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Showing 121 to 140 of 160 Records
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1979 (8) TMI 40 - ORISSA HIGH COURT
Cash System, Indian Company, Rejection Of Accounts, Tax Liability, Technical Services ... ... ... ... ..... its tax liability having been met by the company, the same had to be limited to the amount of actual tax due and in the circumstances grossing up was not permissible under the provisions of the Act. (2) On the facts and in the circumstances of the case, the Tribunal was right in directing that if the Corporation had followed cash system of accounting the benefit should be assessed to tax on receipt basis and not on accrual basis and that if the taxes were paid subsequent to the end of the previous years relevant to the assessment years under consideration, the benefit should not be considered for assessment in the assessment years under consideration. As the revenue has lost, ordinarily we should have awarded costs to the company which was defending on behalf of the Corporation. The company before us is no other than a company wholly owned by the Union of India. We do not think, any useful purpose would be served by giving any,direction for costs. P. K. MOHANTY J.-- I agree.
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1979 (8) TMI 39 - ANDHRA PRADESH HIGH COURT
Assessment Of Income, Assessment Year, Income Tax Act, Relief In Respect ... ... ... ... ..... n in pursuance of an order on appeal, revision or reference as the case may be. Where the order of the ITO is modified or annulled by the AAC or the Tribunal or on reference, consequential orders pursuant to the final order passed by the appellate revisional or reference authority have to be passed. That is why, Parliament has designedly not placed any time limit for the purpose of making an assessment or reassessment under s. 150. Section 150 is altogether a different provision enacted to meet the different situations unlike s. 147. For all the reasons stated, we have no hesitation to hold that the ITO has no jurisdiction to include a sum of Rs. 78,793 towards the deficiency in gross profit for the assessment year 1959-60 in the reassessment made for giving effect to the order of the AAC on the basis of s. 150 of the Act and answer the question in the negative and in favour of the assessee and against the revenue. The Commissioner shall pay the costs. Advocates fee Rs. 300.
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1979 (8) TMI 38 - ALLAHABAD HIGH COURT
Wholly And Exclusively ... ... ... ... ..... referring to these decisions as none of these cases deal with the case of the, present type. The only principle that emerges from these cases is that the payment should be made by the assessee in his character as a trader, and on grounds of commercial expediency, and should be spent exclusively for the purposes of the assessee s business. Cases were also cited where amounts paid by way of fine for infraction of the law were disallowed, the leading case being of Haji Aziz Abdul Shakoor Bros., a decision of the Supreme Court reported in 1961 41 ITR 350. These cases are not in point, for, it has been seen that the demurrage paid by the assessee is not a fine for infraction of any law but paid by way of compensation for use of the port facility beyond the free period allowed under the Port Trust Rules. We answer the question referred in the negative, in favour of the the assessee is entitled to its costs, which are assessed at Rs. 200. Counsel fee is assessed at the same figure.
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1979 (8) TMI 37 - CALCUTTA HIGH COURT
Original Assessment, Reopening Assessment ... ... ... ... ..... id to be illegal or incorrect. No doubt, if another method of valuation was adopted at the original assessment, e.g., the break up method, a different valuation might have been arrived at, but solely on the basis of information that the shares are not frequently quoted in the stock exchange the WTO was not justified in adopting a different method of valuation and initiating reassessment proceedings on such basis. For the reasons aforesaid, the petitioner succeeds in the instant case. A writ in the nature of certiorari will issue setting aside the said impugned notice dated the 26th March, 1974, and the proceedings and orders made pursuant thereto. A writ in the nature of mandamus will also issue directing the respondents not to give any effect or any further effect to the said notice and not to take any further steps in pursuance thereof. The rule is made absolute to the extent as aforesaid. There will be no order as to costs. Operation of this order is stayed for four weeks.
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1979 (8) TMI 36 - ALLAHABAD HIGH COURT
Change In Constitution Of Firm ... ... ... ... ..... y and the other continued to remain a minor. For that period, in the event of a net loss occurring, there is absolutely no means of ascertaining how the same was to be apportioned. This being the position, it cannot be said that no change took place in the constitution of the firm necessitating the drawing up of a fresh instrument of partnership and moving an application for grant of a fresh registration. Thus we agree with the view taken by the Tribunal though for different reasons. Before parting with this case we might like to observe that the decision of a learned single judge of this court in Sheonath Prasad Motilal v. ITO 1963 47 ITR 493 was on different facts and under a different provision of law, viz., r. 6B of the Indian I.T. Rules, 1922, and it has no relevance to the instant case. We, therefore, answer the question referred in the affirmative, in favour of the department and against the assessee. The department is entitled to its costs which we assess at Rs. 200.
