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1976 (10) TMI 22 - MADRAS HIGH COURT
AAC And Tribunal, Interim Dividend, Revision By Commissioner, Tax Deducted At Source, Writ Petition
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1976 (10) TMI 21 - PUNJAB AND HARYANA HIGH COURT
Carry Forward And Set Off, Firm Assessment, Set Off Of Loss ... ... ... ... ..... forward and set off of losses of an assessee. Section 75(2) is an exception to these provisions and it provides that a registered firm will not be entitled to carry forward and set off the losses under these provisions. The reason for this provision is found in section 75(1), which entitles the partners of the firm to have the losses of the firm apportioned between them and to carry forward and set off the apportioned loss in accordance with the provisions of sections 71, 72, 73, 74 and 74A. In view of section 75(2) of the Income-tax Act, the question referred to us is answered against the assessee. No costs.
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1976 (10) TMI 20 - PUNJAB AND HARYANA HIGH COURT
Application For Extension ... ... ... ... ..... videnced by the instrument of partnership. Whatever may be said about the need for the particular declaration that no partner is a benamidar of the other in cases where registration is granted subsequent to April 1, 1971, we do not think that any such declaration is called for in a case where registration was granted prior to April 1, 1971. In cases where registration was granted prior to April 1, 1971, it is enough if a declaration is made in the old Form No. 12. If the department wants to take advantage of the Explanation to section 185, in any given case, it is open to the department to do so by starting proceedings under section 186. So far as continuance of registration granted to a firm prior to April 1, 1971, is concerned, we are of the opinion that it cannot be denied on the ground that the declaration was made in old Form No. 12 and not in new Form No. 12. The question referred to us is, therefore, answered in the affirmative and in favour of the assessee. No costs.
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1976 (10) TMI 19 - PUNJAB AND HARYANA HIGH COURT
Application For Extension ... ... ... ... ..... urn before the said it had not been possible ate . The prescribed form clearly shows that the application for extension of time may be filed even after the expiry of the period prescribed for filing the return. The learned counsel for the department urged that the word extend used in the proviso to section 139(2) implied that the application for extension should be filed within the time originally prescribed. We do not think that such a result follows from the use of the word extend . The proviso does not contain any limitation to that effect. We are, therefore, of the view that the application for extension of time can be made even after the prescribed period. We, therefore, answer the first question referred to us in the negative. In view of our answer to the first question it is not necessary to give any answer to the second question. The Tribunal will have to consider the question whether, on the facts and circumstances, the imposition of penalty was justified. No costs.
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1976 (10) TMI 18 - MADRAS HIGH COURT
Full Bench, Set Off ... ... ... ... ..... . Under these circumstances, we are clearly of the opinion that the Tribunal completely erred in coming to the conclusion it did, at variance with and opposed to the conclusion of the Tribunal on the earlier occasion, namely, that the gifts in the present cases constituted real gifts and not sham ones. The result is, we answer the question referred to us in T.C. No. 229 of 1972 in the negative and against the assessee. In view of this conclusion of ours, namely, that the earlier finding of the Tribunal that the gifts were sham could not be varied by the Tribunal on the present occasion, it becomes unnecessary for us to answer the second question, namely, the question covered by T. C. No. 64 of 1975, which question proceeds on the basis of there being real gifts, and, therefore, we decline to answer that question. The Commissioner is entitled to his costs. Counsel s fee Rs. 750 (Rupees seven hundred and fifty only), one set, to be paid by the three assessees in equal amounts.
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1976 (10) TMI 17 - JAMMU AND KASHMIR HIGH COURT
Assessment Order, Best Judgment Assessment ... ... ... ... ..... xities of the income-tax law but for that reason no indulgence is shown to the assessee. While this is so, there appears to be no reason why any indulgence should be shown to the assessing authorities who are expected to be fully conversant with all the provisions of the income-tax law. This is a case where the assessee has been allowed to escape assessment on account of the irregularities committed by the Income-tax Officer. In answer to question No. 1 we have to state that section 144 of the Act is procedural. In answer to the second question we state section 144 is mandatory in nature. The third question is answered in the affirmative, i.e., in favour of the assessee and against the revenue. The fourth question is also answered in the affirmative, i.e., in favour of the assessee and against the revenue. The fifth question is answered in the negative, i.e., in favour of the assessee and against the revenue. There shall be no order as to costs. MIAN JALAL-UD-DIN J.-I agree.
