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1989 (6) TMI 79 - ITAT BOMBAY-A
Assessment Year, Orders Prejudicial To Interests ... ... ... ... ..... icer based on the method consistently followed and accepted in the past several years. The provisions of section 263 are not meant to set aside merely unfavourable orders and bring to tax some more money to the treasury unless it is established that the order passed by the Income-tax Officer is erroneous and prejudicial to the interest of the revenue. This view is also supported by the judgment of the Hon ble Madras High Court in Venkatakrishana Rice Co. s case. Since we have accepted the assessee s appeals on the merits of the case, we do not consider it necessary to decide the legal points raised by the assessee as to whether the Commissioner can revise an assessment order passed by the Income-tax Officer in accordance with the directions given under section 144B of the Income-tax Act, 1961 by the Inspecting Assistant Commissioner. 7. In the result, the order passed by the Commissioner under section 263 for both the years is cancelled and the assessee s appeals are allowed.
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1989 (6) TMI 78 - ITAT AMRITSAR
Assessment Year, Tax At Source ... ... ... ... ..... rest, therefore, were in the nature of agreed arrangements from which no cause of action could arise for filing appeals. 11. One more aspect, which comes to my mind is that charging of interest under section 201(1A) of the Act is provided when the Revenue is deprived of timely payment i.e. within a prescribed period when the deduction is to be made and, therefore, it cannot be said to be in the nature of penalty at all which is separately provided under section 201(1) of the Act. 12. Therefore, I reverse the AAC s order and restore the interest charged on two counts, independent of each other firstly that the provisions of section 201(1A) which contemplated charging of interest are mandatory and secondly that from an agreed arrangement to pay interest subject to no other penal action being taken under the Act, debarred the assessee from filing the appeals. 13. Since the interest levied for the four years under section 201(1A) are restored, the Revenue s appeals stand allowed.
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1989 (6) TMI 77 - ITAT ALLAHABAD-A
... ... ... ... ..... nd decided the appeal against the assessee without taking into account the view point of the assessee. We may also point out that the learned CIT(A) has passed a very sketchy order and he has also not marshalled the facts nor has he given the reasons why he agreed with the Assessing Officer on the two assessment. The learned CIT(A) thus has not at all applied his mind and grave injustice will be caused to the assessee if the impugned order is allowed to stand. Having taken into account the judicial pronouncements as mentioned above and the facts and circumstances of the case, we hold that the learned CIT(A) was unjustified in deciding the appeal without affording a reasonable opportunity of being heard to the assessee. The impugned order is thus erroneous and the same is quashed and the learned CIT(A) is directed to decide the appeal on merits, after giving adequate opportunity of being heard to the assessee. 5. In the result the appeals are allowed for statistical purposes.
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1989 (6) TMI 76 - ITAT AHMEDABAD-B
... ... ... ... ..... s but it merely asserts that the silver coins were available with the assessee in asst. yr. 1977-78. The AAC, according to us, should have in these circumstances not only examined the original assessment records but also given an opportunity to the ITO to advance his arguments regarding the note appearing in Part III of the return. We were initially inclined to restore the matter back with a view to allow this opportunity to the ITO but the learned counsel stated that the matter be decided on merits taking into account his arguments since he did not wish to pursue the line of argument relating to the disclosure (of the coins) having already been made in asst. yr. 1977-78. We accordingly refrain from restoring the matter back for the purpose of examination of the note appearing in Part III of the return for asst. yr. 1977-78. 19. In the final analysis, we set aside the order of the AAC and restore the addition made by the ITO on a substantive basis. 20. The appeal is allowed.
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1989 (6) TMI 75 - ITAT AHMEDABAD-A
... ... ... ... ..... and if it does not so exceed s. 21(1) has to be applied. Otherwise s. 21(4) would have to be applied. 9. The learned departmental representative submitted that since the trust was discretionary the exemption under s. 5(1A) was not available. Since we have held that the trust is discretionary, we accept this contention. 10. Regarding the department s appeal, we are of the view that the deduction of Rs. 15,000 given by the AAC is not justified. That part of the decision is also based on the aforesaid Supreme Court decision but we fail to understand how that decision would support this conclusion. The quotation from that judgment does not say that the actuarial valuation of the life interest is to be deducted from the value of the corpus. What it says is that valuation is to be of the life interest and the remaindermen s interest and not of the corpus. 11. In the result, the assessee s appeal is treated as allowed for statistical purpose and the department s appeal is allowed.
