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1982 (6) TMI 12
Hundi Loans, Penalty ... ... ... ... ..... sessee had admitted that the two amounts could be treated as its concealed income and included in its total income for that year . If that is the position, where, on an admission by the assessee that it was its concealed income and not merely an acceptance of the position that the amount in question be added to its income, in such a case, if on an appraisal of the entire evidence the Tribunal came to a conclusion that penalty was not leviable, in our opinion, under the frame of the question referred to us, that finding cannot be challenged. In the instant case, as we have set out, no finding of fact has been challenged as perverse. It is the ultimate conclusion which has been challenged. Thus, if the facts found by the Tribunal stand, then the conclusion remains unassailable. Therefore, in our opinion, the question must be answered in the negative and in favour of the assessee. In the facts of the case, parties will pay and bear their own costs. SUHAS CHANDRA SEN J.-I agree.
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1982 (6) TMI 11
Abatement, Double Taxation Relief ... ... ... ... ..... of the plain language of r. 3, it does constitute a part of the assessee s income which was assessed to tax both in India and in the United Kingdom, with the result that the assessee would be entitled to relief in respect of double taxation on the said income, irrespective of the fact that the assessee had already obtained some abatement of tax on a part of the said income amounting to Rs. 2,82,979. In view of this, in our view, the Tribunal was right in the conclusion that actual relief will have to be worked out to the assessee on the lower income of Rs.18,06,813, which was the Indian income assessed to tax in the hands of the assessee in the United Kingdom. In the result, the question referred to us is answered as follows The double taxation relief under the Income-tax (Double Taxation Relief) (United Kingdom) Rules, 1948, is to be worked out on the amount of Rs. 18,06,813. The question is decided in favour of the assessee. The Commissioner to pay costs of the reference.
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1982 (6) TMI 10
... ... ... ... ..... ection. In such a situation, when the assessment has been accepted by the assessee it cannot be said that the failure to follow the procedure under s. 144B made the order of the ITO prejudicial to the interest of the Revenue, as, in such a case, there could be no occasion for enhancement of the assessment by the IAC. The procedure requiring the issuing of a draft order is essentially for the benefit of the assessee so that he may raise all his objections before the assessment is finalised. When an assessee, in spite of the omission to issue a draft order, accepts the assessment, no question of prejudice to the Revenue arises. For the reasons given above, we answer the question as follows 1. The Commissioner of Income-tax was not competent to set aside the assessment for non compliance of s. 144B. 2. The Appellate Tribunal was justified in holding that the assessment order was not prejudicial to the interest of the Revenue. There will be no order as to costs of this reference.
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1982 (6) TMI 9
Deduction, Interest On Borrowed Money ... ... ... ... ..... f Balaprasad. In the background of this agreement there is no difficulty in holding that the new partnership came into existence on 15th December, 1970. It is to be noted that the Tribunal has not given any finding that the partnership was not genuine. If the firm was not held to be not genuine, the Tribunal should not have confirmed the order refusing registration. It is also clear that although the firm was not in existence during a part of the previous year, still it was entitled to registration for the entire assessment year. For the reasons given above, we answer the questions as follows (1) Sunder Bai became a partner from 15th December, 1970, and the new firm must be deemed to have come into existence on that date. (2) The Appellate Tribunal was not justified in holding that the income-tax authorities were right in refusing registration. (3) The assessee was entitled for registration for the entire assessment year. There will be no order as to costs of this reference.
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1982 (6) TMI 8
Priority Industry ... ... ... ... ..... sh subsidy must be regarded as attributable to the priority industry. The present case actually seems to be an fortiori one, because as compared to the profits derived from the sale of import entitlement, which figured in the discussion in the earlier case, Shardlow India Ltd. v. CIT 1981 128 ITR 571 (Mad), what happened in the present case was that there was a receipt by the assessee of actual cash subsidy, which the Government granted to the assessee in lieu of the profits which the assessee might otherwise have obtained by export of goods manufactured in its factory. In this sense, the cash subsidy is really a profit substitute, and as a profit substitute derived from the priority industry, it is certainly entitled to be regarded at least as profits attributable to the priority industry within the meaning of s. 80E of the I.T. Act, 1961. Our answer to the question, therefore, is in the affirmative and in favour of the assessee. However, there will be no order as to costs.
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1982 (6) TMI 7
Reassessment ... ... ... ... ..... not sufficient to enable it to determine the question raised by that statement. At p. 647 the Supreme Court further observed as follows Correctness of an order of the High Court calling for a statement of case may be challenged at the hearing Of the reference and the court may decline to answer the question referred pursuant to the direction of the High Court, if it did not arise out of the order of the Tribunal, or is question of fact or is academic or could not have been raised because it was not incorporated in the application under section 66(1) Commissioner of Income-tax v. Smt. Anusuya Devi 1968 68 ITR 750 (SC). In view of the findings of fact and in view of the nature of the question sought to be raised, we answer question No. 1 for the years 1961-62 to 1967-68 by saying that initiation of proceedings was valid and legal and ill favour of the Revenue. In the facts and circumstances of the case, each party will pay and bear its own costs. SUHAS CHANDRA SEN J.-I agree.
