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Case Laws
Showing 81 to 100 of 218 Records
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1983 (10) TMI 181
Handloom cess - Refund ... ... ... ... ..... -a-vis whose who had not complied with the then existing provision of law. It is also a moot point whether Rule 11 of the Central Excise Rules, 1944 (then existing) would apply to a case of payment of duty which was not made due to inadvertence error or mis-construction. We are also able to appreciate the learned Departmental Representative rsquo s argument that the claim should have been lodged at least within six months from the date of promulgation of the exemption, as there is no legal provision for such a condition. The department rsquo s argument that the exemption is silent on the period for claiming refund also cuts both ways. However, without going into the niceties of the matter, it appears that technicalities are being invoked to try to take away a benefit intended by the Government. This is, therefore, a fit case in which exercise of our discretionary power under Clause (i) of the proviso to Section 35B would be merited. We accordingly refuse to admit this appeal.
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1983 (10) TMI 180
‘Manufacture’ ... ... ... ... ..... e goods as raw material under O.G.L. is justified in the facts of the case and in the light of the Import Policy. The action of the Board in setting aside the order of confiscation passed by the Collector is thus a correct one and does not require any further review. The proceedings initiated by the Government by its Notices dated 29-1-1982 and 16-3-1982, referred to supra, are hereby ordered to be dropped. 23. The representative of the respondent pointed out that though an order in his favour had been passed by the Board as early as 17-8-1981/3-10-1981 in the respective appeals, the fine paid to the Department still remains with it and is causing them additional loss by way of interest incurred thereon, quite apart from its being not available for productive use. He, therefore, requests for early refund of the fines paid Accordingly we direct that the redemption fines already collected from the importers be refunded to them within forty-five days from the date of this order.
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1983 (10) TMI 175
Import & Export ... ... ... ... ..... ents of Thiamine Mononitrate imported at Bombay had been allowed to be cleared in appeal, without any penal action. A perusal of that order shows that the Board has seen various publications in which Thiamine Hydrochloride has been referred to as a Vitamin-B1. In none of these, is there an indication that Vitamin-B1 is only Thiamine Hydrochloride and nothing else. The non-occurrence of Thiamine Mononitrate in the publications noticed by the Board in its order by itself does not prove the negative that it is not a Vitamin-B1. 12. ensp In the above analysis, we find that Thiamine Mononitrate is a Vitamin-B1, the importation of which is not permitted to an export-house against the licence produced (which incidentally shows the export product as engineering goods and bicycles complete and components and accessories therefor, read with the inter-changeability clause). The subsisting fine in lieu of confiscation is itself a low one. Under the circumstances, the appeal is dismissed.
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1983 (10) TMI 174
Allowance for loss in weight due to natural cause like evaporation of moisture ... ... ... ... ..... ies that such losses of weight must be a regular phenomenon in Cotton Mills and there must be material from which some definite conclusion in the matter could be drawn. None of the parties, however, could place any material before the. Bench in this regard. 8. ensp We have carefully considered the matter. It is well known that such losses do occur. The Department also does not dispute this. The Government of India had in their Revisionery Order granted an allowance of 1 loss in weight to the appellants. The appellants have claimed loss in weight varying from 1.41 to 3.06 on an average 2.6 per year during the relevant period. 9. ensp On the facts and circumstances of the case without laying down any general proposition from the material on record before us, we see no reason to disbelieve the appellants in their claim for loss of weight as aforesaid. We would therefore allow the appeal and set aside the demand. The amount of demand, if paid, shall be refunded to the appellants.
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1983 (10) TMI 173
Food - Prepared and preserved foods ... ... ... ... ..... d preparations falling under Item 68. 9. emsp Neither the appellants nor the Appellate Collector have referred to any statutory or standard definitions of the expression ldquo unit containers rdquo . The appellants themselves had, in their classification list, shown the product as falling within Item 1B. Since the appeal deserves to succeed on the basis of the appellants rsquo contention that the product does not come within the scope of Serial No. 14 in the schedule to Notification No. 17/70, we do not find it necessary to go into their contention that the container in which the product was sold were not ldquo unit containers rdquo , that on this account the product would be excluded from the scope of Item 1B. 10. emsp In the result, we allow the appeal, accepting the appellants rsquo contention that the product is not covered by Serial No. 14 to Notification No. 17/70 dated 1-3-1970, and direct that consequential relief be granted to the appellants. Announced in open Court.
