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Showing 61 to 80 of 203 Records
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1981 (2) TMI 189
Company – Incorporation of ... ... ... ... ..... ew Delhi House at 27, Barakhamba Road, New Delhi, till the disposal of the suit. This brings us to the cross-appeal filed by Shri S.P. Jain, defendant No. 1. Having regard to his overall conduct as reflected by various circumstances adverted to above and the fact that he did not even consider it necessary to file a reply to I. A. No. 2897/76, we consider that the order of attachment before judgment of various assets, ostensibly held by him, by the learned single judge is perfectly justified. Strangely enough his counsel, Shri C. N. Murthy, made a categorical statement on 6th April, 1977, that he did not wish to file a reply to the said application. Subsequently, an application was moved by defendant No. 1, being LA. No. 669/78, to file a reply to LA. No. 2897/76 but the same was disallowed by the court, vide order dated 10th March, 1978, for valid reasons. Hence, we find no merit in this cross-appeal. Consequently, we allow F.A.O. (OS) No. 9/80 and order as above, with costs.
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1981 (2) TMI 188
Directors – Power of, Winding up – Suits stayed on winding-up order ... ... ... ... ..... m as a guarantor. He is, therefore, certainly interested in the securities sought to be proceeded against in execution getting the best possible price and if there is anything in the manner in which the execution proceedings are carried out, which may affect the quantum of realisation, he would certainly have the locus standi to approach the court either under section 446(2)(d), or the execution Court, seized of the execution proceedings, for appropriate directions with a view to ensure that the securities are not only fully protected until disposal but also that they fetch the maximum possible price. In the result, C.A. No. 441/79 and C.A. No. 144/80 fail and are hereby dismissed. CAs. Nos. 134/80 and 406/80 which merely seek transposition, also consequently fail and are hereby dismissed. The execution proceedings would be listed for further directions before the learned company judge on March 3, 1981. In the peculiar circumstances, parties would bear their respective costs.
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1981 (2) TMI 187
Restrictions on payments, Penalty ... ... ... ... ..... against such a person are really serious. Unfortunately the rules dealing with adjudication proceedings are not sufficiently explicit in this matter. We would suggest that along with the memorandum or show-cause notice, instead of merely saying that inspection of documents can be had, the concerned officer must give at least a list of such documents sought to be relied on. It would even be desirable to give copies of the documents to him. However, where there are practical difficulties standing in the way of copies being given, at least a list of such documents could be provided to the person, so as to alert him regarding the material against him. If at least this precaution is not taken, whenever a complaint is raised that a person facing an adjudication proceeding was not aware of the material against him, the complaint may be treated as justified unless records show that the material was as a matter of fact placed before the person. In the result, the appeal is dismissed.
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1981 (2) TMI 165
Directors vacation of office by ... ... ... ... ..... to be director of the 1st defendant-company and consequently restraining the second defendant from preventing the plaintiff from participating in the administration of the 1st defendant-company as a director. The learned counsel pointed out that the finding that the plaintiff had not ceased to be a director under section 283(1)(g) of the Companies Act has not actually been attacked in the second appeal and that, therefore, he would be entitled at least to that declaration. Even that declaration is going to be of no use as I have already pointed out. Even assuming that the plaintiff is entitled to a declaration that the resolution removing him from the directorship is invalid and inoperative, still, as he cannot continue to be a director after the annual general meeting following May 30, 1974, no purpose would be served by granting him the declaration in the manner done by the court below. The result is that the second appeal is allowed and there will be no order as to costs.
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1981 (2) TMI 156
Winding up – Exclusion of certain time in computing periods of limitation, Effect of supervision order
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1981 (2) TMI 147
Classification ... ... ... ... ..... for the purpose of CV duty the same falls under the Tariff Item 68. In the earlier judgment of the CEGAT in the case of Sunrise Electric Corporation, Bombay v. The Collector of Customs, Bombay reported in 1983 (14) E.L.T. 2465 (CEGAT) 1983 ECT 1762 and Solar Electric Company, Bombay v. Collector of Customs, Bombay in Appeal No. CD(SB)/T/274/81C vide Order No. 371/85 dated 18.5.85 it was held that Tariff Item 68 is the appropriate heading in the Central Excise Tariff Schedule. Accordingly we hold that the imported item for the countervailing duty falls under tariff item 68 of the Central Excise Tariff. We would also like to observe that the Appellate Court of Customs was not correct in considering the arguments of the Appellant that for the countervailing duty purpose the same was classifiable under tariff item 68 as the Appellant had not raised this issue earlier. In the result the Appeal is partly allowed, the lower authorities are directed to give the consequential relief.
