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1991 (3) TMI 180 - ITAT AHMEDABAD-C
Accounting Year, Additional Depreciation, Advance Tax, Bona Fide, Business Expenditure, Carrying On Business, Investment Allowance, Plant And Machinery, Sales Tax Act, Sales Tax Liability
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1991 (3) TMI 179 - ITAT AHMEDABAD-C
Business Income ... ... ... ... ..... n ex-cases where the same business is being carried on. Where income is derived by the exploitation of the asset and there is only a difference in the manner of exploitation, that is to say, instead of user of the assets by the assessee itself there is a leasing out of the assets, the income derived must be considered to be of the same nature i.e., business income and also income of the same business. We are supported in this view of the matter by the decision of Calcutta High Court in Premchand Jute Mills Ltd. s case. It has been held in said decision that in such cases unabsorbed depreciation and loss incurred when the asset was exploited by the assessee himself can be carried forward and set off against the income derived from leasing out of the commercial asset. The CIT(A) was justified in giving directions of that nature to the Assessing Officer. The grounds raised by the Department are rejected. 10 to 14. These paras are not reproduced here as they involve minor issues
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1991 (3) TMI 178 - ITAT AHMEDABAD-B
In Part, Tax At Source ... ... ... ... ..... n Raja Jagadish Pratap Sahi v. State of UP 1977 88 ITR 443 in support of this proposition. The Calcutta High Court also referred to another aspect of the case and that aspect was that liability to pay tax was that of the recipient of the income and that even if the tax was not deducted at source by the assessee the recipient would be liable to pay tax in usual course and that interest that is payable under section 201(1A) would be only upto the date on which such tax was actually paid and that the interest would stop running when the amount of tax which should have been deducted at source is actually paid either by the assessee or by the recipient of the amount. The Calcutta High Court held that the fact that tax deductible at source could not be recovered under section 231 of the Act would not be a bar for levy of interest under section 201(1A) of the Act. We respectfully follow said decision and reject the additional ground raised by the assessee. 8. The appeal is dismissed
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1991 (3) TMI 177 - ITAT AHMEDABAD-B
Accounting Year, Capital Gains, Capital Loss, Foreign Company ... ... ... ... ..... e income thereof against the long-term capital loss which is presently under discussion. This was not done. It would also be a very far fetched proposition to presume that an assessee would dispose of shares of the face value exceeding Rs. 7 lacs merely to off-set a taxable long-term capital gains quantified at Rs. 52,788 by the ITO. (5) There is also the order of the ITO dropping the penalty proceedings under section 271(1)(c) and the reply dt. 20-2-1988 to the penalty notice appended at page 44 of the paper book, does explain at length the nature and background of the transaction with which we are presently concerned. In the final analysis we opine that the sale of shares of M/s. Sarayu Investments Pvt Ltd. by the assessee during the assessment year under consideration represented a genuine transaction and was required to be accepted by the department as such. We direct accordingly. The relevant grounds in the appeal are accordingly accepted. 8. The appeal is partly allowed
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1991 (3) TMI 176 - ITAT AHMEDABAD-A
... ... ... ... ..... total income for the relevant assessment year. The amendment made in s. 199 by the Finance Act, 1987 w.e.f., 1st June, 1987 providing that credit of such tax deducted at sources shall be given for the assessment year for which such income is assessable now gives the statutory recognition to the aforesaid view expressed in the Board s circular. The view taken by the CIT(A) is clearly in consonance with the aforesaid Board s circular. In any case, the credit of tax deducted at source is necessarily required to be given in some year. The ITO has refused to give such credit in asst. yr. 1982-83 on the ground that it pertains to earlier years namely, 1979-80 to 1981-82. Therefore, the directions given by the CIT(A) for allowing such credit of tax deducted at source in asst. yrs. 1979-80 to 1981-82 after necessary verification cannot be said to be unjustified or invalid. We, therefore, confirm the findings given by the CIT(A). 6. In the result, the Revenue s appeals are dismissed.
