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Showing 121 to 140 of 663 Records
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2004 (8) TMI 655 - ANDHRA PRADESH HIGH COURT
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... ... ..... omprehensive provision, the tax is increased by 10 per cent over the rate provided under the original Act in respect of all the commodities the sale or purchase of which are taxable. Both take the form of sales tax and in the case of assessment of local sales it makes no difference whether it is called tax and additional tax or one higher percentage of tax. In truth and effect it is a levy of tax on the sales or purchases of the dealers. 13.. The learned counsel for the appellant has, however, referred to a judgment of this Court reported in India Fruits Private Limited, Kadiam v. Commercial Tax Officer 1988 68 STC 114. This judgment has been given altogether in a different context. The question was not whether the surcharge leviable under section 6-B of the APGST Act, 1957 could be included in tax, but the question related to some G.O. and the G.O. was under attack before the court. 14.. For the reasons given herein above, the appeal is dismissed. No costs Appeal dismissed.
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2004 (8) TMI 654 - ALLAHABAD HIGH COURT
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... ... ..... payment and it was not towards the discharge of any liability on account of valuable consideration for transfer of property in goods, in as much as goods had not been transferred to the applicant during the year under consideration. Since the goods have not been transferred nature of payment was not as a valuable consideration and therefore, provisions of section 8-D(1) do not apply. 7.. Since on the facts and circumstances of the case provisions of section 8-D(1) were not applicable, applicant was not under obligation to deduct and deposit any amount under section 8-D(1) of the Act. Therefore, penalty levied under section 8-D(6) of the Act is wholly illegal, and in as much as demand of interest under section 8-D(7) of the Act is also illegal and liable to be set aside. 8.. In the result, both the revisions are allowed and the order of Tribunal is set aside and penalty under section 8-D(6) and demand of interest under section 8-D(7) of the Act are quashed. Petitions allowed.
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2004 (8) TMI 653 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... agricultural produce. The definition in U.P. Krishi Utpadan Mandi Adhiniyam was inclusive and covered all items of animal husbandry specified in the Schedule. Entry of animal husbandry included hides and skins. It was held that tanned leather will also be covered by the hides and skins. The context in which interpretation of the term tanned leather was made, was different. In Real Opticals case 2001 122 STC 555 (SC), it was held that rough ophthalmic blanks were not covered by entry of other glass and glassware including tableware. This judgment does not help the assessee. Accordingly, electricity conductors manufactured by the assessee cannot be held to be wire . For the above reasons, we are of the view that order of the Tribunal is in accordance with law. Accordingly, question No. (i) is answered in the affirmative, i.e., in favour of the Revenue and against the assessee. Question No. (ii) is answered in the negative, i.e., against the assessee and in favour the Revenue.
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2004 (8) TMI 652 - BOMBAY HIGH COURT
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... ... ..... at hot plates were exempted from levy of sales tax and the said decision was not challenged by the respondents. In view of this, the decision of the First Bench dated December 11, 1987 and Second Bench dated December 30, 1989 in respect of the previous period, i.e., from January 1, 1981 to October 25, 1983 cannot be sustained and they are liable to be quashed. 8.. Shri K.S. Dhote, the learned Assistant Government Pleader for the respondents could not justify the impugned orders. 9.. The orders of the First Bench of the Maharashtra Sales Tax Tribunal dated December 11, 1987 and the Second Bench of the Maharashtra Sales Tax Tribunal dated December 30, 1989 are hereby quashed and set aside. It is hereby declared that the hot plates are covered by entry No. 164(v) of the Notification issued under section 41 of the Bombay Sales Tax Act, 1959 and are exempted from payment of sales tax. 10.. The rule is made absolute in the above terms with no order as to costs. Rule made absolute.
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2004 (8) TMI 651 - ANDHRA PRADESH HIGH COURT
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... ... ..... came to know that the petitioner and the defaulters had common interest in the petitioners company because some of the defaulters were partners of the petitioners company. 5.. Under section 17 of the APGST Act, as has been seen above, there is no power with the respondents to ask for transfer of shares. In these circumstances, the orders of the respondents appear to be illegal and not in accordance with the section 17 of the APGST Act, 1957. 6.. An additional affidavit has been filed by the Assistant Commercial Tax Officer in which it is stated that the court may grant liberty to the respondents to proceed against the petitioner in case it feels that the attachment under section 17 of the APGST Act, 1957 was not in accordance with law. This Court has no objection to proceed against the defaulters in accordance with law and the liberty is granted. 7.. With the above observation, the writ petition is allowed and the impugned notice is quashed. No costs. Writ petition allowed.
