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Case Laws
Showing 61 to 80 of 175 Records
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1984 (10) TMI 139
CLASSIFICATION ... ... ... ... ..... f the arguments addressed. We would, therefore, prefer to follow this decision. Applying the ratio of this decision, C.A. Scrap did not fall under either Item No. 15A(1) or 15A(2) Central Excise Tariff. It has also to be remembered that scrap came to be included in Item 15A Central Excise Tariff for the first time by the amendment of 1982. It is, therefore, reasonable to conclude that scrap was not excisable before the amendment under the said item and, therefore, on import, not liable to be charged with countervailing duty with reference to that item. 11. The above conclusion would also gain support from a reference to Central Excise Notification No. 23/73, dated 12-2-1973 which exempts all plastic materials in any form falling under Item No. 15A(1) reprocessed from or produced out of scrap or waste of (i) plastic material and (ii) articles of plastic. 12. In the circumstances, we set aside the impugned order and allow the appeals with consequential relief to the appellants.
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1984 (10) TMI 138
... ...
... ... ..... ity for discussion with the Chemist or for a re-test. (iv) The liquid paraffin in 1983 E.L.T. 1134 would appear from the Order to have been not a proprietary product. In the present case, the goods are seen from the record to be a proprietary or branded product of Atlantic Richfield Company, USA. According to the Tribunal rsquo s Order in Lubri-Chem Industries Pvt. Ltd., Bombay v. Collector of Central Excise, Bombay - 1983 E.L.T. 2408 - such branded liquid paraffin conforming to pharmaceutical grades would fall for classification under Item 14E of the CET ( ldquo Patent or Proprietary Medicine rdquo ), Of course, such a plea has not been taken up in these proceedings. But, the Order shows that Item 68 CET is not appropriate. 15. emsp Considering the above circumstances, I do not see any reason to discard the Customs Laboratory test results. In this view of the matter, I do not see any reason to interfere with the impugned orders. The appeals, therefore, fail and are rejected.
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1984 (10) TMI 131
Confiscation and imposition of Redemption fine and penalty ... ... ... ... ..... Government of India rsquo s instructions required carrying of duplicate GS-12 tour register by the travelling salesmen. In the circumstances, the finding of the Learned Collector that the appellants M/s. Kartar Singh Amrik Singh contravened Section 55 for not entering the vouchers in the GS-12 tour register is not in accordance with law. I, therefore, set aside the said finding. The order of confiscation of the gold ornaments and the imposition of penalty of Rs. 500/- are also set aside. 24. emsp In the result all the three appeals are allowed. The order of confiscation of gold ornaments in all the three cases are set aside. If the gold ornaments had not been released to the respective appellants they may be released and if released the fine amount paid by each of the appellants shall be refunded to them. The personal penalty imposed on the appellants M/s. Om Prakash Jewellers and M/s. Kartar Singh Amrik Singh are also set aside. The penalties paid shall be refunded to them.
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1984 (10) TMI 128
... ...
... ... ..... f the case, all that subsists is a direction to the ITO that he should examine whether interest is liveable under s. 217(1A). Even if the CIT has not given such direction, it is certainly open to the ITO, if interest is leviable under s. 217(1A), in an independent order to examine this issue. Therefore, a specific direction by the CIT in this regard would not place the assessee in a worse position because interest is liveable only if it is liveable in accordance with law. In this regard, we may state that the ld. counsel for the assessee had placed before us an order in ITA No. 1014/Mds/83 dt. 5th Oct., 1983, in the case of ITO vs. R. Narayanan, Madras (1984) 19 TTJ (Mad) 591 where the Tribunal had held that waiver of interest was permissible even in cases where interest was liveable under s. 217 (1A). Whether interest is liveable or not is a matter for the ITO to decide and hence we would not offer any comments on this aspect also. The result is both the appeals are allowed.
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1984 (10) TMI 126
Hindu Undivided Family ... ... ... ... ..... considerable personal effort has to be spent by the partner who is in charge of running the business and Jayabalan was doing that. He had graduated in 1953. He worked as manager of a firm from 1953 to 1957 and thereafter as a working partner of that firm. Apart from the basic commerce qualification, be was also well experienced in business. He gave his whole time to such business and it is clear, therefore, that the amount styled as remuneration to him was nothing but compensation for the services rendered by the individual. It was not a return of investment of family funds. Hence, the AAC was justified in directing the exclusion of that portion of the profits which fell to the share of Jayabalan described as salary. The exclusion of Rs. 21,000 in each of the years is in order. The appeals of the revenue are dismissed. 6. During the course of argument certain earlier orders of the Tribunal were also referred to. We are not mentioning these because each case went on the facts.
