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Showing 41 to 60 of 125 Records
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1976 (7) TMI 87
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... ... ..... of work, which is exempt from assessment and if the predominant element is of contract of sale, it must be held to be a contract of sale which is assessable. In this case, even the very observations of the assessing officer and the Appellate Asst. Commissioner clearly showed that the appellant had taken only contracts of work and not of sale. There is absolutely no proof of any sale by the appellant during the years 1971-72 and 1972-73 of any spare parts. The notes of check available in the assessment file shows that the purchases were effected locally. Hence there is some force in the representations of the learned counsel to the effect that the involved sales, even if, they are not treated as works contract under Item 3 of the First Schedule. Hence we find point for consideration accordingly in favour of the appellant. 9. In the result, both the appeals are allowed and the orders of the Appellate Asst. Commissioner and the assessing officer are set aside for both the years.
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1976 (7) TMI 86
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... ... ..... ested with a discretion which by rules of natural justice, he is expected to exercise in a reasonable manner. Under the circumstances, the appeal has to be allowed. In the view we have taken it is not necessary to go into the legal ground raised by the appellant that the provision authorising levy of penalty for excess collection of tax is ultra vires in view of the rational of decision of the Supreme Court in 26 STC 254 and various other cases. Actually we find that this impugned provision by itself has not been the subject matter of any decision so far. At any rate, the question of vires could not be considered by us at our state in view of the decision of the Supreme Court in the case of K.S. Benkataraman and Co. vs. State of Madras (17 STC 418). But as mentioned earlier, the appellant is entitled to succeed on merits themselves even on the basis that law is quite valid. 5. In the result the appeal is allowed and the penalty of Rs. 484 as sustained by the AAC is set aside.
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1976 (7) TMI 83
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... ... ..... manner. If the additional evidence is not admitted there would be denial of justice to the appellant. In our opinion, in the interest of justice the additional evidence should not remain obscure and a such it should be taken up so that the matter could be decided in a satisfactory manner. Such a case would be on allowing additional evidence for any other substantial cause. Looking to the entire facts and circumstances of the case, in our opinion, the additional evidence which the assessee wanted to file before the AAC and us should be admitted. Accordingly, the matter is sent back to the learned AAC who shall consider the evidence so admitted or directed to be admitted and after hearing the parties shall decide whether the additional of Rs. 15,000 should be made or not. The learned AAC after hearing the parties shall decide the issue in the light of the observations made above and also in accordance with law. 14. For statistical purposes, the appeal shall be taken as allowed.
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1976 (7) TMI 82
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... ... ..... allowed and the written down value of which had become nil. We do not, therefore, see any justification in the assessee rsquo s objection with regard to the calculation of profit under s. 41(2) with reference to his item. The contention of the learned Chartered Accountant that the sale was made not by the company but by the liquidator appointed by the creditors of the company, and that, therefore, this was not the assessable income of the company but of the creditors has no merit. The liquidator is of the company and he is merely representing the company whose income is the subject-matter of assessment. It is of no consequence in this connection as to who appointed the liquidator. The company as such has not ceased to exist and the income arising to it from it own assets would continue to be assessed in its hands irrespective of the matter in which the aforesaid income would be utilised by the liquidator. 17. In the result the appeal of the assessee is hereby partly allowed.
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1976 (7) TMI 81
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... ... ..... e assessee and exclusively used by him for residential purposes. The above Act deleted the words exclusively used by him for residential purposes . The clause which now stands does not require that the house should be used for the residential purposes . The clause which now stands does not require that the house should be used for the residential purposes. The ground taken by the AAC rejecting the assessee rsquo s claim, therefore, does not survive. 4. The next question which arises for our consideration is as to whether shops can be treated as a house. In our opinion there is no difficulty in treating them as a house in view of the definition of that word as given in Webster rsquo s dictionary as mentioned above. Once we hold that the shops can be treated as a house, the assessee would be entitled to exemption on their value under s. 5(1)(iv) of the Act as their use for residential purpose is no more required under the amended clause. 5. In the result, the appeal is allowed.
