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Showing 141 to 160 of 178 Records
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1984 (5) TMI 38 - DELHI HIGH COURT
Business Expenditure, Reference ... ... ... ... ..... ing director of the assessee-company. We are in agreement with the view expressed by the Calcutta High Court in Kanan Devan Hills Produce Co. s case 1979 119 ITR 431 (Cal), and followed in other cases mentioned above. We are, therefore, of the opinion that s. 40(a)(v) is inapplicable where the employee is given cash payments by the company, as cash payments would not come within the scope of term benefit, amenity or perquisite as used in the section. In this view of the matter there could not be any limit on the allowance given by the assessee-company to its managing director to meet his medical expenses, and the Tribunal was not correct in restricting the reimbursement of medical expenses to Rs. 12,000 for each of the assessment years 1969-70 and 1970-71. Accordingly, we answer the question referred to us in the negative, i.e., in favour of the assessee and against the Revenue. The Commissioner will pay costs of this reference to the assessee-company. Counsel s fee Rs. 800.
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1984 (5) TMI 37 - DELHI HIGH COURT
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... ... ..... an order under s. 195(2) of the Act may be made. Even mentioning of wrong section is immaterial. Even in the grounds of appeal either before the AAC or the Income-tax Appellate Tribunal it was never the case of the assessee-company that the ITO had no jurisdiction to pass an order under s. 195(2) of the Act as is being now contended on the basis of the Calcutta case cited above. In that case, the rule was obtained immediately the ITO had passed an order under s. 195(2) of the Act. The conduct of the assessee-company in the present case points to the contrary. In this view of the matter, we would, therefore, hold that the ITO had jurisdiction to pass an order under s. 195(2) of the Act in the present case. The reference is, therefore, answered in the negative, and in favour of the Department, leaving the parties to bear their own costs. Since the Tribunal had disposed of the appeal on a preliminary point, the matter will have to go back to the Tribunal for decision on merits.
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1984 (5) TMI 36 - ORISSA HIGH COURT
Carry Forward And Set Off, Loss ... ... ... ... ..... petitioner. In our opinion, the Central Government should apply its mind to all relevant materials on record independently and pass appropriate orders under s. 72A(1) of the Act. We would, therefore, dispose of this writ application by directing the opposite party No. 2, the Union of India, represented by the Ministry of Finance, New Delhi, to pass final orders in the matter under s. 72A(1) of the Act after considering the recommendation of the Specified Authority as well as other relevant materials on record by giving a reasonable opportunity to the petitioner to put forward its case as to the fulfilment of the pre-conditions prescribed in s. 72A(1)(a) and (b) of the Act. The Central Government would do well to pass final orders under s. 72A(1) of the Act within two months from the date of receipt of this order. The writ application is disposed of with the aforesaid direction, but in the facts and circumstances of the case without any order for costs. P. C. MISRA J.-I agree.
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1984 (5) TMI 35 - DELHI HIGH COURT
Speculation Loss ... ... ... ... ..... bserved by the Tribunal. (This is borne out from later developments which led to the eventual taking over of the Ganesh Flour Mills by the Government of which we take notice for the purpose of record). These two facts, i.e., the blockage of funds by M/s. Ganesh Flour Mills and the breakdown of oil supplies in the market, are facts which showed that there was a breach of the contract by the assessee which was settled by M/s. Ganesh Flour Mills debiting the assessee with a sum of Rs. 25,000. This was, therefore, a settlement of damages on account of non-supply and not a settlement of the contract without delivery. In view of our conclusion that s. 43(5) only covers cases where a contract is settled without breach, and not cases where there is a breach followed by a settlement of the quantum of the damages, we answer the question referred to us in the affirmative and against the Department. As there is no appearance for the assessee, we leave the parties to bear their own costs.
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1984 (5) TMI 34 - DELHI HIGH COURT
Reserves, Surtax ... ... ... ... ..... rofit and loss account as was done by the assessee. Further, according to the instructions of the Government, contra-credit was to be given to reserve account to be opened suitably for the purpose. What the assessee did was not in conformity with the instructions contained in the letter dated December 5, 1957, of the Government. Since no rent was payable to the Government, as per instructions of the Government, no liability to pay arose on the part of the assessee and so the amounts in question could be taken only as a reserve. Having regard to the guidelines laid down by the Supreme Court as well as the provisions of the Companies Act, 1956, we are of the opinion that the amounts in question do constitute a reserve and have to be included in the computation of the capital of the assessee under the Act. Accordingly, we answer the question in the affirmative and in favour of the assessee. We, however, leave the parties to bear their own costs in the circumstances of the case.