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1981 (2) TMI 144
... ...
... ... ..... ions had been reduced by AAC to Rs. 20,011 and Rs. 24,096 in asst. yr. 1973-74 and l974-75 respectively and, therefore, considering the revised quantum of concealed income, the said proviso to s. 271 (1)(iii) did not apply. He relied on CIT vs. Khetshibhai Madhani (1972) 85 ITR 315 (Guj). we however, feel that the said case is not relevant for this purpose because it deals with the rectification of an error in computation of tax due to an error in the original computation of tax. The proviso to s. 271(1)(iii) clearly gives a basis namely that the amount of income as determined by ITO on assessment is the basis for getting the previous approval of IAC and, therefore, for interpreting the said provision, we need not go to different provisions which have different basis. It is, therefore, obvious that ITO has not complied with the statutory provisions of proviso to s. 271(1)(iii). We accordingly cancel penalties for asst. yrs. 1973-74 and 1974-75. Assessee s appeals are allowed.
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1981 (2) TMI 141
... ...
... ... ..... y a bank are its stock-in-trade and/or circulating capital and the interest earned from securities by banking institutions is income from business. Therefore, of the ratio of decision of the Supreme Court in 39 ITR 114 (SC) is taken alongwith the decision in 70 ITR 87 (SC) and the order of the Tribunal in the case of the assessee for the asst. yr. 1974-75, there leaves no doubt that the interest from securities earned by the assessee was its income from business and it was eligible for exemption u./s 80P of the Act. Under the above circumstances, the ITO neither has committed any factual nor any legal mistake in framing the assessment of the assessee for the asst. yr. 1975-76. Therefore, in the absence of any material, it will be difficult to hold that the order passed by the ITO under s. 143(3) dt. 9th March, 1978 was erroneous and prejudicial to the interest of revenue. Therefore, the order passed by the CIT under s. 263 is set aside. 4.In the result, the appeal is allowed.
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1981 (2) TMI 139
... ...
... ... ..... with the line of reasoning and conclusion adopted by the CIT (Appeals). 4. The next argument of the Deptl. Rep. before us was that the Supreme Court in (1976) 105 ITR 219 (SC), CIT vs. J.K. Commrl. Corpn. Ltd. has held that s. 104 proceedings is assessment proceedings. So his argument was that by virtue of s.170 of the IT Act, 1961, the assessment can be made against the successor. We cannot accept this submission. First of all, the Supreme Court has not held that s.104 proceedings is always an assessment order. The Supreme Court has only held in that decision that to the limited extent of rectification, it can be considered as assessment proceedings. (1967) 63 ITR 663 (SC), where it was held by the Supreme Court that it is not assessment proceedings is still in force. So s.170 cannot be invoked by the department. Therefore, the question whether s. 170(2) will apply or not, even if it is assessment proceedings, need not be gone into. Therefore, the Deptl. appeal is dismissed.
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1981 (2) TMI 137
... ...
... ... ..... ew that the period upto 30th Sept., 1975 can be treated as explained by his dependence on others for filing the return and his own illness. Since the return for 1973-74 was filed on 8th Oct., 1975 we could accept the delay for this year as explained and cancel the penalty of Rs. 1,936. We are of the view that the period upto 31st Oct., 1975 can be treated as explained even in respect of the default for asst. yr. 1974-75. If this period is excluded, the delay has to be construed as 10 months. The penalty will accordingly be reduced by taking the default to be for a period of 10 months only for asst. yr. 1974-75. In respect of default for 1975-76 also, we are of the opinion that there is no case for delay for filing the return after 31st Oct., 1975. The delay will, therefore, be construed as 11 months as against 17 months worked out by the ITO. 4. In the result, the appeal for the asst. yr. 1973-74 is allowed and the appeals for asst. yr. 1974-75 and 1975-76 are partly allowed.
