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Showing 61 to 80 of 92 Records
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1980 (6) TMI 33
Valuation - Cost of additional packing excludible ... ... ... ... ..... nly in case of delivery at the duty paid warehouse, it is obvious that the petitioners have been subjected to a liability to which they could not have been under the law. The view taken by the Assistant Collector and the Appellate Collector is clearly contrary to law and their orders are liable to be quashed. 8. Consequently, the petitioners will be entitled to the refund of excise duty collected on the footing that the 5 of the price was liable to be included in the basic trade price for the purposes of excise duty. It will be open to the petitioners to approach the appropriate authorities for a refund of the excess duty recovered on the basis indicated earlier. Since the amount has been recovered almost five years back, we expect that the appropriate authorities will deal with the matter expeditiously preferably within a period of two months from today. The bank guarantee furnished by the petitioners shall stand discharged. The petitioners to get the costs of this petition.
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1980 (6) TMI 32
Valuation - Determination of assessable value - Precedent - Price List ... ... ... ... ..... stigate according to law the petitioners claim of manufacturing costs and manufacturing profits as per his letters dated 6th May 1975, Ex. A (collectively) to the petition, tendered with their price lists and to approve according to law the assessable values in the price lists after investigation within six months from today. Liberty to apply for extension of time on making out a proper case. 8. As far as the refund of Rs. 8,41,343.16 is concerned, after the price lists are approved the respondents are directed to refund such amount as would be found to have been collected in excess on the basis of the assessable value as originally approved by the respondents and as determined by them within two months of the approval of the assessable value in the price lists submitted by the petitioners. 9. Rule is, however, made absolute in terms of prayer (a) and also to the extent to withdraw or cancel the impugned order as prayed for in prayer (b). There shall be no order as to costs.
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1980 (6) TMI 31
Valuation - Deduction for uniform distribution charges ... ... ... ... ..... 12. As regards the other point made by Shri Dalal that the matter required to be investigated as regards the alleged delivery charges and/or distribution charges claimed by the petitioners, I think that this submission is well founded. It will be open to the Excise authorities to ascertain the exact extent to which the petitioners would be entitled to the relief of deduction of delivery charges or distribution charges and it is only after the matter is investigated into that the petitioners shall be liable to pay to the Excise authorities the amount so found due. The petitioners are directed to make available their records relating to the distribution charges or delivery charges or other material connected therewith in order to enable the Excise authorities to investigate into this matter and to ascertain the correctness of the figures as claimed by the petitioners and to pay to the Excise authorities such amount as may be found due. 13. There shall be no order as to costs.
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1980 (6) TMI 30
Valuation - Interpretation - All India Legislation ... ... ... ... ..... xtent, because such costs were liable to be excluded from the value for the purpose of excise duty. As already observed earlier, we are not in this petition concerned with the details of the claim made by the petitioners which could be properly inquired into by the proper authorities. 21. In the result, the view taken by the authorities in the two letter dated 19th May, 1976 and 23rd June, 1976 must be held to be wrong and the orders contained in the letter dated 22nd of September, 1976 is liable to be quashed. The petitioners will be at liberty to approach the appropriate authorities and canvass their claim for reduction in the light of the observations made in this judgment. Rule absolute with costs. 22. Since it appears that the petitioners have already made payments of excise duty and had reserved their right earlier to claim refund, they will be entitled to refund of such amount as they are found entitled to after proper adjustment. The bank guarantee stands discharged.
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1980 (6) TMI 29
Book Entries ... ... ... ... ..... the contention of Mr. Mohapatra that the firm as such is incapable of exhibiting any contumacious conduct and contumacy, if any, must be found in the partners constituting it. The Tribunal vacated the imposition of penalty in the hands of the partners. We do not see any justification in the reasonings advanced by the Tribunal to maintain the penalties in the hands of the firm. It is true that the firm is an independent unit of assessment, but contumacy, if any, which would give the foundation for the imposition of penalty was of the partners. The line drawn by the Tribunal between the partner and the firm in the matter of imposition of penalty is indeed thin. We are of the view that it was not a case where Penalty under s. 271(1)(c) of the Act should have been levied. Our answer to the question, therefore, is On the facts and in the circumstances of the case, imposition of penalty under s.271(1)(c) of the Act is not sustainable. We make no order for costs. PANDA J.--I agree.
