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Showing 61 to 80 of 98 Records
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1978 (5) TMI 38 - ALLAHABAD HIGH COURT
Appeal and revision - Stay applications - Whether speaking orders necessary - Refusal to grant stay
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1978 (5) TMI 37 - CALCUTTA HIGH COURT
Agricultural Income Tax, Attributable To, Business Income, Investment Company ... ... ... ... ..... , the surplus as a result of such dealing in shares may be treated as revenue receipt, vide cases of Sardar Indra Singh and Sons v. Commissioner of Income-tax 1953 24 ITR 415 (SC) and Californian Copper Syndicate v. Harris 1904 5 TC 159. But it is also settled law that profits realised on a change of investment simpliciter from one type of share to another or arising on mere realisation of investment in shares may not be treated as revenue receipts and hence taxable. The matter in the instant case has been concluded by the specific finding of the Tribunal that what was done was not in the course of the company s business. The only other fact on which the revenue can rely is that the company concerned is an investment company. If we accept the contentions of Mr. Pal we have to hold that any dealing in shares by an investment company for whatever purpose is a transaction in the nature of its business and all surplus arising therefrom are revenue receipts. This we do not accept.
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1978 (5) TMI 36 - KARNATAKA HIGH COURT
Income Tax Act, Profits Chargeable To Tax ... ... ... ... ..... cturing Co. Ltd. v. State of Bombay, AIR 1958 SC 328, even though there is no reference to the above passage. In para 23 of that decision the Supreme Court has observed as follows 23. It has been already mentioned that when a debt becomes time barred, it does not become extinguished but only unenforceable in a court of law. It is not, therefore, correct to hold that there was cessation of the liability of the assessee in respect of the said amount of Rs. 4,600 by reason of the law of limitation. The Tribunal was in error in treating the said sum as taxable under section 41(1) of the Act. Our view receives support from the decisions of the Bombay and the Allahabad High Courts in Kohinoor Mills Co. Ltd. v. Commissioner of Income-tax 1963 49 ITR 578 and Bhagwat Prasad and Co. v. Commissioner of Income-tax 1975 99 ITR 111. The question referred to us is, therefore, answered in the negative and in favour of the assessee. The assessee is entitled to costs. Advocate s fee, Rs. 250.
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1978 (5) TMI 35 - DELHI HIGH COURT
Derived From Export, Export Business ... ... ... ... ..... out the real intention. In rejecting the claims of the petitioners to the tax credit certificates merely on the basis of the form of the arrangement ignoring its substance and real intention of the parties, the authorities have applied a wholly erroneous approach to the question before them and completely misdirected themselves thereby vitiating the impuged orders. The impugned orders in so far as they reject the claims of the petitioners and uphold that of the Corporation are, therefore, liable to be quashed. For all these reasons, we would accept the petition, quash the impugned orders and direct that the competent authority would determine afresh the entitlement of the petitioners to the tax credit certificates under section 280ZC of the Income-tax Act on the basis of the various transactions in accordance with law in the light of the observations made above. The petitioners would also have their costs. Counsel s fee is assessed in each case at Rs. 750. Petition allowed.
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1978 (5) TMI 34 - KARNATAKA HIGH COURT
Banking Company ... ... ... ... ..... e revenue receipts. But if the profit by exchange operations comes in, not by way of business of the bank, the profit would be capital profit. It is not disputed that there was no freezing of the foreign currencies in question at the time of devaluation or revaluation, as the case may be, and that the assessee was free to convert the foreign currencies into rupees, if it desired to do so. In fact, it is found that the assessee had utilised its bank balances in foreign countries during the relevant period to make payments in foreign currencies on behalf of its clients and, in turn, it had been paid in India by its clients in rupees at the revised rates of exchange. The sums in question, therefore, amount to profits made by the assessee in the course of its business. In these circumstances, the questions referred to us in these two cases have to be answered in the affirmative and in favour of the department. The department is entitled to costs. Advocate s fee Rs. 250, one set.
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1978 (5) TMI 33 - DELHI HIGH COURT
Company Court, Income Tax, Winding Up ... ... ... ... ..... ummary judgment from the company court either under section 446 or 477 of the Companies Act, 1956, has no parallel in the Income-tax Act. The great power of the company court to take possession of the assets under section 468 has no equivalent except under the Insolvency Act. The availability of all the courts in India for execution purposes as per sections 634 and 635 are also unique. I, therefore, find that very little purpose would be served in giving leave to the applicants. Particularly, it may be noticed that this company was ordered to be wound up in 1968 ten years have passed hence all claims from debtors are now time-barred. No new recovery can now be made. However, if any assets are traceable, the official liquidator may be informed by the taxation authorities in which case recovery can be made under section 468, 477 or any other available power. With these observations, I dismiss this application but forbear to pass any order regarding costs. Application dismissed.
