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Case Laws
Showing 121 to 140 of 173 Records
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1978 (3) TMI 54 - CALCUTTA HIGH COURT
Assessing Officer, Assessment Notice, Reassessment Notice, Writ Petition ... ... ... ... ..... g. This disposes of all the contentions raised on behalf of the parties. In the result, this application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus calling upon the respondents to forthwith recall, cancel and withdraw the notice under s. 148 of the Act in respect of years 1958-59, 1959-60, 1960-61, 1961-62, 1962-63, 1963-64, 1964-65, 1965-66, 1966-67, 1967-68, 1968-69, 1969-70 and 1970-71 which are the subject-matter of these two applications. There will also be a writ in the nature of mandamus directing the respondents to forbear from giving effect to any of the notices in respect of the aforesaid years. There will be no order as to costs. Operation of this order is stayed for eight weeks from date. The injunctions dated 27th August, 1975, and 5th July, 1976, granted in C.R. Nos. 15774(w)/75 and C.R. 8747(w)/76, respectively, will also continue for the same period. Any further stay will have to be obtained from the court of appeal.
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1978 (3) TMI 53 - CALCUTTA HIGH COURT
Attributable To, Benami Transaction, Jurisdiction Of Tribunal, Subject Matter ... ... ... ... ..... as income of another. The income if estimated as due to the accretions cannot be said to be arising either directly or indirectly from the assets transferred. The income arises directly and no question of indirect accrual of income arises here. But the income does not arise from the assets transferred. The income arises from the accretions to the assets transferred. The section does not warrant the inclusion of income arising from the assets transferred as also with the accretions thereof. In view of the findings of the Tribunal, with which we are in agreement, that the wife was the benamidar of the assessee and there was no scope for application of s. 64, this controversy does not call for determination in the instant case. We would answer, in view of the facts and circumstances of this case, that the Tribunal was right in holding that s. 64(iii) was not applicable. In the facts and circumstances of this case, the parties will pay and bear their own costs. GUHA J.--I agree.
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1978 (3) TMI 52 - CALCUTTA HIGH COURT
1922 Act, 1961 Act, Appeal To AAC, Income Tax Act, Taxing Statutes ... ... ... ... ..... t from the face of the records and, therefore, did not come within the purview either of s. 35 of the Indian I.T. Act, 1922, or s. 154 of the I.T. Act, 1961. Therefore, the submission that an appeal would lie from the amended order of assessment would not, in our opinion, affect the position in this case because here the appeal before the Tribunal was not an appeal from the amended order of assessment but from the order amending and questioning the jurisdiction of the order of amendment. But in the view we have taken about the nature of power under cl. (a) of sub-s. (2) of s. 297 of the 1961 Act, we are of the opinion that the ITO had proceeded in this case under the provisions of the new Act which was not illegal on his part and, therefore, in this case an appeal was competent. We will, therefore, answer the question in the negative and in favour of the assessee. In the facts and circumstances the parties would pay and bear their own costs. SUDHINDRA MOHAN GUHA J.--I agree.
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1978 (3) TMI 51 - CALCUTTA HIGH COURT
1922 Act, 1961 Act ... ... ... ... ..... of the General Clauses Act, 1897. The learned judge held that subsequent legislation did not reveal an intention to destroy the privilege which had accrued in respect of documents filed at a time when s. 54 was in force. The privilege under s. 54 of the Act of 1922 was allowed to continue by s. 137 of the Act of 1961 and even after s. 137 was repealed by the Finance Act of 1964, the CIT was made, under s. 138, the sole authority to decide whether it was in the public interest to furnish the information asked for. If the CIT decided under s. 138 of the I.T. Act, 1961, not to furnish the information asked for, it could not be supplied. In the premises, therefore, in our opinion, the Tribunal was right in holding that the relief claimed by the assessee in the facts and circumstances of this case was legally justified. The question, therefore, is answered in the affirmative and in favour of the assessee. Parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (3) TMI 50 - ALLAHABAD HIGH COURT
Income Tax Act ... ... ... ... ..... d with the Explanation thereto ? As observed above, the assessee did not offer any explanation for the omission to mention the amount in the return or in the column meant for the same. Learned counsel appearing for the assessee, however, stressed that, as the assessee was illiterate, it could be presumed on the facts and circumstances of the present case that the omission occurred due to his illiteracy. The statement made by the learned counsel does not impress us. It is not a question of presumption but of pleading and proof. The assessee did not file any affidavit or other evidence on record in support of his claim of the ground on which the amount was not mentioned. The assessee, therefore, having not done so, was rightly held to be guilty of gross negligence if not that of fraud. In the result, we answer the question referred to us in the affirmative, in favour of the department and against the assessee. The revenue will be entitled to costs which are assessed at Rs. 200.