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1980 (6) TMI 27
Partner In Firm, Share Income ... ... ... ... ..... and also the view is in consonance with the decision in the case of Matubai Chunilal Patel v. CIT (1967 66 ITR 408 (Guj) and the decision of the Rajasthan High Court in the case of CIT v. Jabarmal Dugar 1972 84 ITR 158, where the Division Bench of the Rajasthan High Court also held that s. 67(3) was not exhaustive of all the deductions that were allowable to the assessee. This view has also been followed by the Bombay High Court in the case of Phiroze H. Kudianavala v. CIT 1978 113 ITR 873 and the decision of the Delhi High Court in the case of CIT v. Ganpat Rai Jaggi and Co. 1972 86 ITR 363. If one remembers the legislative history of s. 67(3) of the Act and the stages before it was ultimately passed into Act, then this conclusion is further strengthened. In that view of the matter, we answer the question in the affirmative and in favour of the assessee. In the facts and circumstances of the case, each party will pay and bear its own costs. SUDHINDRA MOHAN GUHA J.--I agree.
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1980 (6) TMI 26
Business, Perquisite ... ... ... ... ..... 444 had occasion to consider a similar provision contained in s. 2(6C)(iii) of the Indian I.T. Act, 1922, which defines income as including the value of any benefit or perquisite, whether convertible into money or not obtained from a company . This court held From this language it is clear that the benefit or perquisite contemplated cannot be money itself. If it is money, the question of its value being taken into account or the benefit or perquisite being converted into money will not arise. Therefore, the view of this court also was that in order to term payment as perquisite, it shall be a payment, other than a cash payment, in pursuance of a contract of service. The learned counsel for the revenue did not bring to our notice any other decision which has taken any contrary view. In view of this preponderance of opinion in favour of the assessee, we have to answer the questions referred to us in the affirmative and against the revenue but there will be no order as to costs.
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1980 (6) TMI 25
Business Expenditure, Gratuity ... ... ... ... ..... exclusive benefit of the employee is deductible does not, in our opinion, affect the position The assessee claimed its right to deduct this sum because this amount was a special liability which, we have noticed before, was created for the first time in 1971. If the assessee had dominion over the money, such money was not beyond the reach of the assessee, and there was a possibility of misuse, it was sought to be urged on behalf of the revenue. But upon the possible contingency of misuse by the assessee the rights of the parties under the Act cannot be decided. It seems that the legislature has taken note of that possibility by sub-s. (7) of s. 41A of the I.T. Act, 1961. In that view of the matter, in the facts and circumstances of the case, we are in agreement with the conclusion arrived at by the Tribunal and the question referred to us is answered in the affirmative and in favour of the assessee. Each partly will pay and bear its own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (6) TMI 24
Appeal To AAC, Application For Registration, Registration Of Firm ... ... ... ... ..... rty will not be deprived of the right of appeal to which he is under law entitled by reason merely of the fact that the order complained against, which in its true nature is appealable, was purported to have been made under an unappealable provision. Applying the principle laid down in the rulings first cited (Hurrish Chunder Chowdhry v. Kalisundari Debi 1883 ILR 9 Cal 482 (PC), Abdul Rahiman Saheb v. Ganapathi Bhatta 1900 ILR 2 3 Mad 517, etc., it has to be held that since the ITO has passed the order, annex A , specifically in the exercise of his powers under S. 185(1)(b), the appeal filed by the assesses before the AAC was maintainable under S. 246(j) of the Act. We, accordingly, answer the question referred in the affirmative, i.e., in favour of the assessee and against the department. There will be no direction regarding costs. A copy of this judgment, under the seal of this court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.
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1980 (6) TMI 23
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... ... ..... evenue after the assessments in question were annulled by the Tribunal. In the result, there are no assessments at all of the petitioner for the relevant assessment years. The Appellate Tribunal s order having become final in terms of s. 254(4) of the Act, the retention of moneys, paid by the assessee-petitioner, by the respondent without any assessment and without the ITO being capable of making fresh assessments in accordance with law is impermissible. Therefore, the petitioner succeeds in both the petitions and a writ in the nature of mandamus will issue to the respondent-revenue to refund all amounts paid by way of tax whether as advance tax or on self assessment or deducted at source for the relevant assessment years, namely, 1973-74 and 1975-76. Any endorsement issued by the respondent-ITO refusing this amount is also hereby quashed as one made without jurisdiction and without the authority of law. In the circumstances of these cases, parties will bear their own costs.