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1976 (7) TMI 80
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... ... ..... and as such the assessee has to only explain the source of the remaining amount of Rs. 3,161. In this connection, we find that the total cost of construction according to the assessee is more than Rs. 3,79,000 and the difference of Rs. 3,161 will amount to less than one per cent. of the total cost. Considering the aspect that the valuation adopted by the Executive Engineer is based on certain estimates, whereas the books of account of the assessee showed the actual cost, we are of the opinion that the said amount of Rs. 3,161 should not be considered as income from undisclosed sources in the hands of the assessee. Considering the smallness of the amount, we hold that there is no justification for adding any amount as income from undisclosed sources in the hands of the assessee. In the circumstances, the addition made on this account in the assessment is directed to be deleted. 11. In the result, the Departmental appeal is dismissed and the assessee rsquo s appeal is allowed.
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1976 (7) TMI 79
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... ... ..... the Board which have not been withdrawn till date, the registration cannot be refused on the ground that no new deed was executed on attaining majority by Shri Vipin Kumar. 3. We also do not think that the renewal of registration can not be sustained on the ground that the application signed by Shri Vipin Kumar was late. The assessee had filed application duly signed by other major partners. Finding that it was defective another application was filed to remove the defect on2nd Aug., 1973. It cannot, therefore, be said that the application was filed out of time. At best it could be said that the defect was removed late. That, in our opinion, is not sufficient to reject the benefit of registration of the assessee firm. We, therefore, direct the ITO to grant registration of the assessee firm. We, therefore, direct the ITO to grant registration of the assessee firm. We may observe that the ITO had never doubted the genuineness of the firm. 4. In the result, the appeal is allowed.
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1976 (7) TMI 78
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... ... ..... sessee as it is a curable defect. The removal of defect will not disentitle the assessee to get renewal of registration as it is the substance which has to be seen and not the form. The genuineness of the firm is not doubted by the Income-tax Officer. It is only the formality which has not been complied with by the assessee and that was due to the change of law and due to the bonafide belief of the assessee that the next date of hearing is 22nd November, 1973 and that is why the formality was completed or the defect was rectified with the filling of the new form on 22nd November, 1973. This is not a case of violation of any law but it is a case of mere defect in the formality which has been complied with by the assessee by filling of the form of renewal of registration with the return of income. In this view of the matter we do not see any infirmity in the order of the AAC and hence the same is confirmed. 12. In the result, both the appeals filed by the revenue are dismissed.
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1976 (7) TMI 77
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... ... ..... nt case differs from the cited case. Since the sum of Rs. 1,88,640 was even more that the original cost of the assessee rsquo s plant and machinery, the entire sum of Rs. 57,175 became taxable earlier to the assessment year 1969-70 which is now in appeal before us. We leave the matter undecided as to the particular year which it became due as that point is not necessary for our consideration. Our finding is that it become due earlier to the assessment year 1969-70 and therefore, it could not be taxed in this year as held by the Addl. Commissioner. We restore the finding of the Income Tax Officer in this regard who had held that the profit under s. 10(2)(vii) of the Act, 1922 should be taxed as such in the relevant year. We therefore, cancel the order of the Addl. Commissioner. In the view we have taken, it is not necessary for us to give our decision on the other ground as to whether service by affixture on 21st Feb., 1974 was in order. 8. In the result the appeal is allowed.
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1976 (7) TMI 76
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... ... ..... o observe that the penalty liveable for the default should be calculated in accordance with the provisions of law as they stood at the time of commission of the default, namely, the date on which the return was due, but was not filed. In this view of the matter the Allahabad High Court rejected the plea of the Department that in the case of the continuing default beyond 1st April, 1969, penalty should be levied at the rates as amended w.e.f. that date. 8. As the assessee before us belongs to the State ofUttar Pradesh, the above decision of the Allahabad High Court is directly binding on us. Respectfully following that decision, we direct the Wealth-tax Officer to recompute the penalty for each of these three years in accordance with the provision of s. 18(1)(a) as they stood prior to their amendment w.e.f 1st April, 1969. The assessee is entitled to the consequential relief. The excess as collected would be refunded to the assessee. 9. The appeals are partly allowed as above.
