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Showing 41 to 60 of 132 Records
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1982 (11) TMI 144
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... ... ..... n these tax revision cases and the definition of turnover is taken as it is defined in the Act, there is no scope for the argument that the definition should be read down to exclude freight charges. On the same parity of reasoning excise duty and sales tax cannot also be included in turnover. But the Supreme Court has, in more than one decision, ruled that the definition of sale price or turnover (couched in similar language in other enactments) includes excise duty, sales tax and freight charges among others. It is therefore not possible for us to curtail or cut down the ambit of definition with reference to entry 54 in List II of the Seventh Schedule to the Constitution. That would, in our opinion, amount to striking down a portion of the definition which we cannot do in these tax revision cases. The tax revision cases therefore fail and are accordingly dismissed, but in the circumstances of the case there shall be no order as to costs. Advocate s fee Rs. 750 consolidated.
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1982 (11) TMI 143
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... ... ..... to the Appellate Assistant Commissioner to reject for the first time the method of accounting employed by the assessee on the ground that the income, profits and gains of the assessee could not be properly deduced therefrom, even though the Income-tax Officer has not applied the proviso to section 13 and had not expressly said so. This is on the principle that what the assessing authority could do the appellate authority could also do. However, this principle was not considered in the earlier decision and we do not think it necessary to go into the said aspect in the present case. It is enough to observe that it was open to the Tribunal to direct the scrutiny of the forms in accordance with law. It is true that the question regarding the entertainability of C forms would have to be considered by the assessing authority taking into account all the facts and in accordance with law. Subject to the above observation, the revision is dismissed. There will be no order as to costs.
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1982 (11) TMI 135
Company when deemed unable to pay its debts ... ... ... ... ..... th law. The petitioner is directed to file a certified copy of this order with the Registrar of Companies within 30 days from today. The financial institutions which were directed to furnish some funds to the provisional liquidator in order to maintain security of the factory premises and to safeguard the articles pledged with them would continue to comply with the directions of this court. The petitioner shall also advertise the winding up order in the Deccan Herald as well as in the Indian Express within two weeks from today. Company Application No. 382 of 1982 is filed by one of the directors seeking condonation of delay in filing the statement of affairs with the provisional liquidator and the said application is allowed and the statement of affairs may be accepted by the provisional liquidator, if the same is in order. Similarly, C.A. No. 1764 of 1981 filed by the Karnataka Light Metal Industries Ltd. is disposed of separately by an order made today. Ordered accordingly.
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1982 (11) TMI 134
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... company, I would be putting over 900 persons who are working in the company on the road. Admittedly, the company has enough staff working and no grievance, in this petition, or in any other petition, has been made by the creditors or other shareholders against the company. The petitioner admittedly belongs to one of the groups of the family which had promoted the company. The group was carrying on the business in the best interests of the family and the other shareholders and at a later point of time, particularly, after the death of Shri B.N. Bhaskar, certain differences had arisen in the family and this petition seems to be a result of the same. The interest of the shareholders, financial institutions and the company cannot be allowed to suffer in a fight for power or for the disputes amongst the members of the family. This is not a forum for the said purpose. For the reasons recorded above, the petition is dismissed in limine. The parties are left to bear their own costs.
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1982 (11) TMI 116
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... e bank is to the extent of only Rs. 300. The only reason why he is asking to operate this account is to avoid the inconvenience of opening a new account. There does not seem to be any reason in not permitting the appellant to operate the above account considering that no funds of the company are there which can be utilised by the appellant. Mr. Kumar appearing for the appellant says that Rs. 300 which is lying there in the account will remain as it is. As far as the recoveries due to the company are concerned, we have already passed orders saying that only the liquidator is authorised to recover the said amounts or to take any steps in that connection. We also make it clear that if any amounts from such recoveries are received by the appellant or are sent direct by the debtors to this account, the same will be passed on by the appellant company to the provisional liquidator. A copy of this order be sent to the official liquidator. The appeal is disposed of as above. No costs.
