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Showing 201 to 220 of 235 Records
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1983 (8) TMI 35 - MADRAS HIGH COURT
Closely Held Company ... ... ... ... ..... f 1976 proceeds on the basis that the trust is a charitable institution under s. 11 (1) of the Act, for the purpose of s. 104(2)(iii) also, it has to be taken that the trust is a charitable institution. Section 104(2)(iii) of the I.T. Act, 1961, inter alia, says that the ITO shall not make an order under sub-s. (1) if he is satisfied that at least seventy-five per cent. of the share capital of the company is throughout the previous year beneficially held by an institution or fund for a charitable purpose the income from dividend whereof is exempt under s. 11. Since the decision of this court in T.Cs. Nos. 211 and 262 of 1975 involves an inferential finding that the trust is a charitable institution as contemplated by s. 11 (1) of the Act, we are of the view that s. 104(2)(iii) of the Act is a bar for passing an order levying penal super tax in this case. We have, therefore, to answer the question in the affirmative and against the Revenue. There will be no order as to costs.
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1983 (8) TMI 34 - BOMBAY HIGH COURT
... ... ... ... ..... held that the Tribunal was in error, for the assessee did not produce the account books during the assessment proceedings and thus could not justify its assertion that the return was on the basis of the regular books of account. The assessee had, therefore, failed to discharge the onus placed under the Explanation to s. 271(1)(c) and there was no material before the Tribunal to justify the deletion of the penalty. In CIT v. Habibullah 1982 136 ITR 716 (All), the assessee did not produce any evidence in the penalty proceedings. There was, therefore, no rebuttal of the presumption under the Explanation to s. 271(1)(c). The Allahabad High Court, therefore, held that the Tribunal was not justified in cancelling the penalty orders. Neither of these two decisions of the Allahabad High Court assists the Revenue in this case. In the result, we answer the second question in the negative, i.e., in favour of the assessee. The Revenue shall pay to the assessee the costs of the reference.
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1983 (8) TMI 33 - MADRAS HIGH COURT
Assessment, Firm ... ... ... ... ..... rinciple that a firm is not a legal entity even though it has some attributes of personality and that though in income-tax law a firm is a unit of assessment, still it is not a full person those observations were made by the Supreme Court in connection with the question as to whether there could be a contract of employment between a firm and a partner. That decision cannot be taken to throw any light on the question in issue before us. We are, therefore, of the view that the assessee has not made out any case for reconsideration of the decision rendered by this court in CIT v. Dadha and Company 1983 142 ITR 792, which specifically refers to the decision of the Allahabad High Court in Ram Narain and Brothers v. CIT 1969 73 ITR 423, with approval which decision the Tribunal was not inclined to accept as correct. The question referred to us, therefore, is answered in the affirmative and against the assessee. The assessee will pay the costs of the Revenue. Counsel s fee Rs. 500.
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1983 (8) TMI 32 - BOMBAY HIGH COURT
Deduction, Depreciation ... ... ... ... ..... perative notifications and if the dates as mentioned in the order of the Tribunal are borne in mind, it would be clear that until the award was made, which was on May 6, 1983, there would not be any passing of the property or legal vesting of the same in the Government. The fact that possession had been handed over to the Government earlier would have no relevance to the passing of the property or the vesting of it. Once that conclusion is reached, it would be clear that capital gains would be attracted for the first time in the assessment year 1964-65 only. There is no challenge to the initial decision of the AAC which was confirmed by the Tribunal that the amounts are required to be considered in two separate assessment years. If at all any party had any grievance, it would be the Revenue and not the assessee. In the result, the question referred to us is answered in the affirmative and in favour of the Revenue. The assessee to pay the costs of the reference to the Revenue.
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1983 (8) TMI 31 - BOMBAY HIGH COURT
Deduction, Depreciation ... ... ... ... ..... arenthetical portion, the assessee would be entitled to the allowance thereunder. It is the parenthetical portion which excludes the assessee from that allowance. The parenthetical portion must, therefore, be strictly construed. So construed, there is no doubt in our minds that where, as here, the machinery is second-hand, the assessee is entitled to claim the allowance under s. 32(1)(iii) though he may have first brought the machinery into use only in the previous year. Upon this construction, we answer the question posed thus On the facts and in the circumstances of the case, the assessee was entitled to a deduction in respect of the discarded dies under section 32(1)(iii) of the Income-tax Act, 1961 . Counsel for the assessee also relied upon ss. 28 and 37 of the Act. We see no reason now to deal with these arguments. Having regard to the fact that the contention which we have upheld was not advanced before the Tribunal, we direct that each party should bear its own costs.
