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1985 (9) TMI 50 - BOMBAY HIGH COURT
Widely Held Company ... ... ... ... ..... nese company and not the Indian public. We see no reason why the meaning of the term public should be curtailed in the manner suggested by Mr. Jetly. We are not called upon to consider whether the Japanese shareholders of the Japanese company were Indian citizens or not but whether they were members of the public and we see no reason why they should not be regarded as members of the public. There is no warrant or reason whatever suggested to us why the qualification Indian should be read before the term public in section 2(18) of the Income-tax Act, 1961. In CIT v. Baroda Investment Co. Ltd. 1979 119 ITR 14, it has been held by a Division Bench of this court that companies which were public within the meaning of section 2(18) were thus covered by the term public used in that section. The second submission of Mr. Jetly must also be rejected. In the result, the question referred to us is answered in the negative and in favour of the assessee. The Commissioner to pay the costs.
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1985 (9) TMI 49 - BOMBAY HIGH COURT
Advance Tax, Interest, Penalty ... ... ... ... ..... yable in consequence of an order passed under this Act . Had this non-payment been pointed out to the petitioner, the petitioner could have made satisfactory arrangements for the payment of the said amount. Mr. Bhujle, for the petitioner, states that the petitioner is in a position to give a bank guarantee for the payment of the impugned interest if he is called upon to do so. Hence, at this stage, the petitioner cannot be denied relief on this ground. In these circumstances, this is a fit case where the petition should be allowed and the matter should be remanded to the Commissioner for reconsideration, taking into account all the relevant circumstances of the case. In the premises, the petition is allowed. The order dated December 4, 1980 (exhibit G ), is set aside and the matter is remanded to the 1st respondent. The 1st respondent is directed to dispose of the petitioner s application dated October 10/13, 1980, on merits. The rule is made absolute accordingly with costs.
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1985 (9) TMI 48 - PATNA HIGH COURT
Appeal To AAC, Assessment, Firm ... ... ... ... ..... view of the special circumstances of the case and so the registration has to be granted for the whole year to the firm as it existed at the time of making assessment and that two separate registrations were not required in this case, as suggested by Mr. B. P. Rajgarhia, for the Revenue. I, therefore, hold that the firm of three partners was rightly allowed to be registered for the entire assessment year 1967-68 by the 2nd Appellate Assistant Commissioner, vide annexure E, and the Tribunal was justified in upholding the order of the 2nd Appellate Assistant Commissioner in allowing registration for the whole year. In view of my findings above, I hold that the Tribunal was correct in upholding the action of the Appellate Assistant Commissioner in granting registration to the firm. The question is, accordingly, answered in favour of the assessee and against the Revenue. In the peculiar circumstances of the case, however, there will be no order as to costs. UDAY SINHA J.-I agree.
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1985 (9) TMI 47 - PATNA HIGH COURT
Burden Of Proof ... ... ... ... ..... ence Act, 1872, the assessee would be the better person to explain his state of affairs and if he is in a better position but does not explain matters, the assessee must fail, upon the dictum laid down by Mukharji J., in the same J. K. Cotton Mfgs. Ltd. s case 1984 146 ITR 552 (SC). We are, therefore, of the view that the Tribunal was not correct in holding that the intangible additions could not be treated as net wealth of the assessee. For the reason stated above, we are of the view that the Tribunal was not correct in holding that the intangible additions in the income-tax assessment of the assessee did not constitute wealth of the assessee for the assessment years for which the present reference has been made. The reference is thus answered against the assessee and in favour of the Revenue. There shall, however, be no order as to costs. Let a copy of the opinion of this court delivered today be transmitted to the Assistant Registrar, Income-tax Appellate Tribunal, Patna.
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1985 (9) TMI 46 - GUJARAT HIGH COURT
Appeal To AAC, Firm ... ... ... ... ..... tration was covered by clause (j) of sub-section (1) of section 246, it could not be the subject-matter of an appeal preferred under clause (c) of that sub-section, was not correct. We are, therefore, of the opinion that both the Appellate Assistant Commissioner and the Tribunal were clearly in error in taking the view that a single composite appeal could not lie because different clauses of sub-section (1) of section 246 were attracted, namely, clause (c) in so far as the appeal was against the order of the assessment made under subsection (3) of section 143 and clause (j) in so far as it related to the Income-tax Officer s order refusing renewal of registration. Since neither the Act nor the Rules prohibit a single composite appeal, we think that the view taken by the Tribunal cannot be sustained. For reasons which we have indicated above, we answer both the questions in the negative, that is, against the Revenue. Reference disposed of accordingly with no order as to costs.
