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2003 (5) TMI 48 - PUNJAB AND HARYANA HIGH COURT
The assessee has filed this appeal under section 260A, against the order of the Income-tax Appellate Tribunal whereby its appeal against the order of the Commissioner of Income-tax, Rohtak, has been dismissed - Once the assessment order had been passed with the approval of the Commissioner of Income-tax, we are afraid that the successor Commissioner of Income-tax could not possibly say that the matter had been decided without application of mind by the Assessing Officer. Consequently, the appeal is allowed, the findings of the Tribunal are reversed and the order of the Commissioner, set aside.
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2003 (5) TMI 47 - ALLAHABAD HIGH COURT
"Whether, Tribunal was justified in holding that the reopening of the assessment under section 147(b) was bad in law?" - "Whether, Tribunal was justified in holding that the reopening of the assessment under section 147(b) of the Income-tax Act, 1961, was valid?" - the first question is answered in the negative, i.e., against the assessee and in favour of the Revenue and the second question, is answered in the affirmative, in favour of the Revenue and against the assessee.
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2003 (5) TMI 46 - CALCUTTA HIGH COURT
The assessee contended that the undertaking having been sold at a slump price and no amount being attributable to depreciable and non-depreciable assets, distinctly, the decision of the learned Tribunal was a mistake apparent from the record that required to be corrected. This application under section 254(2) having been dismissed, the present appeal has been filed under section 260A - whether this slump price would be subjected to tax under the head "Income from business" having regard to section 41(2) We hold that the income on account of slump price in this case is subject to chargeability under the head "Capital gains". - The matter is remitted to the learned Tribunal to determine the question afresh in the light of the observations made in this decision for deciding the amount of capital gains chargeable on the slump price in accordance with law, if necessary.
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2003 (5) TMI 45 - MADHYA PRADESH HIGH COURT
"Whether the Tribunal is justified in not accepting the claim of the Revenue that there should have been deduction of tax at source under section 195 of the Income-tax Act, 1961, in regard to the remittance of 25,000 US $ to PCI Kingwood, USA, treating the said amount as royalty?" - Solely because an entry is of the commercial nature would not make it a royalty. - We are not inclined to accept the submission of Mr. Arya that every information if it concerns the industries or commercial venture would be a royalty. That would be tantamount to stating the law quite broadly. That does not seem to be the purpose of the statute or that of the treaty.
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2003 (5) TMI 44 - CALCUTTA HIGH COURT
"1. Whether, Tribunal was justified in holding that payments in sums exceeding Rs. 2,500 amounting to Rs. 4,83,000 made to Hanuman Sugar and Industries Ltd., made in respect of delivery of cotton yam are hit by the provisions of sub-section (3) of section 40A of the Income-tax Act, and that, therefore, such payments should be added to the total income in terms of the aforesaid section? - 2. Whether, on the facts and in the circumstances of the case and on a proper interpretation of rule 6DD of the Income-tax Rules, 1962, read with Circular No. 220 dated 31 May, 1997, issued by the CBDT, the Tribunal was justified in upholding the disallowance of Rs. 4,83,000, in terms of sub-section (3) of section 40A of the Income-tax Act, 1961?" Thus, the two questions raised on behalf of the assessee are answered in the negative and in favour of the assessee.
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2003 (5) TMI 43 - ALLAHABAD HIGH COURT
"Whether, Tribunal was justified in law in sustaining levy of interest under section 216 of the Income-tax Act?" - before this court, Shri Gulati could not furnish any explanation for the difference of Rs. 48 lakhs in the first return and in the revised return, and thus, the assessee miserably failed to furnish any satisfactory explanation for this unexpected increase in the income to the extent of Rs. 48 lakhs, and that being a question of fact recorded by the Tribunal in the absence of any satisfactory explanation by the assessee, we are of the view that the Tribunal has rightly recorded the said finding setting aside the order passed by the appellate authority. - we answer the question in the affirmative, i.e., in favour of the Revenue and against the assessee.
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2003 (5) TMI 42 - CALCUTTA HIGH COURT
Application for review of an order - We are of the view that there is no error in fact or law in this case. - we do not find any ingredient in the present case in order to admit the application for review - The review application is, therefore, dismissed.
