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Showing 41 to 60 of 172 Records
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1982 (6) TMI 137
Industrial Undertaking, Profits And Gains ... ... ... ... ..... e are profits available during the year. The computation reproduced above shows that there are profits available after allowance under section 80HHA. To the extent of such available profits, relief under section 80J will have to be allowed and the balance will be treated as deficiency to be carried forward. The extent of such allowance or deficiency will no doubt depend upon the final quantum of relief under section 80J, to be decided in pursuance of the ITO s decision as per directions in the immediately preceding paragraph. At this stage, the learned departmental representative tried to say that the investment allowance which is placed last by the ITO should have come first. We find that this argument does not arise from the orders of the authorities below. We cannot, therefore, allow him to raise this oral argument at this belated stage. 5. In the result, the appeal will be treated as allowed for statistical purposes in the manner indicated in the preceding two paragraphs.
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1982 (6) TMI 133
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... ... ..... ing that, we think it proper that the matter should go back to the AAC, who should record a proper finding in accordance with the directions given by the Tribunal in the above order. Similarly, we cannot uphold the refusal of the AAC to admit additional ground. It may be that the particular aspect of the question was not raised by the assessee before the GTO. But it cannot be said that the primary and the main question of valuation of the shares was not before the GTO of AAC as held by their loardships of the Supreme Court in the case of CIT v. Scindia Steam Navigation Co. Ltd. 1961 42 ITR 589 (SC), it will be too much of refinement sought on the part of the appellate authority, if refusal is made because a particular aspect of the question was not raised. For this reason, we cannot uphold the refusal of the additional ground, by the AAC. We, therefore, direct him to admit the ground and consider the question of valuation afresh. . In the result, the appeal is partly allowed.
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1982 (6) TMI 132
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... ... ..... t the assessee had the gross receipts of substantial amount that there was taxable income of the assessee during the years under appeal and that had escaped assessment. Despite heavy gross receipts, there may be loss or no taxable income. No enquiry was made as to the expenditure of the assessee and as to the net income, which could have escaped assessment. So, the argument that the ITO adopted the reasons of the Inspector does not hold to be good as the Inspector himself did not record the reasons, as required under the law. The approval of the ITO to the Inspector rsquo s suggestions was merely mechanical and the ITO having failed to record the reasons, as required by section 148(2) r/w section 147, I hold that no valid proceedings were invoked by him under section 148 r/w section 147. This being so, there is no need for me to go into the merits of the case. The proceedings being invalid, both the orders of the ITO are quashed. . In the result, both the appeals are allowed.
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1982 (6) TMI 131
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... ... ..... wed, I hold that the issue arising before me has been fully answered by the Hon ble Mysore High Court in (1969) 74 ITR 529 (Mys) and that has to be followed in the case of the assessee. Following the said authority, I accept the contention of the assessee that the agreement of partnership was valid and the proper status of the assessee should have been that of the firm and not the HUF. 4. The next question is whether GP rate of 12 per cent was rightly sustained by the AAC. Proviso to section 145(1) is said to be technically applicable by Shri Ranka. The HUF precisely carried on the same business, which has been carried on by the firm during the year under appeal. In the proceeding year, the HUF showed GP rate of 13 per cent on the total sale of Rs. 1,26,159. The sales, no doubt, have increased during the year under appeal. Considering these facts, I agree with the AAC that the GP rate of 12 per cent is quite reasonable on the facts of the case. . The appeal is partly allowed.
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1982 (6) TMI 130
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... ... ..... l for the respondent-assessees in this respect. The AAC in our view, has correctly decided to set aside the assessment, which was based on an invalid valuation report. But that does not mean that because the data came from an invalid report, the assessment was liable to be annulled. We find no force in the submission of the assessee that the assessment was liable to be annulled because it was based on the valuation report, which was found to be invalid. Apart from the fact that the assessment can be found to have been made on erroneous data, it cannot be claimed that the same was suffering from such an infirmity arising from the lack of jurisdiction or competence on the part of WTO or from the violation of the principles of natural justice that assessment is liable to be annulled. In our view, the AAC was correctly advised in the matter in setting aside the assessment and directing the WTO to re-do the same in accordance with law. . In the result of the appeal partly allowed.