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1985 (9) TMI 45 - BOMBAY HIGH COURT
Exemptions, Perquisite, Salary ... ... ... ... ..... s given to the assessee, the question of including them in the income of the assessee would not arise at all, and if the said amounts are to be included in the income of the assessee on the ground that they are perquisites as suggested by the Revenue, we fail to see how it would be open to the Revenue in the same breath to contend that the said amounts were not paid to the assessee. If the amounts are taken as having been paid to the assessee, they were amounts of scholarship, which is not disputed before us, and hence they are not liable to be included in the computation of the total income of the assessee under the provisions of section 10(16) of the Income-tax Act. In the result, the questions referred to us are answered as follows Question No.1 In the affirmative and in favour of the assessee. Question No. 2 In case it is necessary to answer the same, the answer would be in the affirmative and in favour of the assessee. The Commissioner to pay the costs of the reference.
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1985 (9) TMI 44 - BOMBAY HIGH COURT
Income From House Property ... ... ... ... ..... r be reduced . As we see it, the word further must be read as indicating the further or next step to be taken in the computation of the annual letting value of the self-occupied house property which is to say that after the annual letting value of the self-occupied house property has been computed on the basis of what it would fetch if let from year to year, the further or next step is to reduce it as prescribed in sub-section (2). There is no provision in section 23 of the Income-tax Act, 1961, as we construe it, whereby, for the purposes of computing the annual letting value of the self-occupied house property, local or municipal taxes paid by the owner can be deducted. For the aforestated reason, we are unable to agree, though with the greatest respect, with the conclusions of the Gujarat and Madras High Courts in the cases aforementioned. The question posed for our consideration is answered in the negative and in favour of the Revenue. There shall be no order as to costs.
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1985 (9) TMI 43 - MADRAS HIGH COURT
Search And Seizure ... ... ... ... ..... a draft. Nor again is it required on the part of the Inspecting Assistant Commissioner to peruse all the accounts. The question to be considered is whether in the stated circumstances, approval could be granted for any one of the proposed actions under clauses (i), (ii), (iia) and (iii) of section 132(5). This is exactly the position here. Because the above note of May 22, 1985, shows that the approving authority perused the draft order and the reasons contained therein, it can be taken that it is enough compliance of law. Even otherwise, whether an order under section 132(5) has been properly made on merits, has nothing to do with the writ petition. Nor can that be canvassed before me under article 226 of the Constitution of India, especially when the petitioner has a right of appeal under the Act. For all these reasons, I hold that the challenge of the procedural formality in the writ petition is unfounded. The writ petition is dismissed with costs. Counsel s fee Rs. 500.
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1985 (9) TMI 42 - BOMBAY HIGH COURT
Deduction, Depreciation And Development Rebate ... ... ... ... ..... et which had been purchased was not a diffuser in which case no depreciation or development rebate could be allowed on that extent of the expenditure which related to the study of the working of the diffuser. The capital asset which was purchased was a diffuser and this is clear from a reference to the question and the order of the Appellate Assistant Commissioner for the assessment year 1968-69. The entire expenditure on foreign tours was, therefore, incurred in connection with the purchase of a capital asset, which was the diffuser. The Tribunal was, therefore, right in upholding the direction of the Appellate Assistant Commissioner to capitalise the expenditure on the foreign tours for the purposes of depreciation and development rebate and to allow the same on such figure as the Income-tax Officer arrived at. The answer to the second question is, therefore, in the affirmative and in favour of the assessee. The Revenue shall pay to the assessee the costs of the reference.
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1985 (9) TMI 41 - BOMBAY HIGH COURT
Business Expenditure ... ... ... ... ..... s of the Division Bench set out at page 672 of the aforesaid report show that the Division Bench clearly took the view that in cases where penalty had to be incurred because of the fault of the assessee himself, as for instance, by reason of his having carried on his business in an unlawful manner or in contravention of certain rules and regulations, the penalty paid by the assessee for such conduct thereof could not be regarded as wholly laid out for the purpose of the business, and, in support of this conclusion, the decision of the Supreme Court in Haji Aziz and Abdul Shakoor Bros. v. CIT 1961 41 ITR 350, was cited. This decision, in our view, does not advance the argument of Mrs. Jagtiani, and, in fact, the aforesaid observations pointed out by us lend considerable support to the view which we have taken. The question referred to us is, therefore, answered in the affirmative and in favour of the Revenue. The assessee to pay the costs of this reference to the Commissioner.