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1984 (10) TMI 124
Levy Of Penalty ... ... ... ... ..... ITO that he should examine whether interest is leviable under section 217(1A). Even if the Commissioner has not given such direction, it is certainly open to the ITO if interest is leviable under section 217(1A), in an independent order, to examine this issue. Therefore, a specific direction by the Commissioner in this regard would not place the assessee in a worse position because interest is leviable only if it is leviable in accordance with law. In this regard, we may state that the learned counsel for the assessee has placed before us an order in the case of Second ITO v. R. Narayanan 1984 19 TTJ (Mad.) 591 IT Appeal No. 1014 (Mad.) of 1983, dated 5-10-1983 , where the Tribunal had held that waiver of interest was permissible even in cases where interest was leviable under section 217(1A). Whether interest is leviable or not, is a matter for the ITO to decide and, hence, we would not offer any comments on this aspect also. The result is, that both the appeals are allowed.
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1984 (10) TMI 122
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... ... ..... estore the matter to the ITO for decision afresh after the decision of the Supreme Court or Madras High Court is available. Reference under s. 255(4) of the IT Act, 1961 Whereas we are unable to agree on the point set out below for the asst. yr. 1978-79 we refer the following point of difference of opinion to the President for reference to Third Member under s. 255(4) of the IT Act, 1961 Whether on the facts and in the circumstances of the case and relying on the ratio of the earlier decision of the Tribunal in the case of Sundaram Fasteners Ltd. Madras, the Tribunal would be justified in vacating the findings of the Commissioner (A) and the ITO regarding the computation of the deduction under s. 80J of the IT Act, 1961, and restoring the matter to the ITO for recomputation of the profit after the decision of the Supreme Court or the Madras High Court, regarding the retrospectively of the amended s. 80J (as amended by s. 17 of the Finance (No. 2) Act, 1980 becomes available?
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1984 (10) TMI 120
Business Expenditure, Allowability of ... ... ... ... ..... blic protest. Consequently, when s. 37 was finally enacted into law, the word necessarily came to be dropped . The payment in the present case, viewed in the light of the aforesaid observations, was clearly made for promoting the business and earning profits. It was in terms of an express agreement entered into under the Industrial Dispute Act between the management and the workers. Whether there was any compelling necessity to incur such expenditure or not, in terms of the observations of the Supreme Court, as long as the payment was for commercial expediency, the same would be an allowable deduction. In the light of our conclusion that the payment does not partake of the nature of bonus, much less as bonus under the Payment of Bonus Act, but is of the nature of ex gratia payment, the ceiling under the first proviso to sec. 36(1)(ii) is not attracted and the payment would be an admissible deduction under the provisions of section 37(1). The result is the appeals are allowed.
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1984 (10) TMI 118
Reference To Valuer ... ... ... ... ..... arned departmental representative made a point that in respect of another theatre, that is Alankar Theatre, where the assessee had only one-fifth share, the assessee had agreed to an increase in valuation. It was pointed out by the learned counsel that the facts there are materially different. There the assessee was only the owner of the land and the super-structure was built by someone else. The property no doubt had been leased out but in 1976, it was finally decided by the Supreme Court that the entire property should revert to the assessee. There was, thus, no continuing lease as in the case of Maharani Theatre. We consider that this is a very distinguishing feature and, therefore, the fact of the assessee having agreed to an increased valuation of the share in Alankar Theatre, will not stop the assessee from contending that there should be no increase in the value of the undivided share in Maharani Talkies. 7. This para is not reproduced here as it involves minor issue.
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1984 (10) TMI 117
Association Of Persons, Body Of Individuals ... ... ... ... ..... nothing but a consequence of sheer luck. The mere fact that by a stroke of fortune one of the tickets fetched a prize, would not in our view be taken as a consequence of any action on the part of a BOI. All that has happened is that, two persons jointly purchased a lottery ticket. Each was co-owner of the lottery ticket. If a lottery ticket won no prize, each lost his share of investment, though it may be nominal, and once the draw was over and no prize was fetched, they became divested of the property of which they were the co-owners, namely, the lottery ticket. If the particular ticket drew a prize, it was only as a result of fortuitous circumstance and each of them had a right to share the prize money equally. Thus, they become the co-owners in the prize money. We, therefore, hold that the two persons by purchasing a lottery ticket jointly did not constitute a BOI. We have already held that they did not constitute an AOP. Therefore, the appeal of the revenue is dismissed.