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1982 (11) TMI 115
Alteration of rights of holders of special classes of shares ... ... ... ... ..... son and by proxy in favour of the resolution. The votes cast against the resolution was 1,430. In other words, the special resolution, the legality of which is questioned in this petition, was passed by a bare majority of 378 votes. It was not passed admittedly by 3/4ths majority as required by article 80 of the articles of association of the company. In this view of the matter, this court should have no hesitation to declare that the special resolution passed at the meeting held on December 23, 1981, of the cumulative redeemable preference shareholders of the respondent company was not passed in accordance with law and, therefore, the company is not entitled to act upon the same and alter the rights of that class of shareholders. For the above reason, the aforementioned special resolution is set aside as illegal and not binding on the petitioners and other redeemable cumulative preference shareholders of the company. Petition is allowed with costs. Advocate s fee is Rs. 100.
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1982 (11) TMI 114
Circumstances in which a company may be wound up ... ... ... ... ..... tioner does not dispute the submission made on behalf of the respondent-company. But all outstanding claims except the amount arising out of the difference in the rate of interest calculated is outstanding. In my view, the scope of an inquiry under section 433 cannot be extended to an enforcement of the memorandum of an agreement entered into during the pendency of the proceedings. The payment made by the respondent-company is clearly indicative that the respondent-company is commercially solvent. Therefore, an exercise of the jurisdiction under section 433 of the Act, admitting the petition merely because the rate of interest agreed to between the parties in regard to the transactions is disputed, would be unjust. For the reasons stated above, this petition is rejected without being admitted but liberty is reserved to the petitioner company to establish its claim for the difference of the agreed rate of interest in a civil court and recover the same if it succeeds. No costs.
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1982 (11) TMI 92
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... ... ..... onstruction (P) Ltd vs CIT (1982) 19 CTR (Del) 199 (1983) 141 ITR 806 (Del). But, we cannot ignored the decision of the Bombay High Court which is binding on us especially when it has been held that unless the definition of the lsquo capital asset rsquo in s. 2(14) is read in such a way as to exclude agricultural land it would not be constitutionally valid. In the circumstances we see no reason to interfere with the directions given by the AAC to exclude the capital gains arising from the transfer of agricultural lands from the assessments. His orders are confirmed. The appeals are dismissed. 2. The assessee have filed cross objections only to support the orders of the AAC and also to point out that one of the assessees has moved the High Court a writ similar to that issued in the Bombay Case. However, since no specific relief is asked for, the cross objections are incompetent and they also have to be dismissed. 3. In the result, the appals and cross objections are dismissed.
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1982 (11) TMI 90
Foreign Exchange, Sales Tax Liability ... ... ... ... ..... s outstanding, the Tribunal held that this was a debt owed by the assessee on the respective valuation dates and was to be deducted in computing the wealth. This is also a finding of fact which does not give rise to any question of law. The finding of fact found by the Tribunal that the penalty was existing on the respective valuation dates, was not disputed. From that fact, it next follows that the penalty was a debt owed by the assessee and in the absence of any prohibition in the Act against its allowance, it should be allowed as a debt. 8. For the above reasons, we hold that no referable question of law arises out of the order of the Tribunal. The Reference Applications are rejected. Judgment of the Madras High Court in CWT v. K. Damodaran Tax Case Petition Nos. 660 to 665 of 1985 . Ramaswami, J. --- We are not satisfied that any referable question of law arises out of the order of the Tribunal. 2. The petitions are accordingly dismissed with costs. Counsel s fee Rs. 250.
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1982 (11) TMI 88
Deemed Gift, Transfer Of Property ... ... ... ... ..... oses of taxation the two may be different entities. But for transfer it may not be two separate entities. We find it difficult to think that this will amount to transfer of a property. Certain money was spent on repair and reconstruction of a house property of HUF of which he himself was the karta. This does not amount to transfer as understood in any law or that expression as explained in the definitions in the Gift-tax Act, 1958, nor will it come within the scope of deemed gift. How could this be a transfer when the benefit or comfort arising out of the repair and reconstruction of the house is equally enjoyed by the donor also. He also shares the benefit or comfort and happiness. We do not also propose to reinforce our conclusion by illustrations of like expenditure---CGT v. Basant Kumar Aditya Vikram Birla 1982 137 ITR 72 (Cal.) which neither under law nor under commonsense will amount to gift either direct or deemed under any law. 3. The departmental appeal is dismissed.