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1976 (10) TMI 16 - MADRAS HIGH COURT
Assessment Order, Provisional Assessment, Regular Assessment ... ... ... ... ..... 69, admittedly by that time the order dated January 30, 1969, had been passed and not only the demand had been modified but also the manner of payment of that altered amount also had been modified, and in terms of that modification the accountable person had also presented a cheque on February 20, 1969. As the cheque had been encashed subsequently before the appellate authority bad disposed of the appeal it must be held that the first instalment of the duty due as per the order dated January 30, 1969, had been paid on February 20, 1969, and that, therefore, the appeal presented on February 21, 1969, was perfectly competent. Having regard to these Circumstances, we are of the opinion that the conclusion of the Tribunal is correct on the facts of this case. In the result, the question referred to this court is answered in the affirmative and in favour of the accountable person. Since the accountable person is not represented before the court, there will be no order as to costs.
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1976 (10) TMI 15 - MADRAS HIGH COURT
Life Insurance ... ... ... ... ..... y the deceased in the dutiable estate, it had done so by creating a fiction only subject to certain conditions. But in section 14 of the Act no such condition is contemplated at all and all that is contemplated is a gift of the right in the policy by the assured in favour of a third part and the assured keeping up the policy for the benefit of such donees. This is yet another circumstance in support of the view that section 14 does not have any application to the money received on the expiry of the period of endowment during the life-time of the assured. Consequently, though we do not agree with the reasoning of the Tribunal, we are of the opinion that the Tribunal was right in its conclusion that section 14 of the Act has no application to the present case. Under these circumstances, we answer the question referred in the affirmative and in favour of the accountable person. The accountable person is entitled to his costs of this reference. Counsel s fee is fixed at Rs. 500.
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1976 (10) TMI 14 - MADRAS HIGH COURT
Cash Credits, Firm Assessment, Share Income ... ... ... ... ..... question as to whether any penalty could be levied on the Hindu undivided family is different from the question as to whether the assessee is one to whom the provisions of section 28(1)(c) would apply. We are concerned with the earlier stage of the assessment itself and we have to find out whether this was a case to which the provisions of section 28(1)(c) applied. With reference to this aspect, there can be no dispute that the assessee not having disclosed in the return the share income, the provisions of section 28(1)(c) would apply. Whether section 28(1)(c) could be applied after the disruption of the undivided family for the levy of penalty is not a question to be gone into now in the present reference, because these are not penalty proceedings. For these reasons, we reject the contentions urged on behalf of the assessee and answer the question referred to us in the negative and against the assessee. The Commissioner will be entitled to his costs. Counsel s fee Rs. 500.
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1976 (10) TMI 13 - PUNJAB AND HARYANA HIGH COURT
Liability To Penalty, Mens Rea, Regular Assessment ... ... ... ... ..... meaning that has been accepted by the legislature when it defined the expression regular assessment in section 2(40) to mean assessment made under section 143 or section 144 . The Kerala High Court has taken the same view in Gates Foam and Rubber Co. v. Commissioner of Income-tax 1973 90 ITR 422. The learned judges referred to the two decisions of the Madras High Court in Natarajan Chettiar v. Income-tax Officer 1961 42 ITR 29 and Gopalaswami Mudaliar v. Fifth Additional Income-tax Officer 1963 49 ITR 322 and to the specific reference made in the 1961 Act to assessment under section 147 and held that an assessment under section 147, that is, assessment, reassessment or recomputation made after resort to section 147 would not be regular assessment. With respect, we agree with the view expressed by the learned judges of the Kerala High Court. We, therefore, answer the first question referred to us against the assessee and the second question in favour of the assessee. No costs.
