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Case Laws
Showing 161 to 180 of 244 Records
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1985 (1) TMI 84 - ITAT AMRITSAR
Penalty Proceedings ... ... ... ... ..... (b), the second legal objection of the assessee is that the penalty proceedings were not validly initiated and as such the order levying the penalty was bad in law. We have already discussed the scheme of the penalty under section 272A(2), read with section 285 above. There is no scope in that about initiating of penalty proceedings as in the case of penalties under section 271. Here, the penalty action begins when the ITO notices the assessee s failure to comply with the provisions of section 285. The ITO undisputedly had made enquiry about the assessee s failure to furnish Form No. 50. by letter dated 4-8-1982, and thereafter, the assessee did file the relevant form for the five assessment years as per data given in an earlier para. We do not see any substance in this plea either and reject the same. 6. This para is not reported here as it involves a minor issue. 7. In the result, these five cross-objections for statistical purposes only may be treated to be partly allowed.
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1985 (1) TMI 83 - ITAT ALLAHABAD-B
Mistake Apparent From Record ... ... ... ... ..... on 147/148. In view of this controversial nature of the question involved and there being no categorical decision of the Hon ble Allahabad High Court on this point, rectification under section 154 is not possible, treating the mistake as one apparent from record. Accordingly, the orders of the learned AAC are hereby reversed and the departmental appeals are allowed. 10. Before we conclude, we may clarify that we may not be understood to be holding by what we have stated in para 9 that regular assessment as used in section 217 does include assessments completed in pursuance to a notice under section 148. We have merely tried to highlight that the matter is not free from debate and, as such, it would be wrong to decide this controversy through the proceedings under section 154. For resolving this controversy, the matter will have to be raised independently. Smt. Jagjit Kaur s case is, in any case, not an authority for it. 11. In the result, the departmental appeals are allowed.
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1985 (1) TMI 82 - ITAT ALLAHABAD-A
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... ... ..... ould not be possible to lay down as a general rule that rule that there has been a gift in respect of the goodwill whenever a firm is reconstituted as a result of which minors are admitted to the benefits of the partnership and the share in goodwill of the one of the partners is reduced and the same is pro rate given to the minors who are so admitted to the benefits of the partnership. 5. The Hon ble High Court also observed that unless it was found that the alleged abandonment of interest by the assessee in the assets of the firm was higher in value than the liabilities of the firm, there could not be any gift or deemed gift within the meaning of the GT Act. 6. Respectfully following the observations of the Hon ble High Court, we set aside the order of the AAC of GT and refer the case back to the GTO for enquiry into the further facts, as noted above in the observations of the Hon ble Court of Madhya Pradesh. 7. In the result, the appeal is allowed for statistical purposes.
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1985 (1) TMI 81 - ITAT ALLAHABAD-A
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... ... ..... is not certain if this order of the AAC is final. However, even if this order is ignored the case of the Department is not proved. Ram Prasad had filed an affidavit before the AAC swearing that he had advanced loan to the firm in the past and he had such financial capacity. Ram Prasad is father and husband of the partners of the assessee firm and, therefore, his affidavit can be said to be tainted with interestedness in the firm but on that score alone the affidavit cannot be dismissed. 8. On the whole we find that there is sufficient material on record to convince that the cash credit of Rs. 29,264 standing in the name of Ram Prasad in account books of the assessee firm related to the earlier years and cold not be taken as cash credit in the previous year itself within the meaning of s. 68 of the Act. The orders of the AAC and the ITO are, therefore, set aside and Rs. 29,264 are ordered to be deleted from the income of assessee firm. 9. In the result, the appeal is allowed.
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1985 (1) TMI 80 - ITAT ALLAHABAD-A
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... ... ..... he assessee was a regular income tax payer and assessee s family members were also wealth-tax payers. He further observed that the assessee belonged to very rich family and was educated. Even if all these facts and circumstances are taken together, they do not take away the force of the explanation of the assessee that he had then just come out of age and was ignorant of the WT Act. The circumstances were such that the assessee having become major his guardian had left control over his legal affairs and he despite being educated was still presumably not well versed in his own affairs. 4. In view of fore-going discussion, in our judgment, there was a reasonable cause for the delay particularly when one would not think of furnishing wealth-tax return when his wealth is just on the margin of paying wealth-tax. 5. We, therefore, set aside the order of the AAC of WT and cancel the penalties of Rs. 10,125 and Rs. 7,373 for both the years. 6. In the result, the appeals are allowed.
