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Case Laws
Showing 81 to 100 of 284 Records
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1986 (7) TMI 245 - CEGAT, BOMBAY
Appeal filed with wrong authority ... ... ... ... ..... I Rule 10 of the Civil Procedure Code, then Board rsquo s action cannot be considered as improper or illegal. In the absence of a copy of the judgment of the Supreme Court, it would not be possible to hold that there is an obligation cast on the Board to forward the appeal records to the Tribunal rsquo s office. The Appellant has not been prejudiced by the action of the Board. The Board has returned the appeal papers to the Appellant rsquo s Counsel within a week after it received the papers. At best the Appellant could claim that the period spent in prosecution of the appeal before the Board shall have to be deducted for the purpose of computation of the limitation. Even if the said period is excluded, still there is an unexplained delay of 14 days. 13. emsp On a careful consideration of all the matters, we are not satisfied that the Appellant was prevented by sufficient cause from presenting the appeal within the period of limitation. We, therefore, reject this application.
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1986 (7) TMI 244 - CEGAT, NEW DELHI
... ...
... ... ..... at wider meaning is given to the word lsquo food rsquo under any other law with a different purpose. rdquo 12. emsp It is not always that an article must be eaten as such or must be a principal ingredient of the article eaten to qualify for the appellation ldquo food rdquo . The test laid down by the Supreme Court in Rama Avtar v. Assistant Sales Tax Officer (supra), does not refer to the use of the vegetable as primary or subsidiary for the purpose of food. We may consider the instances of Podina (mint) or Dhania (coriander). These are used inter alia for the purpose of chutney s but are not used for the primary purpose of food and are used to give flavour or taste to the food. Nevertheless, there can be little doubt that they are accepted in common parlance as vegetables. Viewed from this angle as also the test laid down by the Supreme Court in the aforesaid case, garlic must be considered as a vegetable and an item of food. 13. In this view of the matter, the appeal fails.
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1986 (7) TMI 243 - CEGAT, NEW DELHI
Questions not maintainable because of decided legal position ... ... ... ... ..... re given benefit of doubt by the Collector. The facts of the present case were distinguished from the facts of the case covered by the judgment of Hon rsquo ble Supreme Court reported in AIR-1982-SC-1022, relied upon by the learned advocate for the applicant during hearing of the appeal before this Tribunal. 13. emsp The second part of question No. (V) of the Reference Applications is vague. It has not been explained what is meant by ldquo Could a new case be made out by the Collector which was not even in the show cause notice rdquo . There is no explanation as to how it has been said that a new case has been made out by the Collector. 14. emsp In view of the above discussions, we hold that there is no question of law involved in any of the points raised in these two Reference Applications requiring reference to the High Court under Section 130(1) of the Customs Act, 1962 and Section 82-B(1) of the Gold (Control) Act, 1968. In the result, both the applications are dismissed.
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1986 (7) TMI 242 - CEGAT, NEW DELHI
Order-in-appeal ... ... ... ... ..... t the Parliament will always pass a Bill that is introduced. In these circumstances, we are satisfied that the present case is not one which is to be decided with reference to the decision of this Tribunal in Atma Steels case relied upon by the Collector (Appeals) and by the respondents. We, therefore, hold that the order of the Collector (Appeals) rejecting the appeals as time barred is bad in law for the reason firstly, that the disposal of the subsequent appeal by an Addendum to the order-in-appeal, dated 26.8.84 is inherently defective and is not a disposal of the appeal in accordance with the provisions of Section 35-A, and secondly, because the reliance placed by the Collector (Appeals) on the Atma Steels decision of this Tribunal for rejecting the appeal is not legally sound. In the result, the applications of the department succeed, and the case is remanded to the Collector (Appeals) for a decision on merits, by giving fresh opportunity of hearing to both the parties.
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1986 (7) TMI 219 - CEGAT, BOMBAY
appeal against the Order of Additional Collector ... ... ... ... ..... hat of the Tribunal is also not acceptable as these matters are governed by Sections 80 and 81 of the Gold (Control) Act. 7. emsp However, we are satisfied that though the Collector rsquo s application does not frame the exact point to be referred to the Hon rsquo ble Gujarat High Court for opinion, it is clear from his submissions that the point which he intends to refer to the Hon rsquo ble Gujarat High Court for opinion is the determination of the Appellate Authority against the order of the Addl. Collector of Central Excise as a Gold Control Officer in an adjudication under the Gold (Control) Act. We find that this is a point of law which arises out of the order of the Bench dated 11-10-1985 and accordingly, we refer the following point to the Hon rsquo ble Gujarat High Court for their valued opinion - Point of Law - Whether an appeal against the order passed by the Addl. Collector of Central Excise in his capacity as a Gold Control Officer lies to the Appellate Tribunal.