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1979 (8) TMI 35 - MADHYA PRADESH HIGH COURT
Law Applicable ... ... ... ... ..... ed in imposing the penalty on the assessee in accordance with the amended provisions of law. By so doing the IAC did not give retrospective operation to the provisions of the amended law. The act giving rise to the penalty was committed after the amended law came into force and, therefore, there was no question of giving retrospective effect to the amended s. 271(1)(c) of the Act in the present case. In the circumstances, the Tribunal was not justified in reducing the penalty to 30 of the tax avoided applying the law as it stood prior to the amendment. In the light of the discussion aforesaid our answer to question No. 1 is that the provisions of s. 271(1)(c) of the Act have no retrospective effect but in the present case by imposing the penalty under the amended provisions retrospective effect was not given to the same by the IAC. Our answer to question No. 2 referred to us is in the negative. In the circumstances of the case, we make no order as to costs of this reference.
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1979 (8) TMI 34 - MADHYA PRADESH HIGH COURT
Appeal Before AAC, Supreme Court, Written Down Value ... ... ... ... ..... er deducting the depreciation. And on this basis, it appears that before the AAC when the appeal was pending, the assessee submitted the additional ground of appeal and claimed additional depreciation on the basis of the decision in Kalooram Govindram v. CIT 1965 57 ITR 335 (SC). It is not a case of completed assessment and the AAC could not have refused to consider this but it appears that the AAC had some notion about the transfer and on that basis felt that this could not be done. Unfortunately, the Tribunal on a different consideration rejected the contention. The view taken by the Tribunal also is not justified in law. In our opinion, therefore, the assessee was entitled to depreciation in the light of the decision of their Lordships of the Supreme Court in 1965 57 ITR 335. Our answer, therefore, to the question No. 1 is in the affirmative and the answer to question No. 2 is in the negative. In the circumstances of this case, parties are directed to bear their own costs.
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1979 (8) TMI 33 - MADRAS HIGH COURT
Capital Gains, Cost Of Acquisition, In Part, Market Value ... ... ... ... ..... an the value as shown by any arrangement between the parties, it is the market value that should be taken into account as the actual value. There is absolutely no warrant in any statutory provision or any decided case in support of this proposition. In the circumstances, we are unable to accept this proposition put forward by the learned counsel for the assessee. The result was that the question referred in that case was answered in the following manner, namely, in computing the capital gains arising to the assessee by the sale of the property in question, its cost of acquisition should be taken at its value as per books as on April 1, 1964. Applying the above reasoning, in the present case, the cost of acquisition of the assets should be taken at the value at which they appeared in the books of the firm as on July 1, 1962. That is the cost to the assessee. The question is acccordingly answered in the negative and in favour of the revenue. There will be no order as to costs.
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1979 (8) TMI 32 - ALLAHABAD HIGH COURT
Annual Value, Assessment Proceedings, Original Assessment, Reassessment Proceedings ... ... ... ... ..... rial on record no such stand could have possibly been taken by the ITO, for the assessee had in his return specifically mentioned the rent received from his various properties and subsequently, on inquiry, by letter dated July 4, 1966, gave full particulars of the tenants occupying his various houses and the rent received from them. This information included the rent received from the Deputy Agricultural Officer for a portion of Raja Sadan. In these circumstances, it cannot be said that the ITO was not cognisant of the rent being received by the assessee from his property from various tenants. In spite of this he chose to fix the annual letting value by reference to the municipal assessment. In these circumstances, we are of the view that the ITO had no jurisdiction to reopen the assessment under s. 147(b). We, accordingly, answer the question in the negative, in favour of the assessee and against the department. The assessee is entitled to costs which is assessed at Rs. 200.
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1979 (8) TMI 31 - ALLAHABAD HIGH COURT
Penalty, Wealth Tax ... ... ... ... ..... assessee, that the assessee was not aware of the latest amendment in law. In this view of the matter, we may hold that for the period ending June, 1970, he cannot be held liable for filing the return late and hence the penalty imposed for the year 1967-68 up to June, 1970, will not be sustainable in the eye of law. In the context, in which the Tribunal was considering the reasonable cause for delay in filing the return, when they referred to the fact that the assessee was not aware of the latest amendment in the law, they were obviously referring to the affidavit of Sri K. P. Chaterji, assessee s counsel, for he alone had stated this fact. Thus, it cannot be said that the Tribunal ignored the deposition of Sri K. P. Chaterji, advocate, as contained in para. 8 of the affidavit. We, accordingly, answer both the questions in the affirmative, one against the assessee and the other in his favour. In view of the partial success and failure, the parties shall bear their own costs.