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1982 (11) TMI 85
Profits And Gains ... ... ... ... ..... to be given a sensible meaning so as to make it effective. So we have to avoid a construction which may defeat the very object of the statute and adopt that which secures the attainment of that object. 9. It follows that on the facts of the present case the assessee would be entitled to a deduction of 20 per cent of the gross profit before deduction of expenditure laid out for the purpose of business and such other deductions necessary for computing the income from the business under the Act. In this view it is unnecessary to consider the objection of the revenue to the further deduction of certain expenses in finding out the profit which is to be taken as a measure for ascertaining the deduction under section 80QQ. Since it is not in dispute that the deduction directed to be allowed by the Commissioner (Appeals) is in conformity with our conclusion that the assessee is entitled to the deduction of 20 per cent from the gross profit, we confirm his order. Appeal is dismissed.
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1982 (11) TMI 84
Investment Allowance ... ... ... ... ..... the satisfaction of the ITO. But the difficulty in enforcing a section may not come in the way of granting the allowance to the assessee, and may not deny to the assessee the benefit of this allowance. This is, perhaps, one of the easiest ways by which small industries, without risking its own scarce capital, or having to find capital for investment in machinery and plant, may embark upon the business specified in sub-section (2), by taking machinery on hire and help rapid industrialisation of the country, produce more of desired goods, and achieve the object for which this concession is intended. 19. Upon a consideration of the above, we arrived at the conclusion that the Legislature did not intend to deny the benefit of investment allowance to an assessee whose business is hiring out machinery and plant to be used for the purpose of business specified in sub-section (2) of section 32A. We, therefore, allow the claim of the assessee. 20. In the result, the appeal is allowed.
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1982 (11) TMI 83
Foreign Exchange, Sales Tax Liability ... ... ... ... ..... en expressed by the Madras High Court in case of CIT v. Sree Rajendra Mills Ltd. 1974 93 ITR 122 where it was held that merely because there was as infringement of the Companies Act in the payment of remuneration to a manager, that payment could not be disallowed as a deduction since it was not as if no expenditure was incurred by the company or that, that expenditure was not laid out for the purpose of business. In the present case also, the revenue does not dispute the actual payment of interest on the capital borrowed nor the fact that such borrowed capital was utilised in the business. In the circumstances we do not see how the claim for deduction of such interest in computing the income from such business could be disallowed. We have, therefore, no hesitation in confirming the order of the Commissioner (Appeals) allowing the deduction of the interest on borrowed capital even if it be in excess of the ceiling prescribed under the Companies Act. 5. The appeal is dismissed.
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1982 (11) TMI 79
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... ... ..... . Viewed in this context not only there is no material to show that the notice u/s 139(2) was sent by registered post, even the order of the AAC mentions that the notice was sent under certificate of posting and even the postal receipt of the notice having been sent under certificate of posting could not be shown to me by the ld. I have, therefore, no hesitation in coming to the conclusion that there was no valid service of the notice u/s 139(2). No return of income was also filed till the time of the completion of the assessment u/s 144. When there was neither any return of income nor any valid service of notice u/s 139(2) or 148 there was no question of any assessment having been made. The assessment, therefore, was ab initio void and there is merit in the contention of the assessee rsquo s ld. Counsel, Shri Purohit that the AAC should have cancelled the assessment rather than merely setting it aside. The assessment is, therefore, hereby cancelled. 6. The appeal is allowed.