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1984 (10) TMI 116
Interest On Securities, Interest Payable, Tax At Source ... ... ... ... ..... Commissioner (Appeals) had proceeded on the premises that since the interest had been credited to the interest payable account and not to the payee s account or not paid by cash or cheque, the assessee was liable to pay interest under section 201(1A) for infringing the provisions of section 194A. In these circumstances, I accept the statement of the learned counsel for the assessee that no interest was actually paid by the assessee to the creditors. 9. In view of the above discussion, I agree with the learned Accountant Member that in view of the Board s circular letter, dated 25-1-1979, the assessee was not liable to deduct tax from the interest payable to the parties concerned under section 194A and, consequently, the order of the ITO levying interest of Rs. 2,690 on the assessee under section 201(1A) is not sustainable. The assessee, therefore, deserves to succeed. 10. The case will now go to the Bench concerned for disposal in accordance with the opinion of the majority.
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1984 (10) TMI 115
A Firm, A Partner, Industrial Undertaking, Interest In Firm, Processing Of Goods ... ... ... ... ..... rits under section 80J, as retrospectively amended by the Finance (No. 2) Act, 1980. The point which is in issue in the present case, i.e., whether the case should be restored to the authorities below to await the decision of the Supreme Court on the validity of the retrospective amendment, was not the subject-matter of controversy before the High Courts in the cases of Traco Cable Co. Ltd. s case and Toshiba Anand Lamps Ltd. s case. As against this, the Gujarat High Court, in the case of Surat District Co-operative Milk Producers Union Ltd., has dealt with the very point at issue before us. In such a situation, we have no alternative but to follow the decision of the Gujarat High Court in the light of the observations of the Bombay High Court in the case of Smt. Godavaridevi Saraf. That being so, I am in agreement with the view taken by the learned Accountant Member. 9. The case will now go before the regular Bench for disposal in accordance with the opinion of the majority.
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1984 (10) TMI 106
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... ... ..... t, the corresponding section of the WT Act is almost identical in terms the ratio of the decision according to us clearly apply to this case. Moreover, we also agree with the assessee rsquo s contention that the determination of the value of the properties as on 31st March, 1979 is not conclusive as to the values to be adopted for the two valuation dates relevant for the assessment years under appeal, in the absence of independent valuation report for these two valuation dates. Furthermore, it is not clear as to whether the valuation determined as on 31st March, 1979 by the Valuation Cell has become final as it is stated in the assessee rsquo s reply to the CWT that they have not become final and appeals have been filed. For all the reasons, we are satisfied that the CWT has acted without jurisdiction in setting aside the assessments and directing the WTO to do them afresh. His orders for the two years are set aside and the assessment orders restored. The appeals are allowed.
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1984 (10) TMI 103
... ...
... ... ..... tor of law, he questions the right of the Parliament to enact a law which is nothing but an absurd situation. In view of the Supreme Court rsquo s ratio that Parliament is fully competent to enact the law, and that the law having been enacted, respectfully following the Supreme Court rsquo s order referred to above, we hold that the IAC would have no jurisdiction to levy the penalty after 1st April, 1976. In coming to this conclusion, we had also relied on the Rajasthan High Court rsquo s decision, and other High Court decisions as well as the Special Bench rsquo s decision in the case of Joseph John vs. ITO (1983) 3 ITD 571 (Coch) (SB) referred to by the assessee in preference to the other dissenting judgments relied by the department with which we respectfully find ourselves unable to agree due to the ratio of the Supreme Court judgment. We accordingly quash the penalty order of the IAC imposing the penalty of Rs. 50,900. The assessee rsquo s appeal is hereby fully allowed.
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1984 (10) TMI 102
In Part, One Partner, Partnership Deed ... ... ... ... ..... partnership but it indicated that the theory of agency was recognised. The above observation, therefore, clearly supports the case of the assessee that the mention in para 9 that the first party shall be responsible for looking after the day-to-day business of the firm, is only an inter se arrangement between the partners and is only recognising the theory of agency. Each partner is an agent of the other partner as far as the firm and outsiders are concerned. This has been clearly brought out by the Supreme Court in the above quoted order. This being so, Shri Bhagwandas having powers of control and management is only an inter se arrangement between the other two partners (the other being minor). Respectfully following the Supreme Court decision in K.D. Kamath and Co. s case the ITO s action in not granting registration on this ground is incorrect and invalid. We, therefore, direct the ITO to grant registration to the firm. 14. In the result, the appeal is, therefore, allowed.