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1982 (6) TMI 127
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... ... ..... t of enduring nature. The earth is necessary for manufacture of bricks and it is nothing but raw material of brick kiln business. Had the assessee purchased the earth in the ordinary way as the purchases are made in ordinary course by a trader of raw material, then the ITO would not have objected to allowing the expenditure as revenue expenditure. In my opinion, no difference has been made by the situation arising from the instant case where for obtaining the lands the assessee has to purchase Khatedari rights and, then acquire the lease from the Government to use the land for non-agricultural purposes for a certain period. On the facts of the case, it can be said that the assessee incurred expenditure on the acquisition of the raw material by taking the lease of the land from the State Government and by purchasing the Khatedari rights thereof. I therefore, do not hesitate in allowing 1/10th being Rs. 4,000 and Rs. 3,690 of Rs. 40,000 and Rs. 36,900. 2. The appeal is allowed.
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1982 (6) TMI 126
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... ... ..... of reopening may be used indiscriminately by making a reference u/s 16A, and that may lead to abuse and misuse of power. 24. Looking to the aforesaid facts and particularly when the WTO was fully satisfied with the completeness and correctness of the returns which were supported by the reports of the assessee rsquo s valuer, any reference made after few years u/s 16A cannot lead to the reopening of the closed assessment u/s 17(1) as the report submitted by the valuation Officer would be an invalid reference and must be treated as a nullity in the eye of law, non est and void ab initio. Reference may be made to the decision in the case of Brigediar B Lal at p.329. 25. Looking to the aforesaid facts and the decisions referred to above even reference u/s 16a is not valid and is with out jurisdiction. 26. For the reasons discussed above all the reassessment orders or ab initio illegal, void and without jurisdiction and as such annulled. 27. In the result, all the appeals allowed.
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1982 (6) TMI 125
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... ... ..... ght take of his rights, nor can the existence or absence of entries in his books of accounts be decisive or conclusive in the matter. 7. As noted earlier, the CIT(A) has noted that the change was a bona fide and permanent in nature. We find no material to contradict this observation of the CIT(A). In view of what we have discussed in the preceding paragraphs, we are of the opinion that the claim of the assessee in switching over to mercantile system in respect of the sales-tax account was proper and justified under the facts of the case particularly when admittedly for the subsequent years the ITO has accepted similar action of the assessee as far as sales-tax matter is concerned. It may be mentioned here also that with this change over in the sales-tax account, the entire accounting system of the assessee was completely on mercantile basis. Under the circumstances, we uphold the order of the CIT(A) impugned before us. 8. In the result, the appeal by the Revenue is dismissed.
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1982 (6) TMI 124
Advance Tax, Interest Payable By Assessee ... ... ... ... ..... ing a fresh opportunity to the assessee and to frame an assessment order in accordance with law. It was held by the Hon ble High Court that as per the direction of the AAC, the whole assessment order was open to the ITO and the whole matter, without any limitation, was at large before the ITO and sequel to the order of the AAC, the assessment order of the ITO was non est. The facts of the case before us are distinguishable, inasmuch as the Commissioner had passed a specific direction under section 263, in respect of the inclusion of the entity to deposit only. 4. Having regard to the facts of the case, we are of the opinion that the ITO could not have levied interest under section 217(1A), while giving effect to the order of the Commissioner rendered under section 263. This point of appeal by the assessee is accepted. 5. In view of our decision given above, the first ground of appeal would not survive for consideration. 6. In the result, the appeal by the assessee is allowed.
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1982 (6) TMI 123
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... ... ..... 8, we have to come to the conclusion that as a result of a severance in status as evidenced by the partition agreement dt. 31st March, 1968, the other properties were enjoyed by the members of the family as tenants-in-common. This conclusion we have arrived at in view of the law on the subject. Finally on the facts available on record and also by respectfully following the earlier order of the Tribunal which was also in identical facts, we hold that there was no joint family inasmuch as there was a severance in status in the joint family consequent on partition of business capital on 31st March, 1968 and since the date of partition of capital the divided members were holding the other immovable proties as tenants-in-common. Under such circumstances, the Asstt. CED is not justified in taking the LD rsquo s share for purpose of aggregation u/s 34(1)(c) of the Act. 8. The other grounds raised in the memorandum of appeal were not pressed. 9. In the results, the appeal is allowed.