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1985 (1) TMI 79 - ITAT ALLAHABAD-A
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... ... ..... f the present case. The second decision of the Supreme Court in Kalloomal Tapeswari Prasad (HUF) vs. CIT on the other hand, deals with s. 171 of IT Act, 1961. The court, in any case, has again clarified that s. 25A of the 1922 Act was not applicable to partial partitions while s. 171 of the Act of 1961 applied to all partitions total and partial. 12. Our finding, therefore, is that s. 20 had no application to partial partition as is the case with the assessee. Since there is not doubt that the shares of Saraya Sugar Mills Ltd. had been divided amongst the various members of the family as per the ward of the court in suit No. 285 of 1972 and no longer belonged to the assessee on the valuation dates of the respective years, they cannot be included in the assessments of the assessee of both the above assessment years. We, therefore, direct that their value should be excluded from the assessments of both the above assessment years. 13. In the result, both the appeal are allowed.
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1985 (1) TMI 78 - ITAT ALLAHABAD-A
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... ... ..... ri Krishna Kumar Tewari before him. Shri Krishna Kumar Tewari, appeared to him a man of means having capacity to advance a loan of Rs. 8,000. But the ld. AAC lost sight of the requirement of law that for establishing cash credit not only identity and credit-worthiness of the creditor should be established but genuineness of the transaction should also be established. A creditor may be a man of means but the transaction itself may not be genuine. The ITO rightly stated in the assessment order that he wanted Shri Krishna Kumar Tewari for verification of genuineness of the alleged advance. The advance under the circumstances, could not be genuine, when neither name of Shri Krishna Kumar Tewari was disclosed in the account books of the assessee nor was shown as a debt in the balance-sheet and in the WT return. 7. In view of our discussion, of the AAC is set aside and instead that the ITO is maintained. 8. In the result, the appeal is allowed and the cross-objection is dismissed.
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1985 (1) TMI 77 - ITAT ALLAHABAD-A
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... ... ..... ut in the capacity of Karta of his HUF smaller. The monthly allowance of Rs. 500 was obviously paid to Motilal not only for his personal services but also for goodwill of the business and as such, the contract of partnership was that Motilal would get the same amount of Rs. 500 per month till his death even if he retired form the partnership. In view of these facts the law that remuneration received by a member of HUF from a firm in which the HUF is a partner, is his individual income and not the income of the HUF is not applicable to the instant case. 4. Furthermore, that we find is that similar view has been taken earlier by the Tribunal in the case of this very assessee vide order dt. 11th June, 1981 in I.T.A. No. 707/All/1980. We are respectfully in agreement with that view and we have no reason to depart therefrom. The orders of the AAC for both the years are, therefore, set aside and instead those of the ITO are restored. 5. In the result, both the appeals are allowed.
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1985 (1) TMI 76 - ITAT ALLAHABAD-A
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... ... ..... capable of partial partition. Such are not the facts here. It is said that M/s S. S. Traders if a partnership firm. Despite our enquiry, we were at a loss of know as to who were the partners of the said firm and how the HUF of Motilal was connected with that firm. No business is said to have been partitioned. The only evidence of partition is that Rs. 25,000 were debited in the account books of M/s S. S. Traders in the name of HUF of Motilal and correspondingly Rs. 15,000 were credited in the name of Motilal and Smt. Shanti Devi and Rs. 10,000 were credited in the name of Shri Vinod Kumar. This is obviously creation of capital for the purpose of bringing about a partition without any basis. We are not possessed to any other fact and on the basis of the fact on record, we find that there was been no partition of any asset and/or liability of the HUF. 6. Order of the AAC is, therefore, set aside and instead that of the ITO is restored. 7. In the result, the appeal is allowed.