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1983 (8) TMI 30 - KERALA HIGH COURT
Company, Super Profits Tax, Surtax ... ... ... ... ..... to above. Incidentally we may also mention the following passage occurring in the Law of Surtax in India, by M. M. Bhagawat (1983 edition) at p. 24 The Supreme Court has recently affirmed the decision of the Kerala High Court in CIT v. Periakaramalai Tea and Produce Co. Ltd. 1973 92 ITR 65, in which case the court held that a reserve is a sum of money which has been kept for the future use by the assessee whether the purpose for which it is so kept back is general or specific. (The reference to the Supreme Court decision has not been given). In the result, we hold that the decision of the Appellate Tribunal is correct. Accordingly, the questions referred to this court are answered in the affirmative and in favour of the assessee-company and against the Revenue. There shall be no order as to costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, as required by law.
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1983 (8) TMI 29 - KERALA HIGH COURT
Estate Duty ... ... ... ... ..... . 1 in respect of the firm, M/s. Ratnaji Raghunath, is given at page 310 in the following words The deceased did not have any defined share in the goodwill of the firm of M/s. Ratnaji Raghunath in which he was a partner and, therefore, such so-called share could not be property passing on his death or liable to be included in his estate under s. 5 of the E.D. Act 1953. In view of the aforesaid discussion, we are of the view that there is no justification in the addition made to the value of the estate of the deceased, in respect of the sum alleged to be attributable to the share of the deceased in the goodwill of the firm, as such an addition is unjustified having regard to the nature of the partnership deed and the effect of clauses 14 and 15 referred to above. In the light of the aforesaid discussion, we answer the question referred to us in the negative, that is, in favour of the assessee and against the Department. The parties are directed to bear their respective costs.
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1983 (8) TMI 28 - BOMBAY HIGH COURT
Company, Super Profits Tax ... ... ... ... ..... ribunal to the taxing authority to decide the issue whether the amount set apart and transferred to the gratuity reserve by the assessee-company was either a provision or a reserve and if the latter to what extent. The relevant paragraph of the Supreme Court decision is to be found at p. 578 of the report. Thus, as far as question No. 1 is concerned, it must be answered in the negative as far as the entire amount of Rs. 9,65,203 is concerned. However, a part of it would seen to be a provision and a part of the said amount to be a reserve as indicated by the Supreme Court. The lower taxing authority will decide the issue in the light of the principles enunciated in Vazir Sultan Tobacco s case 1981 132 ITR 559, after giving an opportunity to the assessee-company to place additional relevant materials before it, if necessary. In our view, this order disposes of all the three questions referred to us. In the circumstances of the case, parties are directed to bear their own costs.
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1983 (8) TMI 27 - KARNATAKA HIGH COURT
Developement Rebate ... ... ... ... ..... of safe deposit lockers should be considered not is office premises, but as business premises. The Tribunal has rejected that contention perhaps on the ground that there is no clear demarcation between the office premises and the business premises. In our view, there was no material before the Tribunal to reach that conclusion. The assessee also did not produce any acceptable evidence to lend support to that contention. In the circumstances, answering the question on the vague material would result in injustice and, therefore, we think it appropriate to decline to answer the question on the ground that the Tribunal has failed to consider and decide the question in the light of the enunciation of the legal principle laid down by us. The Tribunal may now rehear the case and dispose of the same in accordance with law and in the light of the observations made after affording opportunity to the parties for adducing evidence, if they so desire. The case is accordingly disposed of.
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1983 (8) TMI 26 - KARNATAKA HIGH COURT
Business Expenditure, Interest On Borrowed Capital ... ... ... ... ..... pital for the purpose of business. If that is found (to be) true, then, one need not examine further as to whether the asset purchased from the borrowed capital has been in fact used by the assessee. That is also the view taken by the Bombay High Court in Calico s case 1958 34 ITR 265, wherein it was observed (p. 270) In our opinion, there is no warrant for this suggestion. We ire prepared to agree with Mr. Joshi that, looking to the whole scheme of subsection (2), the capital which is borrowed must be used in the year of account. If the capital is used in the year of account and the use is for the purpose of the business, then it is immaterial whether the user of capital actually yields profit or not. What sub-clause (iii) emphasises is the user of the capital and not the user of the asset which comes into existence as result of the borrowed capital. . In the result we answer the question in the affirmative and against the Revenue. Parties will pay and bear their own costs.