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1983 (10) TMI 172
Appreciation of evidence does not involve a point of law meriting reference ... ... ... ... ..... certificate from the suppliers of the gauges issued much after the import and the export took place (after the lapse of over 2 years) certifying that they had received back certain number of gauges of a specified accuracy and range returned by the applicant by the specified shipping bill which were originally supplied by them wrongly. In weighing the evidence in the case, in our order referred to earlier, we found that the report of physical examination was acceptable in preference to a belated and blunt certification of the supplier without even reference to details of original, alleged wrong supply. The advocate for the applicant urges that in doing so a legal fact is being determined and hence a point of law is involved. Appreciation of evidence in the circumstances referred to above does not, in our view, involve a question of law, as claimed. In the circumstances we reject the application to state the case to High Court, on the ground that no question of law is involved.
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1983 (10) TMI 171
Quantum of duty worked out by the subordinate officer ... ... ... ... ..... sification list, again duly approved by the proper officer, indicating the rate of duty leviable on each such item. The arithmetical calculation for arriving at the quantum of duty due on the goods held by the Collector to have been removed from the factory clandestinely and/or without payment of duty should be capable of being worked out by the appellant-company themselves based on (a) the order of the Collector, (b) the valuation list and (c) the classification list. There is thus no need for a formal demand indicating the amount to be issued by the Assistant Collector for purposes of complying with the effective part of the order of the Collector. At best, the direction to the Assistant Collector contained in the order of the Collector is superfluous. 7. emsp Before us the fact that the appeal was in fact received late in the office of the Board is not disputed by the appellant. The order of the Board is maintainable on facts and in law. Accordingly, we dismiss the appeal.
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1983 (10) TMI 155
... ...
... ... ..... was acute shortage in the market for the articles purchased and sold by the manufacturers and dealers only on cash against on delivery basis, that the identity of the payee was fully established and that the seller refused to accept the payments by crossed cheque or crossed demand draft. These circumstances were fully supported by the assessee by producing the necessary evidence, such as certificates from the dealers or agents, the Electric Merchant rsquo s Association and were further supported by the statement of representative of the sellers Shri M.T. Gosalia made before the ITO. On these facts we find that the AAC rightly held that the assessees case was saved by the exceptions provided u/s 6DD and further that the ITO was bound by the relevant circular of the board bearing No. 220 dt. 31st May 1977 in terms of which also the assessee would be exonerated from the mischief of s. 40A (3). 3. In the result, we confirm the order of the AAC and dismiss the departmental appeal.
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1983 (10) TMI 154
... ...
... ... ..... f Prakash in his personal return of income. This explanation was not accepted by the ITO and he held the view that Shri Prakash was benamindar of Shri Parasmal. Another explanation submitted by the assessee rsquo s counsel is that the investment of capital share in the partnership firm was made from the owned fund and, therefore by mistake it was shown by Shri Parasmal but when the said fact was noticed a revised return was filed by him, the AAC accepted this explanation and rejected the contention of Prakash being benamidar of Parasmal. 22. We have gone through the order passed by the AAC partnership deed and the compilation filed by both sides. We have also gone through the order of the Tribunal in the assessee rsquo s own case in I.T.A. Nos. 739 and 740/PN/75-76 for asst. yr. 1972-73. In our opinion, the AAC rsquo s conclusions and inferences are correct in view of the facts on record, hence we uphold his order on all the points. 23. In the result, the appeal is dismissed.
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1983 (10) TMI 149
... ...
... ... ..... of the Tamil Nadu District Municipalities Act it has been provided that where a statutory authority does not grant the approval for which an application has been made within the time prescribed, such an approval is deemed to be granted. If we do not assume such a result, the section itself would become meaningless and remain a pious wish on the part of the Parliament that the ITO should dispose of the application within the period prescribed. In order to make it effective, we have to make the necessary direction that where the ITO does not pass the orders within the period of limitation prescribed, the ex parte assessment made under section 144 stands cancelled. In this view of the matter also, we deem it fit to declare that the assessment made by the ITO has been cancelled and, therefore, we direct the ITO to make a fresh assessment in accordance with law after giving the assessee a reasonable opportunity of being heard. 5. In the result, the appeals are treated as allowed.