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1986 (7) TMI 216 - ITAT PUNE
... ...
... ... ..... se inferences from the facts on record. The AAC has not discussed anything at all regarding the facts on record and merely agreed with the view taken by the WTO. In a case of HUF property it becomes quite difficult for every one to prove every item of wealth that the same belongs to the HUF, though in fact most of the property is really held by the HUF. The assessee came to Pandharpur in 1969 and started his individual business. His mother died somewhere in 1974 at village Nagore in Rajasthan and she continued till her death with the HUF property of her husband. If the explanation is quite reasonable and convincing, then one should not hesitate to accept the same. By taking that view, we are satisfied to hold that the explanation given on behalf of the assessee by Shri Deshpande in respect of the HUF property regarding value of ornaments is quite proper, reasonable and convincing. We accept his explanation. 18. In the result, the assessee succeeds and the appeals are allowed.
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1986 (7) TMI 215 - ITAT PUNE
... ...
... ... ..... by the WTO because he found that the assessee had himself disclosed the value of these shares in accordance with r. 1D. For these years, it is the case of Shri Gadgil that the AAC erred in rejecting the assessee s claim that the said shares should be valued on yield method basis. 8. We have already held in the preceding paragraphs that the shares of these two companies should be valued by application of Rule 1D in terms of the principles laid down by the Punjab and Haryana High Court decision in (1984) 148 ITR 620 (P and H) and Madras High Court decision in (1985) 152 ITR 599 (Mad). We would give the same finding for the asst. yrs. 1983-84 and 1984-85 also. The directions given as above result in an enhancement of assessment. The assessment to that extent should be enhanced as provided under s. 24(5) of the Act. 9. In the result, the appeals for asst. yrs. 1980-81 and 1981-82 will be treated as partly allowed and those for the asst. yrs. 1983-84 and 1984-85 will be dismissed.
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1986 (7) TMI 210 - ITAT PATNA
Charitable Or Religious Trust ... ... ... ... ..... previous year in which it was earned. In our opinion, the emphasis is on the spending of the income and not on confining the source of the amount spent to the income earned during the previous year. In this view of the matter, we hold that the assessee is entitled to succeed in this appeal. There is no dispute about the fact that the statutory amount has, in fact, been spent during the year under consideration. However, the ITO had no occasion to go into the question as to whether the expenditure incurred during the previous year under consideration was in fact made for the purposes of the trust and within India. Subject to verification of these two points (which the ITO had no occasion to enquire into at the time he made the assessment), we direct the ITO to accept the contention of the assessee. 6. The other ground relating to the income of the beneficiary was not pressed before us and so we find the same against the assessee. 7. In the result, the appeal is partly allowed.
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1986 (7) TMI 204 - ITAT NAGPUR
Income From Other Sources, Chargeable As ... ... ... ... ..... clause 2(c)(iii) of the deed. Having regard to all these factors, we are of the view that the receipts of the trust cannot be treated as its income to be charged under section 56(1). 10. At the time of argument it was stated that the firm has claimed (in its assessment) that the payments made to the trust as allowable revenue deductions. The ITO rejected the claim and we were told that the firm has succeeded before the first appellate authority and that the matter is now pending for adjudication before the Tribunal. Be that as it may, the character of the receipt in the hands of the trust cannot be treated as its real income for it is no more than a gift or bounty to which the trust had no right to demand and which the firm was not obliged to make in any year, let alone a recurring feature. For all these reasons, we are of the view that the receipts are not taxable and we reverse the finding of the authorities below in this regard. 11. In the result, the appeals are allowed.
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1986 (7) TMI 201 - ITAT MADRAS-D
Business Disallowance, Gratuity ... ... ... ... ..... , after setting out this portion of the notes on clauses, has categorically stated that the intention was carried into effect by inserting section 40A(7) and that in interpreting the section, effect should be given to the intention. In a later portion in elucidating clause (b)(i), it has been stated in the judgment that clause (b)(i) excludes from the operation of clause (a) contribution to an approved gratuity fund and amount provided for or set apart for payment of gratuity which would be payable during the year of account. On a reading of the observations of the Supreme Court, which we have set out, we consider that the Court has laid down that even a provision to be an admissible deduction should relate to a payment of gratuity which would be payable during the year of account. In view of this pronouncement by the Supreme Court, we would hold that on the facts the assessee is not entitled to the deduction claimed of Rs. 7,25,972. 8. In the result, the appeal is dismissed.