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1982 (6) TMI 122
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... ... ..... ntion that the ITAT had occasion to consider the question of law involved in the present case in an earlier appeal in the case of Purbanchal Bank Ltd., Ulubari, Gauhati vs. IAC (ITA No. 502 (Gau) of 1970), dt 21st May., 1981 and it was decided in that case that interest on sticky advances was not the real income of the assessee and, therefore, the same could not be brought to tax. 5. We have carefully gone through the said decision of the Tribunal and the earlier decision of the Tribunal in the case of Corporation Bank Ltd., decided by Calcutta bench lsquo E rsquo in ITA No. 195 (Bang)/1979, dt 23rd Sep.., 1980. We respectfully agree with the reasonings given in the said decision and accordingly we hold that in the present case also the interest credited to the interest suspense account did not represent the assessee lsquo s real income and, therefore, it ought not to be brought to tax. Accordingly, the additions made are hereby deleted. 6. In the result, the appeal succeeds.
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1982 (6) TMI 121
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... ... ..... the other co-owners. 7. The ld. counsel in rejoinder submits that so long as the reassessments are not completed, the original assessment orders made by the WTO stood and they could be cited in evidence in support of the assessee lsquo s case. 8. In our opinion, the contention of the ld. counsel for the assessee has no merit. The assessments in question which he wishes to cite in evidences in the present appeals, have admittedly been found fault with prima facie by the WTO, and accordingly, he has re-opened these assessments. The evidentiary value of those assessment orders is, therefore, in our opinion, nil with regard to the valuation of the present property. 9. In the circumstances, we deem it proper in the interest of justice to set aside the order of the ld. AAC in the case of Smt. Rama Devi also and restore the matter back to him for re-determination of the question of valuation alongwith the case of other co-owners. 10. For statistical purpose, we reject these appeals.
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1982 (6) TMI 120
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... ... ..... harging of interest under s. 139(8). This is not the position in the present appeal. The view that we take as above is supported by the following authorities as 1. CIT vs. Geeta Ram Kali Ram (1980) 15 CTR (All) 67 (1980) 121 ITR 708 (All) (FB) 2. CIT vs. Daimler Benz, A.G. 1977 CTR (Bom) 68 (1977) 108 ITR 961 (Bom) 3. National Products vs. CIT 1976 CTR (Kar) 179 (1977) 108 ITR 935 (Kar) 3. The next ground of appeal of the Revenue also in our opinion, is without substance. Any payment made in terms of Chapter XVIII-C paid within the financial year, same would be a payment of advance tax and should be treated as such for the purpose of computing interest under sub-s. (8) of s. 139 of the IT Act, 1961. We rely for this purpose on the authority of the Hon rsquo ble Kerala High Court in the case of Santha S. Shenoy and Ors. vs. Union of India and Ors. (1982) 29 CTR (Ker) 127 (1982) 135 ITR 39 (Ker). In view of what we have stated above, the departmental appeal is hereby dismissed.
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1982 (6) TMI 119
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... ... ..... to the dates stipulated in s. 211 is regarded as payment of advance-tax, so would a payment of advance-tax made slightly after the stipulated dates. The default of an assessee to make the payment renders him liable to penalty u/s 221 read with s. 218 and to various recovery procedures laid down in Chapter lsquo D rsquo of Part XVII of the IT Act, 1961. Such recoveries would be of the tax, which had been defaulted and as it is advance-tax which was so defaulted, the recovery would also be of advance-tax and credit for it will have to be given to the assessee while computing the interest u/s 139 (8) read with s. 219 of the IT Act, 1961. We find support for the above proposition from the authorities relied upon by the assessee and from the decision of the Hon rsquo ble Kerala High Court in Santha S.Shenoy and Ors. vs. Union of India (1982) 29 CTR (Ker) 127 (1982) 135 ITR 39 (Ker). 9. In the result, we confirm the order of the ld. CIT (Appeals) and reject the departmental appeal.
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1982 (6) TMI 118
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... ... ..... omputed in the aforesaid manner, the assessee lsquo s resulting total income is bound to be more than what was originally assessed by the ITO. The ld AAC has every right of enhancing the income of the assessee on the lines indicated by him, but before he does so, he is duty bound to give a notice of enhancement to the assessee in terms of sub-s (2) of s 251 of the IT Act, 1961. In so far as he did not do so, his order got vitiated in the process, and as such, we have no option in the matter but to set aside the order of the ld. AAC and restore the matter back to him with the direction that he would give to the assessee an opportunity of being heard in the manner indicated in sub-s(2) of s. 251 of the IT Act, 1961. The ld. AAC may, thereafter, pass such order as he deems proper. Accordingly the order of the ld. AAC is hereby set aside and the appeal is restored to him for re-determination in accordance with law. 6. For statistical purpose, we will treat this appeal as allowed.
