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Showing 61 to 80 of 100 Records
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1979 (6) TMI 42
Demand - Recovery of short levy from clearing agent ... ... ... ... ..... s produced a registered letter sent by them to the importer on 30-11-1977, which appears to have been refused by the importer and the registered cover contains endorsements always absent and not claimed . In view of the circumstances explained above, I am clearly of the view that it cannot be said that it has been shown that the amount cannot be recovered from the importer. As I am upholding the contention of the petitioners that Section 147 cannot be invoked as against them unless and until it is clearly shown that the amount could not be recovered from the importer, the impugned demand issued against the petitioners has to be quashed. 8. As I have upheld the point based on Section 147 of the Customs Act, it is unnecessary to consider the point as to limitation. Hence without expressing any opinion on the question of limitation, the demand is quashed. 9. The result is the writ petition is allowed and the impugned order is quashed. There will however be no order as to costs.
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1979 (6) TMI 41
Appeal - High Court cannot condone delay ... ... ... ... ..... he case in any manner whatever. The Original Petition is accordingly allowed. No costs. We do not think that under Article 226 jurisdiction, the learned Judge was justified in setting aside Exts. P2, P4 and P5 orders. No grounds had been made out at all for the delay in filing the appeal before the appellate authority now was the learned Judge right in condoning the delay in filing the appeal in proceedings under Article 226, when the authorities below had, in the exercise of their discretion, refused to do so and had no opportunity to do so. 2. On almost similar facts a learned Judge of this Court, following a Division Bench of this Court in W.A. No. 417 of 1975, had dismissed the writ petition. In W.A. No. 417 of 1975 again, a Division Bench of this Court had taken the same view as we have stressed in the present case. 3. We allow this appeal and set aside the judgment of the learned Judge and direct that O.P. No. 4269 of 1975 will stand dismissed with no order as to costs.
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1979 (6) TMI 40
Proforma credit ... ... ... ... ..... n absolute right to importer to import that the goods covered under sub-item (d) of Tariff Item No. 27 but a further application and permission from a proper Officer was necessary before the goods were imported. Apart from this, there is no absolute right in a party to claim that exemption should be granted from the date of the notification even though it was not applied for. In my judgment, the Government has acted very rationally in granting the permission and the petitioner would not be entitled to any relief in this connection. 10. In the result, the petition fails and the rule is discharged with no order as to costs. As this stage, Mr. Mody, the learned Counsel for the petitioner, requests that the order should be stayed for a period of 8 weeks to enable him to file an appeal. The prayer is rejected. The petitioner has furnished Bank guarantee at the time of grant of interim relief. The department is entitled to proceed and recover the amount out of this Bank guarantee.
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1979 (6) TMI 39
Rule 223A - Validity - Stock taking - Shortage in stocks ... ... ... ... ..... e the rule is ultra vires I am unable to accept this contention either. What all the rules state is that if on a check of the accounts it is found that there is any shortage, when duty is leviable on the quantity found deficient I do not see how any arbitrary power is vested in this rule. The warehouse keeper is required to satisfy the proper officer as to how the deficiency has happened. That is a method of proof. It is true that some officers may require more stronger proof than the others. But that cannot be a ground to conclude that any arbitrary power is vested on the authorities concerned. Rule 223A in the nature of things has to be in this form as, even if any standard is prescribed, the petitioner might show peculiar circumstances, which warranted higher percentage being permitted. It is in those circumstances it is said that the warehouse keeper should statisfy the deficiency to the proper officer. 5. The writ petition therefore fails and it is accordingly dismissed.
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1979 (6) TMI 38
Metal Containers and PP Caps ... ... ... ... ..... metimes choose to buy containers from one manufacturer and PP Caps from another manufacturer. It was further contended that the container is complete as an excisable product without the PP Caps. Moreover, duty is in any case paid separately on the PP Caps. They, therefore, contended that there should be no question of adding the value of the caps (and that too on a national basis) to the value of the containers for the purpose of levy of Central Excise duty on the containers. It was, therefore, pleaded that the Assistant Collector had erred in holding that a container was not complete without a PP Cap and that the value of the PP Cap must be added to the value of a container for arrival at the assessable value of the container. Government of India have carefully considered the submissions of the petitioners. Government find considerable force in the contentions of the petitioners. The Revision Application is, therefore, allowed with consequential benefits to the petitioners.