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1979 (8) TMI 30 - PUNJAB AND HARYANA HIGH COURT
Reassessment ... ... ... ... ..... s a general type of information regarding the banker. There was no information with him that no amount was advanced by the banker to the assessee. It is well established that an ITO who drew one inference from the facts and made the assessment cannot later change his opinion and open the assessment on the same set of facts. He can do so if he has reason to believe that the primary facts were not fully and truly disclosed. This can be done if fresh facts come to light which were not previously disclosed by an assessee. The facts of the present case do not disclose that any fresh material came to the notice of the ITO which was not previously disclosed to him. The observations in the above said cases fully cover the case on hand. In our view, the ITO had no right to reopen the assessment on the basis of the material which came to his notice. Consequently, we decide both the questions in the negative, i.e., in favour of the assessee and against the revenue. No order as to costs.
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1979 (8) TMI 29 - CALCUTTA HIGH COURT
Assessment, Firm ... ... ... ... ..... l position. That the partners of the new firm carried on the same business in the same name with the same set of books must be held to be a decision of the surviving partners. From such conduct and from the aforesaid facts, it does not follow that there was an implied agreement between all the partners of the old firm during their lifetime to continue the firm in the event of the death of any of them. We respectfully agree with the decision of the Gujarat High Court in Harjivandas Hathibhai 1977 108 ITR 517 on this point. From the facts relied on by the revenue, it cannot be inferred that there must have been an agreement between all the partners of the old firm during their lifetime that the said firm will not be dissolved on the death of any of them. For the reasons aforesaid, the assessee succeeds in this reference. The question referred is answered in the negative and in favour of the assessee. The reference is disposed of accordingly. There will be no order as to costs.
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1979 (8) TMI 28 - PUNJAB AND HARYANA HIGH COURT
Firm, Penalty ... ... ... ... ..... the delay in filing the return was not prompted by the dishonest motive, but the Tribunal shall have to address itself to the question whether the assessee has furnished any explanation for the delayed filing of the return and whether such explanation is enough for the Tribunal to come to the conclusion that the delay filing the return has been without reasonable cause. No such finding has been given by the Tribunal whereas the Tribunal found as a fact that there was no dishonest intention for the delay in filing the return. In view of what has been stated above, we are unable to answer the question referred to us and we direct that the Tribunal shall proceed to determine as to whether, on the facts and circumstances of the case, the delayed filing of the return by the assessee was without reasonable cause or not? The imposition or non-imposition of the penalty will follow the determination of that question. We order accordingly. However, there will be no order as to costs.
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1979 (8) TMI 27 - CALCUTTA HIGH COURT
Appeal To Tribunal, Penalty ... ... ... ... ..... pplication at the stage prior to initiation, which is merely an administrative proceeding. In the above view of the matter I hold that sub-s. (2) of s. 269C could not be invoked for forming the belief by the Competent Authority as to whether proceedings for acquisition of the immovable property in question should be initiated. In the instant case, there were no materials whatsoever for formation of the belief that the consideration for the transfer had not been truly stated by the LIC in the instrument of transfer executed in favour of the petitioner No. 1. Therefore, the impugned proceeding is without jurisdiction and should be quashed. I accordingly make this rule absolute. Let a writ of mandamus issue commanding the respondents not to proceed any further with the said impugned proceeding under Chap. XX-A of the I.T. Act. Let a writ of certiorari issue quashing the said proceedings. There will be no order as to costs. Let the operation of this order be stayed for six weeks.
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1979 (8) TMI 26 - MADHYA PRADESH HIGH COURT
Advisory Jurisdiction ... ... ... ... ..... ound and such a question could not be said to be a question of law in view of the observations made by their Lordships of the Supreme Court. Learned counsel for the department, placing reliance on the decision in CIT v. Smt. Anusuya Devi 1968 68 ITR 750 (SC), wanted to contend that even if this court directed the Tribunal to make a reference, on hearing the reference we are not bound to answer the question if we come to the conclusion that no question of law arises. But having heard learned counsel for the petitioner at length even on all the materials which was placed before the Tribunal we feel that it could not be contended that the Tribunal was not justified in drawing the inference that it did and in this view of the matter we do not think it necessary to go into the question raised by learned counsel for the department. Consequently, our answer to the question referred is in the affirmative. In the circumstances of the case, parties are directed to bear their own costs.