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1985 (9) TMI 40 - BOMBAY HIGH COURT
Business Income, New Industrial Undertaking ... ... ... ... ..... attracted. There is not a word to show that there was, in fact, unity of control. The shifting of a part of the capacity would seem to us to make no difference where, as here, new plant and machinery was set up in a new building constructed for the purpose. We see no merit whatever in the Revenue s contention. The second question raised on behalf of the Revenue has to be answered in the affirmative and in favour of the assessee having regard to our conclusion on the first question and the judgment of this court in Indian Oil Corporation Ltd. v. S. Rajagopalan, ITO 1973 92 ITR 241. The assessee s questions are answered in the affirmative and in favour of the Revenue. The Revenue s questions are answered in the affirmative and in favour of the assessee. On the application of Mr. Khatri, learned counsel for the assessee, certificate of fitness to appeal to the Supreme Court is granted in respect of the second question raised by the assessee. There shall be no order as to costs.
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1985 (9) TMI 39 - KARNATAKA HIGH COURT
Estate Duty, Property Passing ... ... ... ... ..... of a Division Bench of this court between the same parties reported as Nagendra Prasad v. Kempananjamma 1965 1 Mys LJ 600, and the other rulings of this court and the former Mysore High Court which had occasion to interpret section 8(1)(d) of the Mysore Act noticed by the Supreme Court. We are of the view that every one of those rulings do not really help the assessee to sustain her claim. On the foregoing discussion, we hold that the Tribunal and the Assistant Controller Estate of Duty were right in disallowing the claim of the assessee and the Appellate Controller was in error in accepting the same. From this, it follows that our answer to the question referred to us must be in the affirmative, against the assessee and in favour of the Revenue. In the light of our above discussion, we answer the question referred to us in the affirmative, against the assessee and in favour of the Revenue. But, in the circumstances of the case, we direct the parties to bear their own costs.
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1985 (9) TMI 38 - BOMBAY HIGH COURT
Income Tax Concession, New Industrial Undertaking ... ... ... ... ..... e in the computation of the capital, if such value is entitled to be included in the computation of the capital under the relevant provisions of the said rule. In the second place, we fail to see as to what difficulty there would be in calculating the written down value in a case like this. The facts found show that the plant and machinery for which the entire amount of Rs. 43,15,085 had been earmarked by the assessee was in the process of installation during the relevant period and had not been used. Hence, there was no question of claiming any depreciation or depreciation being granted on assets forming part of that plant and machinery and the question of difficulty in ascertaining the written down value does not arise. In our view, the Tribunal was right in coming to the conclusion to which it has arrived. In the result, the question referred to us is answered in the affirmative and in favour of the assessee. The Revenue to pay to the assessee the costs of this reference.
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1985 (9) TMI 37 - GUJARAT HIGH COURT
Limitation, Penalty ... ... ... ... ..... erroneous order of the Income-tax Officer. Similarly, section 275, as it stood at the relevant time, only provides the period of limitation and it was not a provision imposing penalty. The provision which imposes penalty is section 271 of the Act and, therefore, the above observation does not help the assessee. The provision of section 275 has been already construed by this court in Vasani and Co. s case 1978 112 ITR 819. In view of this position, we are bound by the said decision and we do not agree with Mr. J. P. Shah that the aforesaid judgment of the Gujarat High Court stands impliedly overruled in view of the above observations of the Supreme Court. Accordingly, the question referred in this reference is answered in the negative, that is, in favour of the Revenue and against the assessee. Hence, the reference is disposed of accordingly with no order as to costs. We have not entered into the merits of the matter as the question referred to us pertained only to limitation.
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1985 (9) TMI 36 - PUNJAB AND HARYANA HIGH COURT
Payments In Cash ... ... ... ... ..... ed upon cash payment. In the certificates that had been filed by the assessee from the sellers, it had been admitted by the sellers that they had insisted upon cash payment. This evidence and the explanation offered by the assessee has been accepted by the Appellate Assistant Commissioner as also by the Tribunal. Whether the circumstances of dishonouring of the cheques and the insistence of the sellers to make payment in cash constituted an exceptional or unavoidable circumstance, in our opinion, is an inference of fact and not of law. In this regard, we are supported by an earlier decision of this court in CIT v. Sawarn Singh Balbir Singh 1982 136 ITR 595. Similar view has been repeatedly taken by the Allahabad High Court in Addl. CIT v. Friends Straw Board and Paper Mart 1978 CTR (All) 286, CIT v. Kohli Khan Bhandar 1978 111 ITR 419 (All) and CIT v Satish Chandra 1983 143 ITR 330 (All). For the reasons aforementioned, we find no merit in this petition and dismiss the same.