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1983 (8) TMI 25 - MADHYA PRADESH HIGH COURT
Search And Seizure ... ... ... ... ..... ep whatsoever was taken for obtaining the approval of the Commissioner within this period. The approval was granted only after the filing of this petition, nearly after two years from the date of the seizure. Such an approval cannot validate the retention of the books of account and other documents seized from the petitioner which had become invalid after the expiry of 180 days. The learned counsel for the respondents submitted that the petitioner should have approached the Board under sub-s. (10). As there was no approval by the Commissioner when the petition was filed, the question of approaching the Board does not arise and it cannot be said that there was any alternative remedy open to the petitioner. The petition is allowed. We direct the respondents to return the books of account and documents seized from the business premises of the petitioner and residential premises of its partners. The petitioner will get costs of this petition. Counsel s fee Rs. 200, if certified.
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1983 (8) TMI 24 - MADHYA PRADESH HIGH COURT
Mistake Apparent From Record, Rectification ... ... ... ... ..... for his business. It appears that in the return filed for the year 1968-69, the assessee showed that the machinery was let out for business. It was then that the ITO started proceedings for rectification. When there was nothing on the record of the income-tax case for the assessment year 1967-68 to show that the machinery was not used by the assessee for his business and was let out, no proceedings could be taken under s. 154 for rectification. Under this section, the ITO can only rectify a mistake which is apparent from the record. As the mistake, if any, could not be said to be apparent from the record, the ITO had no jurisdiction to rectify the assessment and withdraw the rebate. For the reasons given above, we answer the question referred as follows The Income-tax Officer was not right in withdrawing the development rebate of Rs. 2,000 allowed in the original assessment by invoking the provisions of s. 154 of the Act. There will be no order as to costs of this reference.
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1983 (8) TMI 23 - BOMBAY HIGH COURT
Business Loss ... ... ... ... ..... ss in the year of devaluation and left open for consideration the other question. In our case, there is a clear finding by the Tribunal that the assessee kept its accounts on the mercantile system. On that system, it is clear to us that the assessee was required to provide a higher amount in terms of rupees for its liability for reimbursement and on this system provision would be required to be made and considered in the assessment year in question, that is, for the previous year ending on December 31, 1966. We are, therefore, unable to get any assistance in favour of the Commissioner from either of the aforesaid two decisions cited. In our opinion, the view taken by the Tribunal is the proper view and in accordance with this, the question referred to us is answered as under The assessee is entitled to the deduction of the full amount of Rs. 7,81,323 as a business loss during the assessment year in question. The Commissioner to pay the costs of the reference to the assessee.
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1983 (8) TMI 22 - BOMBAY HIGH COURT
Priority Industry ... ... ... ... ..... bile trucks for the purpose of servicing the same was intimately bound up with the assessee s priority industry. The manufacture of machinery by the assessee is a priority industry. The carrying out of repairs to machinery manufactured and sold by the assessee is an activity which has a direct nexus to the priority industry. The income derived therefrom must, therefore, be held to be attributable to the priority industry. The income derived from the interest paid by buyers of machinery manufactured by the assessee on deferred payment also has direct nexus to the assessee s priority industry and is attributable to it. The facility of after sales repairs and of deferred payment are inducements offered to intending purchasers and are intimately linked to the assessee s priority industry. In the result, the question that is posed for our consideration is answered in the affirmative, i.e., in favour of the assessee. The Revenue shall pay to the assessee the costs of the reference.
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1983 (8) TMI 21 - PATNA HIGH COURT
Assessment, Representative Assessee ... ... ... ... ..... the principle of res judicata is not applicable to tax cases in which assessment has to be made from year to year. This proposition of law was not contested by the learned counsel for the assessee. He, however, submitted that the assessment for the instant assessment year 1965-66 should not likewise operate as res judicata for the future assessment years. That, however, is merely of academic importance in so far as the assessment year 1965-66 is concerned. We accordingly, answer the question referred to us in the affirmative and hold that, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the shares of the beneficiaries were not determinate, and, consequently the income of the wakf was assessable in the hands of the mutawalli in the status of an association of persons. The question thus is decided in favour of the Revenue and against the assessee. On the facts and in the circumstances of the case, there will be no order as to costs.
