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Case Laws
Showing 201 to 217 of 217 Records
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1980 (2) TMI 17 - DELHI HIGH COURT
Depreciation ... ... ... ... ..... ve said should be considered as a finding that the provisions of this clause apply nor do we say anything as to whether the finding of the ITO or the AAC in this regard are correct or not. We are of the opinion that, the Tribunal committed an error in ignoring the provisions of s. 10(4A) while considering the issue of depreciation in respect of these assets. We, therefore, think that the Tribunal should decide the matter taking into account also the provisions of this clause and then arrive at a conclusion as to the allowability or otherwise of the depreciation in whole or in part. We, therefore, answer the question which has been referred to us in the above terms by holding that the Tribunal was not right in ignoring the provisions of s. 10(4A) of the Act. This answer will mean that the Tribunal would go into the matter afresh and consider whether the depreciation is allowable in whole or in part in the light of s. 10(4A). In the circumstances, we make no order as to costs.
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1980 (2) TMI 16 - DELHI HIGH COURT
Deduction, Perquisite, Salary ... ... ... ... ..... in holding that the interest paid by the assessee on moneys borrowed for making annuity deposits is an admissible deduction ? We are of opinion that the view taken by the Tribunal is correct. The assessee had borrowed the moneys for making annuity deposits. From the annuity deposits the assessee derived annual payments which are treated as income under s. 2(24)(viii). Section 56 lays down that annuity payment should be treated as income from other sources. Under s. 57 the assessee is entitled to deduction of amounts of expenditure laid out to derive income assessable under the head other sources . We are of the opinion that the interest paid by the assessee on moneys borrowed for the purpose of making annuity deposits was clearly expenditure laid out for the purpose of making or earning such income. We, therefore, answer this question also in the affirmative and against the Commissioner. The Commissioner having failed, he will pay the costs of this reference to the assessee.
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1980 (2) TMI 15 - MADRAS HIGH COURT
Banking, Guarantee ... ... ... ... ..... t of this submission the learned counsel refers to certain decisions. But having regard to the fact that on merits it has already been held that there was no intention to defraud the revenue on the part of the 6th defendant when he executed the mortgage deed. Ex. A-28, and that as such the order passed under Ex. B-11 cannot be said to be valid and legal, it is not necessary to consider the above decisions cited. In this view of the matter the court below appears to be right in holding that the appellant was not entitled to claim the mortgage deed, Ex. A-28, to be void. This appeal also, therefore, fails and it is dismissed with costs. The learned counsel for the appellants in both the appeals seek leave of this court for filing appeals before the Supreme Court. But having regard to the fact that our decision rests on the factual position, we do not think that these are fit cases for grant of leave to appeal to the Supreme Court. The request for leave is, therefore, rejected.
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1980 (2) TMI 14 - DELHI HIGH COURT
Business Expenditure, Depreciation ... ... ... ... ..... in a litigation between the partners of the firm regarding their sharing of profits. This has nothing to do with the carrying on of the business and is not incidental to it. Clerk L.J., in Archibald Thomson Black and Co. Ltd. v. Batty 1919 7 TC 158, points out the distinction between a disbursement made for the purposes of the trade , which is allowable, and a disbursement made for the purpose of distributing the profits of its trade after these profits have been earned , which is not. We are, therefore, of opinion that the legal expenditure was rightly disallowed and answer the fourth question in the affirmative and against the assessee. To sum up, the questions referred to us are answered as follows (1) in the negative and against the assessee (2) in the negative and against the assessee (3) in the affirmative and against the assessee and (4) in the affirmative and against the assessee. However, having regard to the circumstances of the case, we make no order as to costs.
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1980 (2) TMI 13 - ANDHRA PRADESH HIGH COURT
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... ... ..... ll the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The firm in the instant case as of fact was found guilty of concealment for furnishing incorrect particulars on September 30, 1965. The offence (an expression which is now commonly used and has gained currency) was committed by the assessee on September 30, 1965. Therefore, the unamended provisions of S. 271(1)(c) have application. The Appellate Tribunal, in our view, had properly directed (the ITO) to compute the penalty under the unamended provision. We answer the above question in the negative and in favour of the assessee and against the revenue. In the circumstances of the case, we make no order as to costs.
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1980 (2) TMI 12 - RAJASTHAN HIGH COURT
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... ... ..... eparate. When the Legislature in its wisdom has restricted the power of the court to review the decision of the Tribunals to questions of law only, it obviously intended to sort out questions of fact from its jurisdiction. This court, in exercise of its advisory jurisdiction, does not exercise the jurisdiction of an appellate court. When there is a question of fact to be determined, it would usually be necessary first to decide disputed facts of subsidiary or evidentiary character and the ultimate conclusion will depend on an appreciation of those facts. It cannot be said that a conclusion of fact, pure and simple, ceases to be that when it is in turn a deduction from other facts as in the case on hand. As already held above, it cannot be said to be a case of no evidence. In our opinion, therefore, no question of law arises in the circumstances of the two cases and the applications filed under s. 256(2) of the I.T. Act, 1961, are rejected. There will be no order as to costs.
