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Case Laws
Showing 421 to 440 of 469 Records
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2002 (7) TMI 50
Order Prejudicial To Interests Of Revenue - "1. Whether, Tribunal was right in law in setting aside the order made by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961? - 2. Whether the conclusion reached by the Appellate Tribunal in setting aside the order made by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961, is even otherwise sustainable in law?" - it is the finding of fact given by the Tribunal that the assessee has produced relevant material and offered explanations in pursuance of the notices issued under section 142(1) as well as section 143(2) of the Act and after considering the materials and explanation, the Income-tax Officer has come to a definite conclusion. The Commissioner of Income-tax did not agree with the conclusion reached by the Income-tax Officer. Section 263 of the Act does not empower him to take action on these facts to arrive at the conclusion that the order passed by the Income-tax Officer is erroneous and prejudicial to the interests of the Revenue. Since the material was there on record and the said material was considered by the Income-tax Officer and a particular view was taken, the mere fact that a different view can be taken, should not be the basis for an action under section 263 of the Act and it cannot be held to be justified.
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2002 (7) TMI 49
"Whether, on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in law in holding that the Commissioner of Income-tax had no jurisdiction to pass an order under section 263 in view of the Karnataka High Court judgment in the case of CIT v. Hindustan Aeronautics Ltd., although the point involved was not the subject-matter of appeal?" - In the present case, admittedly, the items relating to bad debts and deduction under section 80HHC of the Act were not the subject-matter of appeal before the Commissioner of income-tax (Appeals) and, therefore, the Commissioner of Income-tax was wholly within his jurisdiction to consider the same and give appropriate directions in that regard as has been done in the above case. - The question referred to us is therefore answered in the negative, i.e., against the assessee and in favour of the Revenue.
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2002 (7) TMI 48
"Whether the Tribunal is right in law in setting aside the order made by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961?" - we are of the view that there is nothing in the provisions of the Income-tax Act, 1961, particularly section 263 of the Act, or in the aforesaid pronouncement of the apex court which would require us to accept the narrow view which appealed to the Tribunal that the record must be of the assessee concerned and that the Commissioner had no power, jurisdiction and authority to take action under section 263 of the Act, in the case of the assessee on the basis of the records in the cases of other persons. - Our answer to the question is, accordingly, in the negative, i.e., in favour of the Revenue and against the assessee.
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2002 (7) TMI 47
Unexplained Expenditure - Construction Of Building - Tribunal, therefore, passed the final orders and expressed the view that even if the difference of actual cost estimated by the Departmental Valuation Officer and the cost shown by the assessee under section 69C may be assessable as unexplained expenditure as soon as the amount is debited in the profit and loss account the same is neutralised and the net result is nil addition. To neutralise the profit and loss account, the Legislature has amended section 69C and added a proviso to it with effect from April 1, 1999. - Tribunal also accepted the assessee's contention that the Departmental Valuation Officer had adopted the plinth area rate method which was an inferior method of determining the cost of construction and also did not accept the defects as pointed out by the Assessing Officer that the assessee ought to have maintained the consumption and balance of raw material either day-to-day accounts or on any regular interval of any specified period. - we are not inclined to interfere with the impugned judgment and order of the Tribunal.
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2002 (7) TMI 46
Transfer of case - The contention of counsel for the petitioners is that since the Central Circle office is at Kottayam, the files can be transferred to Kottayam. I do not know how this would help the petitioners who are putting forward the case of inconvenience on account of transfer of files when the partners/directors are residing in and around Calicut. Apparently, the transfer of all files to Calicut should suit the convenience of the partners and directors of the firm and company who are in control of the affairs of these concerns. Of course, it is for the Department to consider consolidation of all the files of the firms and companies and the partners and directors, including those who are now assessed at Calicut and send it to the appropriate station. This is a matter for consideration by the Department. Since the petitioners request for transfer of the files to Kottayam, the Chief Commissioner can consider the case of transfer of the files to Kottayam, if it suits the Department. However, I make it clear that there is no scope for interference by this court in these matters which are purely administrative in nature; except when there is allegation of mala fides or want of jurisdiction. No assessee has a vested right to have his assessment decided by any officer or at any place. It is for the head of the Department to allocate work among the officers under him subject to the Act and Rules.