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1976 (10) TMI 12 - PUNJAB AND HARYANA HIGH COURT
Debatable Issue ... ... ... ... ..... ts) Surtax Act, 1964. It is clear from the order of the Income-tax Officer that the notice under section 13 was issued as he had completely overlooked the Explanation. It is not disputed that where a statutory provision is completely lost sight of, the matter can be treated as an error apparent on record and rectified under section 13 of the Act. The further question whether there was any debatable issue to be decided by the Income-tax Officer despite the Explanation was a question which the assessee should have raised before the subordinate tribunals. From a perusal of the orders of the Income-tax Officer, the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal, we do not see that any such question had been raised. The assumption throughout was that the taxation reserve , dividend reserve and surplus fall within the mischief of the Explanation. We are, therefore, constrained to answer the reference against the assessee. There will be no order as to costs.
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1976 (10) TMI 11 - PUNJAB AND HARYANA HIGH COURT
1961 Act, Assessment Year, Revised Returns ... ... ... ... ..... . 54,075 made by the Income-tax Officer was from a new source and this he was not competent to do. In Sri Gajalakshmi Ginning Factory Ltd. v. Commissioner of Income-tax 1952 22 ITR 502 (Mad), the learned judges observed that it would not be open to the Appellate Assistant Commissioner to introduce into the assessment new sources as his power of enhancement was restricted only to the income which was the subject-matter of consideration for purposes of assessment by the Income-tax Officer. We are of the view that on remand by the Income-tax Appellate Tribunal, it was not open to the Income-tax Officer to introduce into the assessment new sources of income so as to enhance the assessment. His power to enhance, if it existed, was confined to the old sources of income which were the subject-matter of the appeal to the Income-tax Appellate Tribunal. In that view, question No. 1 referred by the Tribunal is answered in favour of the assessee. Question No. 2 does not arise. No costs.
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1976 (10) TMI 10 - PUNJAB AND HARYANA HIGH COURT
Delay In Filing Return, Liability To Penalty ... ... ... ... ..... ned counsel for the assessee, was that no penalty would have been leviable but for the addition of a sum of Rs. 63,033 to the income of the assessee for the year in question as a result of the voluntary disclosure of a sum of Rs. 11,00,000 as concealed income for the years 1958-59 to 1967-68. We are not concerned with how the addition came to be made. We are only concerned with the fact that the assessee failed to submit a return within the time prescribed and his income during the relevant accounting year exceeded Rs. 40,000. The penalty was, therefore, rightly levied. The question is answered in favour of the revenue and against the assessee. No costs.
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1976 (10) TMI 9 - PUNJAB AND HARYANA HIGH COURT
In The Nature Of Entertainment Expenditure ... ... ... ... ..... essee. Regarding Gaushala and Dharmada receipts of the assessee-firm, it may be said that this amount under custom had to be spent on charities. The assessee was acting merely as a trustee and in fact did spend bulk of the amount during the assessment year for the purpose for which it was received. In Thakur Das Shyam Sunder v. Additional Commissioner of Income-tax 1974 93 ITR 27 (All) FB , it was held by a Full Bench of the Allahabad High Court that income-tax is a levy on income and if the income does not result at all, there cannot be a tax. The receipts of the assessee in that case in a Dharmada account, which was held by him to be utilised specifically and exclusively for charitable purposes, were held not to constitute the income of the assessee. I am in respectful agreement with this view and, for that reason, answer the second question against the revenue and in favour of the assessee. In view of the divided success of the parties, there would be no order as to costs.
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1976 (10) TMI 8 - ALLAHABAD HIGH COURT
Penal Interest ... ... ... ... ..... an appeal filed against an order of assessment on other grounds it is open to the assessee to challenge the chargeability of interest by the Income-tax Officer under section 215(3), as a result of reduction of the amount on which interest was payable, by an order under section 154, or section 155, or section 250 or section 254 or section 260 or section 262 or section 264 is altogether different from challenging in appeal the correctness of the levy of interest under section 215. For the reasons stated above we answer the question referred to us in the negative, in favour of the Commissioner of Income-tax and against the assessee. Our answer is as follows On the facts and in the circumstances of the case, the Tribunal could not direct the Appellate Assistant Commissioner to give his decision on the additional ground regarding chargeability of interest under section 215 of the Income-tax Act, 1961. In the circumstances of the case, we direct the parties to bear their own costs.
