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Case Laws
Showing 141 to 160 of 237 Records
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1983 (3) TMI 98 - ITAT CALCUTTA-B
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... ... ..... tax on account of provisions of s. 53 so far as the market value of immovable property owned by the assessee did not exceed Rs. 50,000 and the sale consideration was less than Rs. 25,000. No doubt that was a mistaken notion about the legal position but the Bench was of the opinion that the assessee was not to be penalised for every wrong notion of law. A some what similar view was recently taken by the Allahabad High Court in Md. Ibrahim Azimullah vs. CIT (1980) 19 CTR (All) 328 wherein their Lordships observed that even after rejection of the explanation given by the assessee the authorities have to find whether the conduct of the assessee would be considered to be fradulent or wilful. Want of due care does not necessarily amount to fraud, gross or wilful neglect. Keeping in view the all over facts and circumstances of this case we are of the opinion that it would not be safe to uphold the penalty in the present case. We, therefore, accept the appeal and delete the penalty.
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1983 (3) TMI 97 - ITAT CALCUTTA-B
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... ... ..... u/s 139 (2) does not wipe out the liability to penalty u/s 271 (1) (a) for the default u/s 139 (1) and it cannot be held that the penalty should be confined to the period after the issue of the notice u/s 139 (2) or u/s 148. 9. From the brief narration of the different facts and circumstances of the cases before the different High Courts discussed above, it is seen that on the facts of the case before us, the order of the AAC cannot be sustained. The AAC was wrong in accepting the plea of the assessee that a penalty should be confined only to the period after 30th September, 1974, i.e., after the notice u/s 148 was issued. The period of default prior to the issue of the notice u/s 148 has also to be taken into account for the purpose of penalty imposable u/s 271 (1) (a). In this view of the matter, we cannot sustain the order of the AAC impugned before us. Accordingly, we reverse his order and restore that of the ITO. 10. In the result, the appeal by the revenue is allowed.
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1983 (3) TMI 96 - ITAT CALCUTTA-B
Partner In Firm ... ... ... ... ..... him of that part of his share which he relinquished and on his death within two years of the partition, that part of his share would be a property deemed to pass under section 9(1) read with section 27(1) and Explanation 2 to section 2(15). But in the instant case, the deceased retired from the firm before her death. As soon as a partner retires from a firm he ceases to be a member of the said firm and, therefore, after the date of retirement he cannot have any interest except his dues as per settlement of accounts of the firm. It was not the case of the revenue that the deceased had relinquished his share of goodwill of the firm in favour of other partners. In view of what we have stated above, we would hold that the lower authorities were not justified in including the share of goodwill of the firm UBM Sales and Services in the principal estate of the deceased. Accordingly, we direct that the amount of Rs. 71,961 be deleted. 12. In the result, the appeal is partly allowed.
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1983 (3) TMI 95 - ITAT CALCUTTA-B
Family Property ... ... ... ... ..... est by birth in the ancestral property. The rights arise for the first time on the father s death when they take father s property, ancestral as well as separate, as heirs and not by survivorship. The heirs of a Dayabhaga deceased person do not spontaneously, by operation of law, become members of a HUF. They remain co-owners with definite ascertained shares and are to be assessed to wealth-tax individually. It has been held by the Supreme Court in the case of Bishwanath Chatterjee, properties of a Hindu male governed by the Dayabhaga School of Hindu Law, held on his death by his heirs, are not assessable to wealth-tax jointly in the status of HUF. Keeping in mind the aforesaid principle of law and considering the facts of the case, we are of the opinion that the AAC was not justified in directing the WTO to allow relief under section 5(1)(ii). We, therefore, set aside his consolidated order and restore those of the WTO. 6. In the result, the departmental appeals are allowed.
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1983 (3) TMI 94 - ITAT CALCUTTA-A
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... ... ..... found as a fact that the assessee s letter dt. 31st March, 1980 was duly, received in the office of the WTO. Admittedly the WTO had not taken into consideration the explanation given by the assessee in his letter dt. 31st March 1980. From these facts it can be inferred that the WTO, while penalising the assessee, did not observe the basic principle of natural justice. The entirety of the circumstances would go to indicate that the WTO not only acted in contravention to the provisions of s. 18 (2) of the WT Act but also overlooked the basic requirement of law in passing quasi-judicial orders. We are, therefore, of opinion that the AAC was justified in cancelling the orders of penalty. We are also of the opinion that the AAC was justified in entertaining the additional ground which did not require investigation of new facts and went to the root of the case. Viewed thus, we uphold the order of the AAC for all the years under appeal. 9. The appeals by the revenue are dismissed.
