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Showing 181 to 200 of 267 Records
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1994 (1) TMI 87 - SUPREME COURT
Whether a Magistrate before whom a person arrested under sub-section (1) of Section 35 of the Foreign Exchange Regulation Act of 1973 which is in pari materia with sub-section (1) of Section 104 of the Customs Act of 1962, is produced under sub-section (2) of Section 35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under Section 167(2) of the Code of Criminal Procedure?
Held that:- .There is a series of decisions of various High Courts, of course with some exception, taking the view that a Magistrate before whom a person arrested by the competent authority under the FERA or Customs Act is produced, can authorise detention in exercise of his powers under Section 167. Otherwise the mandatory direction under the provision of Section 35(2) of FERA or 104(2) of the Customs Act, to take every person arrested before the Magistrate without unnecessary delay when the arrestee was not released on bail under sub-section (3) of those special Acts, will become purposeless and meaningless and to say that the Courts even in the event of refusal of bail have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as 'legislative causes omissus' or legal flaw or lacuna, it will become utterly illogical and absurd.
Thus Sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and 104 of Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA.
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1994 (1) TMI 86 - SUPREME COURT
Whether the respondent's product, "Handyplast", is a `patent or proprietary medicine' within the meaning of T.I. 14E of the First Schedule to the Central Excise Act as it obtained at the relevant time/
Held that:- Even though we are not satisfied with the reasoning of the High Court, we are of the opinion that no interference is called for in the particular facts and circumstances of the case. The relevant facts relating to the dispute concerned herein have been stated in the opening paragraphs of the Judgment of the High Court, which establish that the proviso to Section 11A may not be attracted to this case. The High Court has traced the course of this litigation and the inordinate delays in deciding the matter. The Respondent has been paying duty all the while under T.I. 68 till the Central Excise Tariff Act, 1985 came into force. The difference of duty is very small. Having regard to all the above facts, we do not think this is a fit case for interfering under Article 136 of the Constitution. Appeal dismissed.
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1994 (1) TMI 85 - SUPREME COURT
Whether the mixed fertilisers manufactured and sold by the appellant under the trade-name, Vijay (N.P.K. 17-17-17) is entitled to the benefit of the said Notification No. 25/70
Held that:- It is not for us to say whether the mixture of fertilisers concerned in Coromandal Fertilisers is similar to the mixture manufactured by the appellant. It is sufficient to say that the mixture manufactured by the appellant does not satisfy all the conditions prescribed by the relevant Notification and that unless all the conditions are satisfied, the benefit does not flow. It was also admitted before us by the learned counsel for the appellant that the Explanation appended to the exemption Notification is not relevant herein. Appeals dismissed.
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1994 (1) TMI 84 - KERALA HIGH COURT
Assessment, Return ... ... ... ... ..... ave filed his return under section 139(1) which he did not. Notice under section 139(2) was served on him. That was also not complied with. Only thereafter, he came forward with a return under section 139(4). Such an assessee is not entitled to have the right to furnish a revised return as contemplated by section 139(5) of the Act. We do not find any reason to differ from the law stated by this court in Eapen Joseph v. CIT 1987 168 ITR 26. Further, we are bound by the said decision. Consequently, we are of the view that the Tribunal went wrong in holding that the second return is a valid return under section 139(4) of the Act for the Income-tax Officer to make the assessment based on it. In view of what has been stated above, we answer the question referred to us in the negative, i.e., in favour of the Revenue and against the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Tribunal as required by law.
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1994 (1) TMI 83 - GUJARAT HIGH COURT
Chargeable Profits, Company, Mistake Apparent From Record, Rectification, Surtax ... ... ... ... ..... n income-tax and such deposits do not amount to payment of income-tax and are, therefore, not deductible for the purpose of computing the chargeable profits. We are in respectful agreement with the said decision. In our opinion, the matter is not capable of any debate or two views and the view indicated hereinabove is the only logical and plausible view. We are, therefore, of the view that the Tribunal rightly concluded that rectification order under section 13 of the Act by the Surtax Officer was justified. We also hold that the Tribunal was right in holding that the deposit made with the Industrial Development Bank of India by the assessee for a sum of Rs. 9,23,283 in lieu of surcharge on income-tax was not deductible for computing the chargeable profits under the Surtax Act. Both the questions referred to us are, therefore, answered in the affirmative, in favour of the Revenue and against the assessee. The reference stands disposed of accordingly with no order as to costs.