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1982 (6) TMI 6
Developement Rebate ... ... ... ... ..... s case, though the assessee has generally adopted the mercantile system of accounting, so far as the transaction of import of plant and machinery from foreign sellers is concerned, it has been regularly showing the payment of interest in the year in which the interest was actually paid and not in the year in which the interest legally fell due. Having regard to the fact that it is not the case of the Revenue that it is not possible to ascertain the true profits from the method of accounting regularly followed by the assessee, the Tribunal is right in holding that it is not open to the Revenue to go back on its stand taken in the earlier years and call upon the assessee either to adopt cash system or mercantile system of accounting. In this view of the matter, we have to agree with the view of the Tribunal in respect of both the questions. The reference is, therefore, answered in the affirmative and against the Revenue. The assessee will have its costs. Counsel s fee Rs. 500.
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1982 (6) TMI 5
Business Expenditure ... ... ... ... ..... perly allowed only if they had occurred in the appropriate years, and can be regarded as proper debit items against profit in the respective years alone. The Tribunal has referred to us the following two questions of law, as arising out of their order 1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that 50 of the losses disallowed in earlier years and acquiesced by the assessee should be allowed as a deduction ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is competent to adjudicate on an issue which had become final and conclusive years back, viz., write off of losses disallowed in earlier years and never appealed by the assessee ? Having regard to the considerations we have stated above, the questions fairly answer themselves against the assessee and in favour of the Revenue. The Revenue will have its costs from the assessee. Counsel s fee Rs. 500 (Five hundred only).
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1982 (6) TMI 4
Affidavit By ITO, Practice, Reassessment ... ... ... ... ..... not be justified in determining or deliberating at this stage, whether these materials were sufficient or was true or not and the officer concerned, on relevant materials or as would be lead at the concerned proceedings, would be entitled to decide and also to find out the truth or otherwise of the same. The concerned officer would also be entitled to decide and find out on such evidence or materials as led and produced, whether the statements in the disclosure petition under s. 271(4A) of the said Act, could be considered to be as sufficient materials attracting the imposition of the penalty or if such proceeding was barred by time. The above being the position, taking into consideration the overall aspect of the facts, pleadings and determination, I think that the grounds as urged by Mr. Roychowdhury were not of much substance and as such they fail and so also the application. The rule is thus discharged. There will be no order as to costs. The prayer for stay is refused.
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1982 (6) TMI 3
... ... ... ... ..... en followed by the Karnataka High Court in the decision reported in CIT v. Mysore Commercial Union Ltd. 1980 126 ITR 340 and the Madras High Court in the case reported in CIT v. Manjushree Plantations Ltd. 1985 125 ITR 150 and the Bombay High Court in the case of CIT v. Indokem P. Ltd. 1981 132 ITR 125, though a contrary decision has been taken by the Full Bench of the Kerala High Court in the case of CIT v. Commonwealth Trust Ltd. 1982 135 ITR 19, we must answer the question in the affirmative and in favour of the assessee. Incidentally, we may refer to the decision in the special leave application from the order of the Bombay High Court being Special Leave Petition No. 2970 of 1976 in Income-tax Appeal No. II 3 of 1976 of the Bombay High Court, which was dismissed by the Supreme Court by an order dated April 4, 1975. (sic) The question is, therefore, answered in the affirmative and in favour of the assessee. There will be no order as to costs. SUHAS CHANDRA SEN J.-I agree.
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1982 (6) TMI 2
Affidavit By ITO, Practice, Reassessment ... ... ... ... ..... We cannot devalue the decisions of this court to brief ephemerality which recalls the opinion expressed by Roberts J. of the U.S. Supreme Court in Smith v. Allwright 1944 321 US 649 at p. 669, that adjudications of the court were rapidly gravitating into the same class as a restricted railroad ticket, good for this day and train only. The effect of the retrospective amendment of section 80J has to be taken into account in disposing of the reference. In view of this amendment, the relevance of rule 19A(2)(iii) hardly survives and as observed by the Supreme Court in CIT v. Smt. Anusuya Devi 1968 68 ITR 750, when a question becomes academic and is unnecessary, this court is not bound either to call for a statement of the case or to answer such a question. For the foregoing reasons, we decline to call for a statement of the case. The petition is dismissed. Sri K. Srinivasan, learned counsel for the Revenue, is permitted to file his memo of appearance within two weeks from today.
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1982 (6) TMI 1
Depreciation, Partnership Deed ... ... ... ... ..... ject of any question referred to us. Perhaps, it could be said that had it been a question, it would have to be answered, for, it was not purely a question of fact but a question of law the answer to which depended on the inference from the facts found. There is no occasion to consider that question now because, despite a positive finding by the Tribunal that the assets were of the firm and not of the assessee and a further finding that, in that view, depreciation cannot be allowed, the question referred is only whether depreciation should be allowed. (See Md. Salih v. CIT 1973 Tax LR 775 (Ker)). Therefore, so long as there is no challenge to the basic finding, the answer can be only against the assessee. Hence, we answer the question in the affirmative, that is, in favour of the Department and against the assessee. A copy of this judgment under the signature of the Registrar and the seal of the High Court will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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