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1985 (1) TMI 75 - ITAT AHMEDABAD-C
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... ... ..... nkataramaiah, JJ. dismissed a Special Leave Petition by the department against an order of the Bombay High Court dt. 12th Feb., 1978 in I.T.A. No. 189 of 1978 refusing to direct the Tribunal to refer the question whether, where the assessee agreed to pay, in addition to the price, a sum imposed as penalty by the customs authorities on the importer for failure to have the item covered by import licence, the assessee was entitled to include this amount of penalty in the actual cost of the machinery for the purposes of allowance of depreciation and development rebate CIT vs. Kores India Ltd. S.L.P. (Civil) No. 1938 of 1980. In the light of the above decision which we follow with respect, we find no reason to reject the claim of the assessee. We, therefore, hold that the assessee should be allowed depreciation and investment allowance on the impugned amount of fine as paid by the assessee by treating the same as a part of the actual cost. 5. In the result, the appeal is allowed.
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1985 (1) TMI 74 - ITAT AHMEDABAD-C
A Firm, Income Tax, Professional Firm ... ... ... ... ..... nder the English Act will not apply to the case of a firm. 9. Having then regard to the provisions of section 4 of the Indian Partnership Act, which provide for the carrying on of a business which includes profession and which can be carried on by all or by any one of them acting for all, I am inclined to hold that if even one partner has professional qualifications and carries on a professional activity for and on behalf of all the partners of the firm, it has to be held that income so earned is derived from the profession carried on by the firm. This is subject to the fact that what is carried on as an activity by a firm is profession. In other words, if say five professionally qualified persons enter into partnership for the purpose of carrying on business and not a profession, the income will not be from the profession. In this view of the matter, I agree with the learned Accountant Member. 10. The order will now go to the regular Bench for decision according to majority.
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1985 (1) TMI 73 - ITAT AHMEDABAD-B
... ...
... ... ..... ntative is not relevant to the point considered here. That case was in respect of the penalty under s. 271(1)(c)/274 of the IT Act wherein the conduct of the assessee, viewed on the basis of actions, intentions and the omissions on the part of the assessee over a period was taken as the base for levy of penalty in respect of a bogus entry in the books of the assessee treated as income from undisclosed sources. 7. Since we have dealt with the legality aspect of the reopening of the assessment and have decided the case in favour of the assessee we shall not deal with the matters and grounds affecting the quantum of the assessment in respect of the income assessed or tax computed, for the time being. The same shall be considered in future if the need arises. 8. We, therefore, set aside the orders of the Commissioner (A) and the assessment completed under s. 147(a) of the Act. 9. In the result, the ITA No. 363 is allowed and ITA No. 2155 is allowed for statistical purposes only.
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1985 (1) TMI 72 - ITAT AHMEDABAD-B
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... ... ..... parate action under other laws may be taken but that will not displace the existence of the trust. 9. The ld. AAC has stated that the assessee had not renewed registration with the Charity Commissioner but that has nothing to do with the existence of the trust which depends upon the fulfilment of s. 6. His view that the assessee has not fulfilled the conditions prescribed in s. 12A, also has no basis because that section does not require any renewal of registration but only registration. The AAC has also held that since the assessee not proved spending of the income for charitable purpose, ss. 11 and 12 would have no application. That however does not mean that the income can be regarded as the income of the assessee. We therefore hold that the income of the trust cannot be regarded as the income of the assessee. On this point the appeal is allowed. Para No. 10 to 14 have been deleted as they are not related to the main issue. 10. In the result, the appeal is partly allowed.
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1985 (1) TMI 71 - ITAT AHMEDABAD-B
Revised Return, Trusts Act ... ... ... ... ..... r laws may be taken but that will not displace the existence of the trust. 9. The learned AAC has stated that the assessee had not renewed registration with the Charity Commissioner but that has nothing to do with the existence of the trust which depends upon the fulfilment of section 6. His view that the assessee has not fulfilled the conditions prescribed in section 12A, also has no basis because that section does not require any renewal of registration but only registration. The AAC has also held that since the assessee had not proved spending of the income for charitable purpose, sections 11 and 12 would have no application. That, however, does not mean that the income can be regarded as the income of the assessee. We, therefore, hold that the income of the trust cannot be regarded as the income of the assessee. On this point, the appeal is allowed. 10 to 14. These paras are not reproduced here as they involve minor issues. 15. In the result, the appeal is partly allowed.
