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Case Laws
Showing 61 to 80 of 211 Records
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1979 (11) TMI 170
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... ... ..... nde and D.L. Deshpande by his common order dated 25th Oct., 1978. 4. The grievance of the assessee is that there is no justification for levy of interest under s. 217. It was stated that the assessee relied on the books of account and the return filed and the assessee did not file any estimate for advance tax as there were no events that the assessee could foresee that heavy additions would be made in the case of the firm in which he was a partner. 5. I find much substance in what the counsel for the assessee stated before me, and I hold that on facts there is no justification to charge interest under s. 217 of the Act. Shri Shrivastava relied on the order of the Nagpur Bench in ITA. No. 413 (Nag)/1977-78 for asst. yr. 1974-75 (to which I am a party). However, it may further be stated that the Tribunal followed with respect the decision of the Bombay High Court reported at 108 ITR 961. Accordingly, I hold that the assessee should succeed in this appeal. The appeal is allowed.
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1979 (11) TMI 167
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... ... ..... nstitute repairs as ordinarily understood. It is only a part of maintenance. It is only to avoid ambiguity in the term maintenance particularly when the building is new that this provision for painting and snowcem washing is inserted. For these reasons, we are quite satisfied that this is not a case where the tenant has undertaken to bear the cost of repairs. So departmental appeal has only to be dismissed. 4. We believe that this building because of new construction in 1971, as soon from the lease deed, is exempt for five years from the provisions of Building and Lease Control Act. If it were covered by the said legislation, perhaps no such questions would have arisen because whether there is contract to the contrary or not, the tenant is under no obligation to repair and it is the duty of the landlord to do such repairs to the building, vide Madras High Court rsquo s judgment in Dorai Pandi Konar vs. Sundaram Pather (1). 5. We, therefore, dismiss these departmental appeals.
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1979 (11) TMI 166
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... ... ..... to this question. Even if this be so in the present case there is no application of the incorrect law by the ITO pointed out or received as information from the audit going to sustain the Department s case. The internal audit Department referred to certain discrepancies in respect of depreciation whereas the Revenue audit referred to the deductibility of initial contribution amounts to a superannuation fund. The view given by these audit parties, internal and revenue, are not based on established law as settled by the Supreme Court or even by the High Court but represented their own views in the matter. As correctly pointed out the views of the audit parties cannot be said to represent the correct state of law unless it is supported by decisions of the Courts. The argument of the ld. Departmental counsel in this regard to the effect that facts of the present case take it out of the decision in Indian and Eastern Newspaper Society (2) cannot be accepted. The appeal is allowed.
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1979 (11) TMI 164
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... ... ..... ble inference that the amount could have been remitted to India but the evidence in that case was next to nothing and that the finding of the Tribunal was based only on assumptions. In those circumstances, the Hon ble High Court answered the following question in favour of the Revenue Whether on the facts and circumstances of the case and having regard to the provisions of s. 69A of the IT Act, 1961, the Tribunal had material to hold and was justified in law in holding that there was no justification for treating the sum of Rs. 1,70,000 as a taxable income of the assessee for asst. yr. 1964-65? . The above decision would not apply to the facts of the instance case. In this case it is not disputed that the assessee had enough cash as foreign wealth and from the circumstances of the case, as pointed out above, it is possible to infer that the amount could have been remitted to India. We, therefore, direct that the sum of Rs. 20,150 beneficiary deleted. 4. The appeal is allowed.
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1979 (11) TMI 163
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... ... ..... stand on a different footing. As observed by the Supreme Court in 76 ITR 696 (Anwar Ali rsquo s Case the Department should establish conclusively that the disputed amount represented the income that the assessee had consciously concealed and the mere rejection of the assessee s explanation will not tantamount to the fulfilment of this requirement. The departmental representative has referred to the Madras High Court decision in (Kandasamy Pillai (decd) vs CIT which in our view, has no application to the present case. The facts therein are distinguishable as it was found to be really a case where the statement of the assessee was found to be false. The decision in that case, therefore, pertains to the particular facts of the case would not be relevant in deciding the present matter before us. In the light of the foregoing discussion we are of the view that there is no proper case for the levy of penalty. We, would hence sustain the AAC order. The Revenue s appeal is dismissed.