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1978 (5) TMI 32 - ALLAHABAD HIGH COURT
Change In Constitution Of Firm, Firm Registration, Minor Admitted To Benefits Of Partnership, Partnership Deed
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1978 (5) TMI 31 - CALCUTTA HIGH COURT
Assessment Notice, Income Tax Act ... ... ... ... ..... erefore, accept the contention of Mr. Pal that in disposing of this appeal we should not only set aside the assessment made by the ITO pending the disposal of this appeal but direct him to make a fresh assessment in accordance with law. In the result, the appeal succeeds and is allowed with costs. Hearing fee being assessed at 10 gold mohurs. The impugned notice under s. 142(1) of the Act issued by the ITO on March 4, 1975, is set aside. The assessment made on March 31, 1977, by the ITO in his best judgment based on non-compliance of the above, notice under s. 142(1) of the Act is also set aside and the ITO is directed to make a fresh assessment in accordance with law. In making any such assessment it would be open to the ITO to issue any fresh notice under s. 142(1) of the Act in accordance with law. On the prayer of Mr. Datta, learned advocate for the respondents, we stay the operation of the order for a period of three months from this date. B. C. CHAKRABARTI J.--I agree.
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1978 (5) TMI 30 - ALLAHABAD HIGH COURT
Firm Registration, Income Tax Act, Partnership Deed ... ... ... ... ..... nor s guardian can do all that is necessary to effectuate the conferment and receipt of the benefits of the partner vide CIT v. Shah Mohandas Sadhuram 1965 57 ITR 415 (SC). The funds or properties of a minor cannot be transferred to a partnership without the guardian of the minor doing so. When no one acting as the minor s guardian signs the document, no agreement with the minors comes into existence. The deed purporting to be a partnership with the minors is wholly invalid and cannot be registered. We are in agreement with the view taken in the earlier reported decision of this court that the document in question, having made the minors full-fledged partners, was invalid and not entitled to registration. The earlier decision of this court lays down the law correctly. Accordingly, we answer both the questions referred to this court in the negative, in favour of the department and against the assessee. The Commissioner will be entitled to costs, which are assessed at Rs. 200.
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1978 (5) TMI 29 - KARNATAKA HIGH COURT
Assessment Year, Business Expenditure, Gratuity Liability ... ... ... ... ..... observation in the said judgment In other words, by about 4th March, 1952, a sum of Rs, 21,50,466 had been actually made over by the assessee to the trustees of the gratuity trust fund and in that sense it could be said to be actual expenditure incurred by the assessee-company in the assessment year 1953-54. This amount having irretrievably gone out of the assessee s books was not to revert back to the assessee in any form at any time in future ............ The decision of the Supreme Court in Metal Box Company s case 1969 73 ITR 53 cannot be stretched to the extent of saying that a liability or expenditure which could be claimed in relation to a particular assessment year can be kept in suspense and claimed in a subsequent year of the assessee s choice as accruing or incurred in such subsequent year. The view taken by the Tribunal is, therefore, correct. Accordingly, we answer the question in the affirmative and against the assessee. The parties shall bear their own costs.
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1978 (5) TMI 28 - CALCUTTA HIGH COURT
Cash Credits, Notice For Reassessment, Original Assessment ... ... ... ... ..... sclosed by him were not genuine. But, in our opinion, that would not be a material fact within the meaning of s. 147(a). We are in respectful agreement with the observations of the High Court of Kerala on this point. On similar facts, the Supreme Court in Lakhmani Mewal Das 1 976 103 ITR 437 held that the purported confessional statement had no bearing to the loans advanced to the assessee. In the facts of the case before us, we are of the opinion that the ITO had no reasonable ground to believe that there was a failure on the part of the assessee to disclose fully or truly all material facts whereby any income of the assessee escaped assessment. It appears to us that the assessee had disclosed all primary facts within his knowledge at the original assessment which were duly considered by the ITO concerned. For the reasons given above, we answer the question referred in the negative and in favour of the assessee. There will be no order as to costs. C. K. BANERJI J.--I agree.
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1978 (5) TMI 27 - MADHYA PRADESH HIGH COURT
Firm Registration, Income Returned, Partnership Deed, Question Of Law, Reference To High Court
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1978 (5) TMI 26 - CALCUTTA HIGH COURT
1922 Act, 1961 Act, Act Of 1961, Chargeable To Tax, Notice Of Reassessment ... ... ... ... ..... his assessment year an income chargeable to tax has escaped assessment within the meaning of that expression under s. 147 of the new Act and no proceedings under s. 34 of the repealed Act in respect of such escaped income was pending on the 1st April, 1962. Therefore, the ITO in the instant case was justified in issuing notice under s. 148 with respect to the escaped income in the assessment year 1947-48. In J. P. Jani 1969 72 ITR 595 (SC), the effect of sub-s. (4) of s. 34 was not at all considered inasmuch as the case proceeded solely on the concession of the revenue that the proceedings for reopening had become time-barred before the new Act came into force. For the reasons given above, we answer the question referred in the negative and in favour of the revenue. In the facts and circumstances, there will be no order as to costs. In conclusion, we record our appreciation of the able assistance rendered by Mr. Sanjoy Bhattacharya as amicus curiae. C. K. BANERJI J.-I agree.