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1979 (6) TMI 37
Valuation - Wholesale dealer when can be a distributor ... ... ... ... ..... Silk Mills. However, there is no supporting evidence and authority for the aforesaid averments. The Order-in-Appeal is correct in law and based on the facts of the case. The Revision Application is accordingly rejected. EDITOR S COMMENTS This decision of the Government of India is not correct as much as the relationship between the manufacturer and wholesale dealer is not a determining factor for ascertaining whether the buyer is a related person under Section 4(4)(c). After the pronouncement of the Gujarat High Court judgments in the case of Cibatul Ltd. - 1978 E.L.T. (J 407) and Atic Industries-1978 E.L.T. (J 513), it is now clear that the only criteria for determining whether a buyer is a related person or not is the price charged to such buyer. If the price charged is a fully commercial price the buyer cannot be termed as related person but if the price charged is favourably low and based on extra commercial considerations, the buyer will be treated as a related person.
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1979 (6) TMI 36
Art Silk Fabrics ... ... ... ... ..... n time to do so. However, this was not produced by him. All that he referred to was the portion of the Textile Control Order which is relevant only to seconds and not to Short lengths . Government observe that the petitioners have not even indicated the length what should constitute a standard length not given any other relevant considerations which would distinguish so-called short lengths from standard lengths. Even in the Revision Application they have not given any factor on the basis of which a short lengths fabric could be differentiated from the standard one. During the personal hearing also no firm basis was adduced for their contention. Government are inclined to think that the Appellate Collector was misguided in the passing of the particular order-in-appeal No. 574/77 which is relied upon by the petitioners at the time of the hearing. In view of this Government see no justification to interfere with the impugned order-in-appeal and reject the Revision Application.
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1979 (6) TMI 35
Biris - Cost of packing ... ... ... ... ..... eing in the form of Pudas, it cannot be said that manufacture was not complete when the Biris were packed in Pudas i.e., pending casing which is a secondary packing. The R/A is therefore allowed with consequential benefit to the petitioners.
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1979 (6) TMI 34
Tariff Item 68 ... ... ... ... ..... the benefit of the exemption notification was taken before the despatches in question were effected. Government order that the Assistant Collector should decide the master de novo and grant the benefit of the aforesaid notification, if he is satisfied with reference to the account books and other evidence that may be produced by the petitioners showing that the goods invoiced had, in fact, been removed only for use in the manufacturer s other units at the places mentioned above.
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1979 (6) TMI 33
Classification of goods - Canons of interpretation - Power driven pump - Connotation of - `Accessories' - Interest
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1979 (6) TMI 32
Valuation - Post-manufacturing expenses and profits ... ... ... ... ..... ressing into service the residuary powers under Article 248 and Entry 97 of List 1. Section 3 of the Act again expressly refers to the duty as a duty of excise. In these circumstances, we are afraid we cannot sustain the levy under the residuary powers pressed into service by the learned Central Government Pleader. 23. We are therefore of the opinion, that the respondents were wrong in insisting on the post-manufacturing expenses and the post-manufacturing profits to be included in the reckoning for determining excise duty. In the light of the decisions noticed, this is vitiated. The learned Judge was wrong in holding otherwise. 24. We allow this appeal and set aside the Judgment of the learned Judge. The result is that O.P. No. 4578 of 1975 would stand allowed and Exts. P2, P2(a), P2(b) and P2(c) which stand quashed, leaving the respondents free to act in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.
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1979 (6) TMI 31
Best Judgment Assessment, Income Tax Act ... ... ... ... ..... 1961 Act in a manner which will limit and circumscribe the assessee s right to agitate all questions in the appeal. The right to appeal from an assessment or reassessment under s. 147 appears to be a general right and if such an appeal is admissible then it does not appear to us that the assessee is confined only to certain grounds and not others. The Privy Council in the case of Khemchand Ramdas 1938 6 ITR 414 noted the distinction between an order under s. 34 and that made under s. 23(4) of the Indian I. T. Act, 1922. We hold that in the facts and circumstances of the instant case the assessee had a specific right of appeal against the reassessment made under s. 147 of the I.T.Act, 1961, and was entitled in such appeal to agitate all its objections to the reassessment including the objection that it was not liable to be assessed at all. For the above reasons, the question referred is answered in the negative and in favour of the assessee. There will be no order as to costs.
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1979 (6) TMI 29
Income Tax Act, Notice Of Reassessment ... ... ... ... ..... ion whether the hundi creditors or hundi loans are bogus and fictitious will be adjudicated according to law. Mere initiation of proceeding under s. 147(a) does not amount to a finding that the loans are fictitious, though, undoubtedly, the bona fide assessee by the reassessment is put to inconvenience which unfortunately cannot be avoided in the context of large scale evasion of income tax in the country and the methods adopted for the purpose. In view of the above discussion it seems to us that there were grounds for the reasonable belief on the part of the ITO to hold that the assessee failed and omitted to disclose fully and truly all material facts necessary for the assessment for the relevant year leading to escapement of income chargeable to tax. For the above reasons, as all the contentions of the appellant fail, this appeal is dismissed bat without any order as to costs in the circumstances. All interim orders, if any, are vacated. SANKAR PRASAD MITRA C.J.--I agree.