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1994 (1) TMI 82 - CALCUTTA HIGH COURT
Actual User, Depreciation, Ownership ... ... ... ... ..... asis could not be commenced on account of frequent labour unrest. In other words, the machinery was actually used at least for trial runs during the relevant previous year. This is not the case here. A lock-out is an act of the assessee in suspending the business operations. The allowance of depreciation may not depend on the actual working of the machinery but no depreciation is allowable if the assets are not used at all for the business of the assessee in the relevant previous year. In this case, admittedly, none of the assets of the business were used by the assessee during the relevant previous year. In our view, since the plant and machinery in question were not actually used for the purposes of business, no depreciation is admissible to the assessee under sub-section (1) of section 32. In that view of the matter, we answer the question referred in this case in the negative and in favour of the Revenue. There will be no order as to costs. NURE ALAM CHOWDHURY J.-I agree.
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1994 (1) TMI 81 - BOMBAY HIGH COURT
Failure To File Return In Time, Offences And Prosecution ... ... ... ... ..... the appeals filed by them against the order imposing penalty. Further and if the law itself provides for various options open to the Commissioner before launching the prosecution, it seems to be only in the fitness of things that the Commissioner should have heard the applicants before he chose to institute such proceedings in order to enable the applicants to show cause and satisfy him as to why the other options available should not have been preferred instead of filing criminal proceedings. In the result this petition is bound to succeed and is hereby allowed. The proceedings instituted by the Department before the learned J. M. F. C. are hereby quashed and set aside. It is, however, made clear that this will not prevent the Commissioner to institute fresh proceedings against the applicants, if he is so advised, but only after giving them an opportunity to be heard and after serving on them a competent show-cause notice for this purpose. Rule is accordingly made absolute.
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1994 (1) TMI 80 - MADRAS HIGH COURT
Reassessment ... ... ... ... ..... giving effect to a finding may not have been called for in case a reassessment made in order to give effect to a finding was considered to be a separate class of assessment. However, we are of the opinion that in a proceeding by the Income-tax Officer to give effect to a finding of an appellate authority, he must conform to one or the other of the sections of the Act, such as section 147 of the Act for revision (sic) or section 154 or 155 of the Act for amendment and when the appropriate sections are invoked, the conditions contained in those sections, will have necessarily to be fulfilled. In the present case, having invoked section 147(a) of the Act, the provisions of section 147 of the Act must be fulfilled. Thus, the answer to the question referred to above is self-evident. The Tribunal has only found that the conditions in section 147(a) of the Act have not been fulfilled. Hence, we answer the question in the affirmative, i.e., against the Revenue with costs of Rs. 500.
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1994 (1) TMI 79 - MADRAS HIGH COURT
... ...
... ... ..... on accrual basis for the year in question whereas for the three preceding assessment years, it was assessed to tax on receipt basis and consequently there might have been a double taxation of the amount of Rs. 54,996. The Appellate Tribunal has upheld the assessment of the income on accrual basis. An amount which is being assessed on accrual basis could not have been received in the earlier years and be subjected to tax in the earlier years. It is only an amount which is assessed on accrual basis that may again be taxed on receipt basis for the subsequent year when there is a change of method of assessment. It follows that the question of double taxation, merely because of a change of the method of assessment for the year in question by adopting the accrual method as against receipt basis for the earlier years, does not arise. In the circumstances, the questions stated do not arise from the order of the Tribunal, and accordingly we decline to answer the reference. No costs.
