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Case Laws
Showing 61 to 80 of 211 Records
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1985 (10) TMI 176
CLASSIFICATION ... ... ... ... ..... which is a part of the Amending Bill to the Finance Minister rsquo s speech. The order of the Appellate Collector confirming the show cause notice and the provisional assessment and the demand made for the subsequent period as indicated in the enclosure to Annexure lsquo H rsquo i.e., for the period from 16-4-1979 to 22-2-1980 are therefore liable to be quashed. 17. emsp In the result, the writ petitions are allowed and the order of the Assistant Collector Annexure lsquo D rsquo which was affirmed by the Appellate Collector as per Annexure lsquo G rsquo and the demand made as per Annexure lsquo H rsquo are set aside. 18. emsp One of the prayers made in the Writ Petitions is for a direction to the respondents to refund to the petitioner a sum of Rs. 4,61,218.18 paid by the petitioner under protest for the period from 4-3-1980 to 26-3-1981 and for the subsequent period. The petitioner is at liberty to make such claim before the department. 19. emsp Rule issued is made absolute.
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1985 (10) TMI 175
Amendment thereto prospective only ... ... ... ... ..... tion and is the rate in force on that date. During the period 1-5-1982 to 10-6-1982, admittedly, the respondent was not eligible for the benefit of Notification 132/82 and the question of applying to the clearances effected during the said period, the reduced rate of duty which became applicable to the respondent only on and from 11-6-1982 just would not arise. Shri Kampani rsquo s contention that since the notification confers the duty rebate for the entire production from 1-5-1982 and so would be available for clearances even during the period prior to 11-6-1982 is to ignore the provisions of Central Excise Rule 9-A and, is not, therefore, tenable. In the result, we hold that the benefit of the Notification 132/82 as amended on 11-6-1982 by Notification 193/82, was not admissible in respect of clearances of sugar by the respondent during the period 1-5-1982 to 10-6-1982. 8. emsp The appeal succeeds and is allowed, setting aside the impugned order of the Collector (Appeals).
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1985 (10) TMI 174
CLASSIFICATION ... ... ... ... ..... s Order-in-Appeal No. 6/CO/196, dated 19-1-1977 ordered a de novo adjudication of the matter giving an opportunity to the assessee to defend their case. As per records, the appellants were duly given a personal hearing on 4th July, 1978, when Shri P.K. Das, Excise Consultant, appeared before the Assistant Collector on their behalf. When the party went in appeal before the Appellate Collector of Central Excise, Calcutta, their appeal was posted for hearing on 4th August, 1981, and although they were intimated about the date of hearing on 13th March, 1981, they failed to enter appearance. They did not make any request for adjournment also. In the light of these facts, the contention of the appellants that they were not given an opportunity to represent their case personally, thereby violating the principles of natural justice, is wholly untenable. 9. emsp In the light of our above findings, we uphold the order of the Appellate Collector of Central Excise and dismiss the appeal.
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1985 (10) TMI 173
Demand - Show cause notice for recovery of excess production rebate erroneously granted on sugar exported
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1985 (10) TMI 172
GOODS MANUFACTURE ... ... ... ... ..... standards. The work order did not specify as to what would happen to the rejected material. The work order also did not refer to the scrap which was bound to arise. In those circumstances, the Tribunal found that the appellants were the actual manufacturers. Each case has to be judged on its own merits. 15. emsp This is a case where the appellants only supplied raw materials and the actual manufacturing process was done by M/s. Industrial Packaging, who charged conversion charges. Following the decisions of the Hon rsquo ble Andhra Pradesh High Court and Allahabad High Court in the cases of M/s. Andhra Rerolling Works, Hyderabad v. Union of India (1979 E.L.T. J 600) and M/s. Gangadhar Ramchandra v. Collector of Central Excise, U.P. (1979 E.L.T. J 597) respectively, and the decision of this Tribunal also in the case of Collector of Central Excise, Madras v. Modoplast (P) Ltd. 1985 (21) E.L.T. 187 (Tribunal) , we set aside the order of the authority below and allow the appeal.