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1979 (6) TMI 28
Accounting Year, Assessee Carrying On Business, Business Expenditure, Deduction Of Interest, Income Tax Act, Interest On Borrowed Capital
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1979 (6) TMI 27
Business Income, Income From Business, Income Tax Act ... ... ... ... ..... ase, the benefit the assessee derives is almost direct, namely, continuous supply of components to keep up its own production and manufacturing of components under its own guidance and scrutiny. The assessee is rendering service to the ancillary units by furnishing raw materials, technical knowhow and supervision. In the language used by the Supreme Court in National Storage Pvt. Ltd. s case 1967 66 ITR 596, it can be said that the assessee was in occupation of the premises so let out for the purposes of its own concern, i.e., by hiring out the sheds with a view to manufacture of component parts to be used by the assessee itself in the manufacture of the machine tools and the income derived is not the income derived from the exercise of property rights only, but is income derived from carrying on its own business. The view taken by the Tribunal that the income was to be assessed under the head Income from business is correct, and the question referred is answered accordingly.
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1979 (6) TMI 26
Burden Of Proof, Cash Credits, Criminal Proceedings, Proof On Revenue ... ... ... ... ..... nalty proceedings and levy penalty. In such a case, there is nothing for the department to conclusively prove or establish. However, the assessee would be entitled to satisfactorily establish that any such statement made by him during the assessment proceedings in this regard was not true or was made under particular circumstances and it is for the concerned authorities and, in particular, the Tribunal, which is the final fact-finding authority, to determine the same as a fact. There is no hard and fast rule of universal application in this regard. In each case it has to be considered as a fact whether the assessee has in fact concealed the particulars of his income or furnished consciously inaccurate particulars of income which is a finding of fact. We see no reason to disagree with the finding of the Tribunal in the case. For all the reasons stated above, we answer the question referred to us in the affirmative and against the department with costs. Advocate s fee Rs. 300.
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1979 (6) TMI 25
Alternate Remedy, Central Government, Collaboration Agreement, Income Deemed To Accrue Or Arise In India, Indian Company
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1979 (6) TMI 24
Business Expenditure, Guest House ... ... ... ... ..... sub-r. (3) is the amount, if any, paid by the guest towards his lodging and boarding in the guest house. Sub-rule (4) of r. 6C of the Rules defines the words guest house as including accommodation hired or reserved by the assessee in a hotel for a period exceeding one hundred and eight-two days during the previous year. The above provisions also indicate that expenses towards food and other amenities are also included in the accommodation provided by an assessee in the nature of a guest house. For the reasons aforesaid, we are of the opinion that the allowances permitted under sub-s. (3) of s. 37 of Act are not only in respect of residential accommodation, but also in respect of accommodation in the nature of a guest house which would include expenses towards providing food and other amenities to the guests staying in such a guest house. For the foregoing reason, we answer the question first mentioned, referred for our opinion, in the affirmative, in favour of the assessee.
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1979 (6) TMI 23
Assessment Year, Wealth Tax ... ... ... ... ..... lth of the assessee for the assessments in question. The decision of the Tribunal on question No. 3 is based on the application of the principles of law enunciated by a Full Bench of this court in officer-in-Charge (Court of Wards) v. CWT 1969 72 ITR 552, which is no longer good law as the same has been overruled by the Supreme Court in CWT v. Officer-in-Charge (Court of Wards), Paigah 1976 105 ITR 133. The assessee s counsel as well as the standing counsel for the department represented that the matter should go back to the Appellate Tribunal for determining this question afresh in accordance with the law laid down by the Supreme Court in CWT v. Officer-in-Charge (Court of Wards), Paigah 1976 105 ITR 133, with liberty to the parties to adduce fresh evidence if in its opinion it is necessary to lead additional evidence in support of the respective stands taken by the parties and we order accordingly. The reference is answered accordingly. There shall be no order as to costs.
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1979 (6) TMI 22
Carrying On Business, Property Deemed To Pass ... ... ... ... ..... relatives to the extent of the difference between the value of the deceased s share and what was actually received by him and that this disposition attracted estate duty under s. 9 read with s. 27. Kantilal s case 1976 105 ITR 92 (SC) thus establishes that cases under the G.T. Act are not of assistance while deciding a question of disposition or gift under the E.D. Act. The learned counsel for the accountable person also referred to some cases under s. 10 of the E.D. Act. We do not think it useful to refer to these cases because we have already referred to R. V. Viswanathan s case 1976 105 ITR 653 (SC), which is the latest case of the Supreme Court to our knowledge on the applicability of s. 10. This case refers to the earlier cases and hence it is unnecessary to burden the judgment by referring to the earlier cases. For the reasons given above, all the questions referred to us are answered in the affirmative and in favour of the revenue. There shall be no order as to costs.
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