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2003 (5) TMI 41 - CALCUTTA HIGH COURT
Petitioner had challenged the jurisdiction of the Assistant Commissioner of Income-tax, Investigation, Circle-4(1), Calcutta, to issue the notice for rectification of the assessment relating to the assessment year 1991-92 under section 154 - in our view, the notice seems to be illegal since the grounds do not conform to the ingredients of section 154. - As such we declare the notice impugned illegal, invalid bad in law and without jurisdiction. - In the result, the appeal succeeds
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2003 (5) TMI 40 - KARNATAKA HIGH COURT
Kar Vivad Samadhan Scheme - appellant in order to evaluate the benefits of the Scheme filed a declaration under section 88 of the Scheme on December 3. 1998, before the Commissioner of Income-tax, Karnataka-II Bangalore, the first respondent herein who is the designated authority under the Scheme. The first respondent passed an order in Form No. 2A on December 22, 1998, under section 90(1) of the Scheme and determined the tax and the interest payable by the appellant - we do not find any merit in this writ appeal. It is accordingly dismissed
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2003 (5) TMI 39 - ALLAHABAD HIGH COURT
Held that unless the partnership firm had carried on business in accordance with terms of an instrument of partnership which was operative during the accounting year, it cannot claim the benefit of registration as it could not be registered in respect of the following assessment year. The Commissioner of Income-tax has set aside the order of registration dated September 2, 1977, for the assessment year 1976-77 on the ground that there was no evidence as to when the firm came into existence prior to the assessment year 1975-76. More so the return filed on behalf of the firm stood superseded by the return filed by Sri J. P. Bhatia in individual capacity. - Firm was not entitled to registration in the assessment year 1976-77
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2003 (5) TMI 38 - GUJARAT HIGH COURT
Gift Tax Act, 1958 - "Whether in law on facts, the assessee is liable to pay tax under the Gift-tax Act, 1958, on account of the variations made on December 31, 1970, in the settlement deed of 1961 ?"
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2003 (5) TMI 37 - KERALA HIGH COURT
Statutory remedy - notices issued under section 148 income escaping assessment under section 147 read with section 143(3) - the petitioner has chosen to approach this court directly by passing the statutory authorities - The hierarchy of authorities provided under the Income-tax Act will give effective remedy to the petitioner. The powers of the appellate authority are coterminous with those of the original authority Thus, the writ petition was not maintainable against the notices issued under section 148 based on the belief that certain income has escaped assessment - In view of the above position, there is no justification for this court to interfere with the impugned orders in exercise of its power under article 226 of the Constitution of India - Accordingly, the original petition is dismissed in limine without prejudice to the right of the petitioner to invoke the statutory remedy available to it.
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2003 (5) TMI 36 - PUNJAB HIGH COURT
Present writ application has been filed by the petitioner challenging the order passed by the Commissioner of Income-tax, by which the application filed by him for renewal of exemption under section 80G(5), has been rejected after coming to a definite finding that the institution has made very low expenses out of the total donation received under section 80G(5) - this court does not find any reason to interfere with the order in exercise of writ jurisdiction. Accordingly, this writ application is dismissed
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2003 (5) TMI 35 - PUNJAB AND HARYANA HIGH COURT
Grounds of appeal - failure of the Department to file grounds of appeal dismissal of appeal Tribunal was not right in observing that the grounds of appeal filed in September, 1998, were not acceptable because the same had not been approved by the Commissioner of Income-tax. Rule 9(1) does contain the requirement of filing of the specified documents along with the memorandum of appeal, but sub-rule (3) thereof gives ample discretion to the Tribunal to accept the memorandum of appeal even though it may not be accompanied by any of the documents referred to in sub-rule (1). These provisions are procedural in character. Therefore, the failure of the Department to file grounds of appeal on May 6, 1994, should not have been made a ground for dismissing the appeal in limine, more so because in response to the show cause notice issued by the Tribunal, the grounds of appeal duly signed by the Assistant Commissioner of Income-tax (Investigation Circle-II), Chandigarh, had been filed - We are further of the view that the explanation given by the Departmental Representative for non-filing of the grounds of appeal on May 6, 1994, was quite plausible and ought to have been accepted
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2003 (5) TMI 34 - PUNJAB AND HARYANA HIGH COURT