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2004 (8) TMI 650 - KERALA HIGH COURT
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... ... ..... must derive the intent from a contextual scheme. 11.. The counter-affidavit filed in this case shows that tamarind seeds cannot be used as cattle feed and only tamarind powder can be used as cattle feed, and therefore, functionally and commercially, tamarind seed is different from tamarind powder. As soon as tamarind powder is produced from the seed, a new commodity, known as separate and distinct commodity, having its own use is formed. The statutory entry support the above view. Hence, it can be concluded that conversion of tamarind seed into tamarind powder satisfies the definition of manufacture in the notification. Hence, we set aside exhibits P2 and P5 and direct the second respondent to consider the application of the petitioner for sales tax exemption afresh, on merits and grant consequential benefits, if they are entitled to the benefit of notification, otherwise. Judgment of the learned Single Judge is set aside and writ appeal is allowed. No costs. Appeal allowed.
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2004 (8) TMI 649 - ANDHRA PRADESH HIGH COURT
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... ... ..... n for refund or to make any claim for refund which is also made clear by section 33B itself. For these reasons, we hold that the petitioner was entitled to interest with effect from May 8, 2002 till August 7, 2003. Respondents shall work out the interest payable and pay the same to the petitioner as early as possible. Interest shall be calculated till the date payment is actually made. 4.. It is submitted that after the High Court had passed an order, two matters were still pending before the Tribunal and following the order of the High Court the Tribunal passed an order of refund in those cases on July 22, 2002. In those cases also, for assessment years 1991-92 and 1992-93, interest has not been paid to the petitioner. We hold that the petitioner is entitled to interest from the date the order directing refund was passed till the payment was actually made, excluding a period of six months. 5.. Writ petition is accordingly allowed. No costs. Writ petition allowed. Corrected.
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2004 (8) TMI 648 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... st Bengal Commercial Taxes Appellate and Revisional Board. Regard being had to the facts and documents available in the record and to the position of law, we hold that the transaction in question cannot be held to be sale by the petitioner and that the petitioner is not a dealer . Therefore, the assessment order so far as it relates to the sale of fertiliser to the State Government or Government bodies should be set aside. 13.. It is accordingly ordered that the application be allowed on contest. The impugned revisional order as well as the assessment order by the C.T.O. holding the transaction of fertiliser by the FCI in favour of Government and Government bodies as sale holding the FCI as dealer and therefore FCI is liable to levy of sales tax on it - is set aside. The order of assessment to that extent is modified in respect of the period four quarter ending March 31, 1971. There will be no order as to costs. 14.. A. DEB (Technical Member). - I agree. Application allowed.
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2004 (8) TMI 647 - SUPREME COURT
Whether before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint?
Held that:- It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
Therefore, in our opinion the observation of this Court in the case of Mathew (1991 (11) TMI 129 - SUPREME COURT OF INDIA) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew’s case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.
Thus it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not. We are in agreement with the judgment of the High Court impugned herein. This appeal fails
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2004 (8) TMI 646 - ITAT MUMBAI
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... ... ..... The next issue relates to the allowability of claim under 80M of the Act. We have heard the rival submissions. The assessee credited a sum of Rs.2,99,017 to its profit and loss account as the amount of dividend received during the accounting year from April 1, 1993 to March 31, 1994, corresponding to the assessment year 1994-95 under consideration. It had declared dividend amounting to Rs. 27,75,685 in respect of the assessment year 1993-94, which was distributed on August 25, 1993. Since it was distributed in the relevant assessment year, deduction in respect of the same was not claimed earlier. We find that the assessee made distribution in the year under consideration within the same accounting year. As such, the claim under section 80M of the Act is allowable. However, we have decided ground No. 1 in favour of the assessee. As such, the gross total income will be nil. There fore, this issue has become infructuous. In the result, the appeal of the assessee stands allowed.
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2004 (8) TMI 645 - ITAT DELHI
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... ... ..... nally determined. Since in the instant case, the quantification and receipts are both in the financial year relevant to the assessment year under appeal, therefore, the assessee would have no case for raising the alternate plea. Even we find that the Commissioner of Income-tax (Appeals) was justified even in ignoring the alternate plea on the strength of section 25B of the Income-tax Act as whenever arrears are settled are taken as income of the assessee in which it was finally determined. Accordingly, we do not find any merit in the alternate submission raised by counsel for the assessee. No other issue is argued or pressed before us. Considering the above discussion and the decisions of the hon rsquo ble Madras High Court in P. Mariappa Gounder 1984 147 ITR 676 as well as of the Delhi High Court in Ram Pershad and Sons v. CIT 1995 81 Taxman 332, we do not find it proper to interfere in the orders of the authorities below. We, accordingly, dismiss the appeal of the assessee.