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1989 (6) TMI 74 - HIGH COURT OF ORISSA AT CUTTACK
Writ jurisdiction - Seizure of primary gold ... ... ... ... ..... by the learned counsel for the parties, we consider it appropriate to direct the revisional authority to afford an opportunity to the petitioners to place their case before it and dispose of the matter afresh in accordance with law. 5. Accordingly the writ application is allowed, the order passed by the revisional authority in Annexure 8 is quashed and the said authority is directed to dispose of the revision petition afresh after giving opportunity of hearing to the petitioners. To cut out delay, we further direct that the petitioners shall appear before the revisional authority on 17th of July, 1989 without further notice and on that date the revisional authority will fix up a date of hearing of the case and take steps to dispose of the revision petition expeditiously, not later than three months. Shri Mohanty appearing for the petitioners submits that the petitioners will co-operate with the authority for expeditious disposal of the case. There will be no order for costs.
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1989 (6) TMI 73 - HIGH COURT AT CALCUTTA
... ... ... ... ..... ctual detention, move the Court for appropriate writs and/or order in the nature of Mandamus, Certiorari and Prohibition. 12. In the context and setting of the facts and circumstances of this case, the order of detention of a person who is aged 65 years but admittedly earns substantial foreign exchange for the Country, cannot be sustained. 13. For the foregoing reason this application is allowed. The rule is made absolute. The order of detention dated 14th November, 1986 is set aside and quashed. Let appropriate writs do issue. 14. This order however, will not prevent the respondents from proceeding with the adjudication proceeding for violation or any infraction of any law. They shall give reasonable opportunity of being heard to the petitioner in the proceedings already initiated or may be initiated against the petitioner. There will be no order as to costs. All parties to act on the signed copy of the minutes of the operative part of the judgment on the usual undertaking.
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1989 (6) TMI 71 - HIGH COURT AT CALCUTTA
Penalty - Gold (Control) ... ... ... ... ..... ision application dated December 12, 1976 was also dismissed by the Secretary, Government of India, Department of Revenue and Banking, New Delhi against which the present writ petition was moved. 28. After considering the pleadings of the parties and in view of the decision of the Division Bench of the Court in Haribhai Vithalji s case (supra), I am of the view that the penalty imposed of Rs. 10,000/- was inconsistent and wholly unjustified and should be set aside. 29. Further, I am of the opinion that in view of the provisions of Section 117 of the Gold (Control) Ordinance, which was promulgated by the President on June 29, 1968 and the respective clauses (1) and (2), the imposition of penalty is undoubtedly inconsistent with the aforesaid provisions and is liable to be set aside. 30. The writ petition is therefore allowed. The imposition of penalty of Rs. 10,000/- is set aside. The Rule is made absolute to the extent indicated above. 31. There will be no order as to costs.
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1989 (6) TMI 70 - HIGH COURT AT CALCUTTA
Import for actual user by provisional registration certificate holder - PVC Electrical Insulating Films - Discrimination - Precedent
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1989 (6) TMI 69 - HIGH COURT OF JUDICATURE AT CALCUTTA
Manufacture ... ... ... ... ..... gerating appliances or air-conditioners or air-conditioning appliances which are ordinarily sold or offered for sale as ready assembled units or parts thereof when treated as assembled units. But another Division Bench in a recent judgment in Gujrat High Court held otherwise that such items fall squarely within the description of Item No. 29A(3) and therefore would attract excise duty, though not treated as assembled units. 9. In that view of the matter, the dispute raised by the petitioners in the present writ petition that the respondents Excise authorities are wrongful and illegally contending that the welding of the duty paid steel pipes in U form or shape for the installation of the petitioner company and imposing tax wrongfully and illegally, is being referred to a Division Bench for such decision. 10. Let this matter be placed before the Hon ble Chief Justice for assigning the matter to a Division Bench of this Hon ble Court so that the dispute can be settled at rest.