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1991 (3) TMI 175 - ITAT AHMEDABAD-A
Court Fee, Deductions In Respect, Expenditure Incurred, Original Assessment ... ... ... ... ..... e (not being expenditure of the nature described in sections 30 to 36 and section 80VV and not being in the nature of capital expenditure or personal expenditure of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head Profits and gains of business or profession . No such restrictive conditions have been prescribed in section 57 in relation to deduction allowable for computing the income chargeable under the head Income from other sources including the income by way of lotteries. We are therefore of the opinion that the deduction of Rs. 3000 allowed by the ITO at the time of passing the original assessment order cannot be said to be a mistake apparent from record. 7.3 We therefore allow the assessee s appeal and set aside the order of the ITO under section 154. The original assessment order will consequently be restored. 8. In the result the appeal is allowed
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1991 (3) TMI 174 - ITAT AHMEDABAD-A
Co-operative Society ... ... ... ... ..... into force of the Income-tax Act, 1961 is entitled to the benefit of deduction under section 80P of the Act but not of the exemption under paragraph 15 of the Concession Order as amended by Notification No. SRO 1800 dated 14-11-1951. 22. Decisions of the Tribunal in assessee s case for earlier years were rendered without examining its character as a co-operative society registered on 27-9-1968. Those, therefore, make no bar to us or are operative as res judicata in arriving at different conclusions, regarding the matter of taxability of assessee s income for the years under consideration. 23. Consequently the order under appeal is set aside on both the points, as mentioned above. However, since the CIT(A) did not examine, consider and decide assessee s claim for deductions under section 80P of the Act, its case for both the years would go back to him for decision thereon according to law after hearing both sides. 24. The appeals are treated as allowed for statistical purposes
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1991 (3) TMI 173 - GOVERNMENT OF INDIA
... ... ... ... ..... ount certain other evidence Collector (Appeals) has accepted the collateral evidence and satisfied himself about the identity of the goods. The fact whether Section 74 or 75 is relevant was never its issue before any of the lower authorities. Therefore, upholding party s plea that essential criterion of revisionary jurisdiction is that it corrects and revises the proceedings in a cause already instituted and does not create that cause (particularly in suo moto proceedings like the instant one) the following order is passed. 5. Neither Asstt. Collector nor Collector (Appeals) seem to have satisfied whether other ingredients of Section 74 of Customs Act, 1962 other than mere identification of goods are satisfied in this case. Accordingly, Government order that this exercise now be carried out by the Asstt. Collector before acting on the order of the Collector (Appeals). This does not however in any way lay down any proposition that packages will qualify for drawback up 74 ibid.
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1991 (3) TMI 172 - GOVERNMENT OF INDIA
Loss or destruction of goods - Demand ... ... ... ... ..... ow the above guidelines, the Govt. hereby remand the cases to the Asstt. Collector for fresh adjudication on the matter pertaining to excess receipts . While confirming the demand, if due after the above adjustment is made, the Asstt. Collector shall also quote the relevant provisions of the Central Excise Acts and Rules. The instant revision application is accordingly disposed of in the above terms. The following revision applications which in fact and circumstances, are similar to the instant cases are also disposed of in the same terms. R.A. No. Name of the applicant Order-in-appeal 1. 195/71/90-CX-V N.F.L. (Bhatinda) 247-248-CE/CHG/87 dated 4-1-1990 2. 195/114/90-CX-V N.F.L. (Panipat) 130-CE/DLH/88/28800 dt.18-5-1990 3. 195/105/90-CX-V N.F.L. (Panipat) 44-CE/DLH/90 dated 23-4-1990 4. 195/115/90-CX-V N.F.L. (Panipat) 153-154-CE/DLH/90 dated 24-5-1990. 5. 195/112/90-CX-V N.F.L. (Panipat) -do- 6. 195/113/90-CX-V N.F.L. (Panipat) -do- 7. 195/116/90-CX-V N.F.L. (Panipat) -do-
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1991 (3) TMI 171 - GOVERNMENT OF INDIA
Loss or destruction of goods ... ... ... ... ..... fact that the goods had not been removed from the factory and thereafter has proceeded to allow the remission. To Government it seems to be a dangerous argument. In matters of revenue where licencees are bound to keep non-duty paid goods ..... it will be risky to allow the remission on the sole ground that the goods have not been removed from the warehouse. Non-removal of goods from warehouse, does not ipso facto amount to loss due to natural causes or unavoidable accident and entitle licencees to remission under Rule 49 ibid. The order of the Collector (Appeal) is, therefore, erroneous. 7. In view of the above discussions and as the party could have foreseen exposure to molasses the remission is not available to them as held in the case of Dhampur Sugar Mills mentioned above. 8. The Government accordingly sets aside the order of the Collector (Appeal) and restore order-in-original of the Assistant Collector issued under No. C.No. V(17) 2-Demand/Molasses/86, dated 3-12-1987.