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1978 (3) TMI 49 - ALLAHABAD HIGH COURT
Income Tax Act ... ... ... ... ..... trade also and such payments could be disallowed if they are made in cash exceeding Rs. 2,500. This decision is binding on us. In view of this decision, we answer this question in favour of the department and against the assessee. The second question referred to us is whether the payments made for purchases were allowable in view of r. 6DD(j). We find that the Tribunal has not addressed itself to the question whether any individual payment for purchases was within or without the ambit of this rule because it took the view that the rule was itself ultra vires of section 40A. In the view we have taken, the rule will be intra vires and, therefore, the question whether the new purchases were or were not covered by r. 6DD will arise now. The Tribunal will address itself to this question on merits, after receiving back our answer. In this view, question No. 2 is returned unanswered. The Commissioner will be entitled to costs which are assessed at Rs. 200 (Rupees two hundred) only.
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1978 (3) TMI 48 - GUJARAT HIGH COURT
Computation Of Capital, New Industrial Undertaking, Previous Year, Tax Holiday ... ... ... ... ..... le that the asset entitled to depreciation would be in a worse position than the assets which are not entitled to depreciation. On the contrary, in our opinion, the assets entitled to depreciation would be slightly in a better position than the assets which are not entitled to depreciation, inasmuch as for net tax effect the former will have twin benefits, viz., depreciated value as well as tax holiday. In the circumstances, therefore, this aspect of the question on the interpretation does not take the case of the assessee any further. We answer the question referred to us in Income-tax Reference No. 73/75 in the affirmative and in favour of the revenue and against the assessee, in Income-tax Reference No. 161/75 in the negative and against the assessee and in favour of the revenue and in Income-tax Reference No. 105/75 in the affirmative and in favour of the revenue and against the assessee. The assessee shall pay costs of these references to the Commissioner of Income-tax.
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1978 (3) TMI 47 - CALCUTTA HIGH COURT
Break Up Method, Capital Gains, Income Tax Act, Method Of Valuation Of Shares ... ... ... ... ..... t produce a reasonable result in such cases, the author considers that the assets basis should not be used in the case of a continuing business except as a last resort when all attempts to measure prospective earning capacity have failed. The emphasis is on prospective earning capacity rather than actual past earnings, although naturally the latter must be used as a starting point to calculate the former. For the reasons above we answer question No. 1 in the affirmative and in favour of the assessee. Question No. 2 must also be answered in favour of the assessee. The decision of the Supreme Court in the case of Taj Mahal Hotel 1971 82 ITR 44 has clearly laid down the ambit of the expression plant and the items in dispute in the present case, in our opinion, certainly come within the ambit of the said expression as construed by the Supreme Court. We answer question No. 2 in the affirmative. In the facts and circumstances there will be no order as to costs. BANERJI J.-I agree.