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1980 (6) TMI 22
Industrial Company, Manufacture, Processing ... ... ... ... ..... which prepared cooked food for serving its customers from raw materials like vegetables or meat. There, the court was of the opinion that a hotel was primarily a trading company and preparation of food was not manufacture of or processing of goods. But in view of the fact that the expression manufacture has been used in contradistinction to the expression process, as we have noticed before under the relevant section, and in view of the fact that the goods or the potatoes were preserved in the ordinary state and decay was prevented, in our opinion, in the light of the decisions and the meaning given in the dictionaries, the act of cold storage, in the facts and circumstances of the case, was an act of processing in the light of the provisions of that section. In that view of the matter, we will answer this question in the affirmative and in favour of the assessee. In the facts and circumstances of the case, there will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (6) TMI 21
Cash Credits, High Court ... ... ... ... ..... ance the money and the genuineness of the transactions. This principle is well settled and has recently been reiterated by a Bench decision of this court in the case of Shankar Industries v. CIT 1978 114 ITR 689. On whom the onus of proof lies in a particular case is a question of law which, in our opinion, is clearly settled in the facts and circumstances of this case. In view of s. 68 of the Act, in this case, it lay upon the assessee. Whether that onus has been discharged in a particular case is a question of fact and the Tribunal, in our opinion, had materials on record and had come to the conclusion as it did. In the premises, both the questions are answered in the affirmative and in favour of the revenue. In the facts and circumstances of the case, the assessee must pay the costs of this reference. Mr. Mukherjee orally prays for leave to appeal to the Supreme Court. We, however, fail to see any reason for the grant of such a certificate. SUDHINDRA MOHAN GUHA J.-I agree.
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1980 (6) TMI 20
Capital Employed, New Industrial Undertaking ... ... ... ... ..... st day of the computation period, of borrowed moneys and debts owed by the assessee shall be deducted from the aggregate of the amounts as ascertained under sub-r. (2). The amounts having been paid for purposes of allotment of shares, it cannot at all be considered that the amounts were paid by way of loan or that there was any kind of borrowing by the assessee. The amounts had been paid for a specific purpose and could be returned only if the shares were not allotted. In the instant case, the return of the amount would be only if the Reserve Bank had not approved the allotment of shares. That was a contingency which did not happen as on the first day of the computation period. Therefore, it cannot be said that there was any debt in existence owed by the assessee to anyone as on the first day of the computation period. Therefore, the view taken by the Tribunal is correct and must be upheld. The question is accordingly answered in the affirmative and in favour of the assessee.
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1980 (6) TMI 19
Assessment, Capital Gains ... ... ... ... ..... n identical view has been expressed-Vasumathy v. CIT 1980 123 ITR 94. We are in complete agreement with the dictum laid down in the said decision. We accordingly hold that the Tribunal was perfectly right in incorporating in its decision a direction to the ITO that while computing the capital gains on the basis of the compensation awarded to the assessee by the High Court the costs certified for the assessee by the sub-court and the High Court should be allowed as a deduction subject to the condition that by such deduction the capital gains should not go below the figure fixed by the AAC against whose order no appeal has been filed. In the light of the foregoing discussion, we answer both the questions referred in the affirmative, i.e., in favour of the assessee and against the department. The parties will bear their respective costs. A copy of this judgment, under the seal of the court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.
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1980 (6) TMI 18
Reassessment ... ... ... ... ..... roviding for a reservation in favour of the charity to that extent. The Commissioner, in our opinion, was, in error in interpreting the judgment of the Allahabad High Court in Manohar Das Kedar Nath v. CIT 1950 18 ITR 914. In that case also the partners had agreed to set apart 1/16 of the profits to a common charity fund. The learned judges observed (p. 918) On a correct interpretation of the document it is impossible to hold that the charity still remained a partner. It is open to the partners of business to agree not to take the whole of the profits of the partnership for their own personal use and to reserve a part of the profits for charitable purposes. The purport and intent of the document in the instant case is nothing more. The difficulty felt by the Tribunal in regard to the allocation of losses is more imaginary than real. Accordingly, the question referred is answered in the negative and in favour of the assessee. The assessee will have its costs. Rs. 250 one set.