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1986 (7) TMI 199 - ITAT MADRAS-C
Adventure In The Nature Of Trade, Capital Asset, Gold Bonds ... ... ... ... ..... t in the hands of a particular assessee, the provisions of section 45 and other provisions relating to capital gains cannot apply. I would, therefore, hold that since the surplus did not arise form any adventure in the nature of trade and was not a capital surplus which could be taxed as capital gain, the answer to the first question would be that the transaction was not an adventure in the nature of trade and the surplus arising therefore was not liable to be taxed. 11. As far as the second question is concerned, in the light of the above discussion and the provisions of section 2(14) (iv), in my opinion, the gold bond in question is not a capital asset within the terms of section 2(14) (iv), irrespective of the fact that whether it is held by the original subscriber or by a subsequent holder. The gold bond ceases to be an asset under section 2(14) (iv). The second question is answered by me accordingly. 12. The cases will now go back to the Bench for decision of the appeal.
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1986 (7) TMI 197 - ITAT MADRAS-A
... ...
... ... ..... The present is not a case where any penalty is impossable, It is not even a case where a minimum interest has necessarily to be imposed. There has been a slight delay in the payment of the provisional demand, viz. between 17th July 1984 when the notice of demand was received and 20th Nov., 1984, i.e., four months by which time the entire demand of nearly two lakhs rupees was liquidated in spite of there being only negligible liquid cash on hand as could be seen from the estate duty assessment order dt. 28th Feb., 1985. Viewed from this angle also, therefore, the case is not one where any interest should have been levied. We, therefore, direct that the amount of Rs. 4,643 be excluded from the amount of Rs. 8,271 described in the assessment order as estate duty payable (even the amount of Rs. 8,271 has been paid on 7th March 1985) and the Balance alone be recovered. Any excess duty paid in terms of our aforesaid order should be refunded. 7. In the result, the appeal is allowed.
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1986 (7) TMI 196 - ITAT MADRAS-A
... ...
... ... ..... this view of the matter, the finding of the AAC in respect of the quantum determined is in order and the ITO would, give effect to the same. 9. At the hearing the ld. departmental representative sought to file an express additional ground viz., that the AAC erred in directing the continuation of registration because, according to the Revenue, there was no firm in existence. The ld. counsel for the assessee opposed admission of this plea. But we are of the view that this is a plea which is closely connected with the contention of the revenue that there was cess or of business and, therefore, we would admit the additional ground because no fresh facts have to be found. However, in view of our decision that there was no cessor of business on the facts and circumstances of this case, we have to hold that there was no ground for interfering with the direction of the AAC regarding the grant of continuation of registration. 10. In the result, the appeal of the Revenue is dismissed.
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1986 (7) TMI 192 - ITAT JAIPUR
... ...
... ... ..... d it and the amount has actually been transferred to Sri Anil Kumar. It is not understood as to how this gift can be assessed as a protective measure. What is more interesting is that the income which is to be earned on this income which has been estimated at Rs. 3,000 has been added in the hands of the assessee in the IT assessment. If the assessee had already made a gift of this amount to a stranger, who is not his relation, we do not see any reason as to why the interest on the alleged amount of gift is being added to the assessee s income unless, the amount belongs to the assessee. We have, therefore, deleted that interest. Simultaneously we hold that the assessee is liable to pay gift-tax on the amount of alleged gift subsequently. This order, however, should not be deemed to affect the assessment of Sri Nenmal Poonjaji where the ITO will be at liberty to his own decision in accordance with the facts and circumstances of that case. 3. In the result the appeal is allowed.
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1986 (7) TMI 191 - ITAT INDORE
Deemed Wealth ... ... ... ... ..... in the 1961 Act, discouraging transfer of assets to major sons or major children. We are, therefore, of the considered opinion that on fair reading of the above provision, the share allotted on the partition of the converted property to the major sons of the individual cannot be included while assessing the wealth of the individual under section 4(1A). Under the general law, property allotted and given to the major sons on partition is their property and we see no departure from the above rule in the above-cited provision. For the above reasons, we hold that the WTO was in error in including the value of the entire property including the shares allotted to the major sons on partition of the property. We, accordingly, direct the WTO to recompute the wealth of the assessee adding only the value of the share allotted to the assessee and his spouse and exclude the value of the shares allotted to the major sons on partition. 4. In the result, the appeal of the assessee is allowed.