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1983 (3) TMI 93 - ITAT CALCUTTA-A
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... ... ..... als) was wrong in directing the ITO to allow depreciation on bridges. Alternatively, he urged that even if it was held that bridges constituted assets like buildings depreciation should be allowed at the rates applicable to buildings. The ld. counsel for the assessee, on the other hand, supported the order of the CIT (Appeals) and relied on the order of the Tribunal in the case of the assessee for the asst. yrs. 1975-76 to 1977-78 in ITA Nos. 1390 to 1392 (Cal)/82 dt. 1st October 1982 wherein it has been held that the bridges in tea gardens constitute buildings eligible for depreciation. 9. Having heard the submissions of both the parties and following with respect the order of the Tribunal cited above, with which we agree, we hold that the bridges in tea gardens are entitled to depreciation at the rate/rates provided in the IT Rules. The ITO is, therefore, directed to allow depreciation on bridges as provided in the IT Rules. 10. The appeal by the revenue is partly allowed.
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1983 (3) TMI 92 - ITAT CALCUTTA-A
Firm Registration, Partnership Deed ... ... ... ... ..... arick was not taken as a partner in her individual capacity. Section 311 provides that when there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them. Moreover, the preamble to the partnership deed provides AND WHEREAS it is inter alia mentioned in the said last will of said Purna Chandra Barick deceased that on the death of Purna Chandra Barick the business of said Purnasree Cinema wherein Purna Chandra Barick had 10 annas share will be managed by the surviving partner Shri Netai Chandra Barick for the better interest and management of the partnership business. In that view of the matter we are of opinion that the defect pointed out by the ITO was not so serious as to refuse to allow the assessee s claim for continuation of registration. Viewed thus, we direct that the assessee s claim for continuation of registration be allowed. 8. The appeal by the assessee succeeds and is allowed.
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1983 (3) TMI 91 - ITAT CALCUTTA-A
Family Property ... ... ... ... ..... ded. With a view to rectifying any mistake apparent from the record, the ITO, AAC/Commissioner (Appeals), Commissioner or the Tribunal may amend any order passed by him/it, and non else. Therefore, even after the change of jurisdiction of the concerned officer who originally passed the order, any mistake crept into such order cannot be passed by anybody else other than the officer who passed the original order. This view is supported by the Board s Circular No. 269 F.No. 279/71/80-ITJ , dated 29-4-1980 mentioned above. This being the position, we are of the opinion that the Commissioner (Appeals) had no jurisdiction to rectify the order passed by the AAC in Appeal No. 148/C-III/1975-76, dated 12-8-1977 even though at the relevant time the jurisdiction of the AAC over the case was transferred to the Commissioner (Appeals). We, therefore, find it difficult to sustain the order of the Commissioner (Appeals). His order is hereby set aside. 6. In the result, the appeal is allowed.
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1983 (3) TMI 90 - ITAT BOMBAY-D
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... ... ..... 2) 27 CTR (Bom) 222 (1982) 138 ITR 843 (Bom) where an assessee manufacturing dyestuff started a new industrial undertaking to manufacture intermediaries hitherto purchased in the market for the manufacture of dyestuff. Their Lordships of the Bombay High Court held that the new undertaking cannot be held to be different from the existing one. The interest on capital borrowed was allowed. Apart from the above, in the present case out of an over all investment of nearly Rs. 400 lakhs the major portion consists of the assessee s share capital, savings, etc., and the borrowings are limited. Even from the point of view of investment of its savings in expanding the existing business, the assessee s claim will have to be accepted. We direct that the interest claimed be allowed in the light of the Supreme Court s decision in the case of India Cements Ltd. vs. CIT (1966) 60 ITR 52 (SC) 14. In the result, the assessee s appeal is partly allowed and the departmental appeal is dismissed.
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1983 (3) TMI 89 - ITAT BOMBAY-D
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... ... ..... C. 15. In the facts and circumstances of appeal, it appears just and proper to allow the bad debt of Rs. 6,881. 16. The AAC has observed that the assessee has not challenged before him in respect of charging interest u/s 215 by the ITO and accordingly, he dismissed the appeal in this respect. The assessee has challenged the ground before us. 17. The AAC has also dismissed the appeal against the order passed u/s 273 r/w s. 274. According to him, there was an appeal against the quantum and registration only and there was no appeal against the directions of the ITO. The AAC has observed that the ITO s order u/s 158 is fair and just and it does not call for interference. However, merely because of not filing an appeal before the AAC it does not come in the way of the Appellate Tribunal when the appeal is preferred against the said order. 18. In view of the above facts and circumstances on record, the entire appeal requires to be allowed. 19. In the result, the appeal is allowed.
