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Case Laws
Showing 201 to 220 of 284 Records
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1991 (8) TMI 84 - HIGH COURT OF JUDICATURE AT BOMBAY
Refund - Department not to retain excess duty paid under mistake of law ... ... ... ... ..... n is correct and deserves acceptance. By catena of decisions of this Court it is settled that the Department cannot retain the excess duty recovered without any authority of law. It is well-settled that for realisation of excess duty paid under mistake of law the period of limitation set out under Section 11B is not attracted while granting relief in writ jurisdiction. In view of several decisions of this Court the relief sought by the petitioners cannot be resisted. 5. Accordingly, petition succeeds and the impugned order passed by the Assistant Collector on January 28, 1984 is set aside and the respondents are directed to grant the amount of refund as claimed by five refund applications, after verification within a period of four weeks from to-day. In case the amount is not paid within the stipulated period, then the Department is required to refund the amount with interest at the rate of 15 per annum from to-day till the date of refund. There will be no order as to costs.
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1991 (8) TMI 83 - SUPREME COURT
INTERPRETATION OF TAXING STATUTES — EXEMPTION PROVISION — STRICT AND LIBERAL CONSTRUCTIONS TO BE INVOKED AT DIFFERENT STAGES — CONDITIONS FOR EXEMPTIONS — DIFFERENCE BETWEEN MANDATORY AND MERELY PROCEDURAL PROVISIONS.
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1991 (8) TMI 82 - SUPREME COURT
Whether the appellant is entitled to the refund of customs duty on account of the compensation given by the seller to the appellant on supply of goods?
Held that:- From the fact of payment of compensation or reimbursement by the sellers it cannot be taken that at the time and place of importation the goods imported was worth only the amount stated in the invoice less the compensation paid. In other words, there is no proof that the real value of the goods at the time and place of importation was less than what had been entered in the invoice and stated in the Bill of Entry. So long as examination of the goods had not been made or its value re-assessed to the satisfaction of the assessing authorities, it cannot be said that duty was charged not on the real value of the goods but on a higher amount. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained. Appeal dismissed.
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1991 (8) TMI 81 - SC ORDER
Business Expenditure, Sugar Manufacturing Company ... ... ... ... ..... f 1979 By the orders of the High Court which are under appeal in these matters, the High Court has followed its earlier decision in R. C. No. 36 of 1976 (see 1979 116 ITR 255 (AP). By our order of even date we have dismissed Civil Appeal No. 166 of 1979 arising out of the said judgment. These appeals have also to be consequently dismissed. We order accordingly. There will be no order as to costs. Special Leave Petition (C) No. 5753-54 of 1980. These special leave petitions have to be dismissed in view of our order in Civil Appeal No. 166 of 1979. We order accordingly. There will be no order as to costs. Appeals and petitions dismissed.
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1991 (8) TMI 80 - ORISSA HIGH COURT
Assessment, Limitation ... ... ... ... ..... ction of the Income-tax Officer, the conclusion of the Tribunal that the assessment is barred by limitation is justified on the materials on record. Thus analysed, our conclusion is that (i) the Income-tax Officer is to be satisfied about concealment during the normal period of limitation of two years or 180 days added, as the case may be (ii) Even after satisfaction, proceedings for penalty may be initiated on a later date which would not affect the assessment order in case satisfaction of concealment is much earlier and within the normal period of limitation. In view of our aforesaid discussions, the answer to the question referred to us is that, on the facts and in the circumstances of the case, the Tribunal was justified in holding that assessment made by the Income-tax Officer on October 13, 1980, for the assessment of 1977-78 was barred by limitation. The answer is, accordingly, given against the Department. There shall be no order as to costs. S. K. MOHANTY J.-I agree.
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1991 (8) TMI 79 - ORISSA HIGH COURT
Registered Firm ... ... ... ... ..... rs. They can take the benefit of sections 70, 71, 72, 73, 74 and 74A and carry forward the loss. They themselves exclude a firm from carrying forward the loss to the subsequent years. It is true that the Madras High Court, in the decision relied upon by the Tribunal as well as in another decision reported in CIT V. Madras Wire Products 1980 123 ITR 722, held that the principles of sections 70 to 74A are also applicable to a firm. In view of the clear language in section 75 of the Act, with great respect to the view of the Madras High Court, we are not able to accept such a view. In view of our aforesaid discussions, the question is to be answered as follows A registered firm which has sustained loss in one year can set off its loss against the income of that year and cannot carry forward unabsorbed loss to the subsequent years to get the benefit. In the result, the question is answered in favour of the Revenue. There shall be no order as to costs. S. K. MOHANTY J. - I agree.