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2002 (7) TMI 45
Penalty imposed under section 271B - Compulsory Audit Of Accounts - Tribunal, Jaipur, was of the view that since the auditor had not been appointed before the specified dates, as such, the accounts could not be got audited before the specified dates, even then the penalty levied by the Assessing Officer is justified. - The assessee was under the obligation to get its accounts audited by the auditor appointed by the Registrar, Co-operative Societies, Jaipur. When the auditor had not been appointed by the Registrar, Co-operative Societies, the assessee can only make request to the Registrar to appoint the auditor and repeated requests were made by the assessee. In spite of repeated requests made by the assessee to the Registrar, the auditor had not been appointed and the delay in auditing the accounts took place because the appointment of the auditor was not made by the Registrar and for that the assessee should not be punished. We are of the view that the Tribunal had committed an error in setting aside the order passed by the Commissioner of Income-tax (Appeals) by restoring the order passed by the Assessing Officer by which penalty was imposed under section 271B
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2002 (7) TMI 44
Business Loss - Breach Of Agreement - "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in allowing the assessee's claim for writing off of the sum of Rs. 52,489 and litigation expenses at Rs. 12,000?" - The admitted facts are that the advance was paid for acquiring the agricultural land to set up a factory, but when the agricultural land was not acquired, no capital asset came into existence, therefore, there is no question of allowing depreciation on such asset. If any asset is acquired and if it is a benefit of enduring nature, then, of course, the assessee cannot get deduction of the amount for acquisition of land as revenue expenditure. When land was not acquired, no capital asset has been acquired and therefore, the payment of Rs. 52,489 is to be allowed as a business loss. - We agree with the view taken by the Tribunal. No interference is called for.
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2002 (7) TMI 43
Application For Extension Of Time for filing the return- once the assessee has applied for extension of time on Form No. 6 and if at application has not been disposed of or rejected, the presumption will be that the time has been extended and if the assessee has filed the return on or before the extended time prayed for, the return shall be taken to be filed on or before the due date. In this case, when the application has been submitted for extension of time on June 28, 1985, and that has not been rejected, it shall be presumed that the time has been extended till September 30, 1985, and, in this case, admittedly, the returns are filed on August 5, 1985, therefore, it cannot be said that the returns are not filed on or before the due date. - In our view, the Tribunal has committed an error in disallowing the claim of the assessee holding that the returns are not filed on or before the due date.
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2002 (7) TMI 42
Capital Gains - "1. Whether, Tribunal was correct in holding in law that the assessee was entitled to the benefit of the provisions contained in section 54E of the Income-tax Act, 1961? - 2. Whether, Tribunal was justified in cancelling the order of the Commissioner of Income tax passed under section 263 and in holding that the order passed by the Income-tax Officer was not erroneous and prejudicial to the interests of the Revenue?" - When the intention of the Legislature is that the distribution of the assets or money on liquidation of the company to its shareholders, shall not be treated as transfer and sub-section (2) of section 46 provides that in spite of that the gain has to be taxed under the head of capital gain that is the intention of the Legislature though by creation of fiction of law we have to go by the provisions of law. For the purpose of benefit of section 54E transfer is a condition precedent and when it is not treated as a transfer the assessee is not entitled to the benefit of section 54E, and, therefore, the Commissioner of Income-tax has rightly revised the order of the Income-tax Officer under section 263 of the Act. The Tribunal has committed an error treating the amount so received from the company as transfer under the existing provisions of the Act.- We answer both the questions referred to this court in the negative, i.e., in favour of the Revenue and against the assessee.