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1982 (6) TMI 117
Body Of Individuals, Assessability Of, Exemption, Income From Member Of Scheduled Tribe ... ... ... ... ..... it as that of Khasi family as in the present case. It is difficult to believe that the Parliament intended to grant exemption only to Khasi individuals who own properties though only marginally, and intended to leave out the bulk of the Khasi society, wherein properties and businesses are owned by family units, and in which the individual members do not have any determinate interest and unlike Hindus, cannot even ask for division of properties. If we interpret section 10(26) as suggested by the revenue, we would be rendering the exemption illusory. Apart from it, it would not be in accordance with the deliberate language used by the Parliament. 11. We are, therefore, of the opinion that the income earned by a Khasi family as a unit would be entitled to exemption under section 10(26) in the same manner as self-earned income of an individual Khasi by the profession of employment would be (sic). 12. In view of what we have stated above, we hereby reject the departmental appeals.
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1982 (6) TMI 116
Assessment Year, Previous Year, Retrospective Effect ... ... ... ... ..... and, therefore, the debate as to whether or not a defect is curable has to be kept upon for final decision by the appellate authorities in case an occasion to agitate the subject-matter before them arises. We, therefore, feel that the order of the ITO suffers from a basic deficiency and as such the matter has to be sent back to him with the direction to re-start from the stage where the irregularity committed by him intervened. The order of the Commissioner (Appeals) is, in our opinion, not sustainable, and we have detailed out reasons for it above. The order of the ITO is also not sustainable for reasons just indicated. We, therefore, set aside the orders of both the authorities and restore the matter back to the ITO with the direction that be would give the statutory opportunity to the assessee as laid down in sub-section (2) of section 185, and would re-determine the issue in accordance with law. 15. In the result, for statistical purposes, we treat this appeal as allowed.
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1982 (6) TMI 115
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... ... ..... investment of fresh capital during the previous year under consideration. Actually, assessee made to the capital an addition of Rs.500 during the said year as being savings from income. Though said addition of capital is more than amply covered by the drawings amounting to Rs. 6,990 made by the assessee during the year under consideration, the ITO added said sum of Rs. 500 also as being unexplained investment of the assessee. That was not justified in the facts of the case. So far as the opening balance of Rs. 7,481 is concerned, that figure, as indicated above, actually reflected closing capital of the assessee as on 31st March, 1975. I do not feel convinced that the assessee did not carry on business prior to the previous year under consideration. That being the position, opening capital of Rs. 7,481 cannot be said to reflect fresh investment during the year under consideration. In the result, I direct exclusion of Rs. 7,981 from assessee s assessment. 5. Appeal is allowed.
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1982 (6) TMI 114
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... ... ..... ment of fresh capital during the previous year under consideration. Actually, assessee made to the capital an addition of Rs. 500 during the said year as being savings from income. Though said addition of capital is more than amply covered by the drawings amounting to Rs. 6,990 made by the assessee during the year under consideration, the ITO added said sum of Rs. 500 also as being unexplained investment of the assessee. That was not justified in the facts of the case. So far as the opening balance of Rs. 7,481 is concerned, that figure, as indicated above, actually reflected closing capital of the assessee as on31st March, 1975. I do not feel convinced that the assessee did not carry on business prior to the previous year under consideration. That being the position, opening capital of Rs. 7,481 cannot be said to reflect fresh investment during the year under consideration. In the result, I direct exclusion of Rs. 7,981 from assessee rsquo s assessment. 5. Appeal is allowed.
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1982 (6) TMI 113
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... ... ..... is an authority for the ratio it lays down. No two facts would be quite similar but that may not be the reason for not following the ratio of the decision, if the ration fully covers the case on hand. In our view, the ratio laid down by the saidAllahabaddecision was that even though a partition may be voidable at the instance of a member of the family affected by it, still the department has no locus standi to hold that such a partition was void ab initio. We are of the view that the AAC went wrong in not appreciating the ratio of the Allahabad High Court rsquo s decision correctly and went wrong while applying it to the facts on hand. Ultimately, we are of the view that the partial partition dt.19th July 1979 filed by the assessee HUF before the ITO should be recognised by the ITO. 7. In the result, we set aside the orders of the lower authorities, allow the appeal and direct the ITO to accord recognition to the partial partition dt.19th July 1979 set up by the assessee HUF.
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