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1982 (11) TMI 78
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... ... ..... esent case on the evidence on record it is fully proved that interest income has not accrued to the assessee in the year of account. It is common ground that as a fact the assessee did not receive and interest income from the said firm. Thus, in the present case in the year of account, interest income has not resulted at all because neither there was accrual of such income nor receipt of income. Even entries to this effect were not made in the books of the firm. 16. Looking to the aforesaid facts, evidence on record, it is proved that in the present case on the deposits in question no income has accrued to the assessee. In fact in the present case the income cannot be said to have been resulted at all. When there was no income, there is neither accrual of income nor receipt of income. 17. For the reasons, discussed above, the learned AAC was not correct in sustaining the addition of Rs. 35,677. Accordingly the said addition is deleted. 18. In the result the appeal is allowed.
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1982 (11) TMI 77
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... ... ..... me other income apart from share income from the firm. As and when the informations were received the returns were filed immediately. Practically, the declared income was accepted by the department. Only minor additions were made. It is common ground that no notice u/s 139(2) was issued by the department. If all the aforesaid facts are taken into consideration in their entirely alongwith preponderance of probabilities it is clear that there were reasonable causes which prevented the assessees from filing the returns within time. On behalf of the revenue no positive material or circumstances were pointed to show that the assessees in conscious disregard of if their obligation failed to file the returns within the time. The assessees has been contumacious or dishonest. 9. Looking to the aforesaid facts, I am fully satisfied that the ld. AAC was not satisfied in sustaining the orders of the penalty. Accordingly, they are cancelled. 10. In the result all the appeals are followed.
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1982 (11) TMI 76
Minor Child, Partnership Deed ... ... ... ... ..... tsoever placed before us to justify any reduction in the value. We have, therefore, to uphold the estimate of Rs. 12,000. The appeal on this point is partly allowed only to the limited extent of set off of assessee s one-fourth share from the income of this property included as partnership share income from the firm. 4. The only other ground relates to the interest charged to the extent of Rs. 3,096 under section 139 of the Act. It is pointed out on behalf of the assessee that the ITO had not reckoned the tax deducted at source. An error in counting the delay is also pointed out. Possible waiver of interest under the statute was also not considered. Some of these mistakes could have been avoided if the assessee had been given an opportunity before the interest was levied. We consider it proper to remit the question to the ITO for eliciting the assessee s objections to the levy. 5. In the result, the appeal is partly allowed in the manner indicated in the preceding paragraphs.
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1982 (11) TMI 75
Minor Child, Partnership Deed ... ... ... ... ..... fits of partnership. The other facts are also similarly distinguishable. The decision of this Tribunal relied on by the learned departmental representative in the case of Smt. Shushila Devi dealt with a case of interest credited to a minor on initial investment made on his behalf. In this case, interest was held to be agreeable notwithstanding absence of any specific stipulation for capital on behalf of the minor. The facts in the assessee s case are much stronger. It is a case of an adult partner entering into a contract of partnership by contribution of an amount which was necessary for the firm s business in money-lending. We are not persuaded to accept the learned counsel s plea that it is a case where she was taken as a partner for mere agreement to share loss and that the contribution made to her capital account is only in the nature of investment notwithstanding the description of the same as capital account in firm s books. 4. In the result, the appeals are dismissed.
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1982 (11) TMI 74
Levy Of Penalty ... ... ... ... ..... ssessment was completed and the refund was actually due to him. The plea that the assessee was not aware of the legal requirements cannot be brushed aside and he be made liable to a fine on the ground that ignorance of law is no excuse. The old theory that ignorance of law is no excuse does not hold good in view of the complexity of laws in modern days. It is impossible for any one let alone well informed people to know all the technicalities of law. A mere breach of law which is venial in character will not lead to the inference that the assessee wantonly committed the default thereby making himself liable for the penal consequences. One has to judge the matter by taking into account the totality of circumstances. The case was rightly called as petty and I am of the firm opinion that the facts of the case do not justify levy of fine. Accordingly, I agree with the learned Accountant Member. 6. The matter will now be placed before the Bench for disposal in accordance with law.
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1982 (11) TMI 73
High Court, Interest On Excess Advance Tax, Interest Payable By Government, Reference Application, Regular Assessment
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