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1994 (1) TMI 78 - KERALA HIGH COURT
False Return, Offences And Prosecution ... ... ... ... ..... In penalty proceedings which are only quasi-criminal in nature, the explanation offered by the assessee was accepted as genuine. It must be borne in mind that in such quasi-criminal proceedings the burden on the Department is not akin to the burden cast on the prosecution in a full-fledged criminal proceeding. When in the former the stand of the assessee was accepted, the position would be much weaker for the prosecution in the latter. I agree with the stand of the petitioners that in the light of the annulment of the penalty proceedings, there is no reasonable prospect of a criminal case ending in conviction as against the petitioners. As such, the continuation of the prosecution proceedings against the petitioners would only be a waste of time for the criminal court. In the result, I quash the proceedings adopted by the Additional Chief judicial Magistrate (Economic Offences), Ernakulam, upon annexure complaint. Criminal miscellaneous case is disposed of in the above terms.
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1994 (1) TMI 77 - ORISSA HIGH COURT
Assessment, Draft Assessment Order U/S 144B, Forwarding, Limitation For Completing Assessment
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1994 (1) TMI 76 - MADRAS HIGH COURT
... ...
... ... ..... arry on another business and share the profits therein. The intention may be to constitute two separate partnerships and, therefore, two distinct firms, or to extend merely a partnership originally constituted to carry on one business, to the carrying on of another business. It will all depend on the intention of the partners. The intention of the partners will have to be decided with reference to the terms of the agreement and all the surrounding circumstances, including evidence as to the interlacing or interlocking of management, finance and other incidents of the respective business. We have already pointed out the finding rendered by the Tribunal regarding the keeping of accounts and investments of money for the construction of the theatre. In view of this finding of the Tribunal and applying the ratio laid down by the Supreme Court, we do not find any difficulty in answering the question against the assessee, This question is answered accordingly with costs of Rs. 500.
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1994 (1) TMI 75 - MADRAS HIGH COURT
Actual User, Depreciation, Ownership ... ... ... ... ..... om the house property because the assessee-company is the owner of the house property. We find that a similar contention has been rejected by the Andhra Pradesh High Court in the case of CIT v. Vazir Sultan Tobacco Co. Ltd. 1988 173 ITR 290. It is obvious that when the company gives the house as residence to its director, it was doing so only in the course of its business. The principle is that if the owner of a property carries on business with a property owned by him, the income from that property must be assessed as only income from business. In the present case since the Appellate Tribunal held that the house property is used by the company only as a part of the business and treated as a business, the finding of the Tribunal that the income from that property cannot be assessed separately as the income from the house property and included in the assessee s total income is correct. We accordingly answer the question in the affirmative, i.e., against the Revenue. No costs.
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1994 (1) TMI 74 - MADRAS HIGH COURT
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... ... ..... 1947, read with section 18, clause (b) of article V of the Schedule thereto, inter alia, grants exemption from taxation to salaries and emoluments paid by the United Nations to its officials. The question whether pension received by the erstwhile officials of the United Nations from it would be exempt from income-tax was considered by the Karnataka High Court in the case of CIT v. K. Ramaiah 1980 126 ITR 638. The High Court held that since under section 17 of the Income-tax Act, 1961, salary has been defined to include pension, if salary is exempted from tax, so shall be the pension. The Board have accepted the decision of the Karnataka High Court. In view of the above circular, the question is answered against the Department. No costs.
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1994 (1) TMI 73 - MADRAS HIGH COURT
Exemptions, Gift Tax ... ... ... ... ..... instructions had been given by the Central Board of Direct Taxes to the Assessing Officers to be alert and to see that the transfer is really meant for meeting the educational expenses. Such instructions cannot have the effect of treating the actual expenditure as a gift. Even on the facts of this case, we find that the children were already in school unlike the Bombay case where the child was two years old and the Appellate Tribunal also considered the background of the assessee, his status and the type of education which was available and which was intended to be given to the children. Since the Appellate Tribunal has taken into account all the relevant facts in coming to the finding of fact that the amount set apart was really to meet the expenses of educating the children, we see nothing wrong in the conclusion that the amount of Rs. 1,12,178 was exempted under section 5(1)(xii). Hence, we answer the question referred in the affirmative and against the Revenue. No costs.