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1986 (7) TMI 190 - ITAT HYDERABAD-B
Revision, Of Orders Prejudicial To Revenue ... ... ... ... ..... set aside the order of the Commissioner. 18. We have already held that the firm is a genuine one and the order cancelling registration must fail in terms of lack of jurisdiction and on merits. The Commissioner has also cancelled the assessment order in the last paragraph of his order. In the case before us, the assessee returned a loss of Rs. 36,834.93 which was converted into nil income against which no appeal was instituted. The quantum assessment was never before the Commissioner. The cancellation of the assessment arises only on account of the status of the assessee. At nil income, no prejudice would be caused to the revenue whether the assessee is assessed as a registered firm or an unregistered firm. Besides, as we have held that the correct status of the assessee is that of a registered firm, no prejudice would be caused in future also. The consequential order of the Commissioner in respect of assessment also does not survive. 19. In the result, the appeal is allowed.
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1986 (7) TMI 189 - ITAT HYDERABAD-B
Hindu Undivided Family, Assessability Of ... ... ... ... ..... HUF may as well be taken to be a date of retirement. It is no doubt true that for all practical purposes of partnership law only the karta used to represent his family and he can only be recognised as a partner. A partner may be representing his own family or he may be a benamidar or trustee for others. The relationship of the partner with third parties does not bind the partners. On 1-4-1979 the partnership which came into existence on 18-4-1972 came to an end and in its place a fresh partnership came into being and in the said partnership the assessee-HUF is not a partner and, therefore, apart from all other considerations on facts that the assessee-HUF did not continue as a partner from 1-4-1979 the share incomes for these four assessment years cannot be held to belong to the assessee-HUF. Under the circumstances the order of the AAC is legally and factually correct and, therefore, it needs no interference from us. 14. The appeals of the department fail and are dismissed.
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1986 (7) TMI 188 - ITAT HYDERABAD-A
... ...
... ... ..... the penalty of refusal of registration must inevitably follow the failure of the assessee to do anything as contemplated in s. 144, it cannot be said that the authority has exercised his discretion. The discretion must be exercised not arbitrarily or capriciously but in a lawful manner and consistent with judicial standards on the basis of the materials and circumstances present in the given case. 4. The ratio laid down in the above cases would squarely apply to the instant case, as the ITO in the instant case has refused registration only on the ground that the best judgment assessment has been made. In our view such an order cannot be sustained. It is incumbent on the ITO to consider the question of continuation of registration on the materials available before him. Thus we cancel the order made under s. 185(5) and direct the ITO to consider the question of allowing continuation of registration to the firm on the materials available. 5. In the result, the appeal is allowed.
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1986 (7) TMI 187 - ITAT HYDERABAD-A
... ...
... ... ..... ase should be construed as the date of purchase even though the conveyance deed was executed after the expiry of one year, was never argued before the Tribunal. At best, this case could be an answer to the alternative plea of Sri M.J. Swamy that all these agreements, etc., should be treated as construction agreements. 14. In conclusion, we hold that the term purchase should be construed liberally in terms of the dicta of the Supreme Court in the case cited supra, that the date of agreement of purchase should be taken as the date of purchase even though conveyance was given after the expiry of one year from the date of sale of residential flat and that the mere fact that the major part of the consideration was paid after the expiry of one year would not disentitle the assessee to exemption under s. 54 as the Supreme Court in the case cited supra did not find any stress in the section on cash and carry . 15. In the result, the order of the CIT is vacated. The appeal is allowed.
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1986 (7) TMI 186 - ITAT HYDERABAD-A
Capital Or Revenue Expenditure, Transfer Of Technical Know-how ... ... ... ... ..... 5 clearly provides for consideration of Rs. 1,00,000 for what the German collaborators are supposed to provide to the assessee. Bearing in mind the system of accounting followed by the assessee, it has to be concluded that the entire amount of Rs. 1,00,000 was deductible in this year. As we have already come to the conclusive that the amount was deductible as revenue expenditure, we will have to uphold the Tribunal s order and conclusions contained therein in their entirely. Following with respect the above decision, we hold that the entire amount of Rs. 13,93,581 is allowable in this year. The Commissioner (Appeals) was justified in allowing the said amount as revenue expenditure. We uphold his order. 9. The decision relied on by the departmental representative, i.e., of the Madras High Court in CIT v. Southern Switchgear Ltd. 1984 148 ITR 272 is distinguishable and it has no application to the facts of the instant case. 10. In the result, the appeal fails and is dismissed.
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