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1982 (6) TMI 72
... ... ... ... ..... er had any doubt that what had been sold was old ornaments he should have examined the purchaser. That has not been done. Considering the total circumstances I am of the view that the assessee had satisfactorily explained the source of acquisition of jewellery sold. Relying on the finding, the counsel for the assessee claimed that there was no basis for the finding of the lower authorities that Rs. 22,630 represented his income from undisclosed sources under s. 69A. 4. We have considered the facts of the case and we are of the view that the circumstances are quite identical with those of this case. Following the finding in the case, we do not find it possible to uphold the finding of the lower authorities that Rs. 22,630 represented income from undisclosed sources and was chargeable under s. 69A. Accordingly we vacate the finding of the AAC and hold that Rs. 22,630 should be deleted from the assessment of the total income of the assessee. 5. In the result, appeal is allowed.
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1982 (6) TMI 71
... ... ... ... ..... t in the case of CWT vs. Ridhkaran and Ors. (1972) 84 ITR 705 (Raj) where in wealth tax proceedings it was held that on a return by the HUF the assessment could not be made in the status of individual without serving proper notice on those persons. The discussion in the above case would also support the contention of the assessee. 16. On the question of the status being taken as an AOP, the Court in (1960) 30 ITR 546 (SC) (1973) 88 ITR 432 (SC). The other decisions of other High Courts were also relied upon. We do not consider it necessary to go into the question as we have held the assessments to be invalid. The ITO has to ascertain the person in whose hands he wants to make an assessment then he can take the action as required under law but the assessment in these proceedings on the AOP was not valid. We also do not consider it necessary to go into the merits of the case in view of our basic findings. In the result, the assessments are annulled and the appeals are allowed.
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1982 (6) TMI 70
... ... ... ... ..... onious construction of the provision of s. 269B(3), 269D and 269E, it may safely be taken that the initiation can be said to be complete only when both Gazette publication as well as personal service are duly effected and not earlier. It follows that, for proper and valid initiation, the Gazette publication as well as the personal service must be effected within the statutory period of nine moths. 11. Following with respect the said decision we hold that the proceedings for acquisition of property at 156 A, G.T. Road, Jullundur without the transferee having been served with a proper notice under s. 269D(2) within the prescribed time is bad and cannot lead to a valid order of acquisition. The order passed on 11th March, 1980 as a consequence of illegal proceeding to acquire the property is quashed. 12. In this view of the matter we do not decide on any other ground of appeal on which the appellant impugnes the order. 13. The appeal filed by the appellant is allowed to succeed.
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1982 (6) TMI 69
... ... ... ... ..... h relief. It is also possible that the company does not, ultimately, get the benefit of the carried forward losses if there are no profits in the industrial undertaking up to the period of eight years. On the basis of the decision of the Supreme Court in the case of Coromandel Fertilizers Ltd. the benefit to the shareholders would be allowable as it is found that the company is entitled to deduction under section 80J. As far as the finding out of the part of the profits, which is attributable to the profits and gains derived by the company from any industrial undertaking is concerned, we will have to refer to rule 20 of the Income-tax Rules, 1962 and on application of that rule, the proportion can be ascertained. 18. In view of the above discussion, we are of the view that the AAC was right in holding that the deduction under section 80K is allowable in the case of the assessee. In the result, both the departmental appeal and the cross objection by the assessee are dismissed.
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1982 (6) TMI 68
Charitable Or Religious Trust, Exemption When Not Available ... ... ... ... ..... objects, for example, by selling articles prepared by the students, who are given some sort of technical education or by running a dispensary where some charge is taken from the patients coming for their treatment. The present business cannot be brought in that category. If the intention was that any business would be exempt if its income was applied for charitable purposes, there would be no purpose served by the introduction of section 13(1)(bb). As it cannot be held that this provision is redundant and as we have to give the normal, natural meaning to the language, we would held that the income of the fabrication business cannot be held to be exempt under section 11 in view of the provisions of section 13(1)(bb). The ITO is directed to recompute the income in accordance with our directions above, having regard to the provisions of law. As the matter is being sent back to the ITO the appeal shall be treated as allowed for statistical purposes subject to our findings given.
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1982 (6) TMI 67
... ... ... ... ..... rder dt. 27th January, 1982 (R.A. No.279) (Alld) of 1981) rejected the application for reference filled by the revenue. We were also given to understand at the time of hearing that this very issue also cropped up before the Hon ble High Court for an earlier assessment year and the Hon ble High Court by judgment in ITA No.112 of 1980 held that no statable question of law arises on the facts found by the Appellate Tribunal in the present case and, therefore, the application for reference was rightly rejected. We have, therefore, no hesitation in coming to the conclusion that the assessee s claim of exemption on income from interest on Government securities u/s. 80P(2)(a)(i) of the IT Act, 1961, was admissible and was rightly allowed by the AAC. On this issue, therefore, no interference appears to be called for. This disposes of the assessee s cross objection also. 4. The appeal filed by the revenue fails and is hereby dismissed, while the assessee s cross objection is allowed.