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1985 (1) TMI 70 - CEGAT, NEW DELHI-LB
Demand - Confiscation and penalty - Set-off
... ... ... ... ..... . 19,75,310.60 and, therefore, the demand of this amount is also not maintainable and is set aside. Again, we hold that it has not been established that the appellants wrongly availed of proforma credit to the extent of Rs. 2,14,850.45 and, therefore, the demand for this amount is also not maintainable. It is, therefore, set aside. The relevant Rules fully authorise availment of proforma credit/set off against duty actually paid. It has not been shown that the appellants availed of credit or set off in respect of the goods on which duty had been paid, as claimed. 11. We feel, however, that the appellants are guilty of serious procedural irregularities and, therefore, imposition of penalty is amply justified. However, we are of the view that it would meet the ends of justice if the penalty is reduced to Rs. 1,00,000/- 12. Accordingly, the appeal is partly allowed and the impugned order is modified, with consequential relief to the appellants, as per directions indicated above.
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1985 (1) TMI 69 - CEGAT, NEW DELHI-LB
Job work - Interpretation of
... ... ... ... ..... herein. Nor was it the ratio that the extent of supply of material by the job worker in the manufacturing process is determinative of the character of a job work in terms of the notification in question. It was only in the context of the alternative contention for the revenue to the effect that where the contract is one of labour and sale, it will not be a job work in terms of the notification that is observed that though the proposition was correct to some extent, it is very wide and where the supply of material was incidental and immaterial, like for example, thread and buttons by a tailor stitching cloth supplied into garments, it does not cease to be a job work merely on account of it. The question of extent of supply of material by the worker to ascertain and determine the character of the work as job work has neither been raise nor considered in the other decisions so as to decipher consensus amongst them. 37. But for these reservations, I agree with the order proposed.
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1985 (1) TMI 68 - HIGH COURT OF PUNJAB AND HARYANA
Provisional assessment - Writ jurisdiction ... ... ... ... ..... ling prices of goods in the countries from where these are imported and furnish such information to the Collector of Customs, as and when required, to enable him to assess the correct value of the goods imported. The action of the Assistant Collector of Customs provisionally basing himself on such information supplied by S.I.I.B. cannot be held out to be illegal. The Assistant Collector of Customs in this regard cannot be said to have abdicated his functions and authority to S.I.I.B. . Hence, I hold that the impugned order of the Assistant Collector of Customs is perfectly legal and has been passed in accordance with law. 13.For the reasons above stated, these three writ petitions deserve to be dismissed both on the grounds that this Court had no jurisdiction to entertain them, as also on the ground that the impugned order does not suffer from any legal infirmity. I order accordingly. The petitioner-company shall pay Rs. 500/- by way of costs of respondent 2 in each petition.
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1985 (1) TMI 67 - HIGH COURT AT CALCUTTA
Customs - Rate of duty - Valuation - Estoppel - Promissory estoppel - Steel Sheets ... ... ... ... ..... is competent to interfere. In other words, if there were two constructions which any entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the court as the better one to adopt. Hence, this Court, is of the view that the petitioner is not entitled to any of the reliefs as prayed for. Under the circumstances, the application is dismissed. Rule discharged and all interim orders vacated. 16. In view of Mr. Subrata Roy Chowdhury submitting that there are 200 identical matters pending before this Court and in view of the fact that due to the interim order passed the respondents Customs Authorities are faced with much difficulty in assessing the goods and in realising Revenue, this Court refuses the prayer for grant of stay made by Mr. Debashish Mitra. 17. The Customs Authorities are granted liberty to encash the bank guarantee.
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1985 (1) TMI 66 - HIGH COURT OF DELHI
Man-made fibres - Textured yarn ... ... ... ... ..... r. Therefore, an exemption notification was issued which provided that if base yarn had been subjected to duty then that amount of duly will be deducted from the duty which would be levied on the processor. This is a normal way in which double taxation is avoided. It is to be borne in mind that the duty which is levied is on the item and not on the person. The duty is levied on textured yarn. It cannot be that the duty on textured yarn should be dissimilar. The only way in which similar duty could be levied is in the manner in which it has been done by Entry 18. It was, therefore, correct to subject the textured yarn to the same rate of duty irrespective of the fact as to whether it was manufactured by the manufacturer of the base yarn or it was a processor who was merely processing the base yarn and texturising the same. 7. No other contention has been raised before us. 8. For the aforesaid reasons, the writ petition is dismissed with costs. Counsel s fee Rs.1000/- one set.
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1985 (1) TMI 65 - HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Cartons - Classification of goods - Writ Jurisdiction - Plant and Machinery - "Worker" and "apprentice" - Job work
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