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1985 (10) TMI 171
Manufacture - Tobacco ... ... ... ... ..... chewing tobacco in the context of the Central Excise Tariff Entry. We, therefore, do not consider it necessary to go into them. 10 emsp However, it is necessary to mention here that the impugned order-in-appeal in the case of M/s. R.M. Jain (the respondent in appeals Nos. 3 to 6) allows consequential refund to them ldquo if otherwise admissible rdquo . The respondents stated that the Collector (Appeals) perhaps had in mind the time-bar aspect which he himself had no occasion to go into. They added that the Bench need not concern itself with it, as it had yet to be gone into by the lower authority (the Assistant Collector). They maintained that they had paid the duty under protest. 11. emsp In the light of our above discussion, we are in agreement with the conclusion reached by the Collector (Appeals) that the product cleared by the respondents is not taxable under the Central Excise Tariff Entry 4-II(5). Accordingly, we confirm the impugned orders and reject all the appeals.
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1985 (10) TMI 162
Exclusion of excise duty ... ... ... ... ..... the circumstances of the cases, we direct the parties to bear their own costs. 39. emsp Let this order be communicated to the respondents within 10 days from this day. Order on the oral application made by the petitioners for a certificate of fitness to appeal to the Supreme Court under Articles 133-A and 134 A of the Constitution. 40. emsp After we pronounced our order disposing of these writ petitions, Sri S. Ramaswamy Iyengar seeks for a certificate of fitness to appeal to the Supreme Court of India under Articles 133 and 134-A of the Constitution on the ground that the questions decided by us involve substantial questions of law of general importance and the same need to be decided by the Supreme Court. 41. Sri Bhat opposes the oral application made by Sri Iyengar. 42. emsp We are of the view that the questions decided by us are not substantial questions of law that need to be decided by the Supreme Court. We therefore, reject the oral application made by the petitioners.
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1985 (10) TMI 152
Bad Debt, Business Loss Or Deduction ... ... ... ... ..... therein, in view of the fact, that the salient aspects of the issue referred to by us earlier, have not been considered by the Bench in that case. At any rate, the decision of the Supreme Court and the later decision of the Madras High Court are binding on this Bench and, we are, therefore, unable to agree with the view expressed in the Tribunal s decision. Even otherwise, we are of the opinion that, the decision proceeded on the basis that the ITO had come to the wrong conclusion that a partner could not independently make money-lending advances to the firm of which he is a partner. Since this view as not correct in the light of the Andhra Pradesh High Court decision, referred to in the decision of the Tribunal, the Tribunal came to a different conclusion in that case. Accordingly, we also hold, that on facts, the decision is distinguishable. 11. We, therefore, negative the claim for deduction of the amount either as a bad debt or as a business loss. The appeal is dismissed.
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1985 (10) TMI 150
Rectification Of Mistakes, Apparent From Record ... ... ... ... ..... cision of the Madras High Court in Rayon Traders (P.) Ltd. s case has itself been the subject-matter of an appeal for which leave has been granted by the High Court it is quite clear that the issue is not free from doubt. The matter would have been different if the original proceedings in this regard had been the subject-matter of appeal. The question, however, is quite different in that, the appellant has sought a rectification of such an order for grant of interest under section 214 and, therefore, the controversy has arisen. Considering the fact that there is wide divergence of judicial opinion as to the interpretation of the term regular assessment we are of the opinion that the ITO was perfectly justified in refusing to rectify his earlier order under section 154. In this view of the matter we are in agreement with the Commissioner (Appeals) that the provisions of section 154 have no application in this regard. We, accordingly, confirm his order. The appeal is dismissed.
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1985 (10) TMI 149
Investment Allowance ... ... ... ... ..... f distribution. The process of exhibition of films is such that it requires high velocity arc rays to be passed through the films to enable the reprojection of the picture on the screen. A cinema projector is equipped with the necessary wherewithal for the production of high velocity arc rays for this purpose. It does not mean that the same thing is production or generation of any other form of power. 10. In the final we are of the opinion that there is absolutely no basis for the claim made in this behalf by the assessee. Accordingly, we reject this ground. 11. The other ground that in any event the air-conditioning equipment should be allowed investment allowance would also fall to the ground in view of the failure of the assessee to satisfy the requirements of manufacture or production of an article or thing. 12. This para is not reproduced here as it involves minor issue. 13. In the result, the appeal stands dismissed and the orders of the lower authorities are confirmed.
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1985 (10) TMI 144
... ...
