been performed by the petitioner for the growth of odai trees. It is admitted that they are trees of spontaneous growth. The land is allowed to be used as a grazing land for cattle. It is farther stated that they are the spontaneous growth from the seeds found in the excreta of the cattle. I am of the opinion that the income derived by the cutting and sale of odai trees does not fall within the definition of agricultural income. The impugned order is, therefore, set aside and the writ petition is allowed, but, in the circumstances, without costs.
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1980 (11) TMI 18 - DELHI HIGH COURT
Double Taxation Relief, Principle Against Double Taxation ... ... ... ... ..... d. In a word the mortgagee became the purchaser. Counsel for the revenue says that as the amount of Rs. 3,12,500 was received by the assessee before the agreement dated August 3, 1959, was executed, it should be held to be the income of the assessee. This is misreading of the supplemental agreement. Transfer of shares on September 1, 1957, is the foundation of the transaction. . This is the central fact in this case. The transfer as on September 1, 1957, was accepted by both the parties in the document of August 31, 1959. September 1, 1957, is thus a dividing line. After September 1, 1957, the income from dividend could not be said to be the income of the assessee. We are in complete agreement with the Tribunal that the amount of Rs. 6,25,000 was no part of the income of the assessee in the assessment year 1960-61. In our opinion, the Tribunal was right in deleting it. Our answer to the second question also is in the affirmative. The parties are left to bear their own costs.
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1980 (11) TMI 17 - CALCUTTA HIGH COURT
Companies, Surtax ... ... ... ... ..... it requires adjudication and decision by the Tribunal on this aspect. In that view of the matter, we answer the question referred to us in I.T. Ref. No. 183 of 1974, in the affirmative and in favour of the assessee, and we answer question No. 2 in I.T. Ref. No. 8 of 1980, in the negative and in favour of the assessee. We hold that question No. 1, for its full determination, requires adjudication by the Tribunal as to whether the moneys were borrowed for the purpose of creation of a capital asset in India. We, therefore, send the matter back, with the aforesaid observations to the Tribunal, to decide this question in accordance with law after giving such opportunities to the parties, if the Tribunal so considers, to adduce any additional evidence in this regard, and the Tribunal should thereafter, dispose of the appeal in accordance with the observations made in this judgment as early as possible. The parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (11) TMI 16 - BOMBAY HIGH COURT
Capital Asset, Capital Gains ... ... ... ... ..... s this court is concerned, we must proceed on the footing that the issue of the bonus shares on 15 the June, 1955, in no manner affected the determination of the fair market value of the original shares as on 1st January, 1954, as the assessee had exercised the option of substituting the fair market value of the original shares from which the sub-divided shares which were transferred as set out earlier had been derived. The issue of bonus shares on a subsequent date, namely, 15th June, 1955, was wholly irrelevant to the determination of this fair market value. The question of applying the principle of averaging, on the basis of the issue of the said bonus shares, therefore, does not arise. In the result, the questions referred to us for our determination are answered as follows Question No. 1 In the affirmative. Question No. 2 Does not arise and we decline to answer the same. Question No. 3 In the negative. The Department must pay to the assessees the costs of the reference.
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