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1991 (8) TMI 78 - DELHI HIGH COURT
Authorisation, Search And Seizure ... ... ... ... ..... of learned counsel for the petitioner that this device was resorted to solely with a view to circumvent th provisions of section 132(8A). The first revocation was effected on April 9, 1991, only about one or two days before the expiry of 60 days. Similarly, the second revocation of June 6, 1991, was also effected only about one or two days before the expiry of 60 days from April 9, 1991. We are, therefore, of the opinion that the approval of the Commissioner of Income-tax not having been obtained under section 132(8A), the continuation of the restraint order under section 132(3), even if it could be validly passed, was not warranted. For the aforesaid reasons, this writ petition is partly allowed. While upholding the action of the respondents in issuing the authorisation under section 132(1) and conducting the search, we quash the orders passed under section 132(3). The respondents are accordingly directed to release the aforesaid goods, articles or things after three weeks.
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1991 (8) TMI 77 - DELHI HIGH COURT
Failure To Disclose Material Facts, Reassessment, Shares In Private Company, Wealth Tax ... ... ... ... ..... ice under section 147(a). A Division Bench of this court held that clause (a) of section 147 was not attracted because it was not the duty of the assessee to inform the Income-tax Officer that the property which had been sold at a price might not be commensurate with the market price on the date of the sale. This court, however, held that the impugned notice could be upheld under the provisions of clause (b) of section 147. The facts in the present case are pari materia similar to the case of Ganga Saran 1981 130 ITR 212 (Delhi) and, applying the aforesaid ratio, we have no hesitation in coming to the conclusion that primary and material facts were disclosed by the petitioner in the present case and, therefore, notice under section 17(1)(a) could not be validly issued. For the aforesaid reasons, the writ petition is allowed and the impugned notice dated February 25, 1984, issued under section 17(1)(a) is quashed. There will, however, be no order as to costs. Petition allowed.
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1991 (8) TMI 76 - ALLAHABAD HIGH COURT
Question Of Law ... ... ... ... ..... ct to which a notice under section 6 had been issued to the appellant is one unit and it contains land and the construction made thereon. The Competent Authority had bifurcated this unit into two parts, namely, the land underneath the house and the construction thereon. Such bifurcation is erroneous and impractical. The order of the Competent Authority, as it stands, is also inexecutable. If this order, as it stands, were to be executed in a strict sense, then the Competent Authority shall have to remove the malba of the house for disposal which he may not find economical to do. The fact of the matter is that the house consisting of land and construction is to be treated as one unit and it is either to be forfeited as such or not. The impugned order cannot be allowed to stand for this reason also. In the result, the appeal is allowed and the order of the Competent Authority set aside. The Competent Authority will redecide the case in the light of the observations made above.
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1991 (8) TMI 75 - GUJARAT HIGH COURT
Annual Value, Income From House Property ... ... ... ... ..... annual letting value of the property occupied by the assessee has been estimated at Rs. 2,500 on the basis of the cost of the property and the return therefrom. In other words, Rs. 2,500 per annum is estimated to be the rent at which the property was expected to be let. Once this position is clear, there was no question of increasing this rent which, if the assessee had let out the premises, would be the standard rent. However, under no circumstances, could the market value of the property disclosed in the wealth-tax return of the assessee for the assessment under reference have been adopted as the basis for working out the annual letting value of the property. There is no warrant for adopting such a basis. We, therefore, fully agree with the view taken by the Tribunal. In the result, we answer questions Nos. 1 and 2 in the negative and against the Revenue, and question No. 3 in the affirmative and against the Revenue. Reference answered accordingly with no order as to costs.
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1991 (8) TMI 74 - ORISSA HIGH COURT
Appeal Against Assessment, Appeals, Revision ... ... ... ... ..... Approval of the draft assessment order of the Assistant Commissioner is not an assessment order which is to be passed by the Income-tax Officer finally after receipt of approval. The Commissioner has power to revise the order of the Income-tax Officer and, while so revising, may also examine the correctness of approval. But, where an appeal has been filed against the order of assessment, such order merges with the appellate order and there is no scope for the Commissioner to revise the order of assessment made by the Income-tax Officer. The Tribunal is correct in its finding in this respect. The doctrine of merger as laid down by the Supreme Court in S. S. Rathore v. State of Madhya Pradesh, 1989 75 FJR 425 AIR 1990 SC 10, overruling the earlier decision of the Supreme Court in Sita Ram Goel v. Municipal Board, Kanpur 1958 AIR 1958 SC 1036, on this question supports our view. In the result, the questions are answered against the Revenue. No costs. S. K. MOHANTY J. -I agree.