... ... ..... would be entitled to set off the business loss against the income form other heads and only the balance would be carried forward. This is the layman rsquo s approach with regard to the set off an carry forward of business losses. The same must be the result one the activity of owning and maintaining race horses is regarded as a source different form the source of race including race horses referred to in sub-s. (2) of s. 74A and is regarded as a separate and distinct business. The natural outcome of the treatment to be given to the set off of business of owning and maintaining race horses and it could not be treat differently. It is only with this end in view and to bring into operation the provisions of ss. 71 and 72 the phrase subject to the other provisions of this Chapter are introduced. I am therefore fortified in my view with the approach taken by the ld. Judicial Member. 4. The matter will now go before the regular Bench for disposal according to the majority opinion.
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1985 (10) TMI 141
... ...
... ... ..... e especially that the assessee has to rely on its employees. In view of these observations, rejecting the books of account would cover the disallowance to be made under the various heads of expenses, especially repairs and spares, they had not carried out any separated addition. For these reasons, we retain an ad hoc addition to the trading account at Rs. 30.000 12. As regards the issue in respect of uses of car for personal purposes and telephone, the disallowance seems to be very reasonable. We, therefore, do not interfere with the finding of the authorities below. As regards by the exemption to be provided under s. 80G, the direction given by the authorities below is proper and, therefore, no interference is called for. 13. The last issue regarding interest is only consequential and we, therefore, remit the matter back to the ITO so re-calculate the interest charges. 14. In the result, the appeal of the assessee is partly allowed, while that of the Department is dismissed.
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1985 (10) TMI 140
... ...
... ... ..... is a well observed principle which we respectfully and humbly accept and apply the same to the instant case. Their Lordships observed To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience mdash A judge ought to be wise enough to know that he is falliable and therefore ready to learn, great and Honest enough to discard all more pride of opinion and follow truth whenever it may lead, and courage enough o acknowledge his erroRs. 7. We, therefore, have come to the conclusion that the answers being self-evident concluded by the Board rsquo s Circular in similar situations and also concluded by the decision of the Supreme Court that a Manufacturer could be one, who manufactures even by physical labour and that certain manufacturing operations could be carried out by outsiders contractors we feel that we are not bound to state the case in reference to the High Court for their valued opinion. We, therefore, reject the reference application.
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1985 (10) TMI 139
... ...
... ... ..... . 274 was prepared and signed by the ITO only after the assessment proceedings had already come to an end by the passing of the assessment order. In our view therefore, the CIT(A) rightly held that the penalty proceedings were invalid as the ITO did not arrive at the requisite satisfaction during the course of the proceedings. 7. The other argument adopted by the CIT(A) that the ITO had failed to made out a case for the levy of penalty is equally sound. It is for this purpose that we have reproduced the assessment order as well as the penalty order. Both of them indicate that the basic fact irrespective of whether the burden of proof lay on the assessee or the Revenue which could prima facie sustain a charge of concealment of income are nowhere stated. Therefore. the ITO failed to make out a case for the levy of penalty and the CIT(A) was right in cancelling the same. We are, therefore, of the view that these appeals have no force. 8. In the result, the appeals are dismissed.
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1985 (10) TMI 138
Individual, Assessable As ... ... ... ... ..... e into existence it had been contended that Devendra Chandra Jain, Sharat Chand Jain and Bipin Chand Jain had entered into the firm as kartas of their HUFs. This contention has not been acceptable to us for two main reasons, viz., that the separate existence of the three smaller HUFs was not there at the time when the partnership deed was executed and secondly for the reason that the alleged smaller HUFs had not in any way employed their funds in order to earn share incomes from the abovenamed three HUFs. The assessees having failed to satisfy the tests laid down by the Hon ble Supreme Court in their decision in Raj Kumar Singh Hukam Chandji s case, we have no other alternative but to uphold the stand-point of the ITO and the AAC that the incomes derived by the three assessees from their share in Devendra Bros. were incomes not of their HUFs but of the three individuals. 8. In conclusion, the appeals filed must meet their inevitable fate and that is that they stand dismissed.