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1979 (11) TMI 162
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... ... ..... and in the following words The reasons in brief are that though s. 4 of the IT Act, 1961 brings to charge the total income of the previous year of every person, the rate is to be enacted in the Finance Act for each year. Finance Act forms an integral part of the IT Act itself. Accordingly, the Tribunal cannot deal with the validity of these provisions, in view of the decisions in the cases relied on by the Department as well as the cases of C.T. Senthilnathan Chettiar(1) and Kanpur Stores(2). Under the respective provisions of the Finance Act, agricultural income is not brought to tax. Agricultural income does not form part of the total income. The net agricultural income is taken only to ascertain the rate of tax in respect of the total income in which the agricultural income is not included. The assessments made by the ITO are in conformity with the provisions of the IT Act and Finance Act. Adopting the above reasoning and conclusion, we would dismiss the assessee s appeal.
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1979 (11) TMI 161
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... ... ..... e minor s share of profits arises only out of his having been admitted to the benefits of the partnership. It appears, these deposits are made out of the accumulated share of profits. We do not know how far that is correct, because the clauses in the partnership deed provide that the minor should make some deposits. So we are not investigating into the question whether the interest is from the accumulated share of profits as contended by the departmental representative. We are basing our decision only on the fact that the minor is obliged to make a deposit. That is sufficient for the purpose of the case. That will bring the case within the ambit of the Madras High Court judgment. This is a case where the minor is obliged to make a deposit. That makes all the difference in the case. So the decision of the AAC has to be reversed. 4. Appeal allowed. The exclusion of interest income from the deposits from the share income is cancelled. The assessment on this question is restored.
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1979 (11) TMI 160
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... ... ..... ay, apply in relation to such order as they apply in relation to an order of the ITO imposing a penalty under s. 221 of the Act. It is trite to state that any penalty imposed under s. 221 for non-payment of tax is fully appealable under s. 246(6)(ia) and is liable to be cancelled if reasonable cause is shown. The similar principle indubitably applies regarding the levy of the corresponding penalty under the CDS Act also. The very fact that before levying penalty under s. 10 of the CDS Act, 1974 the assessee has to be given an opportunity and that appeal has also been provided against the levy of any penalty make it manifest that such penalty cannot be sustained if reasonable cause is shown by the assessee. In the present case there is no dispute that the assessee had a valid explanation for the delay of ten days in paying the deposit, which the AAC has accepted. We are hence of view that the penalty has been rightly cancelled by the AAC. In the result the appeal is dismissed.
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1979 (11) TMI 159
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... ... ..... . 4(1A)(c) of the WT Act the converted property shall be deemed to be the assets transferred indirectly by the assessee to the spouse or minor child and consequently under the provisions of s. 4(1) the value of such assets, which, on the valuation date, are held by the spouse or minor child, will be includible whether the assets are held in the form in which they were transferred or otherwise. However, the accretion or addition to such asset stands on a different footing and will not be includible. We are of the considered view that thus under the above provision only the originally transferred amount of Rs. 2,02,542 will be includible in the assessee s assessment under s. 4(1A) r/w. s. 4(1), but not the interest accruing on such assets. It is a separate and independent accretion to the asset and does not form part of the original asset transferred. In this view of the matter, we find no reason to depart from the AAC s finding. The Revenue s appeals are accordingly dismissed.
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1979 (11) TMI 152
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... ... ..... cision of the Hyderabad Bench of the Tribunal dt. 24th Feb., 1978 in ITA No. 1767 (Hyd)/1976-77 in the case of T.V. Ramaiah and Sons. 2. Before us the ld. Deptl. Representative submitted that there is no provision in the IT Act which provides for adjustment of the interest paid by a partner to the firm. 3. We have heard the parties. We would uphold the CIT (A) s finding having regard to the ratio of the Allahabad High Court decision in 24 ITR 176 cited supra. We may also add that the same view, that only one net interest payment should be disallowed under s. 40(b), has been taken in the following cases mdash 1. M/s. Devi Films Finance Corporation, Madras vs. ITO, Central Circle-V, Madras.(2), 2. M/s. T.N.K. Govindaraju Chetty, Madras vs. ITO, Central Circle V, Madras(3)., 3. ITA Nos. 1611 and 1612(Mds)/77-78 dt. 30th June, 1976 (Madras Bench C)(4), 4. ITA Nos. 1237 (Mds) (77-78, dt. 5th Aug., 1978 (Madras D Bench)(5), In the result the Revenue s appeal fails and is dismissed.