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2004 (8) TMI 644 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Valuation ... ... ... ... ..... st the duty liability settled. No further duty is payable. (ii) Immunity is granted from confiscation and fine in lieu thereof, penalty and prosecution under the provisions of the Customs Act, 1962. (iii) Immunity from interest in excess of simple interest 10 per annum is granted to M/s Micro Village Communications Pvt. Ltd. Revenue shall calculate and communicate to the applicant the amount of simple interest payable 10 per annum, on the above settled duty amount under Section 28AB of the Customs Act, 1962 within 15 days from the date of receipt of this order. The applicant shall pay the same within a fortnight from the date of receipt of the aforesaid communication from Revenue. Both Revenue and the applicant company should report compliance immediately thereafter. 11. emsp The above immunities are granted in terms of Sub Section (1) of Section 127H of the Customs Act, 1962. Attention of the applicant is drawn in the context to sub-sections (2) and (3) of Section 127H ibid.
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2004 (8) TMI 643 - ITAT MUMBAI
Depreciation ... ... ... ... ..... e judgment of the Hon rsquo ble Apex Court in the case of Azadi Bachao Andolan (supra) and the Tribunal order in the case of Mahendra M. Mehta (supra) also support the case of the assessee. From the above discussions, we are of the considered opinion that the Assessing Officer was not justified in disallowing the claim of the assessee for depreciation or in reducing the claim of depreciation by invoking judgment of Hon rsquo ble Apex Court in the case of McDowell and Co. Ltd. (supra) and by also invoking Explanation (3) to section 43(1) and under these facts and circumstances, we direct the Assessing Officer to allow the claim of the assessee for depreciation as claimed by him at Rs. 73,25,451 in assessment year 1992-93 and depreciation claimed by the assessee for assessment year 1994-95 at Rs. 41,39,337, which has been disallowed by the Assessing Officer by following assessment order for assessment year 1992-93. 9. In the result, both the appeals of the assessee are allowed.
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2004 (8) TMI 642 - ITAT DELHI
Business expenditure - commission payment - HELD THAT:- It is an admitted fact that the names and addresses of the parties to whom the payments were made, have been given, the Bank Statement showing payments though the Cheques was also not disputed and the income tax particulars of the Commission agents have also not been disputed. We are of the opinion that the assessee has discharged its primary onus of establishing the genuineness of the transactions and the Assessing Officer has not rebutted the contentions of the assessee. We also find that the case law relied on by the Ld. CIT(A), while confirming this addition, is not relevant to the facts of this case. The case of Goodlas & Nerolac Paints Ltd.[1982 (1) TMI 40 - BOMBAY HIGH COURT] relates to the secret commission, paid to the employees/customers to keep them happy, was claimed as selling expenses. The names and addresses to which commission was alleged to have been paid, was not disclosed to the Assessing Officer. Therefore, it was held that the expenses claimed were not allowable. The facts of the instant case are quite different.
The assessee has not only given the names and addresses but also other supporting evidences were also given regarding the genuineness of the transactions. Therefore, we are of the considered opinion that the addition made by the Assessing Officer and confirmed by the Ld. CIT(A), is not sustainable. The same is, therefore, deleted. This ground of the assessee is therefore, allowed.
In the result, Assessee appeal is allowed.
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2004 (8) TMI 641 - ITAT DELHI
Depreciation ... ... ... ... ..... essee on the communication from Executive Engineer, I.G.I.A., Palam, placed on pages 54-58 of the paper book to argue that the shuttering material was available on the construction site of the hirer. We have carefully perused the same and find that it does not help the assessee in demonstrating receipt of material before 31-3-1991. The said communication merely refers to the existence of shuttering material on the site of the hirer in the month of the April, 1991 and does not indicate the position on 31-3-1991, the date which is critical for our purposes. We may mention here that the dispute is not whether or not the purchases have been effected by the assessee. The dispute revolves around as to whether the material was purchased and put to use before 31-3-1991 so as to make the assessee eligible for depreciation for the impugned year. Hence, we sustain the order of CIT(A) on this issue. 14. In the result, both the appeals, of the Revenue as well the assessee stand dismissed.