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1984 (5) TMI 33 - DELHI HIGH COURT
Business Expenditure ... ... ... ... ..... e paid and yet to be received. No entry regarding this sum of Rs. 1,55,997 could be made in any earlier period. The entry could only be made as soon as the liability arose, which was on December (March?) 31, 1970, the date when the gratuity scheme came into operation. It is on this basis that the amount is to be debited to this accounting year and not to any other period. Hence, it is an allowable deduction in this assessment year. On this analysis, the question referred to us has to be answered in the negative, in favour of the assessee and against the Department. As the wording of the question is ambiguous, we make it clear that what we are dealing with is the liability under the gratuity scheme accruing up to December 31, 1969, because the liability for the year in question has been allowed even by the ITO. The accrued liability for the previous years has also to be allowed in this year. As the point was one of some difficulty, we leave the parties to bear their own costs.
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1984 (5) TMI 32 - DELHI HIGH COURT
Capital Gains ... ... ... ... ..... roposition that in order that a receipt or accrual of income may attract the charge of tax on capital gains the sine qua non is that the receipt or accrual must have originated in a transfer within the meaning of s. 45 read with s. 2(47) of the Act. Since there could not be any transfer in the instant case, it has to be held that the amount of Rs. 1,02,500 received by the assessee as damages was not assessable as capital gains. It was also argued on behalf of the assessee that the cost to the assessee of the acquisition of his aforesaid right under the contract for sale was nil. As such, the transfer would be outside the scope of s. 48 of the Act and in this context reliance was placed on a decision of the Supreme Court in CIT v. B. C. Srinivasa Setty 1981 128 ITR 294. But, the view which we have taken makes it unnecessary to go into this question. Accordingly, we answer the question in the negative and in favour of the assessee. We leave the parties to bear their own costs.
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1984 (5) TMI 31 - PATNA HIGH COURT
Advance Tax, Appeal To AAC ... ... ... ... ..... nature where only the quantum of penal interest was under challenge before the appellate authority, it was so in the context of the amount of tax assessed and, therefore, fell within the four corners of the proposition of law enunciated by the Gujarat High Court. I accordingly answer the first question referred to us against the assessee and in favour of the Revenue and hold that the Tribunal was correct in refusing to permit the assessee to take the additional grounds on the question of applicability of s. 11 of the Act. In so far as the second question is concerned, I would answer the question in favour of the assessee and against the Department and hold that, on the facts and in the circumstances of the case, it was permissible for the assessee to raise the question of penal interest under s. 217 of the Act before the Appellate Tribunal. Since the answers have been equally divided, I shall make no order as to costs. NAZIR AHMAD J.-I agree. PRABHA SANKER MISHRA J.-I agree.
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1984 (5) TMI 30 - KERALA HIGH COURT
Delay In Filing Return, Registered Firm ... ... ... ... ..... Mohanlal Soni v. Union of India 1983 143 ITR 436, held that the aforesaid provision is not discriminatory or void. In a common judgment rendered in O.P. No. 6499/1981 (j), O.P. No. 3703/1982 (K) and O.P. No. 3805/1982 dated April 24, 1984 (Chemmeens v. ITO 1984 149 ITR 233 (Ker)), wherein the identical question came up for consideration, my learned brother, justice Dr. T. Kochu Thommen, dissented from the view expressed by the Karnataka High Court and cited with approval the decisions of the other High Courts referred to hereinabove. I also share the same view. In view of the preponderance of judicial opinion on the point expressed by the various High Courts, I hold that Expln. 2 to s. 139(8)(a) of the I.T. Act is not ultra vires art. 14 of the Constitution of India, not discriminatory or arbitrary as contended by the petitioners. The only contention urged by the petitioners is without force. The original petitions are dismissed. There shall be no order with regard to costs.
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1984 (5) TMI 29 - PATNA HIGH COURT
Assessment, Firm ... ... ... ... ..... of the Act, therefore, the Department has no right to file any appeal. A person who may file an appeal may object to the order on any of the grounds enumerated hereinabove. The petitioner confined the appeal with regard to the value of three items which could be included in the estate. That being the position, the doctrine of merger in this case will operate only with regard to the value to be included in the estate in respect of the Delhi house, non-residential house at Dhanbad and West Munidih Colliery. I hold that the whole order of respondent No. 1 did not merge with the order of the appellate authority. It merged only to the extent indicated above. By annexure 3, the respondent No. 1 did not seek to touch the order of respondent No. 2 and that clearly appears from annexure 5. The validity of the notice and order, therefore, cannot be challenged on ground No. (a). In the result, the application is dismissed. There shall be no order as to costs. ABHIRAM SINGH J.-I agree.