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1983 (3) TMI 88 - ITAT BOMBAY-B
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... ... ..... show that the alleged wealth consisting of a claim against Sippy Films and H.S. Rawail exists but the assessments have been made more on presumptions and conjunctures with regard to what happened in 1962-63, it would have been proper for us to straight away delete the additions made to the net wealth on this score. We are not doing so far the reasons stated above. The WTO, therefore, gets an opportunity to complete whatever enquiry remains incomplete and come to a correct factual conclusion. Even so, we cannot ignore the fact that the matter has been pending for more than two decades, certainly not on account of the fault of the assessees and this, including the liability to tax on a net wealth of Rs. 1 crore hanging as a Democle s sword on him must be very harsh of assessees. We have fixed a specific date for the ITO and the WTO for completing these enquiries and passing an order pursuant to this direction on account of the above reasons. 10. The appeals are partly allowed.
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1983 (3) TMI 87 - ITAT BOMBAY-B
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... ... ..... obligation to work more for getting more business and the incentive commission paid by the Life Insurance Corporation depends upon the amount of business brought in by them. This is independent of the salary given to the assessee. In respect of these receipts, the assessee, undoubtedly, had incurred expenditure. Quantification of the expenditure at 40 cannot be said to be excessive. 3. The appeal is allowed.
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1983 (3) TMI 86 - ITAT BOMBAY-A
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... ... ..... he claimed that he maintains separate accounts in respect of his salary income as a Judge and made up such accounts for the previous year ending on 31st July, 1969 and, therefore, it should be assessed in the asst. yr. 1970-71, and not 1969-70. It was held that the election of the previous year ending 31st July, 1969 by the assessee was quite in accordance with s. 3(1) (b) of the Act. As the assessee made up his accounts on 31st July, 1969, he was entitled to adopt the previous year ending 31st July, 1969 in respect of the income from salary as a Judge as the previous year for that class of income. The aforesaid decision of the Andhra Pradesh High Court squarely covers the case before us in these two appeals. Respectfully following the said authority as well as the later decision dt. 15th December, 1980 of the Tribunal referred to above, we have no hesitation in upholding the order of the AAC for both the years under consideration. 7. In the result, two appeals are dismissed.
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1983 (3) TMI 85 - ITAT BOMBAY-A
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... ... ..... aving been fixed up for the particular day for the appeals pending before the Tribunal. In my view, therefore, no proper hearing notice of hearing served on the assessee to enable him to appear on the stipulated date, viz. 30th November, 1981 in connection with the pending appeals. There is obviously a mistake with regard to the service of the notice. The Tribunal s order dated 30th November, 1981 deciding the appeals ex parte has suffered from this initial factual and legal mistake. The order, therefore has to be withdrawn. The Miscellaneous Applications of the assessee has to be accepted the appeals fixed again for hearing after proper issue and service of the notice on the assessee. 11. I answer the question referred to me as under The Tribunal was not justified in passing on dt. 30th November, 1981 an ex parte order in the appeals filed by the assessee . The matter may now go back to the original Bench which heard the Miscellaneous Petition for disposal according to law.
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1983 (3) TMI 84 - ITAT BOMBAY-A
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... ... ..... Private Ltd. being squarely on all fours and the subsequent decision of the Bombay High Court in the case of Shah Construction Co. having not said a word indicating its disapproval of the earlier decision, we are bound to follow with respect, the Bombay High Court s decision in preference to the other High Court decisions relied upon by the assessee s counsel and hold that the assessee is not an industrial company . It may be stated that Sri Trivedi, the ld. counsel for the assessee, wanted to furnish the details about the assessee s activities so that in case it was eventually found necessary to have basic material on record, the same is available. The material has been placed by him on record. Since, however, we do not consider it necessary in view of the direct decision of the Bombay High Court, to examine the material and give a finding, we have not considered it necessary to go through the same and give finding in the regard. 9. In the result, the appeals are dismissed.