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1983 (10) TMI 148
Break Up Method, Private Company, Quoted Equity Shares ... ... ... ... ..... of the shares would be adequate even if the full market value of the shares was not given since it would take into account the fact that he would continue to be the owner of the shares as a coparcener with one-third interest thereon. In the circumstances, we agree with the contention of the assessee that in finding whether the consideration received was adequate, there should be a further discount of one-third. The value fixed for the shares in accordance with the rate of Rs. 226.96 fixed by the Commissioner (Appeals) comes to Rs. 1,13,480. Allowing further discount of one-third amounting to Rs. 37,826, we find that the adequate consideration for the shares should have been Rs. 75,654. But the assessee has received only Rs. 50,000. Therefore, the balance of Rs. 25,654 becomes a gift taxable under section 4(1)(a). We direct the GTO to amend the gift-tax assessment, accordingly. 6. In the result, the appeal of the revenue is dismissed and the cross-objection is partly allowed.
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1983 (10) TMI 147
Debatable Issue, Mistake Apparent From Record ... ... ... ... ..... hether there was any delay attributable to the assessee or not becomes one of argument. In view of the ratio of the decision of the Supreme Court in the case referred to, it is clear that when a case falls under rule 40(1) if interest is omitted to be levied, an inference is permissible that such omission was in the exercise of discretion by the ITO provided the circumstances fell within the scope of the sub-rule. In the present case, whether the circumstances provided in the sub-rule themselves are satisfied is entirely a matter of debate. Rule 40(1) unlike rule 40(5) does not require the concurrence of any other authority apart from the ITO himself for the waiver or reduction of interest. In these circumstances, we come to the conclusion that the ITO was not justified in invoking the provisions of section 154 and the AAC was not justified in upholding such order. We accordingly cancel the orders of the authorities below and allow the assessee s appeal. 6. Appeal is allowed.
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1983 (10) TMI 144
... ...
... ... ..... in his representative capacity. Their right is only to share in the profits of their partner representative in accordance with law or in accordance with the terms of the agreement as the case may be. Bearing the above principle in mind it is manifest that the mere fact that the share income is determined under s. 67 in the hands of the partner including the salary would not automatically render such share income liable to assessment in the hands of the assessee HUF which has beneficial interest in the firm. The salary paid to the partners by the firm being obviously for the service rendered by the partners to the firm, such salary would represent their personal and individual income only and will have to be excluded from the share income for the purpose of the assessment of the HUF. This being the position we agree with the AAC rsquo s finding that the salary paid to the Kartha cannot be included in the assessee rsquo s assessments. The Revenue rsquo s appeals are dismissed.
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1983 (10) TMI 142
Appellate Assistant Commissioner ... ... ... ... ..... fused to interfere, the entire proceedings become non est as far as the assessee is concerned and he is, therefore, left to seek his remedies elsewhere. Last, but not least, the Appellate Court should be slow to interfere with an order of a lower Court when the error complained of has not resulted in a miscarriage of justice. Technical errors of procedure should be disregarded particularly when the decision is right on law and facts and it does not affect the substantial rights of the parties. In the present case, when it is not in dispute that the assessee was entitled to the relief under sections 54B and 80T by setting aside the order of the AAC. We would only be restoring an assessment which is patently unjust and brings to tax an amount which is not taxable under the provisions of the Act. We should, therefore, refrain from entertaining this technical ground as otherwise it would only lead to injustice. We, therefore, confirm the order of the AAC. The appeal is dismissed.