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1982 (6) TMI 66
... ... ... ... ..... use the legal ownership of the charge has been taken into account. Ownership can also be beneficial ownership and there seems to be no reason why s. 5(1)(xxiii)should be taken to apply to the legal ownership. Here it applied to a case of beneficial ownership. After all it is beneficial ownership of the shares in this case which is the subject matter of liability to tax. This means that the Department has taken beneficial ownership into account for the purpose of ss. 3, 4 and 2(m) of the Act. Therefore, In our view, there would not even be any inconsistency in this approach. As stated above, the assessee would be entitled to the exemption under s. 5(1)(xxiii) assessee claimed. 5. However, this is subject to the maximum limit as laid down under s. 5(1A) of the Act. This would mean that the value of all other assets of the assessee which are not subject matter of the trust have also to be taken into account for the purpose of exemption. 6. In the result, the appeal is rejected.
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1982 (6) TMI 65
Business Expenditure ... ... ... ... ..... no doubt, held that it is not penal in character but it is only compensation for the retention of the money---Bharat Textiles Works v. ITO 1978 114 ITR 28 and Chandrakant Damodardas v. ITO 1980 123 ITR 748. It is unnecessary for us to deal with this aspect further in view of the reasons given by us. 16. The learned departmental representative also raised a ground that the liability did not accrue this year as the payment of interest relates to earlier periods. This argument has no merit. The liability to pay interest arose only on the passing of the order. It did not arise earlier. Unless, the ITO applies his mind and passes an order demanding interest, no liability accrues. Admittedly, the ITO passed orders demanding interest on 1-11-1976 and, therefore, the liability accrued only on that date. 17. In the result answer to the question referred to the Special Bench is against the assessee. Since other grounds raised by the assessee also fail, the cross-objection is dismissed.
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1982 (6) TMI 64
... ... ... ... ..... hen the alleged return was filed. 15. Looking to the aforesaid facts, entire circumstances and preponderance of probabilities, it is proved by the department that the assessee never filed a return within time in pursuance of notice u/s 148 of the IT Act, 1961. The return by the assessee on 25th Oct., 1978 is not a duplicate return. But it was the original return. The assessee gave no other explanation for explaining the delay in filing the return. From the facts stated above, it is proved that the assessee has without any reasonable cause failed to file the return with time. Not only this, the conduct of the assessee has been contumacious. The assessee has taken the stand which was not reasonable or probable. Thus the ITO was justified in imposing penalty u/s 271(1)(a) of the IT Act, 1961, and the ld. AAC rightly confirmed the said findings. 16. For the reason discussed above, there is no substance in the appeal. 17. In the result, the appeal fails and the same is dismissed.
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1982 (6) TMI 63
Demand - Adjudication - Cryptic Ex-parte order ... ... ... ... ..... epresentative of the petitioner an opportunity of being heard. The petitioner would be at liberty to urge all the points, including the question of refund, which have been raised in this writ petition before the Assistant Collector. I also make it clear that both the parties will be at liberty to adduce evidence or urge any fresh points which may be available to them. 5. The Assistant Collector will try to dispose of the matter preferably within a period of six months from date. 6. Till the matter is finally disposed of by the Assistant Collector the Excise Authorities will permit the petitioner to clear all future goods in the petitioner s furnishing a bank guarantee to an amount equivalent to the disputed amount of duty to the satisfaction of the Collector of Central Excise, Calcutta. 7. The Rule is thus disposed of without any order as to costs. 8. All parties including the Excise Authorities will act on a signed copy of the minutes of the operative part of this judgment.
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1982 (6) TMI 62
Demand - Ex parte order due to Refusal to adjourn case ... ... ... ... ..... presentative of the petitioner an opportunity of being heard. The petitioner would be at liberty to urge all the points, including the question of refund, which have been raised in this writ petition before the Assistant Collector. I also make it clear that both the parties will be at liberty to adduce evidence or urge any fresh points which may be available to them. 5. The Assistant Collector will try to dispose of the matter preferably within a period of six months from date. 6. Till the matter is finally disposed of by the Assistant Collector, the Excise authorities will permit the petitioner to clear all future goods on the petitioner s furnishing a bank guarantee to an amount equivalent to the disputed amount of duty to the satisfaction of the Collector of Central Excise, Calcutta. 7. The rule is thus disposed of without any order as to costs. 8. All parties including the excise authorities will act on a signed copy of the minutes of the operative part of this judgment.