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1976 (7) TMI 75
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... ... ..... n the case of goods exported out of the State to any place outside the territory of India or to any other State in India, be deemed to conclude at the stage of sale or purchase effected immediately before the export of such goods . Importer means any dealer who imports goods from outside the State as defined under the Tamil Nadu General Sales Tax Act. Tvl. Popular Trading Company, Madras are the importers and not the appellants and so the appellants are not the first dealers liable to single point tax under s. 3(2). It is not in dispute by the Revenue that Popular Cycle Importing Company, Madras have already been assessed to single point tax on their sales made to the appellants for the above year. We hold that the revision of assessment under s. 32(1) of the Tamil Nadu General Sales Tax Act, 1959 is unsustainable in law and therefore it has to be cancelled. 9. In view of our foregoing discussions the revision of assessment in this case is set aside and the appeal is allowed.
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1976 (7) TMI 74
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... ... ..... property, even though the firm owned immovable properties. R. 8 merely sets out the principles of general law regarding the situs of movable property, and R. 9 likewise sets out the situs of immovable property and these Rules also accord with the general law relating to the fixation of situs of movable and immovable properties. We do not, therefore, find in R. 7 to 9 any departure from the principles of the general law as to the nature and location of the properties. Even in the absence of the said Rules the authorities have to fix the nature and location of the properties in accordance with general law. We have to, therefore, agree with the view taken by the Board in this case that the share of the deceased in the partnership is a movable property and as such could be brought to charge under s. 5 of the Act. 9. Respectfully following the ratio of the above rulings we uphold the order of the Appellate Assistant Commissioner. The appeal of the Revenue fails and is dismissed.
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1976 (7) TMI 73
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... ... ..... same a proper opportunity has to be given to the assessee for cross-examination. Here in addition, the goods have been entered in the stock register of the assessee, monies have been paid by crossed-cheques which were credited to the account of Modern Traders. The fact that Modern Traders were introduced by the assessee, the fact that Modern Traders withdrew the amounts immediately on encashment of cheques may raise suspicion and alert the Department to a further probe but by themselves, they do not establish the case against the assessee. There is no evidence that any part of the monies came back to the assessee in any form. It was in the first instance for Modern Traders to explain their contents. 7. Once it is accepted that the goods were received from Modern Traders action under s. 69 or 69A also would not survive. 8. Considering all these aspects, we do not see any reason to disbelieve the assessee s books of account on this aspect. The Departmental appeal is dismissed.
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1976 (7) TMI 72
Natural justice - Precedents ... ... ... ... ..... se the amount. 9.The result is that the appeal is allowed. It is declared that the respondent Union of India and its officers are not entitled to proceed against the plaintiff-appellant to realise the sum of Rs. 957.97 p. or any other amount in connection with the Excise duty in respect of his field survey No. 273 of Sihunj village of Dholka Taluka and the respondent No. 1 and its officers are restrained from taking any steps to realise the same. If so advised, it will be open to the Collector of Customs, Baroda or any other authority that might have been consituted as succeeding that appellate authority to deal with the appeal of the appellant and decide the question of the plaintiff s liability to pay the excise duty in accordance with law. This judgment and the injunction issued by this court will not come in the way of the department in dealing with the said appeal of the plaintiff-appellant. In the circumstances of the case, there will be no order as to costs throughout.
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1976 (7) TMI 71
Evidence - Proof - Penalty ... ... ... ... ..... s, great precision and exactness and that the endeavour could only be to be approximate. Since the proportion fixed by the Income Tax Appellate Tribunal in that case was based upon relevant materials the finding did not require to be interfered with. 10.The present is certainly not a case where the finding reached by officials in this case was without any evidence. On the other hand, the finding (which is now challenged) rests on necessary and legitimate inferences that could be drawn from the admitted facts, especially in the absence of any explanation sufficient to rebut the inference thus arising. It seems to us that it would hardly be a defence for the petitioner Company to say that the violation in this case was due to the act of the official of the Company, and that the Company should not be punished with the consequence of it, because the said official has been punished by the Company. 11.This Writ Petition, which is devoid of merits, fails and is dismissed with costs.