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1984 (10) TMI 101
Agreement For Avoidance, Assessment Year, Head Office Expenditure, Municipal Corporation ... ... ... ... ..... in both the countries, should be allocated and allowed as a deduction, We consider this as a very specific provision in computing the income of a non-resident having activities in India and France. Therefore, the provisions of section 44C will not be applicable. The Commissioner (Appeals) is justified in his findings. 6. In view of our finding, we think it unnecessary to go into the issue whether any of the three alternatives of computation of the amount deductible under section 44C has to be considered. In our opinion, that exercise would be completely academic. 7. In the result, we dismiss the departmental appeal. This Explanation by a legal fiction treats the business in existence in the previous year for the purpose of bringing the balancing charge to tax even though there is cessation of operation. It is a well settled principle that a legal fiction is to be limited for the purpose for which it has been created and cannot be extended beyond that legitimate frame. . . .
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1984 (10) TMI 100
... ...
... ... ..... ghter. He was a Parasee. There is not statutory provision in the ED Act providing for any such exemption. Reliance was placed on a ruling of the Andhra Pradesh High Court in CED vs. Estate of Late Nookayya Setty 1978 CTR (AP) 326. A report of the case shows that it was a case of an HUF, the Kerta of which died and the Tribunal had allowed a deduction on account of the marriage expenses of the daughters. The question before the Hon ble High Court was merely whether the amount allowed on that account was reasonable. As regards the question whether such amounts could at all as be allowed in law, the Hon ble High Court held that no such question of law arose from the order of the Tribunal. This ruling, therefore, does not help the accountable person at all. We are in agreement with the authorities below in that the marriage expenses cannot be allowed as a deduction. This ground, therefore, fails. 7. In view of the above discussion, the appeal is partly allowed as discussed above.
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1984 (10) TMI 99
Assessment Proceedings, Assessment Year ... ... ... ... ..... labour union for the payment of gratuity. Similarly, the decision in Delhi Flour Mills Co. Ltd. s case is a case of payment of gratuity under an agreement. The decision in the case of Escorts (Agents) (P.) Ltd. s case is also a case of agreement reached between the assessee-company and its employees for payment of gratuity. In all those cases, there was clear liability for payment of gratuity which is not the position in the instant case. Hence, they are not applicable to the instant case. The decision in Sitalakshmi Mills Ltd. s case has also no application to the facts of the instant case. That was a case where there was a gratuity scheme and liability had arisen. Thus, none of the cases relied on by the learned counsel for the assessee have any application to the facts of the instant case. Thus, in our view, the claim for deduction of gratuity amount of Rs. 99,249 and notice pay of Rs. 22,018 has rightly been disallowed. 9. In the result, the appeal fails and is dismissed.
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1984 (10) TMI 98
Powers Of Appellate Tribunal ... ... ... ... ..... years. More so, as I am satisfied on going through the accounts and the entries shown to me on behalf of the assessee that donations to the extent of Rs. 2,60,000 were not, in fact, received during the previous year. The net result is, thus, likely to be that the taxable income of the assessee for the year will have to be increased by Rs. 10,000. For this purpose, I have duly taken note of the fact that the three donors have either not claimed and were not allowed relief under section 80G (2). 8. I am conscious of the legal position that the jurisdiction of a Third Member under section 255(4) is very much limited. The Third Member has to agree with one of the two Members so that the appeal can be decided according to majority view. Placed in the circumstances as I am, I am inclined to agree with the learned Accountant Member that the matter should be restored to the ITO for reframing the assessment. 9. The order will not go the Bench for decision according to majority views.
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1984 (10) TMI 97
Additional Ground ... ... ... ... ..... consider the facts and circumstances and to decide the matter on merits having regard to the circumstances in which the question was not raised on earlier occasions and has been raised before the Tribunal. Thus, the whole matter is open before the Tribunal and there is no disposal of any ground whatsoever and, in view of this, it has to be held that there is no order under section 254. The reference application filed by the Commissioner cannot, therefore, be entertained and no question could be considered for getting the opinion of the Hon ble High Court. At this stage, we are not holding whether a question of law, as raised by the revenue, should ultimately be referred or not and it would be open to the parties to raise questions after the order of the Tribunal under section 254, finally disposing of the appeals are passed and the Tribunal will consider the questions which may include a similar question as above on merits. The reference applications are, therefore, rejected.
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