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1984 (5) TMI 28 - DELHI HIGH COURT
Annuity Deposit, Income ... ... ... ... ..... he facts of that cage and not on the ground that the person receiving the money was a representative-in-interest of the original depositor. It was submitted that we should adopt the view taken by the Madras High Court which had taken for analogy the decision of the Supreme Court in CIT v. Hukumchand Mohanlal 1971 82 ITR 624, the latter decision being on the question whether there was a legal provision applicable to a legal representative to tax the deemed profits of a deceased assessee under s. 41(1) of the Act. On a careful consideration of the contentions made by Mr. Sharma, which we have set out in extenso, we think the decision of the Bench in CIT v. O. N. Talwar 1980 123 ITR 80 (Delhi), aforementioned, to be binding on us and we find ourselves unable to differ from the reasoning set out therein. In the circumstances, we answer the question referred to us in the affirmative, in favour of the Revenue and against the assessee, but refrain from passing any order as to costs.
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1984 (5) TMI 27 - PATNA HIGH COURT
Delay In Filing Return, Penalty, Wealth Tax ... ... ... ... ..... complained of was one falling under s. 18(1)(a) of the Act, penalty had to be computed in accordance with the law in force on the last day on which the return in question had to be filed. Neither the amendment made in 1964 nor the amendment made in 1969 had any retrospective effect. The question posed before us, therefore, has already been answered by the Supreme Court on principle in Suresh Seth s case 1981 129 ITR 328 (SC), wherein it has been categorically held that the amendment made in 1969 had no retrospective effect. In that view of the matter, we come to the conclusion that the Tribunal had correctly applied the principle for the computation of the quantum of penalty in each of the cases before us. The questions referred for the respective years are, therefore, answered in the affirmative, in favour of the assessee and against the Revenue. In view of the fair attitude of the learned senior standing counsel for the Revenue, however, we shall make no order as to costs.
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1984 (5) TMI 26 - PATNA HIGH COURT
Failure To File Return In Time, Penalty, Reference, Registered Firm ... ... ... ... ..... of the return and so the decision in the case of Addl. CIT v. Bihar Textiles 1975 100 ITR 253 has also to be reversed. I also agree with P. S. Mishra J. that questions Nos. 2 and 3 as referred by the Tribunal have also to be answered against the assessee and in favour of the Revenue. Although I agree that the two decisions of this court, namely, the decisions in the case of Addl. CIT v. Bihar Textiles 1975 100 ITR 253 and in the case of Addl. CIT v. Dongarsidas Biharilal 1979 116 ITR 897, have not been correctly decided and they require to be reversed, I am of the view that only for the purpose of reversing these two decisions, the court should not redraft question No. 1 for which I have already given my reasons above. I have given findings on other issues as P. S. Mishra J. and S. K. Jha J. have not agreed with my view that redrafting of question No. as referred by the Tribunal cannot be made for the reasons discussed above. S. K. JHA J.-I agree with brother P. S. Mishra J.
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1984 (5) TMI 25 - PATNA HIGH COURT
Burden Of Proof, Penalty ... ... ... ... ..... ase, could be believed by the fact-finding body, the initial onus cast upon the assessee by the insertion of the Explanation would be deemed to have been discharged by it. Therefore, the Tribunal need not take into consideration the observation of my learned brother that the order passed by the IAC on facts was correct because the IAC has not proceeded in the case in proper perspective and seems to have been more or less influenced only by the fact that the genuineness of the hundi loans in question was disbelieved in the assessment proceedings, leading to the conclusion that in the penalty proceeding, the assessee would be deemed to have not discharged the initial onus. That is not the correct approach in law. These are the only few words that I have added, so that the Tribunal may not feel impelled by any observation in regard to the onus in the main judgment of my learned brother as having proved the fact that the assessee had not discharged the initial onus cast upon it.
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1984 (5) TMI 24 - PATNA HIGH COURT
Failure To File Return In Time, Penalty, Wealth Tax ... ... ... ... ..... earlier defaults in the absence of necessary provisions in the amending Acts. The principle underlying section 6 of the General Clauses Act is clearly applicable to these cases. The Supreme Court went on to hold that the default complained of was one falling under s. 18(1)(a) of the Act and the penalty had to be computed in accordance with law in force on the last date on which the return in question had to be filed. Neither the amendment made in 1964 nor the amendment made in 1969 had any retrospective effect. We, accordingly, hold that the view taken by the Tribunal in all these cases is quite in consonance with law and the question for the respective years has to be answered in favour of the assessee and against the Revenue in the affirmative. We, therefore, hold that the Tribunal was justified in law in reducing the penalty for each of the five assessment years in question. On the facts and in the circumstances of these cases, however, we shall make no order as to costs.