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2002 (7) TMI 41
"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in treating the expenditure in the acquisition of software of ₹ 1,38,360 as of revenue nature?" - The facts on record are that the payment of ₹ 1,38,360 was not paid for consultancy fee to Hindustan Computers Ltd., in fact, the payment was made for out-right sale of "computer software" which is used as technique in mining operations. The finding of the Commissioner of Income-tax (Appeals) is that the acquisition of software cannot be treated to be an asset of endurable nature. If the programme is used in one mining to another mining operation why it should not be treated as a capital asset and expenditure on that is capital expenditure. - in our view, the acquisition of technical know-how is capital expenditure, therefore, the Assessing Officer has rightly treated the expenditure on acquiring the computer software as expenditure of capital nature and rightly allowed depreciation as per rules.
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2002 (7) TMI 40
"Whether, the Appellate Tribunal is right in law and facts in deleting the addition of Rs. 1,01,81,278 made by the Income-tax Officer under section 43B in respect of outstanding sales tax amount, when the resolution of the Government was passed on December 14, 1984, and the assessee had not discharged its liability on March 31, 1984, i.e., prior to the date of resolution?" Since the resolution issued by the State Government earlier was made effective from 1983, the assessee's case was covered by the said resolution and amendment made thereafter on March 24, 1988, is clarificatory in nature. We are, therefore, of the view that the Tribunal was right in deleting the addition made by the Income-tax Officer invoking the provision of section 43B in respect of paid sales tax liability. – We answer this question in the affirmative, i.e., in favour of the assessee and against the Revenue
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2002 (7) TMI 39
Income from Undisclosed Sources - "1. Whether the Appellate Tribunal can make out a new case under section 68 of the Act treating credit balance in the account of the appellant and making additions accordingly without there being any ground in the appeal? - 2. Whether the Appellate Tribunal was justified in holding purchase as bogus on the basis of incomplete enquiry report in which the addresses of the purchasers were found to be correct and only because they were not available due to their nomadic characteristic no further efforts were made by the enquiry officer to trace the sellers and enquire about the fact of purchase? - 3. Whether the order of addition passed by respondent No. 3 is vitiated because the principles of natural justice were not followed?" - we find no justification to interfere in the order of the Tribunal. Consequently, the appeal stands dismissed.
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2002 (7) TMI 38
Condoning delay under section 119(2)(b) - Assessing Officer assessed income at Rs. 11,77,033 on the basis that the delay in giving option under section 11(1) was not condoned by the Commissioner of Income-tax, Jamnagar, and, therefore, the assessee's claim under section 11(1) for the aforesaid amount was to be disallowed and was accordingly disallowed. - petitioner, has submitted that the impugned order is illegal and passed in violation of the principles of natural justice as the petitioner-Institute was not given any opportunity of personal hearing. - In fact, if the Commissioner had given an opportunity of personal hearing to the petitioner, all the relevant facts could have been brought to his notice and the decision could have been taken in accordance with law. For the reasons aforesaid, we quash and set aside the decision of the Commissioner of Income-taxas illegal and direct the said authority to decide the matter afresh in accordance with law after giving the petitioner's representative an opportunity of personal hearing.
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2002 (7) TMI 37
Capital Gains - "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no actual transfer, there being no document in support of the alleged transfer of immovable property to Hindustan Safety Glass Works Ltd., Jaipur, as a going concern? - Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no justification for charging capital gains as well as profit under section 41(2) of the Income-tax Act, 1961?" - we answer question No. 1 in the negative, i.e., in favour of the Revenue and against the assessee. However, the Tribunal shall consider the issue whether the agreement to sale constitutes a transfer, in the light of the guidelines laid down by their Lordships in the case of CIT v. Podar Cement Pvt. Ltd.. Question No. 2 is consequential to question No. 1, therefore, we leave it to the Tribunal to decide the issue in question No. 2 also, after taking into account the decision of their Lordships in the case of CIT v. Podar Cement Pvt. Ltd.