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1979 (8) TMI 25 - MADRAS HIGH COURT
Appeal To Supreme Court, Gift ... ... ... ... ..... provision has been put into the statute in exercise of the powers conferred on Parliament under art. 138 of the Constitution. That article provides that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. Section 65 of the E.D. Act relates to matter in the Union List, and Parliament has conferred powers of appeal on the Supreme Court subject to a certificate of fitness. There is no requirement that under s. 65 of the E.D Act, it is necessary to have any application. It is enough, therefore, if there is an oral application. The language of s. 65 of the E.D. Act appears to be consistent with the view that, under the section, an oral application can also be made. Entertaining the oral application made in the present case, we consider that this is not a case in which certificate of fitness can be issued. We have decided the case more on the basis of facts, and applied only settled.
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1979 (8) TMI 24 - MADRAS HIGH COURT
Appeal To Tribunal, Penalty ... ... ... ... ..... was not in a position to dispute the fact that the ground on which the Tribunal decided the appeal was a pure question of law, the ground being whether the order of the ITO got merged in the order of the AAC so that the ITO could not, after the disposal of the appeal by the AAC, rectify the penalty order. Therefore, the third question has also to be answered in the affirmative and in favour of the assessee. As regards the fourth question the point sought to be raised is that the Appellate Tribunal should have gone into the nature of the error to find out whether it was an apparent error or not. When the Tribunal has pointed out that the ITO was not competent to rectify the order of penalty, there was no need to consider further the question whether the error sought to be rectified was an apparent error or not. In this view, the fourth question is also answered in the affirmative and in favour of the assessee. The assessee will be entitled to its costs. Counsel s fee Rs. 500.
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1979 (8) TMI 23 - CALCUTTA HIGH COURT
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... ... ..... ews were possible or that there were no two views either on the date of the order of assessment or on the date when the notice under s. 154 was issued by the ITO. The appellant, therefore, succeeds in this appeal. The appeal is allowed and the decision of the court below is set aside. The notice under s. 154/155 of the I.T. Act, 1961, for the assessment year 1965-66, issued by respondent No. 1 is quashed and the rule is made absolute. On the view that we have taken it is not necessary for us to deal with the contention of Mr. Bajoria that if the subsequent decision of the Supreme Court in Cambay Electric Supply 1978 113 ITR 84 enabled the ITO to rectify the mistake under the impugned notice under s. 154 of the I.T. Act, 1961, the same would result in the enlargement of the period prescribed for such rectification under sub-s. (7) of s. 154 and the order of rectification would be in violation of the said sub-section. There will be no order as to costs. R. M. DATTA J.-I agree.
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1979 (8) TMI 22 - MADHYA PRADESH HIGH COURT
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... ... ..... restricting that power when by an erroneous order the High Court has directed the Tribunal to state a case on a question which did not arise out of the order of the Tribunal. We are unable, therefore, to hold that at the hearing of a reference pursuant to an order calling upon the Tribunal to state a case, the High Court must proceed to answer the question without considering whether it arises out of the order of the Tribunal, whether it is a question of law, or whether it is academic, unnecessary or irrelevant. It is, therefore, clear that if the question does not arise out of the order of the Tribunal we are not bound to answer it even if the reference has been made under the directions of this court. As discussed earlier, it is clear that the question referred does not arise out of the order of the Tribunal. We, therefore, do not think it necessary to answer the question as it does not arise. In the circumstances of this case, parties are directed to bear their own costs.
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1979 (8) TMI 21 - ALLAHABAD HIGH COURT
Notice, Reassessment ... ... ... ... ..... urn in response to that notice. The notice had been issued to Sardar Arjun Singh, individual, and the return was filed by Sardar Sampuran Singh, karta of his HUF. The two are absolutely distinct entities in law, as also, as a matter of fact, and thus a valid assessment could not be made on the assessee, HUF, as no notice had been issued to it under s. 148 of the Act. We have already indicated above that the issue of notice under s. 148(1) is the condition precedent to the validity of an assessment under s. 147. It is a jurisdictional issue and unless such notice is issued the ITO does not get jurisdiction to make an assessment on a particular assessee. In this view of the matter, in our opinion, the Appellate Tribunal has been right in holding that the assessment in question was not valid in law. We, therefore, answer the question in the affirmative, in favour of the assessee and against the department. The respondent-assessee is entitled to costs which we assess at Rs. 200.
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