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1978 (3) TMI 46 - CALCUTTA HIGH COURT
Total Income ... ... ... ... ..... urshidabad Estate. Vesting of certain properties in the trustee has not, by the specific terms of the Acts, we have referred, altered the paramountcy of the right of the Nawab of Murshidabad in respect of the money though the quantum has been modified. The Act of 1963 does not repeal this right but only implements in certain manner this right recognised in favour of the Nawab. Therefore, in our opinion, the obligation is of such nature that the amount in question is not receipt by the trustee as his income with an obligation to disburse it in a particular manner. The obligation was not of the trustee. The obligation was of the revenue of Government and the obligation was being implemented in the manner of the money being received by the trustee and handing over the same to the Nawab Bahadur. In that view of the matter, the question referred to us must be answered in the negative and in favour of the assessee. Parties will bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (3) TMI 45 - ALLAHABAD HIGH COURT
Capital Or Revenue Receipt ... ... ... ... ..... unsel for the assessee invited our attention to a case in Addl. CIT v. Smt. Mahinderpal Bhasin 1979 117 ITR 26 (All). In that case Gangadhar Baijnath s case 1972 86 ITR 19 (SC) was distinguished on the ground that in Gangadhar Baijnath s case the assessee-firm carried on the business of financing and entering into the partnership and retiring therefrom. In the case of Smt. Mahinderpal Bhasin 1979 117 ITR 26 (All), it was found that there was no material to establish that the assessee entered into the partnership as a part of her trading activity. On this ground, it was held that the receipt of moneys as share of profits up to the date of retirement could not be treated as revenue receipt. On the same grounds, this decision is distinguishable from the facts of the present case. In the result, we answer the question referred to us in the affirmative, in favour of the department and against the assessee. The Commissioner would be entitled to costs which are assessed at Rs. 200.
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1978 (3) TMI 44 - CALCUTTA HIGH COURT
Income Returned, Rejection Of Accounts, Textile Mill ... ... ... ... ..... l having concluded that the assessee has failed to prove the wastage claimed, the Tribunal fell into error in assuming that-- (a) the entirety of the extra wastage was utilised by the assessee and manufactured into 4,526 pieces of dhoties (and not sarees). (b) the said dhoties were sold at the average sale price of Rs. 7.52 per piece. Mr. Sengupta was unable to bring to our attention any material from the records from which the aforesaid conclusions could be based or drawn. We also do not accept the contention that the assessee did not challenge the said addition. The assessee challenged the order of the ITO and succeeded before the AAC. Having been unsuccessful before the Tribunal the assessee has again raised the question in this reference challenging the addition. For the reasons given above, the question referred must be answered in the negative and in favour of the assessee. In the facts and circumstances, there will be no order as to costs. DIPAK KUMAR SEN J.--I agree.
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1978 (3) TMI 43 - CALCUTTA HIGH COURT
Additional Super Tax, Commercial Profit, Income Tax Act, Total Income, Undistributed Profits ... ... ... ... ..... here was sufficient material for the ITO to initiate proceedings under s. 23A inasmuch as the statutory percentage, i.e., 50 of the available surplus calculated on the basis of total income of the assessee as laid down in s. 23A, was not distributed as dividend. The Tribunal was patently incorrect in holding that it would suffice for the company to distribute only 50 of the commercial profits. No enquiry, however, appears to have been made on the aspect whether the dividend declared was unreasonable or too low in view of the financial position of the company judged by business considerations. For the reasons given above, we answer the question in the negative and against the assessee. The Tribunal, however, is directed to dispose of the matter according to law as discussed above. The Tribunal will give the parties opportunity of being heard further and if necessary to take fresh evidence. In the facts and circumstances, there will be no order as to costs. BANERJI J.-I agree.
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1978 (3) TMI 42 - CALCUTTA HIGH COURT
Business Profits ... ... ... ... ..... changed its character at the material time. It was meant to be used for a particular purpose and the fact that the purpose was frustrated by itself could not change the character of this fund. It appears to us that the principle laid down by the Supreme Court in Tata Locomotive and Engineering Co. Ltd. 1966 60 ITR 405 (SC) applies to the facts before us and respectfully following the same we hold that accretion to this fund resulted in a profit to the assessee in its business, though the accretion may have been caused by an external factor like devaluation. The submission of Mr. Banerjee that this fund became frozen or immobilised, even if accepted, can make no difference in the case as we are concerned with the nature and character of this fund and not its mobility. For the reasons above, We answer the question referred to us in the affirmative and against the assessee. In the facts and circumstances of the case, there will be no order as to costs. C. K. BANERJI J.-I agree.