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1981 (2) TMI 134
Actual Cost, Backward Area ... ... ... ... ..... otion of industries in backward areas as a lump sum by way of meeting a part of the total investment in the industry cannot be said to have reduced the actual cost of the assets to the assessee, directly or indirectly, that the assessee had incurred in acquiring the assets. We are, therefore, unable to agree with the view expressed by the earlier Bench in IT Appeal Nos. 2070 to 2073 (Mad.) of 1977-78, referred to above. 20. For the above reasons, we accept the assessees claim that the amount received by way of subsidy should not go to reduce the cost of the asset for purposes of allowing depreciation. The decision of the lower authorities to the contrary is, therefore, reversed, which means, the assessees appeals succeed and the departmental appeals fail. 21. In view of the above conclusion that we are reaching, there is no need for us to decide any other issue raised more so the question whether the subsidy received would relate back to the installation of the assets or not.
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1981 (2) TMI 132
... ...
... ... ..... 40A (3) of the IT Act, 1961. In this section also, no specific reference has been made to reasonable cause. It was, therefore, argued before Calcutta High Court that penalty was automatic under this provision. To negative such argument, the Calcutta High Court observed that the opportunity would be illusory if the provision for penalty was meant to be automatic. We are, therefore, of the view that when reasonable opportunity is to be given, the assessee may show the reasonable cause. The question is whether any reasonable cause was shown in this case by the assessee. In the explanation, the assessee stated before the ITO that he was under the belief that deposit was to be made by 31st Dec., 1976. No finding has been recorded by the authorities below that no such belief was entertained by the assessee. In our opinion, such belief constitutes reasonable cause. This being so, we do not upheld the finding of the AAC and cancel the penalty. 3. In the result, the appeal is allowed.
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1981 (2) TMI 131
... ...
... ... ..... lied on the Explanation and the circumstances that the rate of profit given by the assessee was too low. If it be accepted that the assessee was only a whole-sale dealer, as has been found by the Tribunal, then the rate of profit disclosed by the assessee i.e. 7 per cent could not be said to be ridiculously low. The Tribunal also found that though there might be justification for making an addition in the assessment, there was no justification for imposing penalty, because the Revenue had not established that what was added by them in the assessment, represented the income of the assessee. 4. In the case of the assessee before us, no such finding of fraud or gross or wilful neglect on the part of the assessee has been recorded by the IAC. Hence in view of the above authority, we cancel the penalty imposed by the IAC and allow the appeal filed by the assessee. In this respect, we may rely on the other two authorities reported in (1977) 106 ITR 818 and (1977) 106 ITR 532 (All).
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1981 (2) TMI 130
... ...
... ... ..... nd taxable. It was further submitted that by 15th March, 1975, when an estimate of advance-tax under s. 212(3) of the IT Act was required to be filed, the assessee was under a bona-fide impression that its income was not liable to tax, and, therefore, the failure on its part to file the said estimate and pay tax accordingly, was covered by a reasonable cause. In our opinion, there is force in the contention of the ld. counsel. Since the question regarding the accessibility of the trust was finally decided by the ITO in connection with the asst. yr. 1974-75, on 16th Oct., 1976, the assessee could have a reasonable belief on or before 15th March, 1975 that it was not liable for payment of any tax as per the provisions of s. 212(3) of the IT Act, 1961. Under these circumstances, the default on the part of the assessee is covered by a reasonable cause, and, hence we cancel the penalty imposed by the ITO under s. 273(b) of the IT Act, 1961. 5. In the result, the appeal is allowed.
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1981 (2) TMI 129
Family Property, HUF Income, In Part ... ... ... ... ..... 5 101 ITR 776 have been that the assessee had a wife and an unmarried daughter. By a declaration he threw his self-acquired immovable property into the family hotchpot. Thereafter, he claimed that the income from the said property was assessable in the status of a HUF. It was held that though the assessee, his wife and the unmarried daughter were members of a HUF, the income was chargeable to income-tax in the appellant s hands as his individual income. Though the facts in this case are different, the decision indirectly supports the view we have taken. 11. Having regard to the above discussion, we hold that the very fact that the assessees herein are residing with their separated respective wives, the character of the property, which the assessees received on partition of the family whereby their respective wives had also received a share and then separated, will be individual and not HUF. 12. The assessee s status thus will be individual. The appeals are treated as allowed.
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1981 (2) TMI 128
... ...