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1982 (6) TMI 61
... ... ... ... ..... itted, the provisions of Section 4 of the Act are attracted. It is impossible to accept this submission. The accessories are not manufactured by the respondent Company but are purchased from the market. The accessories are not liable to payment of any Excise duty in view of the exemption notification issued by the Central Government. As the accessories which were fitted to some of the tractors are not necessary components of the tractors, in our judgment, it is impossible to suggest that the value of the accessories could be included while determining the assessable value of the tractors. The judgment of the trial Judge suffers from no infirmity and there is no merit whatsoever in the appeal. 4. Accordingly, the appeal fails and is dismissed with costs. The Advocate for the respondent is at liberty to withdraw the amount deposited by the appellant towards the costs of the appeal and in case any balance is left out, the appellant s Advocate is at liberty to withdraw the same.
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1982 (6) TMI 60
Seizure of goods ... ... ... ... ..... ction is to compel the witnesses to depose before the adjudicating authority, so that the adjudication proceedings may be conducted on the basis of the evidence and after giving full effective opportunity to the person from whom gold was seized. I, therefore, consider that the Collector, Central Excise, should have summoned the persons who have been cited as witnesses by the petitioner. Of course, it is always open to the Gold Control Officer to refuse that request if he considers that the presence of the persons cited by the petitioner is unnecessary. But that was not the case here. In the absence of refusal based upon that ground, I have no option except to direct the Collector, Central Excise, to summon the witnesses whose names have already been furnished by the petitioner and allow the petitioner to examine them as his witnesses. There will be a direction in the terms indicated above, but there shall be no order as to costs. Writ Petition is allowed to the above extent.
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1982 (6) TMI 59
Search and seizure - Inspection of premises - Reasonable belief is not a pre-condition for inspection - Writ jurisdiction - Exparte order - Writ Petition - Penalty
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1982 (6) TMI 58
Copper and Copper alloy flats, bus bars or copper strips having thickness between 9.53 mm to 10 mm - Liability to duty - Demand Notice
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1982 (6) TMI 57
Valuation - Vegetable product - Packing is a process of manufacture ... ... ... ... ..... t form part of the value of excisable goods because tax on them falls within entry 54 of the State list. It was on this view that the Gujarat High Court read down the definition of value as given in Section 4(4)(d) of the Act. We have already explained in the facts of the instant cases that inclusion of the cost of containers in the assessable value of the vegetable products of the petitioners does not encroach upon the legislative field of entry 54 of List II reserved exclusively for the State Legislation. 24. In conclusion, we hold that the definition of value as given in Section 4(4)(d) of the Act is perfectly constitutional and valid and that therefore the cost of packing of excisable goods, which is necessary to put such goods in a marketable condition, is an integral part of the assessable value of such goods. In this view of the matter, the three writ petitions before us are without any merit. They are, therefore, dismissed leaving the parties to bear their own costs.
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1982 (6) TMI 56
Polyester polymer or polymer chips fibre - Liability to duty - Interpretation - Synthetic resins and plastic - Distinction between. - Duty paid under mistake of law - Import Policy Book - Alternative remedy - Existence of - Refund - Words and Phrases
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1982 (6) TMI 55
Seizure - Period of notice cannot be extended without hearing - Quasi-judicial authorities - Functions. - Writ jurisdiction - Words and phrases
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1982 (6) TMI 54
Outboard motors is a marine engine ... ... ... ... ..... (3) Unless the Headings otherwise require, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. 5. Since the principal function of an outboard motor is that of an engine, Government consider that outboard motors should appropriately be treated as marine engines both for purposes of classification under heading 84.06 as well as for purposes of exemption Notification No. 281 of 1976. More so because the meaning to be given to the goods, for purposes of classification as well as for purposes of applying an exemption notification, has to be the same in view of the provisions of Section 20 of the General Clauses Act. 6. Government accordingly allow the revision application with consequential relief to the petitioners.
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1982 (6) TMI 53
Cellulosic spun yarn and cotton yarn - Alternative remedy - Existence of ... ... ... ... ..... lause (a) of the second proviso to Notification No. 226 of 1977, namely, at the rates laid down in Notification No. 226 of 1977 and at no other rate. The respondents are directed to work out the excise duty payable by the petitioner-company in the light of this judgment and to refund the excess which the company has paid over that amount to the respondents. In this context, the respondents shall also consider the application for refund made by the company as per particulars at Exhibit M to this petition. The amount should be worked out within ten weeks from today and the amount found due to the company should be paid within two weeks thereafter. 11. Rule earlier issued on this petition is made absolute in terms aforesaid. The respondents shall pay costs of this petition to the petitioner-company. The bank guarantee furnished by the petitioners at the time of admission of this petition in favour of the Prothonotary and Senior Master, High Court, Bombay, shall stand cancelled.
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