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1991 (3) TMI 170 - GOVERNMENT OF INDIA
Export - Rebate on export ... ... ... ... ..... f goods which are exported. If the learned Advocate s view is to be accepted then this Rule (12A) will become redundant. 4. In view of the above discussions and the Tribunal s decision in the case of Steel Rolling Mills of Bengal 1984 (16) E.L.T. 151 to the effect that Rule 12 does not permit grant of rebate of duty paid on the raw material used in the manufacture of finished products the claim of the party is not valid. 5. As regard the definition of the term goods found in Rule 13 it would be confined only to Rule 13 (or 14, 14A and 14B) itself as it deals with exports under bond of goods. Since the entitlement of rebate under Rule 12 is limited only to the duty paid on goods exported i.e. shock absorbers in this case, and not the inputs such as forgings Ref. Steel Rolling Mills of Bengal v. Collector of Central Excise, Calcutta -1984 (16) E.L.T. 151 Tribunal , the claim of the party is not valid. 6. In the result, the Revision Application fails and is accordingly rejected.
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1991 (3) TMI 169 - GOVERNMENT OF INDIA
Loss or destruction of goods ... ... ... ... ..... he is not satisfied with the explanation of the party that the loss or destruction of molasses has been due to natural causes or that some of the goods are not fit for consumption. In the circumstances one has no alternative, but to accept the conclusion in that regard as reached by the Collector (Appeals) and particularly as the loss has been approved by the State Molasses Control (subject to verification by the Assistant Collector) as claimed by the party. 6. In the light of the above discussions the Government does not find fault with the order in appeal of the Collector (Appeals) which is hereby upheld and the proceedings started under show cause notice dated 2-3-1989 are dropped, subject to Assistant Collector verifying the claim of the party that State Authorities had approved the said losses (and/or goods being unfit for consumption). 7. It is however, open for the Department to seek enforcement on the B. 2 bonds in a Civil suit if considered necessary and so advised.
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1991 (3) TMI 168 - GOVERNMENT OF INDIA
... ... ... ... ..... (Appeals) and also the order-in-original confirming the demand in this case. Incidentally neither the original show cause notice nor the order-in-original indicate the exact amount of duty demanded, which in itself is irregular. As a matter of fact, the show cause notice does not even demand duty but only calls upon the party to show cause as to why appropriate action should not be taken against the party under Rule 14A. Since no penalty has been imposed in this case at any stage Government is naturally not in a position to adjudicate on these. However, the applicants are warned that the delay in submission of proofs of export should be minimum and not as has happened in this case upto 8 months notwithstanding the fact that the Customs authorities themselves lost the documents and they had to issue certificate in form CBR-307. With the above observations and subject to confirmation of facts by the Assistant Collector, as indicated above, the Revision application is allowed.
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1991 (3) TMI 167 - GOVERNMENT OF INDIA
... ... ... ... ..... rable in terms of Rule 160 or any other Rule of the Central Excise Rules. 4. The Central Government, drawing from this ratio of the CEGAT Judgment, hold that Rule 223A and Section 11A of the Act have to be construed accordingly. Under Section 11A 3(C), the relevant date for computing the limitation is the date on which the duty is to be paid. The duty in this case becomes payable on the date of the stock taking under Rule 223A. Therefore, the date of stock taking of goods is the relevant date for computing the time limitation under Section 11A read with Rule 223A and limit of six months shall normally apply. 5. In the light of the above observations, the show-cause notice dated 30-11-1982 issued after 3 years/2 years/1 year of the respective dates of stock taking is naturally hit by the time limitation provided in Section 11A. 6. In view of the above, the orders of lower authorities are hereby set aside on that point above. The Revision application is accordingly disposed of.
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1991 (3) TMI 166 - GOVERNMENT OF INDIA
Export - Rebate on export ... ... ... ... ..... item in which the exported goods (final product) will fall. It is clear, thus, that only in relation to the final product the duty element and calculation come into play whenever Rule 12 is invoked. It may also be mentioned here that it is Rule 12A that talks of rebate of duty of excisable material used in the manufacture of goods which are exported. If the learned Advocate s view is to be accepted and rebate extended, under Rule 12, even to excisable goods used in the manufacture of goods which are exported then Rule 12A becomes redundant. Naturally such an interpretation is not acceptable. 4. In view of the above discussions and the Tribunal s decision in the case of Steel Rolling Mills of Bengal 1984 (16) E.L.T. 151 to the effect that Rule 12 does not permit grant of rebate of duty paid on the raw materials used in the manufacture of finished products the claim of the party that rebate is due to forgings is not valid. 5. In the result the Revision Application is rejected.