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1983 (8) TMI 20 - KARNATAKA HIGH COURT
Deemed Profit ... ... ... ... ..... re present. It is a present liability of an ascertainable amount. In the light of these principles, the words payable and due used in s. 41(2) could only mean that such amount payable would be subjected to charge in an assessment under the I.T. Act during the year in which it becomes due. Money payable occurring in s. 6 of the Acquisition Act thus becomes due only on its determination by the arbitrator appointed for that purpose and as per law. The profits that are exigible to tax under s. 41(2) are those that become due during the previous year and from the facts stated in the statement of case by the Tribunal, there could be no doubt that no such amount became due in respect of the contract carriages acquired by the Government during the relevant previous year. The assessment as modified by the AAC was, therefore, erroneous and the order of the Tribunal reversing that order is correct. We, therefore, answer the question in the affirmative and against the Revenue. No costs.
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1983 (8) TMI 19 - MADRAS HIGH COURT
Deduction Under Chapter VI-A Of I.T.Act, Special Deduction ... ... ... ... ..... round that the judgment of the Supreme Court in Cambay Electric Supply Industrial Co. Ltd. v, CIT 1978 113 ITR 84 was not available then and, therefore, the earlier decision cannot be taken to be good law. In that case, the decision of the Karnataka High Court in Dr. T. Ramadas M. Pai v. CIT 1978 115 ITR 883, which was concerned with s. 80L has been referred to but that was held to be contrary to the decision of the Supreme Court in Cambay Electric Supply Industrial Co. Ltd. v. CIT 1978 113 ITR 84 and, hence, that decision cannot be taken to be the correct law, especially when it has not taken note of the definition provided in s. 80B(5). In view of the above decisions, which support the stand taken by the Revenue and which give due weight to the definition of total income in s. 80B(5) as also the limitation provided in s. 80A(2), we have to answer the questions in the negative and in favour of the Revenue. The Revenue will get costs from the assessee. Counsel s fee Rs. 500.
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1983 (8) TMI 18 - KARNATAKA HIGH COURT
Educational Institutions, Exemptions ... ... ... ... ..... The ITO rejected the claim of the assessee and proceeded to compute the total income of the assessee in the light of the provisions of s. 11 (1) of the Act as was done in the present case. The assessee carried the matter in appeal before the AAC. The AAC reversed the finding recorded by the ITO holding that the income derived by the assessee-trust was exempt under s. 10(22) of the Act. The Revenue went up in appeal before the Tribunal. The Tribunal held that the assessee-trust was a body which existed solely for educational purposes and not for the purpose of profit. The High Court on a reference agreed with that view. Considering the facts and circumstances of the case in the light of the decisions to which we have called attention, in our judgment, the assessee is an educational institution the income of which is exempt under s. 10(22) of the Act and we accordingly answer the question in the affirmative and against the Revenue. The parties will pay and bear their own costs.
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1983 (8) TMI 17 - KERALA HIGH COURT
... ... ... ... ..... have no doubt in our mind that the Commissioner has jurisdiction to entertain a revision petition under s. 264 of the Act. In the light of the above, we quash ex. P-5 order passed by the 1st respondent-Commissioner of Income-tax. We direct the 1st respondent to restore ex. P-4 revision to file and pass appropriate orders. Before passing final orders on Ex. P-4 revision, the assessee will be given an opportunity for being heard along with such of those documents which he intends to produce to substantiate his plea. The original petition is disposed of as above. There will be no order as to costs. After the judgment was pronounced, the counsel for the Revenue made an oral submission under article 134A(b) of the Constitution for a certificate to appeal to the Supreme Court. Inasmuch as, in our opinion, no substantial question of law of general importance which need to be settled by the Supreme Court is found to arise in this case, we decline to grant the certificate prayed for.
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1983 (8) TMI 16 - PATNA HIGH COURT
Actual Cost, Depreciation, Developement Rebate ... ... ... ... ..... the assets to the assessee . It is the actual cost of assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority, which, in my opinion, includes the consumers, and this question is answered in favour of the Revenue and against the assessee. The position, regarding development rebate is also not different, as there the calculation has to be made with reference to the actual cost. So far as the other question is concerned, which has already been stated above, I hold, on the basis of the foregoing discussion, as a necessary corollary, that the assessee company was not entitled to depreciation and development rebate on the gross cost of the new service connection and the Tribunal took the correct view of law. The question thus is answered against the assessee and in favour of the Revenue. Revenue authority is entitled to its consolidated hearing fee of Rs. 250. SUSHIL KUMAR JHA J.-I agree.
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