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1991 (8) TMI 73 - ORISSA HIGH COURT
Business Expenditure, Disallowance, Perquisite ... ... ... ... ..... d by equitable considerations. While interpreting a taxing statute, equity has no place. The clear language of the statute is to be given effect notwithstanding hardship. The legislative intention is also clear when Explanation 2 to section 40A(5)(c) is taken note of where section 17 is made applicable subject to modification. Hence, section 17, so far as it relates to perquisites which cover perquisites of motor vehicles has no application to section 40A(5). Since rule 3 is made in respect of section 17, there is no scope to apply the same while computing the income in respect of business or profession since it is only applicable to computation of income in respect of salary Accordingly, the submission of Mr. Mohanti on the basis of the decision of the Calcutta High Court and the Punjab and Haryana High Court has no force. In view of our above discussion, both the questions are answered in favour of the Revenue and against the assessee. No costs. S. K. MOHANTY J. - I agree.
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1991 (8) TMI 72 - PUNJAB AND HARYANA HIGH COURT
Appeal To Tribunal, Return ... ... ... ... ..... ecessary for the assessee to state all the causes in its explanation. The absence of one or more causes in the explanation would not mean that such cause did not exist at all. It cannot be inferred that since the assessee did not take up the plea that he was under a bona fide belief that since no communication rejecting the application for extension had been received, the same stood granted, this ground did not exist at all or in any case that such a cause could not be taken into consideration by the Tribunal specially in view of the law laid down by this court in Karam Singh s case 1977 110 ITR 726 and Roshan Lal Kuthiala s case 1975 100 ITR 329 (P and H). Question No. 3 is accordingly answered in the affirmative, i.e., in favour of the assessee and against the Revenue. Question No. 4 Question No. 4 is essentially a question of fact. In any case, in view of what has been held on questions Nos. 1, 2 and 3, this question does not survive for adjudication. No order as to costs.
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1991 (8) TMI 71 - KARNATAKA HIGH COURT
Assessment, HUF, Wealth Tax ... ... ... ... ..... ntities referred to in section 3 but the question, here, is, can it be said that the Hindu undivided family dies as a result of the death of one coparcener out of two, leaving behind only one member of the family and can it be said that such a surviving member is the legal representative of the deceased Hindu undivided family ? To the extent of his individual interest, the sole surviving coparcener cannot be the legal representative he is the legal representative of the share of the deceased coparcener but here, the Hindu undivided family simply vanished from existence as a legal entity. The term dies is normally referable to the expiration of the life of a living person, animal or a plant. In the absence of any statutory fiction, the meaning of the said word cannot be extended to convey a meaning which is not normally attributed to it. Consequently, the question referred to us has to be answered in the affirmative and against the Revenue. References are answered accordingly.
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1991 (8) TMI 70 - KARNATAKA HIGH COURT
Business Expenditure, Remuneration ... ... ... ... ..... aside the impugned direction of the learned single judge. There shall be no order as to costs. After we pronounced judgment, Mr. Srinivasan, learned counsel for the appellant in W. A. No. 1318 of 1991, prays for leave to appeal to the Supreme Court. As, in our opinion, this case involves substantial questions of law of general importance to be decided by the Supreme Court, we grant leave. Pending writ appeals, auction had taken place and the applicants in I. A. II have come to purchase the property. The purchasers have deposited a sum of Rs. 47,01,000 as earnest money. The auction has not been confirmed because of the interim stay granted by this court. Now that we have dismissed W. A. No. 1318 of 1991 and allowed W. A. No. 1335 of 1991, we do not think that the stay should continue. It is open to the Revenue to take such further action as may be warranted pursuant to this order. However, we make it clear that it shall be subject to the ultimate decision of the Supreme Court.