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1983 (10) TMI 140
Debatable Issue, Depreciation On Motor Vehicles, Income Tax, Mistake Apparent From Record, Rectification Proceedings, Transport Business
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1983 (10) TMI 139
Assessment Order, Original Assessment, Reference To IAC ... ... ... ... ..... ent is set aside and the matter comes up for fresh assessment before the ITO, his powers will have to be decided with reference to the provisions of section 143(3) and not with reference to any observations by the appellate authority in his order. Therefore, such a fresh assessment has to be made within the framework of the Act and considering the non obstante clause of section 144B, the procedure prescribed in that section has to prevail. We are, therefore, of the considered opinion that the ITO was required to follow the procedure under section 144B and, therefore, the time taken for following that procedure had to be excluded in computing the limitation prescribed for making such an assessment. In this view the assessment made by the ITO could not be held to be barred by limitation. We must, therefore, reverse the orders of the Commissioner (Appeals) and restore the appeals to his file for fresh disposal on merits in accordance with law. The appeals are treated as allowed.
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1983 (10) TMI 138
Assessment Order, Income Returned, Reference To IAC, Registered Firm, Share Income ... ... ... ... ..... ived at and on the basis of enquiries and investigations which be made in the usual course of the assessment proceedings. The reference to the IAC in the circumstances were strictly in compliance with, and as required by the provisions of section 144B(1). Therefore, the extended time limit under Explanation 1(iv) to section 153 was available for completion of the assessments and the assessments so completed in each of the cases on 8-4-1982 were within the time. We, therefore, would set aside the order passed by the Commissioner (Appeals) in each of the cases and would restore the assessments as made by the ITO since such assessments were made within the period of limitation. 14. In the view that we have taken, it is not necessary to deal with the final alternate contention so ably urged by the learned departmental representative based on certain observations in the judgment of the Punjab High Court in S. Sewa Singh Gill s case. 15. In the result, both the appeals are allowed.
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1983 (10) TMI 131
Appellate Assistant Commissioner ... ... ... ... ..... ment having been made on 24-5-1982 and the return having been filed on 16-8-1979. He further found that on an examination of the records the assessee had throughout co-operated with the department providing all necessary information whenever called and the delay in completing the assessment could not be attributed to the assessee. The requirements of rule 40(1) were, therefore, fully satisfied and in such circumstances, in the absence of any other reason being given, the ITO necessarily should have waived the interest. This, not having been done, and the case being a fit and proper one for waiver of interest, the Commissioner (Appeals) in exercise of his appellate functions rendered appropriate justice by cancelling the interest levied. There has been no excess exercise of powers by the Commissioner (Appeals) in cancelling the interest levied in the circumstances of the present case. The order of the Commissioner (Appeals) is upheld and the appeal of the department dismissed.
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1983 (10) TMI 128
Break Up Method, Private Company, Quoted Equity Shares ... ... ... ... ..... preted by the Hon ble High Court and the Supreme Court under such Acts. Hence, we hold that in deciding the issue involved over here, we are bound to follow the decision of the Hon ble Patna High Court in M. S. Rao s case and the Andhra Pradesh High Court decision in Budur Thippaiah s case. Therefore, following these with respect, we hold that the exemption is to be granted for the value of the gifts which were gifted to the daughters on the occasion of their marriage relating to marriage, namely, betrothal, etc., and not before and after the occasion of the marriage. Hence, if a gift is made at the time of betrothal or after the marriage in honour of the custom prevailed among the parties to the marriages, then on the value of such gift, no exemption under section 5(1)(vii) is to be allowed. Accordingly, on these reasons and discussions, we set aside the order of the AAC and restore that of the GTO on following the aforesaid decision. 8. In the result, the appeal is allowed.
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1983 (10) TMI 125
... ...
... ... ..... t is all acquisitions of the past. The most important fact is that these are, as seen from the descriptions of the designs of earlier make. The designs as we studied are there in vogue much earlier. The assessee is 61 years old. He belongs to a well to do family. So such jewellery would have been acquired much earlier and not at this late sixties. It is not as if his earning capacity blossomed only in this year or an earlier or two before. So there is every probability and possibility that it is all acquisitions of the past. The explanation of the assessee is highly satisfactory that is not the acquisition on this year. There is not even a weak or feeble facts or circumstances to indicate that it is a purchase or investment in this year. So his explanation is acceptable. It is accepted as satisfactory. Therefore, this cannot be the income of this year. 6. So far these reasons we allow this appeal. Even the addition sustained by the ITO under the head other sources is deleted.
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