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2004 (8) TMI 640 - ITAT DELHI
Depreciation, Actual cost, Income from other sources ... ... ... ... ..... 3215 (Del.) of 1996 21. In this appeal the Revenue has assailed the order of the Commissioner of Income-tax (Appeals) on the following ground mdash On the facts and circumstances of the case, the CIT (Appeals) erred in allowing the claim of irrecoverable rent and directing the Assessing Officer to tax the amount of rent when realized as per section 25A of the Income-tax Act ignoring the fact that the rent was realized and deposited in the court as the assessee had refused to accept the rent. 22. The impugned issue has already been adjudicated by us in other appeals of the Revenue in I.T.A. No. 4820 (Del.) of 1997. As such, it does not require any independent adjudication. We, however, following our view in earlier appeals, decide this issue against the Revenue and confirm the order of the Commissioner of Income-tax (Appeals). ITA Nos. 3215, 4660 and 5392 (Del.) of 1996 and ITA Nos. 4817 to 4820 (Del.) of 1997 23. In the result, this appeal filed by the Revenue, is dismissed.
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2004 (8) TMI 639 - ITAT DELHI
Assessment of income from sale of shares as capital gains or business income - HELD THAT:- It is not correct to say that profit motive alone would distinguish a transaction from investment to trading. Even in the case of investment there may be motive that the assessee should be able to sell the investment at a premium. When household savings are invested in gold etc. the profit motive is there but that does not make a householder a businessman trading in gold. In the case of CIT v. A. Dharma Reddy [1969 (2) TMI 6 - SUPREME COURT] the term business has been defined to be continuous exercise of an activity. In the present case the assessee held the shares for certain length of time before selling the same and the funds invested were entirely assessee’s own funds. On these facts it is not possible to hold that the assessee carried on trading in shares as a continuous regular activity. We, therefore, do not see any reason to interfere in the order of the ld. CIT(A) in this respect. The same is upheld.
Assessee’s appeal in ITA has been filed on 2-4-2003 against the order of ld. CIT(A) XXII, New Delhi dated 5-2-2003 in the case of the assessee in relation to assessment order u/s 143(3) for assessment year 1995-96.
First ground in this appeal is general and is covered by subsequent grounds of appeal.
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2004 (8) TMI 638 - ITAT DELHI
Business expenditure ... ... ... ... ..... f the Income-tax Act, 1961. 14. At the time of hearing before us, the learned counsel for the assessee has not pressed ground Nos. 1, 2, 3 and 5. Accordingly, the same are dismissed as not pressed. 15. As regards ground No. 4, it is observed that the issue raised therein is similar to the one raised in ground No. 2 of the assessee rsquo s appeal for assessment year 1998-99 being ITA No. 4741/Del./2002 decided in the preceding paragraphs of this order. Since the facts involved as well as the arguments advanced by both the sides are similar, we follow our decision rendered for assessment year 1998-99 and restore the matter to the file of the Assessing Officer for deciding the same afresh as per the directions given in assessment year 1998-99. 16. In the result, the appeal of the assessee for assessment year 1997-98 being ITA No. 4740/Del./2002 is treated as partly allowed whereas that for assessment year 1998-99 being ITA No. 4740/Del./2002 is partly allowed as indicated above.
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2004 (8) TMI 637 - ITAT DELHI
Business expenditure, Cash credits ... ... ... ... ..... the assessee had produced before the Assessing Officer the com- plete details and evidence in support of the gift, namely, affidavit and gift made to the donor, confirmation of the partners etc. 20. We find that the identical issue has been considered by us in the case of another family member of the assessee in ITA No. 6405/D/98 wherein the conclusion of the CIT(A) has been sustained. For the detailed reasons contained in paras 13 and 14 of our order, the impugned addition is liable to be deleted and accordingly, we sustain the order of the CIT(A) on this issue. 21. Another related issue is with regard to the addition made by the Assessing Officer alleging payment of commission of Rs. 3 lakhs to procure the impugned gift. As a natural corollary to our decision in deleting the addition in relation to the gifts, the impugned addition is also liable to be set aside. The CIT(A) has rightly deleted the same. We hold so. 22. In the result, the appeals of the Revenue are dismissed.
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2004 (8) TMI 636 - ITAT MUMBAI
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... ... ..... of Rs. 12,16,592 being 50 per cent of amount received for vending data and supplying information/knowledge abroad is in accordance with section 80-O of the Act and fully satisfies all the conditions required thereafter. 14. In this appeal, the assessee claimed deduction under section 80HHC and alternative deduction under section 80-O. Vide assessment order dated 30-3-1999, deduction under section 80-O was granted. Vide order dated 19-3-2001, exercising the jurisdiction under section 263 of the Act, the learned CIT held that the assessee was not even entitled to deduction under section 80-O. The present appeal arises from the said order. 15. However, since the main claim of the assessee for deduction under section 80HHC has been allowed by us while dealing with ITA No. 5689/M/99 (supra), the present appeal does not survive and is rejected as such. 16. Resultantly, Appeal No. 5689/M/99 is allowed as indicated above, whereas Appeal No. 2422/Mum/2001 is dismissed as infructuous.
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