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1991 (8) TMI 69 - GUJARAT HIGH COURT
Depreciation, Extra Shift Depreciation Allowance ... ... ... ... ..... ere is no dispute that it had worked double shift for the whole year. In view of the decision of the Board referred to above, the assessee would be entitled to double shift allowance in respect of the new plant. It must, therefore, be held that the Tribunal was right in setting aside the order of the Commissioner on merits and restoring the order of the Income-tax Officer. In view of the decision of the Board, it must be held that the assessee is entitled to extra shift allowance as claimed by it and allowed by the Income-tax Officer. Question No. (2) must, therefore, be answered in the affirmative and against the Revenue. In the view which we are taking, it is not necessary to answer questions Nos. (1) and (3). So far as question No. (4) is concerned, without answering question No. (3), it has to be answered in the affirmative and against the Revenue in view of the decision of the Board, referred to above. Reference shall stand answered accordingly with no order as to costs.
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1991 (8) TMI 68 - MADHYA PRADESH HIGH COURT
Interest On Refund, Refund ... ... ... ... ..... nished, the amount had been paid to the petitioner. On these facts, the interest, if any, earned on the amount of Rs. 1,60,000 has necessarily to be paid to the petitioner on the same conditions on which the amount of Rs. 1,60,000 has been paid to him, i.e., on furnishing a bank guarantee for the amount of interest as well. It was argued before me that a revision does not lie against this order. A M. C. C. should have been filed. Without entering into this controversy, find that the learned Additional District Judge failed to exercise his jurisdiction in this matter. Once the High Court has given a direction that the amount of Rs. 1,60,000 be released to the petitioner on furnishing a bank guarantee, the necessary corollary is that the interest earned on the amount should also follow the principal and the amount of interest may be paid to the petitioner on furnishing a bank guarantee in the like amount to the satisfaction of the court. The revision is disposed of accordingly.
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1991 (8) TMI 67 - GUJARAT HIGH COURT
Depreciation On Scientific Research Assets, Scientific Research ... ... ... ... ..... rdingly, with no order as to costs. At this stage, Mr. K. H. Kaji, learned counsel for the assessee, prays that, so far as question No. 1 is concerned, this case may be certified as fit one for appeal to the Supreme Court under section 261 of the Act. As pointed out above, question No. 1 has been answered against the assessee following the decision of the Supreme Court and the decisions of this court in income-tax references referred to above. We have, for the reasons recorded in detail in Income-tax Reference No. 35 of 1980 (see 1992 194 ITR 497 (Guj)), answered the question against the assessee following the decision of the Supreme Court in the case of CIT v. Gold Co. Ltd. 1970 78 ITR 16. Since, in our opinion, the question is directly covered by the decision of the Supreme Court, we do not see any reason or justification to certify this case, so far as question No. 1 is concerned, as a fit case for appeal to the Supreme Court. We, therefore, reject the prayer of Mr. Kazi.
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1991 (8) TMI 66 - GUJARAT HIGH COURT
Capital Gains, Shares ... ... ... ... ..... ully considered the said decision of the Supreme Court and we have no hesitation in reaffirming the view which was taken by this court in the assessee s own case for the assessment year 1969-70 (I. T. Rs. Nos. 21 and 22 of 1978). In view of the clear pronouncement of the Supreme Court, we do not consider it necessary to refer to other decisions which were cited at the Bar. In the result, we answer the question which is referred to us for our opinion in the affirmative and against the assessee. Reference answered accordingly with no order as to costs. Mr. K. H. Kaji, learned counsel for the assessee, prays that this case may be certified to be a fit case for appeal to the Supreme Court under section 261 of the Act. Since, in our opinion, the question which has been referred to us is directly covered by the decision of the Supreme Court, referred to above, we do not consider this case to be a fit one for appeal to the Supreme Court. We, therefore, reject the prayer of Mr. Kaji.
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1991 (8) TMI 65 - GUJARAT HIGH COURT
New Industrial Undertaking, Special Deduction ... ... ... ... ..... earlier years. The only question is whether the assessee is entitled to set off the deficiency in the year under reference, i.e., the assessment year 1972-73. There is no dispute that the year under reference is the sixth year from the end of the initial assessment year. It will be seen that, under the proviso to sub-section (3) of section 80J, deficiency or any part thereof cannot be carried forward beyond the seventh assessment year as reckoned from the end of the initial assessment year. The assessment year under reference being the sixth year, the assessee is entitled to set off the deficiency. In the facts and circumstances of the case and the clear provisions of sub-section (3) of section 80J, we do not see any reason or justification to differ from the view taken by the Tribunal. In the result, we answer both the parts of the question referred to us, for our opinion, in the affirmative and against the Revenue. Reference answered accordingly with no order as to costs.
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