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1985 (9) TMI 35 - CALCUTTA HIGH COURT
Priority Industry ... ... ... ... ..... ority industry. It is not disputed that profit arising from the sale of import entitlements would be business profits. Revenue has not contended otherwise. The next question which arises is in which business did these profits arise. In Cambay Electric Supply Industrial Co. Ltd. 1978 113 ITR 84, the Supreme Court has held that the expression attributable to is wider in import than the expression derived from . The import entitlements having accrued to the assessee for export of manufactured products of priority industry, it must be held that the profits and gains from the sale of import entitlement are attributable to the business of the assessee in the manufacture of products in the priority industry. The same view has been taken by this court and also the Madras High Court in the decisions referred to hereinabove. For the above reasons, we answer the question referred in the affirmative and in favour of the assessee. There will be no order as to costs. G. N. RAY J.-I agree.
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1985 (9) TMI 34 - PUNJAB AND HARYANA HIGH COURT
Reassessment ... ... ... ... ..... 982 136 ITR 895. In both these cases, on identical facts, it was held that there was no reason for the assessing authority to believe that the assessee had failed to disclose fully and truly all the material facts necessary for the assessment. Learned counsel for the Revenue to support the view of the Tribunal relied on another Division Bench decision of this court in Kirpa Ram Ramji Dass v. ITO 1982 135 ITR 68. This decision was duly considered in Jai Singh s case 1982 136 ITR 895 (P and H) and found to be distinguishable inasmuch as in the former case, the alleged name-lender had given a statement that he never advanced the loan in dispute to the assessee. In the present case also, no such statement was made by the creditors and as such the decision in Kirpa Ram Ramji Dass case 1982 135 ITR 68 (P and H) is of no avail to the Revenue. In the result, the aforementioned question is answered in the negative, that is, in favour of the assessee and against the Revenue. No costs.
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1985 (9) TMI 33 - KERALA HIGH COURT
Agricultural Income, Bona Fide, Income Tax, Lease Rent ... ... ... ... ..... . In case it is found to be a capital investment only, the assessee is not entitled to the deduction. As rightly pointed out by the counsel for the Revenue, deduction was not sought as arising out of payment of rent to which the assessee was entitled under section 5(b) of the Agricultural Income-tax Act. The claim was based under section 5(j) of the said Act in which, what is called expenditure, was not really and in effect a revenue expenditure for deriving the income and, therefore, the assessee was not entitled to deduction under that head. The result, therefore, is that we answer question No. (i) in the negative, i.e., against the assessee and in favour of the Revenue and questions Nos. (ii), (iii) and (iv) in the affirmative, i.e., in favour of the Revenue and against the assessee. A copy of this judgment under the signature of the Registrar and the seal of the court shall be forwarded to the Commissioner of Agricultural Income-tax, Board of Revenue (Taxes), Trivandrum.
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1985 (9) TMI 32 - BOMBAY HIGH COURT
New Industrial Undertaking, Relief ... ... ... ... ..... ) of section 84, but it was applicable to that entire section, and that Explanation clearly provides that in case the total value of the building, machinery or plant previously used and transferred to the new industrial undertaking does not exceed 20 per cent. of the total value of the building, machinery or plant used in the business, the benefit of partial exemption conferred by section 84 cannot be denied. In view of this, it would be nothing but an idle exercise to answer the question and send the matter back to the Tribunal. We may point out that the Revenue has not preferred any application for reference against the aforesaid decision of the Tribunal, and hence the question posed to us is purely academic. It is well settled that purely academic questions need not be answered by the court. In view of this, we decline to answer the question referred to us. Considering all the facts and circumstances of the case, there will be no order as to the costs of these references.
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1985 (9) TMI 31 - RAJASTHAN HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... he aforesaid order dated April 8, 1981, refusing to make the reference, the Revenue has filed this application. We have heard Shri R. N. Surolia, learned counsel for the Revenue and Shri H. P. Gupta, learned counsel for the assessee. In our opinion, the Tribunal was justified in rejecting the application for making a reference on the ground that, no question of law arises from tile order dated August 23, 1980, inasmuch as the question as to whether the explanation offered by the assessee for late filing of the return was reasonable or not, is a pure question of fact. In the facts and circumstances of the case, the Tribunal has field that the said explanation given by the assessee was reasonable and tile assessee acted bona fide in not filing the return till November, 1971. In our opinion, therefore, no ground is made out for directing the Tribunal to refer to this court the question mentioned in the application. The application is, therefore, dismissed. No order as to costs.
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