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1979 (11) TMI 150
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... ... ..... or its directors in the other companies and is either because they were managed companies or because they were subsidiaries or because the directors of the assessee-company were interested in those companies is quite acceptable to us. There might be profits from the investments. But the desire to make the profits was not the motives for these investments in these companies. Profits or dividends in this case is only an ordinary, normal consequence of the investments. The motive for the investments was as explained by the assessee, which explanation we have reproduced above. The facts and circumstances do not show any activity as is specified in 83 ITR. So we hold that the assessee for these four assessment years is not a company whose business consists wholly or mainly in holding of investments. 5. Therefore, all these four appeals are allowed. The assessments to super tax or as the case may, be, income-tax on undistributed income will be revised on the basis of this finding.
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1979 (11) TMI 149
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... ... ..... income returned. Having regard to the entirety of the facts and circumstances of the case as stated above, we hold that good and sufficient reasons existed for exempting the assessee from the provisions of s. 249(4). We sold add that even in the decision cited by the Revenue in the case reported in 28 ITR 189 his Lordship Subba Rao, C.J., as he then was observed at page 198 that even if tax was due at the time the appeal was presented, they would go further and hold that the subsequent events and the conditions obtaining at the time the appeal was disposed of by the AAC could certainly be relied upon by the assessee in the circumstances of the case. In the instant case, the assessee had admittedly paid the tax due at the time when CIT(A) took up the appeal for hearing, For the foregoing reasons, we hold that the CIT (A) is erroneous. We direct the CIT (A) to admit the appeal and dispose of the same on merits and in accordance with law. 7. In the result, the appeal is allowed.
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1979 (11) TMI 148
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... ... ..... (1), this line of argument that what is disclosed is not full or true or both has no longer any force. The Supreme Court judgment is a hundi-loan case where the assessee produced all material documents relating to Hundi. But the case of the ITO for reassessment was that it was of a false transaction. The Supreme Court said that the assessee could not be said to have failed to make a true and full disclosure of the material facts by not confessing before the ITO that the hundis and the entries in the books of account produced by it were bogus. The same reasoning would apply here. It was for the ITO to investigate and find out the correct cost. The assessee could not have been said to have failed to make a true and full disclosure of the material facts, just because the figure disclosed by the assessee did not coincide with the figure estimated by the ITO. 4. We also agree with the sound reasons of the AAC and his conclusions. 5. Therefore, the departmental appeal is dismissed.
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1979 (11) TMI 142
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... ... ..... y and in the absence of any agreement such payment cannot be allowed. We have pointed out that the payment has not been shown to be for non-business purposes, The payment itself has not been shown to be genuine. The claim of the assessee that services were rendered by the manager warranting the payment is not in dispute. It is not in every case that employment should be preceded by a service contract or remuneration should also be pre-determined in the case of every service. As a practical measure it is not inconceivable that persons are employed on fixed salaries or settled remuneration but after taking into account the work, performed by them or the special advantages the employer received on account of their work the employer comes to remunerate them with extra amounts. The payment need not rest on a predetermined contract in order to be either a genuine payment or a proper remuneration for the work rendered. The addition has been properly deleted. The appeal is dismissed.
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1979 (11) TMI 141
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... ... ..... . 13(2)(h) have been understood by the Department to be applicable only to case of investment of the trust funds in the capital of a firm and not to a case where it is given as a loan. In view of this position, the assessee would be entitled to the exemption under s. 11 if the trust funds have been given on adequate security and for adequate interest. The AAC has himself the ITO to verify these facts and we, therefore directed affirm his direction and direct the ITO to grant the exemption under s. 11 after satisfying that the trust funds have been given on loan for adequate security and for adequate interest. 5. The assessee supported the order on the alternate ground of exemption under s. 10(22). But we find it unnecessary to go into this question, not only because we are not interfering with the other part of the order of the AAC, but also because this claim does not appear to have been taken before the ITO at the first instance. 6. In the result, the appeals are dismissed.