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1980 (2) TMI 11 - MADHYA PRADESH HIGH COURT
Income, Negotiable Instrument ... ... ... ... ..... e payment. But if, as observed by the Supreme Court in CIT v. Patney and Co. 1959 36 ITR 488 (SC), it was found that the assessee had expressly required the amount to be paid at a particular place, the rule in Ogale Glass Works case 1954 25 ITR 529 (SC) would not be applicable. In view of this decision of the Supreme Court, the Tribunal cannot be said to have misdirected itself in law in holding that there was an agreement by the Government to pay the assessee at Indore and hence the post office became the agent of the Govt. of India. In this view of the matter, the Tribunal was, in our opinion, justified in holding that the sale proceeds in respect of the goods supplied to the Government by the assessee could not be brought to tax as having been received in British India. For all these reasons, our answers to the questions referred to us are in the affirmative and against the department. In the circumstances of the case, parties shall bear their own costs of this reference.
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1980 (2) TMI 10 - MADRAS HIGH COURT
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... ... ..... ier, it is consequential to the assessment being found valid. In the view that the Tribunal took, the assessment itself was held to be bad, because, as far as the immovable property was concerned, there was no valid gift, and as far as the movable property was concerned, the assessee was held to be eligible for the exemption under s. 5(1)(viii). Now, that the matter is again to be considered in the light of all the facts, as far as the exemption under s. 5(1)(viii) of the Act is concerned, it is necessary for the Tribunal to go into the question of penalty in the light of all the facts. The Tribunal will examine the question, whether the penalty provision would be attracted in such a case, even assuming that the exemption claimed by the assessee under s. 5(1)(viii) cannot be granted. The result is that the third question also will have to be decided by the Tribunal and the reference on the third question is, therefore, returned unanswered. There will be no order as to costs.
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1980 (2) TMI 9 - GUJARAT HIGH COURT
Reassessment ... ... ... ... ..... ould, at the highest, amount to information regarding opinion on the point of law formed by the audit dept. as it felt that the ITO s view on that legal aspect was not palatable to the audit dept. In any case, such a situation can never result in information within the meaning of s. 147(b) so far as the ITO is concerned so as to permit him to issue the impugned notice seeking to reopen the reassessment proceedings. Consequently, even on the second ground which is mentioned in para. 5 of the affidavit-in-reply, the respondent had no jurisdiction to issue the impugned notice. In the result, this petition will have to be allowed and the rule will be made absolute. The impugned notice at annex. D dated December 13, 1977, is quashed and set aside. The respondent is permanently restrained from proceeding further pursuant to the aforesaid notice. Rule is, accordingly, made absolute with costs. A copy of the audit objection which has been furnished by Mr. Desai to be kept on record.
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1980 (2) TMI 8 - CALCUTTA HIGH COURT
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... ... ..... y cannot be read together, because, as already stated, s. 274 governs the procedure whereas s. 275 prescribes the period of limitation for the imposition of a penalty. The ITO passed the reassessment order one 12th March, 1970. In the course of reassessment proceedings he was satisfied that the assessee had concealed the particulars of its income. He, accordingly, initiated the penalty proceeding on 12th March, 1970, and referred the same to the IAC on the same day. The penalty was levied on 17th March, 1972. The levy of penalty was, therefore, not time-barred under s. 275(b) of the Act, for, it provides that no order imposing a penalty shall be passed after the expiration of 2 years from the end of the financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed. In the premises, we answer the question in the negative and in favour of the revenue. There will be no order as to costs. R. N. PYNE J.-I agree.
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1980 (2) TMI 7 - JAMMU AND KASHMIR HIGH COURT
Carry Forward And Set Off, Deduction U/S 80J, Limitation, New Industrial Undertaking ... ... ... ... ..... n view of this, the application could not be said to be barred by time. We, therefore, record the following answers to the two questions referred by the Tribunal for our consideration 1. The relief under s. 80J for the assessment year 1967-68, though not claimed for the purpose of carry forward and set off as provided in s. 80J(3) of the I.T. Act in that assessment year, could on the facts established be allowed, as it was a mistake apparent from the record within the meaning of s. 154 of the I.T. Act, in the assessment for the assessment year 1970-71. 2. That, as found on the facts and in the circumstances of the case, the right to claim the deduction under s. 80J arose to the assessee only in the assessment year 1970-71, when the profits were made for the first time and not in the assessment year 1967-68, when no such right to claim deduction had accrued to the assessee, although the claim actually related to the assessment year. The reference is, accordingly, disposed of.
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1980 (2) TMI 6 - CALCUTTA HIGH COURT
Advance Tax, Return ... ... ... ... ..... imposed in respect of the same. On the question of allowing a new point to be urged, these are questions of law and this court is entitled to allow the petitioner to agitate the same for the first time in a writ petition. There is no disputed question involved concerning any fact. No document or record was produced to contradict any of the facts which are relied on in this case in support thereof. For the aforesaid reasons, I allow the application and make the rule absolute. There will be a writ of certiorari quashing the order passed by respondent No. 1 confirming the decision of respondent No. 2 in charging the penal interest under s. 139 and s. 217 of the Act. There will be a writ of prohibition commanding the respondents to forbear from giving any effect to or taking any steps whatsoever in pursuance of the said orders or any demand notice so far as the charging of the penal interest under s. 139 and s. 217 of the Act is concerned. The parties will bear their own costs.