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1989 (6) TMI 68 - HIGH COURT OF KERALA
Reference to High Court ... ... ... ... ..... unity of making a representation in writing within such time as may be specified in the notice against the grounds of confiscation also had to be given. It is the contention of the petitioner that even urgent notice stating the grounds was given, reasonable opportunity for hearing has not been given. In the circumstances, we are of the view that the correctness of the decision of the Appellate Tribunal requires a deeper probe. Out of the seven questions raised above, we are satisfied that four questions numbered as Question Nos. 1, 2, 5 and 7 above are on the facts and circumstances of this case, substantial question of law, which necessarily arise out of the order of the Appellate Tribunal. 9. We, therefore, direct the second respondent to state the case and refer to this Court question Nos. 1, 2, 5 and 7 formulated hereinabove, for decision. This shall be done within two months from the date of receipt of a copy of this order. The original petition is disposed of as above.
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1989 (6) TMI 67 - HIGH COURT OF DELHI AT NEW DELHI
Import of Photo-sensitised material ... ... ... ... ..... present application, filed by respondent No.4 is not maintainable. C.M.2481 of 1989 is dismissed. The order dated June 9, 1989 is vacated. CMS 2628 to 2633 of 1989 28. These applications have been filed today in the Court with leave of the Court. The same have been taken on record. The common prayer in these applications is that the judgment in C.M.2481/89 be not pronounced. The application No. C.M.2481 of 1989 was listed for arguments on 21st June 1989. The arguments were commenced by the learned counsel for respondent No. 4. The present applications have been filed by respondent No. 4. Arguments were concluded on 23rd June, 1989. All the counsel addressed the arguments at length and the case is listed in the Cause List for pronouncement of judgment for today. I do not find any reason to withhold the judgment. List these applications on 3rd July, 1989. 29. After I pronounced the Judgment, Mr. Sanghi requests that the order I pronounced today be suspended. I find no reason.
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1989 (6) TMI 66 - HIGH COURT OF KARNATAKA AT BANGALORE
Writ jurisdiction - Excise duty collected or paid by mistake ... ... ... ... ..... dated 8-5-1973 enabling the persons to apply for refund within a period of 3 years from the date of discovery of mistake cannot with any justification reject the applications made within three years and then take the stand that the respondent had filed the writ petition after the time fixed for suit and therefore the writ petitions should be dismissed on the ground of delay and laches. It is the Circular dated 8-5-1973 which misled the respondent to file refund applications and further it is the respondent who kept the applications for over three years and rejected on 31-8-1984. It is the conduct of the 1st appellant which was responsible for the delay in presenting the writ petitions and not of the respondent. Hence, the plea of this appellant must fail. 7. For the aforesaid reasons, we find no ground to interfere with the order of the learned Single Judge. 8. In the result, we make the following order We uphold the order of the learned Single Judge and dismiss the appeal.
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1989 (6) TMI 65 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay - Recovery proceedings ... ... ... ... ..... recovery proceedings against the petitioner have been started. I direct the Collector, Central Excise (Appeal), New Delhi to decide the stay application within a period of one month from the date of presentation of the copy of this order or he may dispose of the appeal itself. Until the stay application is disposed of as aforesaid no proceedings for recovery shall be initiated against the petitioner. With these directions the writ petition is finally disposed of. 3. Let a copy of this order be issued to the learned Counsel for the parties on payment of usual charges within 24 hours.
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1989 (6) TMI 64 - HIGH COURT OF JUDICATURE AT BOMBAY
Countervailing duty - Statute ... ... ... ... ..... cess. 8. The petition is, accordingly, made absolute in terms of prayers (a) and (b) (ii) (subject to verification). 9. Mr. Sethna submits that I should stay the order regarding refund (prayer (b)(ii) until the issue regarding unjust enrichment is decided by a seven-judge bench of the Supreme Court. No order is produced before me which shows that this issue has been referred to such bench, Mr. Sethna states that there is a Division Bench judgment of this court deciding the issue in favour of the Revenue. It is not produced. As I know it, the learned Judges of a Division Bench of this court differed and the decision of the third judge to whom it was referred (Shah, J. as he then was) concluded the issue in favour of the petitioners. No stay is, therefore, called for. In the event that the Supreme Court decides in favour of the respondents, the respondents will be entitled to adopt appropriate proceedings to recover the refund amount from the petitioners. No order as to costs.