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1979 (11) TMI 140
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... ... ..... ecause s. 5(1)(viii) was amended to withdraw the exemption given to jewellery also. This indicates that the assessees were not conscious of the amended provisions of the Act when the original return was filed. That the being the position, there can be no doubt that the omission to include the value of the silverware in the original return was not a wilful concealment, but was only an unintentional omission similar to the omission of the jewellery. Obviously, the assessees were not fully conscious about the effect of the amendment partially withdrawing the exemption given under s. 5(1)(viii) of the Act and had filed the returns as in the earlier years oblivious of the full effect of the amended provisions of the Act. In such circumstances, we have not hesitation in agreeing with the findings of the AAC that there was no deliberate concealment which invited imposition of the penalty. The cancellation of penalties is therefore upheld. 6. In the result, the appeals are dismissed.
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1979 (11) TMI 136
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... ... ..... of the Depreciation Schedule, item 4 reads as follows Purely temporary erections such as wooden structures..............100 per cent. It is common ground that in this case, the assessee has put partition work in between two sections in its workshop at Kumbakonam. In the very nature of things, the partition work is a purely temporary structure. Merely because in the partition work, in the wooden frame square mesh and steel wire were used for fencing, it cannot be said that the structure does not fall within item 4 of appendix I of part I referred to above. We are of the view that it is not necessary that the entire fencing must be purely of wood so as to qualify to be purely temporary structure. We, therefore, agree with the AAC that the assessee is entitled to depreciation at the rate of 100 per cent in respect of the cost of the above partition work, the cost of which is mentioned in the assessment order as Rs. 34,259. 9. In the result, the appeal fails and stands dismissed.
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1979 (11) TMI 134
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... ... ..... er, think that in can help either side in the present case. In that case their Lordships upheld grant of registration because it was noticed that the licence had no clause prohibiting formation of the partnership. The ld. Counsel for the assessee has referred to the decision of the Jaipur Bench of the Tribunal in the case of M/s. Sumermal Daftry. In the case the licence had been taken under the Mining Concession Rules, 1960. The licence had not been transferred to the partnership and the mining part of the business was continued mainly by the partner who was the licensee and the other partners mainly provided finance. It was held that there was no violation of the law and the firm was validly constituted and was entitled to registration. 11. We hold that the ld. AAC was right in holding that the assessee firm was validly constituted and was entitled to registration. As such we uphold his order and dismiss the Revenue s appeal. 12. In the result, the departmental appeal fails.
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1979 (11) TMI 133
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... ... ..... conveyance was being claimed under sub-cls. (ii), (v) and (vi) of s. 35B(1)(b). The ld. Commr. (Appeals) declined to go into these items on the authority of Supreme Court decision in the case of Addl. CIT vs. Gujargravures Pvt. Ltd.(1) On going through this decision we find that it cannot be applied to the present case. In that case claim under s. 80J which had not been made at the assessment stage was sought to be raised at the appellate stage and their Lordships held that the appellate authority could not go into the claim so raised. In the present case the claim under s. 35B was made by the assessee before the ITO and before the ld. AAC the assessee merely modified the amount claimed. The circumstances under which the claim was modified were stated. We feel these items should be looked into by the ld. Commr. (Appeals) and for that purpose we restore this issue to him. 7. This disposes of the stay application of the assessee. 8. In the result, the appeal succeeds partially.
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1979 (11) TMI 132
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... ... ..... een given in s. 2(14) of the Act, and according to sun-cl. (ii) of s. 2(14), personal effects, that is to say, movable property (including wearing apparel, jewellery and furniture) held for personal use by the assessee or any member of his family dependent on him shall be excluded from the definition of capital asset. The word including used in sub-sl. (ii) of s. 2(14) of the Act, goes to indicate that there may be other personal effect, apart from the effects mentioned in the section. Silver utensils in the present case, are personal effects of the assessee, and they were used by the assessee daily. So, the silver utensils in the present case are excluded from the definition of the capital asset, as mentioned in s. 2(14) of the Act. When the utensils in question are not capital assets, the question of any capital gain, on their sale, will not arise. So, the ld. AAC was perfectly justified in deleting the addition. 8. In the result, the appeal fails and the same is dismissed.
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