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1976 (7) TMI 70
Departmental clarification/Trade Notice ... ... ... ... ..... aking herein. 7.The conclusion is inevitable, therefore, that Collectorate of Central Excise, Baroda s instructions are issued, they would not be binding on the subordinate authorities. Under the circumstances, the impugned action in so far as it is solely or even partly based on such instructions issued by the Collectorate of Central Excise, Baroda is vitiated. In our opinion, therefore, the petitioner must succeed on these two grounds and we are not required to go into the other questions. The impugned decision must accordingly be quashed and set aside. 8.We wish to make it clear, however, that it would be open to the excise authorities, subject to the provisions of the Act, to issue a fresh notice on legal and permissible grounds for recovery of the amount which according to them has been erroneously refunded and that this judgment will not come in their way in doing so. 9.The petitioner accordingly succeeds. Rule made absolute in terms aforesaid with no order as to costs.
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1976 (7) TMI 69
Offences and penalties ... ... ... ... ..... nces, it becomes evident that the accused could not have been convicted of the offence punishable under Section 9(2) of the Act. The learned Public Prosecutor and the learned Advocate for the complainant are fair enough to concede the above position. According to the learned Advocate for the accused, prosecution for the offence in question was barred by limitation. The above question need not be considered at this stage in view of the fact that, the order of conviction and sentence passed by the learned Magistrate is liable to be set aside and it is necessary to remand the matter to the trial court for retrial. 3. The order of conviction and sentence passed by the learned Magistrate is set aside and the matter is remanded to the trial court for retrial according to law. As the complaint in this case was filed as far back as on 15th March, 1974, the learned Magistrate is directed to dispose of the matter as expeditiously as possible. Application is allowed to the above extent.
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1976 (7) TMI 68
Natural justice ... ... ... ... ..... Customs Act of 1962. Whatever be the place of cross-examination in a hearing contemplated under Section 124(c) of the Customs Act, the facts and circumstances of the present case leave no doubt that the petitioner was not denied a reasonable opportunity, although he did not avail himself of what was offered. In the circumstances, it cannot be stated that the petitioner is sufficiently aggrieved to invoke the jurisdiction of this Court under Article 226 or Article 227 of the Constitution. The Original Petition is unsustainable. I dismiss the same, but I direct the parties to bear their respective costs. 21.I wish to express my appreciation for the valuable assistance rendered by the learned Additional Advocate-General Shri T.C.N. Menon, as amicus curiae, and by Shri V. Rama Shenoi and Shri K. Prabhakaran appearing for the parties. 22.Issue carbon copy of this judgment to Counsel for the petitioner on payment of the usual charges and to Counsel for the respondent free of cost.
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1976 (7) TMI 67
Valuation - Equalised transport and delivery charges ... ... ... ... ..... -3 are quashed. The respondent No. 1 shall proceed to make fresh assessments and determine the petitioner s liability about the excise duty in the light of the principles paid down by their Lordships of the Supreme Court in the aforesaid two decisions and the observations made by us above. The amount so determined might have paid as duty for the period in question and if thereafter any balance is found to be due in favour of the petitioner, the same shall be refunded. However if the amount that has already been paid by the petitioner for the period in question falls short of the amount of duty which is so determined, then the respondents shall proceed to recover that amount in the event of the failure of the petitioner to deposit that amount. In view of this the question of refund of the amount paid towards duty does not arise. Under the circumstances of the case, the parties will bear their own costs of this petition. The security amount shall be refunded to the petitioner.
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1976 (7) TMI 66
Valuation - Exclusion of freight and marketing expenses - Cost of packing for vegetable products
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