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1978 (3) TMI 41 - ANDHRA PRADESH HIGH COURT
A Partner, Advance Tax, Income Tax Act, Partnership Firm, Share Income ... ... ... ... ..... essment cannot be initiated under s. 34(1)(a) of the 1922 Act. They made it clear that s. 22(5) of the old Act only required the assessee to furnish particulars of the names and shares of the partners, but did not impose any obligation to mention or set out the income of the nature mentioned in s. 16(3), which corresponds to the present s. 64. Therefore, that decision can have no application to the question involved in this petition. The learned judges there were not concerned with the payment of advance tax on the total income of the assessee. When once the share income under s. 64 comes within the ambit of the total income of the assessee, he is liable to pay advance tax on that total income as required under s. 212(3A) of the Act. Current income referred to in s. 212(3A) is referable only to the total income of the assessee as defined in s. 2(45) of the Act. We, therefore, see no merits in this writ petition. It is accordingly dismissed with costs. Advocate s fee Rs. 250.
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1978 (3) TMI 40 - ALLAHABAD HIGH COURT
Appeal To AAC, Delay In Filing Return, Total Income ... ... ... ... ..... At the instance of the assessee, the Tribunal has referred for our opinion the question whether the Tribunal was justified in holding that levy of interest under s. 139(1) of the I.T. Act, 1961, was not appealable. The decision in Vidyapat Singhania s case 1977 107 ITR 533 (All) is directly in point. It was held there that no appeal lies against an order levying interest because there is no provision under the Act for such an appeal. In fact, cl. (b) of sub-s. (8) of s. 139 specifically provides for refund of amount of interest where the amount of tax on which interest was payable had been reduced in appeal. It is, therefore, not right for the learned counsel for the assessee to suggest that if an order levying interest is not appealable, the assessee would be without a remedy. In the result, we answer the question referred to us in the affirmative, 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 (3) TMI 38 - CALCUTTA HIGH COURT
Accounting Year, Business Income, Foreign Exchange, Indian Company, Mercantile System, Profit Due To Devaluation, Trading Receipt
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1978 (3) TMI 37 - KERALA HIGH COURT
Default In Payment, Income Tax Act, Income Tax Debt, Motor Vehicles ... ... ... ... ..... and retaking possession of the vehicle, could not, in any way, be questioned by the revenue. In the light of the agreement under which the third respondent got the vehicle, the claims of the petitioner, shall prevail over the State, and the petitioner is entitled to get the registration certificate transferred in its name and also to get clearance certificate from the Regional Transport Authority. Therefore, I quash Ext. P-1 and direct the first respondent to issue tax clearance certificate in respect of the Fargo bus bearing Registration No. KLF 1469 and to cancel the original registration certificate in respect of the above bus issued in the name of the third respondent. I further direct the first respondent to issue a fresh registration certificate in the name of the petitioner. The original petition is disposed of as above. There will be no order as to costs. A carbon copy of this judgment will be issued to the counsel for the petitioner on payment of requisite charges.
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1978 (3) TMI 36 - MADRAS HIGH COURT
Capital Gains, Income Tax Act ... ... ... ... ..... date of transfer. The wording of the section appears to us to be clear and it is also clear that the wording is not capable of any meaning other than what we have indicated above. In that view, the principle relied on by the statute is clear and we have got to apply it irrespective of the consequences. It may look harsh, for, the assessee having occupied the house from January 16, 1964 to May 16, 1965, for a year and four months, he should be deprived of the benefit of s. 54. But that is the will of the legislature. It is not for us to say anything on that. There is no principle that if the law is harsh we can interpret the section and give it a meaning which the words do not convey. In the light of the above, we answer the question referred to us in the affirmative, that is to say, in favour of the department and against the assessee. In the circumstances, we direct the parties to bear their costs, which is the only indulgence that can be shown to the assessee in this case.
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1978 (3) TMI 35 - KARNATAKA HIGH COURT
Business Connection, Foreign Company, Income Deemed To Accrue Or Arise In India, Indian Company
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1978 (3) TMI 34 - CALCUTTA HIGH COURT
Assessment Proceedings, Cash Credits, Financial Year, Previous Year, Reassessment Proceedings
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