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1984 (5) TMI 23 - PUNJAB AND HARYANA HIGH COURT
Assessment, Firm ... ... ... ... ..... t. The impugned order prima facie does not disclose that the court was made wiser about it. Here as well, this court has not been made wiser in that direction despite notice being issued to the concerned ITO for the purpose. The parties counsel were, of course, left groping in the dark. Thus, there is no option but to remit the matter back to the court directing it to get in communication with the ITO(s) asking them under what specific order of the Central Government have they claimed privilege under s. 138(2) of the Act. On receipt of such information, the court would be required to reconsider the matter afresh in accordance with law. From what has been said above, this revision petition is allowed, the impugned order is set aside and the matter is sent back to the Additional District judge to proceed further in accordance with law and in the light of the above observations. The parties through their counsel are directed to put in appearance before the court on June 1, 1984.
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1984 (5) TMI 22 - DELHI HIGH COURT
Assessment, Firm ... ... ... ... ..... vind Kumar s case 1982 136 ITR 379, is to the same effect, namely, that the Partnership Act has to prevail when there is a dissolution under the Partnership Act. The same is reinforced by reference to ss. 187, 188 and 189. It must, therefore, be understood that changes in the constitution of a firm under s. 187 are changes which do not bring about the dissolution of the firm, and s. 189 deals with those cases where a firm is dissolved and s. 188 deals with the question of succession which may nor may not be to a firm which has common partners it may be a completely different firm or it may be a firm which has many common partners. When the three sections are harmoniously read together, the meaning is plain and it is the same as in the Partnership Act. We accordingly follow the aforementioned judgment of this court and answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the Department. We leave the parties to bear their own costs.
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1984 (5) TMI 21 - DELHI HIGH COURT
Penalty, Surtax ... ... ... ... ..... se two points seem to be questions of fact. In this connection, we would like to add that the income-tax assessment order has been filed before us. It shows that the assessee s income was assessed at a loss of Rs. 6,03,310 by the ITO. Against this order, the assessee appealed to the AAC for a further reduction from the income which led to a further amount of Rs. 1,70,890 being reduced in the income. Consequently, the total loss assessed was Rs. 7,74,200. With such a loss, it would be reasonable for the assessee to think that no return had to be filed under the Surtax Act. This is the point which seems to have appealed to the Tribunal. We are of the view, this case is concluded by a finding of fact and even otherwise, the question of law could only be academic in view of the fact that there is no provision in the Act for imposing a penalty in the case of a late return as found by the Calcutta High Court in the aforementioned judgment. The application is accordingly dismissed.
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1984 (5) TMI 20 - DELHI HIGH COURT
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... ... ..... d every year in full but, on appeal, the AAC allowed a partial deduction and at the same time took action for concealment of income under s. 271(1)(c) and imposed a penalty. On appeal, the Tribunal struck down the penalty. On these facts, no question of law arises, because the only case arising from the facts was that the assessee claimed deduction, which was wholly disallowed and then partly allowed. There is nothing false about the claim except that it was wrongly made in full. The assessee has a right to make any claim, which may or may not be disallowed. When the premises are partly used for business and partly for residence, the apportionment of the amount to be allowed or disallowed has to be made by the ITO under s. 38 of the I.T. Act, 1961. This is not a case of concealment of income and in our view no question of law arises. This application and the connected applications are dismissed. As there is no appearance for the respondent, there will be no order as to costs.
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1984 (5) TMI 19 - PUNJAB AND HARYANA HIGH COURT
Business Loss, Reference, Speculation ... ... ... ... ..... see. On the other hand, there was an admission made by Shri Ranjit Singh aforesaid in his statement, dated November 19, 1971, that he gave a discharge of these two hundis as was the practice in the case of all bogus hundi transactions. The second piece of evidence relied upon by the assessee is the certificates issued by Shri Ranjit Singh which was also found to be unreliable and unacceptable as the relevant account books to which the certificates pertained were never produced. In conclusion, the Tribunal recorded a finding that the transactions in question took place without actual delivery. The question mooted before it being purely a question of fact, the Tribunal held that there was no question of law which was required to be referred to this court. We are fully in agreement with the reasoning and conclusion of the Tribunal in this behalf. The reference is, therefore, answered accordingly, i. e., against the assessee and in favour of the Revenue. D. S. TEWATIA J.-I agree.
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