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1980 (2) TMI 5 - ORISSA HIGH COURT
Penalty, Writ ... ... ... ... ..... ion also extends to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. The instant case comes under the last category and here the concerned authorities have not properly exercised their jurisdiction, inasmuch as the order clearly shows that the contentions of the petitioner have not been taken into consideration and, as such, the decision cited by the learned standing counsel is of no help to the opposite party. In the result, the writ application is allowed. The order of the learned Commissioner of Income-tax is quashed and the case is remitted to the learned Commissioner who shall reconsider the application of the petitioner for waiver of the penalty, keeping in view the observations made above. We make no order as to costs. P. K. MOHANTI J.-I agree.
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1980 (2) TMI 4 - DELHI HIGH COURT
Interest, Refund ... ... ... ... ..... y inapplicable. Mr. Gobind Das, therefore, cannot seek any assistance from the Income-tax (Removal of Difficulties) Order, 1962. We may note that though the learned judge had held that the appellant was entitled to interest, he had only allowed interest from the date of the (order of the) Tribunal, i.e., 16th September, 1966, and not from the date of the payment of tax, i.e., 27th March, 1967. Mr. Gobind Das, the learned counsel for the appellant, sought to challenge this finding. But in view of the fact that we have held that the claim for payment of interest on refund was not permissible at all, we do not feel that it is necessary for us to decide this aspect of the matter. As a result of the above discussion, the appeal is dismissed. The suit will also be dismissed though for reasons different from that for which it was dismissed by the learned single judge. The result is that both the appeal and the suit are dismissed. The parties will bear their own costs in the appeal.
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1980 (2) TMI 3 - MADHYA PRADESH HIGH COURT
Business Expenditure, Co-operative Society, Exemptions ... ... ... ... ..... is of which it was held that there was a prohibition of entering into partnership, was held to be inapplicable to licence in Form FL 2. There was also no condition in the licence prohibiting entering into partnership. In these circumstances, it was held that the partnership was not illegal. In the case before us, r. 6, which prescribes the general conditions of licence, is clearly applicable. Moreover, all licences issued contained a condition that the licensee was bound by the general conditions prescribed by the Rules. Indeed, the aforesaid decision of the Supreme Court was referred to and distinguished in Sheonarayan Harnarayan s case 1975 100 ITR 213 (MP). We are, therefore, unable to agree that the aforesaid decisions of this court require reconsideration. For the reasons given above, we answer question No. 1 in the negative and question No. 2 in the affirmative, in favour of the Department and against the assessee. There shall be no order as to costs of this reference.
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1980 (2) TMI 2 - MADHYA PRADESH HIGH COURT
Change Of Law, Penalty ... ... ... ... ..... ct from lst April, 1971. It is not disputed that if the amended provision is applicable in the instant case, then the imposition of penalty could not be held to be barred by time. It has been held by the Allahabad, Andhra Pradesh, Gujarat, Karnataka and Orissa High Courts in Hargu Charan Srivastava v. CIT 1979 119 ITR 622 (All), Addl. CIT v. Watan Mechanical and Turning Works 1977 107 ITR 743 (AP) FB , CIT v. Royal Motor Car Co. 1977 107 ITR 753 (Guj), Nagappa 1978 114 ITR 707 (Kar), CIT v. Soubhagya Manjari Devi 1976 105 ITR 82 (Orissa) and CIT v. Bhikari Charan Panda 1976 104 ITR 73 (Orissa), that if in a particular proceeding the period of limitation was still running on 1st April, 1971, the amended provision enlarging the period of limitation would apply. We respectfully agree with these decisions. For these reasons, our answer to the question referred to us is in the negative and against the assessee. In the circumstances of the case, parties shall bear their own costs.
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1980 (2) TMI 1 - DELHI HIGH COURT
Profits Chargeable To Tax ... ... ... ... ..... tta, appearing for the assessee, contended that the payment was received by the assessee as compensation for agreeing not to pursue the prosecution of the bank officials and cannot be treated as compensation for loss of stock-in-trade. We cannot accept this contention. A perusal of the letter of the auditors (portions of which have been extracted earlier), of the order of the Magistrate framing the charges, of the revisional order of the Addl. Sessions judge and of the order of Falshaw J., make it clear that the dispute between the parties was of an eminently civil nature and that the attempt of the assessee as well as the banker was only to reach a settlement in respect of the loss or damage to the goods. This finding of the Tribunal was, therefore, based on material and cannot be interfered with. For the above reasons, we answer the question in the affirmative and against the assessee. The Commissioner will be entitled to the costs of this reference. Counsel s fee Rs. 300.
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