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1985 (10) TMI 137
Transfer Of Assets, For Benefit Of Spouse Or Minor Child ... ... ... ... ..... n of the minor to the benefits of partnership. But in the instant case after the sale of the original lorry transferred to the assessee s wife another lorry was purchased. Similar sales and purchases continued on a number of occasions in which the amount realised on the sale of the original lorry was invested. Thus, in our view there is proximate connection in this case for applying section 64 to the extent of income attributable to Rs. 37,000. The addition of Rs. 23,561 relating to the unexplained investment in the assessment of the assessee s wife Smt. Mehrunnisa Begum was not rightly deleted by the Commissioner (Appeals) as there is no evidence to prove that the assessee had transferred any such amount to his wife. This amount was included in the assessment of the assessee s wife under section 69 of the Act and it cannot be considered as income arising on the transfer of any asset by the assessee. 22 to 34. These paras are not reproduced here as they involve minor issues.
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1985 (10) TMI 136
Business Expenditure ... ... ... ... ..... enduring benefit is, therefore, not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. 6. The ratio laid down in the above cases squarely applies to the instant case. In the instant case, the assessee has only replaced a worn out part, i.e., projector head by a new one. This facilitated the running of the existing business. By replacing the worn out part by a new one no enduring benefit has been derived by the assessee, and it has only carried out repairs to the existing machinery, i.e., the projector. Thus, in our view, the Commissioner (Appeals) was right in allowing the deduction of Rs. 29,580. 7. One other ground is raised with regard to the sum of Rs. 1,500 being the fitting charges of the projector head. This is clearly allowable as revenue expenditure. Hence, the Commissioner (Appeals) was right in allowing the same. 8. In the result, the appeal fails and is dismissed.
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1985 (10) TMI 135
Chargeable Profits, Computation Of, Capital ... ... ... ... ..... d Schedule and Explanation together, such excess provision could be added to the capital computed under rule 1(ii) of the Second Schedule, inasmuch as, the Explanation gives clear indication that in respect of proposed dividend, the reasonable amount is specified to be the amount of dividend declared or made by the company on or after the first-day of the previous year relevant to the assessment year for the previous year immediately preceding the first mentioned previous year and there is provision regarding what is considered to be reasonable amount of provision for taxation in terms of rule 1A of the Second Schedule. Thus, on the facts and in the circumstances of the case, there are merits in the grounds taken by the assessee and, therefore, we are inclined to accept them. In this view of the matter, therefore, we reverse the orders of the authorities on these points only and direct the ITO to allow the claims of the assessee. 10. In the result, the appeal succeeds partly.
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1985 (10) TMI 134
Capital Gains, Chargeability Of ... ... ... ... ..... stated that the sale price accepted by the assessee is Rs. 15 per sq. yard from which the ITO conceded Rs. 5 per sq. yard as brokerage commission. Having duly taken into consideration a comparable case he had determined the sale price at Rs. 30 per sq. yard. The AAC reduced it to Rs. 25 per sq. yard. It is claimed that the assessee is only a school teacher working elsewhere and happened to sell the land ultimately with the help of a broker. In all such cases we recognise that there is some sort of disadvantage. Taking into consideration the attendant circumstances and disadvantages in the situation in which the assessee is placed, we feel that fixing the sale price at Rs. 22.50 per sq. yard would be more appropriate. This is inclusive of the brokerage commission allowed. We, therefore, direct the ITO to compute the short-term capital gains by following our above orders. In the result, the assessee s appeal is partly allowed whereas the departmental appeal is allowed in full.
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1985 (10) TMI 133
Revision, Capital Gains, Reference To Valuation Officer ... ... ... ... ..... fter deducting that the cost comes to Rs. 39,000. In the original assessment order, the ITO had estimated the cost of construction at Rs. 39,134 and made an addition of Rs. 7,134 as income from other sources since the assessee had shown the cost of construction at Rs. 32,000. Hence, it would be reasonable to adopt that figure in the fresh assessment order also. The Commissioner (Appeals) has deleted the addition of Rs. 58,111 which means the cost of construction shown by the assessee at Rs. 32,000 is accepted. It would be reasonable to take the figure determined in the original assessment at Rs. 39,134 as cost of construction and thereby make an addition of Rs. 7,134 as income from other sources. Thus, we direct the ITO to adopt the cost of construction at Rs. 39,134 and make an addition of Rs. 7,134 as income from other sources as against Rs. 58,111 made by him. To that extent, we modify the order of the Commissioner (Appeals). 8. In the result, the appeal is partly allowed.
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