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1989 (6) TMI 63 - HIGH COURT OF BOMBAY
Prosecution - Smuggling ... ... ... ... ..... ccused were already in custody. Of course by such sentence he was only emulating similar sentences imposed in other matters by him and even the CMM. Hence the State was more than justified in preferring this appeal for enhancement but even at the time of admission the Bench must have been convinced that these accused persons must have fled the country since their passport must have been returned by the obliging Customs Department on the immediate conclusion of the Criminal case. In our opinion, the sentence is ridiculous. We also feel that the reasons given by the Addl. Chief Metropolitan Magistrate are specious. However, no useful purpose will be served by keeping this Appeal on Board to effect service which cannot be effected. These accused persons must have gone away outside the country. Accordingly we dismiss the Appeal for want of prosecution. We direct that of this order be sent to the concerned Addl. Chief Metropolitan Magistrate and the Chief Metropolitan Magistrate.
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1989 (6) TMI 62 - HIGH COURT OF JUDICATURE AT BOMBAY
Patent or Proprietary medicines ... ... ... ... ..... ordingly, Calcium Carbonate, though it may 8194 have antacid properties in the prescribed doses, must be held to be therapeutically inert in the formulation of Flagyl tablets so that it does not interfere with the therapeutic or prophylactic activity of the Metronidazole therein. Flagyl tablets are, therefore, entitled to the benefit of the exemption conferred by the said notification. 14. Having regard to this, it is not necessary to 8194 consider Mr. Andhyarjuna s submission that the authority in passing the older on the show cause notices acted only upon the instructions of the Central Board and the order is bad on that account. 15. Accordingly, the order, Exh. N to the petition, 8194 is quashed and set aside. The bank guarantee furnished by the petitioners pursuant to the interim order shall stand discharged. No order as to costs. 16. Upon Mr. Lokur s submission, the bank guarantee 8194 shall not stand discharged as aforesaid until after the expiry of 2 weeks from today.
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1989 (6) TMI 61 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Holding Company and Subsidiary Co. - Favoured buyer ... ... ... ... ..... ice charged by the petitioners to Dawn Mills is, in fact, a very low price and that Dawn Mills have been accorded favoured treatment in this behalf. The petitioners shall be entitled to advance intimation of such material as the authorities may desire to rely upon for this purpose. 14. Accordingly, the rule is made absolute as 8194 aforestated. 15. Mr. Shroff, learned Counsel for the 8194 petitioners, applies that the bank guarantee and bond given by the petitioners pursuant to the interim order in this writ petition should stand discharged. Mr. Desai, learned Counsel for the respondents, submits that they should remain effective pending determination on the aforesaid show cause notices. In my view, the submission made by Mr. Desai deserves acceptance. Accordingly, the bank guarantee and bond shall be kept alive pending the determination on the show cause notices by the Assistant Collector of the Central Excise to be made within 4 months from today. No order as to the costs.
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1989 (6) TMI 60 - HIGH COURT OF JUDICATURE AT BOMBAY
Semi-finished goods - Yarn ... ... ... ... ..... erefore, contended that the POY cannot be base yarn for the purposes of the notification dated 11th May 1982. 4. It is difficult to accept this contention. Rule 56B applies to semi-finished goods which are excisable. The POY that is produced by the petitioners is excisable. It is used for the purposes of being texturised. It is, therefore, base yarn for the purposes of being texturised. It falls within the definition of base yarn in the notification dated 11th May 1982 because it falls within the particular provision of the tariff that is therein referred to. It must, therefore, be held that the petitioners are liable to pay excise duty on the texturised yarn at the rate of Rs. 66.25 (Rs. 61.25 Rs. 5/-) per kilogram. The order to the contrary dated 15th Nov. 1982, Ex-D to the petition, is quashed. 5. It is made clear that the petitioners will also be liable to pay such special or additional duty of excise as may be leviable thereon. 6. Rule accordingly. No order as to costs.
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1989 (6) TMI 59 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Price List - Cigarettes - Cum-duty price - Increase in incident of duty ... ... ... ... ..... t the petitioners had not correctly disclosed the elements of manufacturing cost and manufacturing profit for the purposes of the assessable values of their cigarettes. His reasoning appears to be that if these had been correctly disclosed the petitioners would not been able to absorb the increase in the duty. He, therefore, proposed that the petitioners should submit a revised price list, in which the combined values of the manufacturing cost and manufacturing profit should be the net sum realised by the petitioners after payment of excise duty at the concessional rate under the earlier notification. There is no justification for the assumption made in the letter dated 23rd December 1982 or for the demand for a fresh price list based upon such assumption. The letter dated 23rd December 1982 is, accordingly, quashed and set aside. 5. If there is any other proceeding open to the respondents under the law they can adopt the same against the petitioners. 6. No order as to costs.
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