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1980 (6) TMI 17
Business Expenditure ... ... ... ... ..... nable having regard to the legitimate business needs of the assessee before the power under section 10(4A) may be exercised. Applying the aforesaid dictum to the present case, we have no hesitation to hold that the Tribunal was not justified in interfering with the conclusion of facts by the ITO and confirmed by the AAC that the remuneration paid to the managing director of the assessee-company was excessive and that a sum of Rs. 18,000 had to be disallowed under s. 40(c) of the Act for the assessment year 1973-74 and a sum of Rs. 15,000 for the assessment year 1974-75. Accordingly, we answer questions Nos. 1 and 2 in each of these references in the negative and question No. 3 in each case in the affirmative, all the questions being answered against the assessee and in favour of the revenue. There will be no direction regarding costs. A copy of this judgment, under the seal of the court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.
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1980 (6) TMI 16
Best Judgment Assessment ... ... ... ... ..... essee had not been specifically rejected, none the less, the scheme of s. 142(2A) and (2B) clearly indicates that the ITO issues a direction under sub-s. (2A) only when he does not consider it possible in the interests of the revenue to rely on the accounts and the returns submitted by an assessee. Section 142(2B) clearly provides that the provision of sub-section (2A) shall have effect notwithstanding that the accounts of the assessee have been audited under any other law for the time being in force or otherwise . Before concluding this judgment, we must express our thanks for the valuable assistance rendered to us by Sri Jagdish Swarup, who appeared for the petitioner, and the learned Advocate-General and Sri R. K. Gulati, senior standing counsel for the department. For the reasons given above, we find no force in this petition, which is hereby dismissed. The respondent shall be entitled to costs from the petitioner. Interim order dated 29th March, 1978, is hereby vacated.
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1980 (6) TMI 15
Charitable Trust, Exemptions ... ... ... ... ..... n sub-section (1) contained in sub-s. (2). We find we are supported in this view by the decision of Division Bench of the Allahabad High Court in Sri Dwarkadheesh Charitable Trust v. ITO 1975 98 ITR 557, wherein the learned judges had occasion to consider almost the identical point in similar circumstances. The same view has also been taken by the High Court of Gujarat in CIT v. Bal Utkarsh Society 1979 119 ITR 137. We are in respectful agreement with the aforesaid decisions. The conclusion that emerges from the foregoing discussion is that the Tribunal was perfectly right in holding that the donations in question received by the assessees do not form income in the hands of the two assessee-trusts and do not, therefore, attract the applicability of the provisions of sub-s. (2) of s. 12. The question referred in these two cases is accordingly answered in the negative, that is, in favour of the assessees and against the department. The parties will bear their respective costs.
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1980 (6) TMI 14
Reassessment ... ... ... ... ..... hat case is reported in CIT v. Kerala State Industrial Development Corporation Ltd. 1979 116 ITR 158. Therein this court held that the order of the AAC holding that no deduction could be allowed in respect of the amount given by the assessee by way of grant to the Labour and Industrial Bureau would constitute information within the meaning of s. 147 on the basis of which the ITO could validly initiate the proceedings under s. 147(b). In the light of the said decision we have no hesitation to hold that the contrary view taken by the Tribunal is incorrect and unsustainable. We hold that the reopening of the assessment for the assessment year 1968-69 under s. 147(b) was valid. The question is accordingly answered in the affirmative, that is, against the assessee and in favour of the department. There will be no direction regarding costs. A copy of this judgment, under the seal of the court and the signature of the Registrar, will be forwarded to the Tribunal, as required by law.
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1980 (6) TMI 13
Estate Duty, Property Passing, Transfer Of Property ... ... ... ... ..... erated by the Supreme Court in the case of CED v. R. Kanakasabai 1973 89 ITR 251 and the decision of the Gujarat High Court in the case of Kikabhai Samsudin v. CED 1969 73 ITR 241. In that view of the matter, in our opinion, question No. should be answered in favour of the accountable person and against the revenue, in the facts and circumstances of this case. For the reasons aforesaid, question No. 2 must also be answered in the affirmative and in favour of the accountable person. In view of the reasons mentioned before, question No. 4 must be answered in the negative and in favour of the accountable person. In that view of the matter questions Nos. 3 and 5 are of academic interest in this case and it is not necessary for us to enter into these controversies and we decline to answer them. We, therefore, answer the questions in the manner indicated above. In the facts and circumstances of this case, parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.--I agree.
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