ITO rejected the explanation for delay in filing the return for the purpose of waiver of interest when the same had been accepted for the purpose of dropping the penalty - petitioner, has submitted that the period of delay in filing the return is the same for the purposes of interest as well as penalty. The Income-tax Officer had the power under rule 117A(5) to waive the interest payable under section 139. The explanation of the petitioner having been accepted for the purposes of imposition of penalty under section 271(1)(a) could not have been disregarded while deciding the question of waiver of interest with regard to late filing of the return - The respondent could not have rejected the explanation for delay in filing the return for the purpose of waiver of interest when the same had been accepted for the purpose of dropping the penalty proceedings
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2003 (5) TMI 33 - DELHI HIGH COURT
Capital gain arising on transfer of agricultural land taxability - "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the provisions of section 2(14)(iii)(a) of the Income-tax Act, 1961, are not applicable to the rural area of Union Territory of Delhi?" - whether the lands in rural areas of Union Territory of Delhi constitute capital asset within the meaning of section 2(14)(iii)(a) of the Act and exigible to capital gain tax on its transfer - held that section 2(14)(iii)(a) is applicable to rural areas of Union Territory of Delhi and capital gain arising on transfer of such agricultural land is chargeable to tax Question is answered in favaour of Revenue
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2003 (5) TMI 32 - PUNJAB AND HARYANA HIGH COURT
During the course of search under section 132 of the Income-tax Act, 1961, certain incriminating material had been recovered from the residential and business premises of the assessee and its partners and the assessment has been framed on the basis of such material. The assessee was also found to have purchased substantial quantity of sarson outside the books of account. Since the books of account maintained by the assessee were not reliable, the assessment had to be made in the light of the material recovered during the search. In this process, some element of estimate was unavoidable Thus we cannot say that assessment order is legally not sustainable as it is based on conjectures and surmises and presumptions - In the appellate jurisdiction under section 260A, this court normally does not interfere by substituting its own estimate in place of the one of the Tribunal unless it is shown that the estimate of the Tribunal could not possibly be reached.
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2003 (5) TMI 31 - PUNJAB AND HARYANA HIGH COURT
Investment in the construction of a commercial complex - cost of construction Tribunal rejecting the estimate of the cost of construction made by the Assessing Officer Tribunal has given reasons for rejecting the same and accepting the report of the registered valuer It is apparent that even the Assessing Officer has not accepted the estimate of the District Valuation Officer - Thus Tribunal was right in preferring the report of the registered valuer, which supported the cost of construction as declared' by the assessee - no substantial question of law arises out of the order of the Tribunal - The findings of the Tribunal are pure findings of fact and suffer from no legal or factual infirmity. We, therefore, find no merit in this appeal and accordingly dismiss the same.
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2003 (5) TMI 30 - RAJASTHAN HIGH COURT
Once the marketing expenditures are excluded from the purview of expenses on advertisement, publicity and sales promotion and such expenses do not fall in any other categories of expenditure detailed in sub-section (3B) of section 37, the question of invoking any part of section 37(3A), read with sub-section (3B) cannot arise - it is obvious that on account of marketing overheads or salary component of marketing expenditure is not an expenditure governed by sub-section (3A) and sub-section (3B) of section 37. Such expenses cannot be disallowed by referring to the inapplicability of Explanation (b) on the ground that the employees to whom salaries have been paid were not the employees of the assessee. The entire amount shared by the assessee as marketing overheads for running its business was one single indivisible expense incurred wholly and exclusively for the purpose of its business, hence allowable u/s 37
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2003 (5) TMI 29 - ALLAHABAD HIGH COURT
"Whether the hon'ble Tribunal was correct in law in its finding that rule 1BB of the Wealth-tax Rules, 1957, has not (sic) been made effective from April 1,1979, was to apply even in respect of pending assessments for orders prior to the assessment year 1979-80?" - held that rule 1BB of the Rules 1957, partakes of the character of a rule of evidence it deems the market value to be the one arrived at on the application of a particular method of valuation which is also one of the recognized and accepted methods. The rule is procedural and not substantive and is applicable to all proceedings pending on April 1,1979,when the rule came into force - In view of the above, the reference is answered in the affirmative against the Department in favour of the assessee.
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