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1994 (1) TMI 72 - GUJARAT HIGH COURT
Co-operative Society, Deduction ... ... ... ... ..... 0P(2)(a)(iv), only the net income attributable to the activities under section 80P(2)(a)(iv) of the Act for the purchase of agricultural implements, livestock, etc., intended for supplying to agriculturists which was included in the gross total income could be deducted and not the gross total income from such activities. To illustrate the point, if the gross income from such source as is contemplated under section 80P(2)(a)(iv) is Rs. 1 lakh in respect of members and Rs. 1 lakh in respect of non-members each and the expenditure incurred is Rs. 10,000 on each count, then in respect of members Rs. 90,000 would be deductible from the sum of Rs. 1 lakh while in respect of non-members, an amount of Rs. 20,000 would be deducted as provided under section 80P(2)(c)(ii). In view of the above discussion, the questions referred to us are answered in the affirmative, in favour of the Revenue and against the assessee. The reference stands disposed of accordingly with no order as to costs.
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1994 (1) TMI 71 - GUJARAT HIGH COURT
Annual Value ... ... ... ... ..... ical condition taking into account all the relevant factors which would have a bearing on the annual value of the property. Having regard to the facts and circumstances it cannot be said that the finding that the rent of Rs. 500 per month was nominal, is in any way perverse or unreasonable. On the basis of the report of the approved valuer and taking into account other relevant factors, the Income-tax Officer had arrived at Rs. 18,000 to be the annual value of the property. The same figure is arrived at by the Tribunal even by computation on the basis of annual return at the rate of 8.4 per cent. In our opinion, the authorities have arrived at a correct conclusion as regards the annual value of the property and the finding would be essentially a finding of fact. In view of the above discussion, the questions referred to us are answered in the affirmative, in favour of the Revenue and against the assessee. The reference stands disposed of accordingly with no order as to costs.
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1994 (1) TMI 70 - DELHI HIGH COURT
Actual User, Capital Asset, Capital For Purposes, Computation Of Capital, Industrial Undertaking, Special Deduction
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1994 (1) TMI 69 - MADRAS HIGH COURT
Business Income Or Income From Property ... ... ... ... ..... ry, it is not a case of letting out the property simpliciter. The object of the letting out is coloured by the relationship of the assessee with the subsidiary and takes on the characteristic of a business activity, because it is quite obvious that the letting out of the factory to the subsidiary is only to carry on the textile manufacturing activity through the subsidiary instead of directly by itself. Since the assessee was, as found by the Tribunal, exploiting the asset indirectly through the subsidiary instead of directly by itself in the business continued to be carried on by it, this case becomes an exception to the general rule that the income from a building should be assessed only under the head Income from property . We, therefore, agree with the view of the Tribunal that the income derived by the assessee has to be assessed under the head Income from business . Our answer to the question is in the affirmative and against the Revenue with costs. Counsel fee Rs. 500.
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1994 (1) TMI 68 - ALLAHABAD HIGH COURT
Audit Objection ... ... ... ... ..... the Estate Duty Act, 1953, is in pari materia with section 147 of the Income-tax Act, 1961. The present section 17 of the Wealth-tax Act is also in pari materia with section 147 of the Income-tax Act. In the said decision, it is held that the report of the audit officer pertaining to the facts of valuation cannot furnish the basis for the reopening of the assessment. Similar is the position in the present case. Accordingly, the impugned notices cannot be sustained. To similar effect is also the position in Indian and Eastern Newspaper Society Ltd. s case 1979 119 ITR 996 (SC), a decision of the Supreme Court. In view of the said decision, the present impugned notices and the order dated April 4, 1981 (annexures 4, 5, 6 and 14) in Writ Petition No. 506 of 1981 and the notices and order dated April 4, 1981 (annexures 1, 2, 3, 4 and 14) in Writ Petition No. 535 of 1981 are held to be illegal and are accordingly quashed. The said writ petitions are accordingly allowed with costs.
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