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2002 (7) TMI 36
"Whether, Tribunal was justified in holding that the drilling machines used by the assessee should be treated as earth-moving machinery, falling under entry (4) of item No. III-D of Part I of Appendix I to the Income-tax Rules, 1962, and, therefore, entitled to depreciation at 30 per cent.?" - Learned counsel has placed reliance on a reported decision of this court, dated May 11, 2002, rendered in CIT v. Bhola Ram, wherein this court has held that rig and compressors mounted on a lorry used for drilling do not fall in the category of heavy machinery or motor lorry under item No. III(ii)D(4) of Part I to the Income-tax Rules, 1962. The court further held that in such circumstances, the claim of depreciation at the special rate of 30 per cent. cannot be allowed in respect of such rig and compressors. In our view, the instant case is squarely covered by the judgment of this court referred to above. - Consequently, this appeal is allowed and the order of the Income-tax Appellate Tribunal, and that of the Commissioner of Income-tax (Appeals) are set aside.
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2002 (7) TMI 35
This revision application is directed against the order dated May 4, 2002, passed by the Civil Judge (Senior Division), Aska, in T.S. No. 65 of 1997 rejecting the petition filed under Order 13, rule 10 of the Code of Civil Procedure (in short "C.P.C."), by defendant No. 1, the petitioner herein, with a prayer to call for certain documents from the office - In the case at hand, the income-tax authorities have not claimed privilege. It is the court on its own which has come to a finding that the documents called for by one of the parties cannot be summoned from the income-tax authorities because of the restrictions imposed under sections 123 and 124 of the Evidence Act. In view of the judicial pronouncements on the subject and discussions made above, the trial court has fallen into error by terming the documents sought to be called for as privileged documents. The order passed by the trial court is totally wrong and is accordingly set aside. However, before summoning the documents in question the trial court should at first satisfy itself that the documents are required for the purpose of determining the issue raised in the suit.
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2002 (7) TMI 34
"Whether the Appellate Tribunal is right in law and on facts in holding that donation received by the assessee-trust of Rs. 1,85,064 which was not utilised for the object of the trust, was not income of the trust?" - in the present reference the assessee is claiming the benefit of section 11 on the ground that the contribution received by the assessee-trust was towards a specific purpose for construction of wadi and hence, it would not be treated as the income of the trust. - In the above view of the matter, we are of the view that the Tribunal his not committed any error in holding that the donation received by the assessee-trust of Rs. 1,85,064 which was not utilised for the object of the trust was not income of the trust. We, therefore, answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the Revenue.
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2002 (7) TMI 33
The competent authority, notified by the Central Government under the provisions of Chapter XX-A of the Income-tax Act, 1961, initiated proceedings for acquisition of the property and the publication of notice in the Official Gazette was made under section 269D(1) of the Act, dated January 4, 1996. The competent authority was of the opinion, that the value of the property was understated and, therefore, he initiated the proceedings for the acquisition of the property. The competent authority, after hearing the parties, passed separate orders acquiring the properties covered in the instrument of transfer. - there was no evidence to show that the extra consideration was passed. In the absence of any material before the competent authority to form a reasonable belief that there was an ulterior motive of tax evasion or concealment of income-tax due to untrue statement of the apparent consideration in the instrument of transfer, we hold that the order of the Appellate Tribunal quashing the acquisition proceedings does not call for interference. Accordingly, we dismiss the appeal preferred by the Revenue, confirming the orders of the Appellate Tribunal. - In the result, the appeal filed by the Revenue fails
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2002 (7) TMI 32
"Whether the Tribunal was right in law and on facts in deleting the addition of Rs. 1,89,229 on account of 'export cash assistance' treating the same as a capital receipt?" - Clause (iiib) of section 28 inserted with retrospective effect from April 1, 1967 - In view of the aforesaid legislative amendment with retrospective effect, there can be no scope for any controversy and it has to be held that the export cash assistance received by the assessee was a revenue receipt. - In view of the above discussion, our answer to the question is in the negative, i.e., in favour of the Revenue and against the assessee.
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2002 (7) TMI 31
"Whether the Tribunal is right in law and on facts in holding that the assessee is entitled to exemption under section 5(1)(xxxii) of the Wealth-tax Act, 1957, in respect of her capital interest in the firm of Raja Textile Mill?" - our answer to the question referred to us is in the negative, i.e., in favour of the Revenue and against the assessee.
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