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1978 (5) TMI 25 - ALLAHABAD HIGH COURT
Business Expenditure, Entertainment Expenditure, Income Tax Act, Messing Expenses, Trading Receipt
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1978 (5) TMI 24 - CALCUTTA HIGH COURT
Capital Gains, Commercial Profit, Tax On Undistributed Income ... ... ... ... ..... agree with Mr. Sengupta that a capital gain is taxable as income and for the purpose of arriving at the available surplus capital gains must be taken into account. But in determining the reasonableness of the quantum of dividend, it will be only in exceptional cases, which we have discussed above, that the amount of capital gains can be taken into account by the ITO. In the instant case, the admitted position is that the directors of the assessee have put the entire amount of the capital gains in reserves and no part thereof has been brought back into the profit and loss account. Accordingly, on such facts, it must be held that the amount of capital gains of Rs. 1,35,808 could not be treated as part of the business profit of the assessee in order to determine the reasonableness of the dividend declared by it. The question referred is, for the above reasons, answered in the affirmative and in favour of the assessee. There will be no order as to costs. C. K. BANERJI J.-I agree.
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1978 (5) TMI 23 - ALLAHABAD HIGH COURT
Burden Of Proof, Income Tax Act, Law Applicable, Unexplained Investments ... ... ... ... ..... the enactment of the Explanation, the department is still saddled with the onus of proving that the amount in question is the taxable income of the assessee, in cases where the returned income is less than 80 of the assessed income. The Tribunal was thus in error in knocking off the penalty solely on the ground that the department had failed to place material on the record to establish that the amount was taxable income of the assessee. The Explanation took full care of this aspect of the matter. The Tribunal should have considered the explanation of the assessee on merits and considered whether the assessee had been able to dislodge the presumption created by the Explanation by proving that there was no fraud or any gross or wilful neglect on his part. We, accordingly, answer the question in the negative, in favour of the department and against the assessee. As none has appeared on behalf of the assessee, there shall be no orders as to costs. Counsel fee assessed at Rs. 200.
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1978 (5) TMI 22 - ALLAHABAD HIGH COURT
Allowable Expenditure, Business Expenditure, Provident Fund, Purchase Tax, Whether Allowable Deduction
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1978 (5) TMI 21 - ALLAHABAD HIGH COURT
Change Of Law, Income Tax Act ... ... ... ... ..... on to entertain and decide the suit. By the amending Act 18 of 1956, s. 331 of the Z.A. and L .R. Act, which set out the forum for filing suits, was amended and the jurisdiction of civil court was taken away. The amending Act, however, contained a saving clause, for, by s. 23, it provided that pending suits would continue to be tried by the court in which they were instituted. But as in the present case there is no saving clause this decision of the Full Bench will not apply. In our view, the Full Bench decision of this court in Kallu Khan v. Kamrul Nisa 1962 ALJ 1039 settles the controversy. Thus, as on the date when the IAC passed the final order, his jurisdiction to do so had been taken away by the amendment in s. 274(2) of the Act, the order passed by him was thus without jurisdiction. We, accordingly, answer the question referred in the affirmative, in favour of the assessee and against the department. The assessee is entitled to its costs which are assessed at Rs. 200.
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1978 (5) TMI 20 - CALCUTTA HIGH COURT
Additional Depreciation, Assessment Year, Commercial Profit, Previous Year, Substantially Interested
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1978 (5) TMI 19 - ORISSA HIGH COURT
Jurisdiction To Impose Penalty, Penalty Proceedings, Reference To High Court ... ... ... ... ..... gainst the revenue, it would not mean that every matter where a different view had been taken and has become final should be permitted to be reopened. We find force in the objection of the learned standing counsel. The decision of this court in Dhadi Sahu s case 1976 105 ITR 56 (Orissa) only interpreted the law which was then existing. It was open to the petitioner to raise the contention which was raised in Dhadi Sahu s case. But that contention not having been canvassed and the imposition of penalty having become final, we are not prepared to interfere in the matter at this stage, It is expedient that the matters which have become final should not be allowed to be reopened merely because an interpretation has teen given to the statutory provision in a way different from the interpretation in the proceeding which has been finalised. We would, accordingly, decline to interfere and reject this application. There shall, however, be no direction for costs. N. K. DAS J.-I agree.
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