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1976 (10) TMI 7 - ALLAHABAD HIGH COURT
AAC And Tribunal, Interim Dividend, Revision By Commissioner, Tax Deducted At Source, Writ Petition
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1976 (10) TMI 6 - KERALA HIGH COURT
Additional Tax ... ... ... ... ..... the Act and was not under section 5(4) of the Act. As per rule 5(a), if an assessee does not file his objections to the notice issued under rule 4 for revising the extent of his plantations under section 3(3) of the Act, an assessment can be made. As the proviso to rule 10(a) of the rules bars an appeal against an assessment under section 3(3) of the Act also, to that extent the proviso is ultra vires of section 9(1) of the Act. So it goes without saying that against an assessment under section 3(3) of the Act an appeal will lie under section 9 of the Act. Proviso to rule 10(a) of the Rules to the extent that it bars appeals against assessments other than those under sections 5(4) and 6 of the Act is declared as ultra vires of section 9(1) of the Act. Exhibit P-4 is set aside. The third respondent, the Board of Revenue, is directed to pass fresh orders on exhibit P-3 revision. The original petition is allowed to the extent indicated above. There will be no order as to costs.
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1976 (10) TMI 5 - MADRAS HIGH COURT
Accounting Year, Intangible Additions ... ... ... ... ..... We are unable to accept this contention. In the judgment referred to above, we dealt with a case where cash credits were found in the names of third parties and the assessee, not being in a position to explain those credits, wanted to call upon the ratio of Kuppuswami Mudaliar v. Commissioner of Income-tax 1964 51 ITR 757 (Mad) as if it laid down an universal principle of law to the effect that whenever an assessee is not able to explain the cash credits standing in the names of the third parties, he could fall upon Kuppuswami Mudaliar s case 1964 51 ITR 757 (Mad) as if it were the residuary refuge for such assessee. What we stated in that judgment is not in any way opposed to what the Tribunal has held in the present case and what we are observing with reference to the finding of the Tribunal. Under these circumstances, the question referred to this court is answered in the affirmative and against the department. The assessee is entitled to his costs. Counsel s fee Rs. 500.
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1976 (10) TMI 4 - PUNJAB AND HARYANA HIGH COURT
Industrial Undertaking, Profits And Gains ... ... ... ... ..... apital employed during the previous year) ....... There is nothing in the language of section 80J to warrant the contention of the department. It appears to be opposed to the language of section 80J. Having included a sum of Rs. 1,51,011 from the profits and gains of the cold storage business in the total income of the assessee, we do not see how the revenue can urge that it should not be considered as included in the total income for the purposes of section 80J only. Shri Awasthy invited our attention to two decisions of the Supreme Court Commissioner of Income-tax v. Sivan Pillai 1970 77 ITR 354 (SC) and Union of India v. Coromandel Fertilizers Ltd. 1976 102 ITR 533 (SC). Neither case is of any assistance. Neither was a case where losses, depreciation and development rebate of earlier years which had already been adjusted was sought to be readjusted a second time in the manner sought to be done. We have no hesitation in answering the reference in the affirmative. No costs.
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1976 (10) TMI 3 - MADRAS HIGH COURT
Estate Duty, Interest In Property ... ... ... ... ..... Mrs. Girija Bai settled one of the properties in favour of her son on October 24, 1966, Dr. Muthurangam did not join in the execution of the settlement deed. If Dr. Muthurangam had any beneficial interest in the properties, he should have joined in the execution of the settlement deed. But the settlement deed was executed by Mrs. Girija Bai alone on the basis that the said property belonged exclusively to her. In view of these circumstances, we are of the opinion that there was material before the Tribunal to conclude that Dr. Muthurangam had no beneficial interest whatever in the properties in question and that, therefore, they did not pass, on the death of Dr. Muthurangam, with the result their value was not liable to be included in the dutiable estate of Dr. Muthurangam. Consequently, we answer the question referred to this court in the affirmative and against the department. The accountable person is entitled to his costs. Counsel s fee Rs.500 (Rupees five hundred only).
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