... ... ..... e assessee and the term belonged was in most cases, synonymous with ownership. In the present case also, looking at the context and the scheme of the Act, we consider that for the purpose of the Explanation to section 5(3), the assessee has to be considered as having been the owner of the asset, viz., the fixed deposit of Rs. 1,00,000 which was held by the firm, during the period the firm held it, and till its maturity. That being so, and immediately on its maturity the new asset having been obtained by the assessee, viz., the new fixed deposit of Rs. 25,000, we have to hold that the assessee s case comes within the Explanation to section 5(3) and the asset in question has to be considered as having been held for the requisite period as prescribed by section 5(3) to qualify the exemption under section 5(1)(xxvi). The value of Rs. 25,000 would, therefore, be excluded from the assessment for wealth-tax for the assessment year 1978-79. 12. The result is, the appeals are allowed.
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1981 (2) TMI 127
... ...
... ... ..... 0 (Ori) wherein their Lordships held That the penalty imposed by the Income-tax Officer on the assessee under s. 221(1) of the IT Act, 1961, was not validly imposed. When a notice of demand is issued under s. 156 of the Act, credit has to be given in terms of s. 219 and demand is required to be raised only in respect of the excess amount of tax over and above what had been paid by way of advance tax. The demand raised in the present case, therefore, was not in accordance with law, inasmuch as, while raising the demand, the provision of s. 219 of the Act was overlooked and the assessee was called upon to pay amounts which were not due from him. Only when there was a service of valid demand notices, the petitioner rsquo s liability to satisfy them by payment within the time allowed under s. 221(1) would have arisen......... . In this view of the matter we set aside the impugned order and in fact cancel the penalty order. 4. In the result, the assessee rsquo s appeal is allowed.
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1981 (2) TMI 126
... ...
... ... ..... th regard to the development rebate and depreciation on the finding that it was engaged in a petro-chemical industry. This finding could have canvassed before the AAC in the appeal filed by the assessee on other points, if the Department chose to do so. In view of the scope and nature of the appellate power, the entire subject-matter of the assessment order was within the jurisdiction of the AAC. That being so, the entire assessment order merged in the appellate order, irrespective of the points urged by the parties or decided by the appellate authority. Consequently, the Addl. Commr. lost jurisdiction under s. 263(1) of the IT Act, 1961, to revise the order of the ITO and hold that the assessee was engaged in a petro-chemical industry. In view of the proceeding paragraphs we are of the considered view that the ld. CIT was not competent to undertake the revision proceedings. The impugned order is, therefore, cancelled. 2. In the result, the assessee rsquo s appeal is allowed.
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1981 (2) TMI 125
... ...
... ... ..... ITR 858 (All) (FB) directed the ITO not to club the income of the two periods but to assess the income of the assessee separately. The revenue now challenged the said finding on the ground mentioned above. On behalf of the appellant revenue reliance was placed on a ratio in the case of Nandlal Sohanlal vs. CIT (1977) 110 ITR 170 (P and H) decided by the Full Bench of the Hon rsquo ble High Court of Punjab and Haryana for the proposition that two separate periods. With due deference to their Lordships of the Punjab and Haryana High Court, we are of the view that sitting in Allahabad we are bound by the law laid down and declared by their Lordships of the Allahabad High Court. Such being the situation, the impugned order being in accordance with the finding of the Hon rsquo ble High Court of Allahabad cannot be said to be an erroneous one, and therefore, warrants no interference and the same is, consequently, confirmed. 2. In the result, the revenue rsquo s appeal is dismissed.
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1981 (2) TMI 124
... ...
... ... ..... nd the bringing in of the sons and daughters into the firm was not shown to have been on account of adequate consideration. It is, however, not the position in the present case. Here as we have seen the incoming partner has brought in not only his experience and energy for the benefit of the firm but also capital of Rs. 70,000 and, therefore, the facts of the present case appear to us to be more akin to those obtaining in the case of Sardar Wazir Singh (1975) 99 ITR 104 (All) wherein also new partners had contributed capital and they were admitted into the partnership on account of business consideration. The decision of the Hon ble Allahabad High Court in the case of CED vs. Smt. Laxmi Bai was altogether on a different issue, namely, whether or not goodwill passed on the death of one of the partners of the firm. The ratio of this case is not applicable to the facts of the present case. We, therefore, confirm the order of the ld. AAC of Gift-tax and dismiss the Deptl. appeal.
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