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1991 (3) TMI 165 - CEGAT, NEW DELHI-LB
Demand
... ... ... ... ..... cause notice under reference was without jurisdiction, even for other purposes also was the part of the question referred to the Third Member by the Referring Bench and on receipt of the Reference the Hon ble President constituted a 3-Member Bench to determine the question as referred to above by the Referring Bench, and this Bench held by Majority that the show cause notice was not only without jurisdiction for the purposes of demand of duty but the entire proceedings for the other purposes were also without jurisdiction. In the presence of these peculiar facts and circumstances of the case, we in consonance with the opinion expressed by the 3-Member Bench, as aforesaid, allow the appeal on the short ground that the show cause notice under reference was without jurisdiction. Hence without entering into the merits of the case, we set aside the impugned Order with consequential relief to the appellants, if any. (G.P. Agarwal) Member (J) Dated 25-3-1991 (P.C. Jain) Member (T)
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1991 (3) TMI 164 - CEGAT, NEW DELHI-LB
Appeal to Appellate Tribunal
... ... ... ... ..... leum Corporation Ltd. v. Collector of Customs, Bombay (iv) Tribunal s Orders No. 449 and 450/1987-D in Appeals No. C/1682/1983(D) and C/459 and 460/87-D (Ceat Tyres of India Ltd. v. Collector of Customs, Bombay.) (v) Tribunal s Order No. 645/1987-D dated 18-8-87 in Appeal No. CD/SB/1136/ 86-D (A/.A Kachwalia and Sons v. Collector of Customs, Bombay) (vi) 1990 (48) E.L.T. 549 (Tribunal - WRB) Kanta International and Motilal Gupta v. Collector of Customs (vii) 1990 (47) E.L.T. 79 (Tribunal - WRB) Universal Automobile and Ancillary Ltd. v. Collector of Central Excise and Customs (viii) 1980 (121) ITR 147 (Bom.) CIT v. Hansa Agency (ix) 1979 (118) ITR 412 (Cal.) CIT v. Rupa Traders. All these decisions were cited by the learned advocate before us. The expressions an order and an appeal used in Section 35B of the Central Excises and Salt Act, 1944 also support this view. 9. I agree with the views expressed by M(T-DCM) in paragraph 8. (Jyoti Balasundaram) Member (J) Dated 07-5-1991
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1991 (3) TMI 163 - CEGAT, NEW DELHI-LB
Refund - Limitation - Provisional assessment
... ... ... ... ..... It cannot, therefore, said to be time-barred. 10. We, therefore, accept this contention of the appellant. The appeal has, therefore, to be allowed holding the appellant is entitled to the full amount and there is no bar of limitation as found by the Tribunal. We, therefore, allow the ap peal. In the facts and circumstances of the case there will be no order as to costs. 11. In view of the legal position discussed above, we are of the view that once the assessment is provisional, it is provisional for all purposes. We follow the findings of the Hon ble Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC) and relevant paras have already been reproduced above and accordingly, we hold that the refund applications in the above matters were filed before the expiry of limitation in view of our above observations. Accordingly, we do not find any merit in the revenue s appeals. The appeals aredimissed.
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1991 (3) TMI 162 - HIGH COURT OF DELHI
Money credit ... ... ... ... ..... ber, 1989 and also issue of directions deemed fit in the facts and circumstances of the case. 2. Both counsel agree that this writ petition is squarely covered by the judgment dated 30-11-1990 of the Division Bench delivered in Hindustan Lever Ltd. v. Union of India and Others (Civil Writ Petition No. 90/90 and CM 134/90). 3. Accordingly, I direct the respondents to permit the petitioner to utilise the credit of the money earned by them as a result of hydrogenation of duty paid inputs before the notifications in question came to be rescinded for payment of excise duty on manufacture of vanaspati or soap, as the case may be. These benefits will be available to the petitioners in addition to the benefits which have again been made available to them under Notification Nos. 45/89 and 46/89 dated 11th October, 1989. Consequent adjustments also be made as a result of the above direction in the P.L. Accounts of the petitioner. Rule is made absolute. Parties to bear their own costs.
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1991 (3) TMI 161 - HIGH COURT OF ALLAHABAD
Demand - Limitation - Show cause notice ... ... ... ... ..... Though we find that the question of limitation was not specifically taken either before the Appellate Collector or before the Central Government, we permitted the petitioners to raise this plea, since this question arose on the record before us ex facie. 8.In this view of the matter, we do not think it necessary to express any opinion on the first contention urged by the learned counsel for the petitioners. 9.The writ petition is accordingly allowed and the impugned order of the Central Government dated 5-7-1980 is quashed. In the circumstances of the case, however, there shall be no order as to costs. EDITOR S COMMENTS The Department seems to have lost this case merely on account of their failure to bring to the notice of their Lordships the existence of Rule 173J of the Central Excise Rules, 1944, which was in force during 1975 and by virtue of which the time limit for demands in the case of SRP goods was one year and not three months as prescribed in Rule 10 in isolation.
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