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1983 (3) TMI 83 - ITAT BOMBAY-A
Appeal To AAC ... ... ... ... ..... was aware of the defect. When it was pointed out, the assessee at once offered to rectify the same. The AAC, however did not allow the assessee a chance to rectify it. We are sure, on this account, the assessee s right should not be diluted. 12. In the result, we hold that the memoranda of appeal contained only a curable defect. The AAC ought to have allowed the assessee an opportunity to cure the defect. Since he did not allow such an opportunity in spite of a specific request, we direct him to grant such an opportunity to the assessee so that the memoranda of appeal could be regularized by her Signature. For this purpose, the orders are set aside and the appeals are restored back to his registers. It is needless to add that if the assessee does not rectify the defect within, say one month of the AAC s notice to the assessee, the AAC is at liberty to proceed as if the assessee is not interested in rectifying the defects. 13. For statistical purposes, the appeals are allowed.
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1983 (3) TMI 82 - ITAT BOMBAY-A
Assessment Year, Individual Property, Minor Child ... ... ... ... ..... ife and the minor child even in a second or third notional partition. Even if that could be found out, to determine the proportionate share relevant to the converted property would be still more difficult, since the converted property on a notional partition could as well go not to the branch of the assessee even on the per stirpes basis but to some other branch. Apart, therefore, from the legal capability of a second notional partition itself, we have to hold that the extent of inclusion is, not only from the practical but even from a theoretical point of view, incapable of determination in the present case. In this sense, the claim of the learned counsel for the assessee that section 4(1A) could have relevance only to a major HUF where it is not partitioned and not to minor or subsequent HUFs, would have some legal consequence and meaning. 10. We hold that the computation share under section 4(1A) cannot be included in the assessee s net wealth. 11. The appeals are allowed.
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1983 (3) TMI 81 - ITAT BANGALORE
Assessment Year, Retrospective Effect ... ... ... ... ..... ven though that provision came into effect from 1-4-1952. In the instant case before us the original assessment was made on 1-3-1975. The order of the District Judge is dated 22-6-1976. The rectification order dated 27-2-1979 is within the four years period from the order dated 22-6-1976 enhancing the compensation. Thus, the above case before the Supreme Court is on all fours with the instant case. Following with respect the ratio laid down therein, we hold that the order dated 27-2-1979 of the ITO made under section 154 is perfectly valid. The Commissioner (Appeals) was wrong in holding that the additional compensation received cannot be brought to tax for the assessment year 1972-73 by an order under section 154 and thereby deleting Rs. 2,30,738. Accordingly, we reverse his order on this point and restore the order of the ITO made under section 154 by including the enhanced compensation of Rs. 2,30,738 for computing the capital gain. 7. In the result, the appeal is allowed.
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1983 (3) TMI 80 - ITAT BANGALORE
Assessment Year, Retrospective Effect ... ... ... ... ..... ven though that provision came into effect from 1-4-1952. In the instant case before us the original assessment was made on 1-3-1975. The order of the District Judge is dated 22-6-1976. The rectification order dated 27-2-1979 is within the four years period from the order dated 22-6-1976 enhancing the compensation. Thus, the above case before the Supreme Court is on all fours with the instant case. Following with respect the ratio laid down therein, we hold that the order dated 27-2-1979 of the ITO made under section 154 is perfectly valid. The Commissioner (Appeals) was wrong in holding that the additional compensation received cannot be brought to tax for the assessment year 1972-73 by an order under section 154 and thereby deleting Rs. 2,30,738. Accordingly, we reverse his order on this point and restore the order of the ITO made under section 154 by including the enhanced compensation of Rs. 2,30,738 for computing the capital gain. 7. In the result, the appeal is allowed.
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1983 (3) TMI 79 - ITAT BANGALORE
Business Income, Carrying On Business
... ... ... ... ..... sessee s income from lottery and should be allowed as deduction under section 80TT. That case is clearly distinguishable as the assessee was a contributor of Rs. 200 every month and won the draw. In fact, in that case, it was pointed out that to hold that a particular receipt is income from business it must be established that it arose from activities which are in the nature of business. Thus, it is very clear therefrom that if it had arisen out of the activities which are in the nature of business, it cannot be treated as income from lottery. Thus, that case instead of helping the assessee would support the revenue s case. 10. Thus, in our view, the AAC was completely wrong in holding that the assessee is entitled to the deduction under section 80TT and directing the ITO to treat the receipt of Rs. 1 lakh as income from lottery and allow deduction under section 80TT. We set aside the order of the AAC and restore the order of the ITO. 11. In the result, the appeal is allowed.
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