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Case Laws
Showing 81 to 100 of 218 Records
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1985 (12) TMI 153
Sugar - Excess production rebate ... ... ... ... ..... nterpretation would make paragraph 3 of the new notification nugatory. Because of the altered language of the new notification, it is no longer permissible to argue that nil production in the specified period could be ignored only if the production in the entire sugar year was nil. Under the new notification, if there was no production during May-September period of any of the preceding three sugar years, such year would have to be ignored totally. In other words, it would not enter into calculation of average production at all. We, therefore, hold that since the respondent factory did not produce any sugar during May-September periods of 1978-79 and 1979-80, the Assistant Collector was correct in taking the production of 1980-81 sugar year alone as the average production of the preceding three years. 8. emsp Accordingly, we allow this appeal, set aside the impugned order in appeal passed by the Collector (Appeals) and restore the order-in-original of the Assistant Collector.
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1985 (12) TMI 152
Manufacture - Dutiability - Aluminium foil ... ... ... ... ..... s observation, liability to duty is attracted ignoring the scheme of tariff, the items and sub-items and groupings therein. I would, however, qualify my agreement with Brother H.R. Syiem with the observation that it is open to the legislature by use of unambiguous language to subject the same article or goods to multiple taxation as happened by the use of word lsquo manufacture rsquo in Union of India v. Hindu Undivided Family business known as Ramlal Mansukhrai Rewari and Others (S.C.) 1978 E.L.T./389. The present case, however, is squarely covered by our decision in Swastik Packaging, Bombay v. Collector of Central Excise, Bombay now reported in 1986 (23) E.L.T. 217 Tribunal where following the Supreme Court decision in Oriental Timber Industries case 1985 (20) E.L.T. 202 (S.C.), it was held that printing on duty paid aluminium foils did not attract duty again. 13. emsp With these observations and qualification, I agreeing, with Brother H.R. Syiem, I would allow the appeal.
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1985 (12) TMI 151
... ...
... ... ..... 4-85 having exceeded Rs. 25 lakhs, the demand for duty on the goods cleared after availment of the concession in Notification No. 83/83 was correctly made. The Collector (Appeals) has fallen into error in setting aside the Assistant Collector rsquo s order on the basis that the clearances in the preceding financial year (1983-84) had been within the Rs. 25 lakhs limit. In respect of manufacturers/factories whose cases are governed by paras 3/4 of the notification, there is an outside limit to the clearances during ldquo the financial year rdquo , of Rs. 25 lakhs. The exemption is admissible only if the clearances in ldquo the financial year rdquo do not exceed Rs. 25 lakhs. 17. emsp In the result, therefore, we set aside the Collector (appeals) rsquo s Order in so far as it grants relief by setting aside the duty demand in respect of the clearances made in 1984-85. The respondent is liable to pay the duty demanded. 18. emsp The appeal is disposed of with the above directions.
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1985 (12) TMI 150
Evidence - Burden of proof ... ... ... ... ..... t are those of the maker. This being the position in law the respondents were entitled to rely upon every word in the statement signed by the witnesses notwithstanding their attempt to retract therefrom especially when there is no evidence of threat. 11. emsp Therefore, in the facts and circumstances of this case it is for the respondents to prove and substantiate their plea that the red pocket diary has nothing to do with the removal of manufactured excisable goods of the respondents. I, therefore, hold that the charges levelled against the respondents have been clearly substantiated by the evidence available on record and the impugned order appealed against is not legally tenable. Accordingly, I set aside the impugned order and allow the appeal. 12. emsp The respondents have filed a cross-objection. Since the impugned order is totally in favour of the respondents, there is no scope for them to file any cross objection and the same is therefore dismissed as not maintainable.
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1985 (12) TMI 149
Rate of duty ... ... ... ... ..... t was the rate of duty as was in force on the date of clearance that would be relevant for the purpose of assessment under Rule 9A of the Central Excise Rules. It was in view of all the above decisions that this Tribunal had in its earlier decisions (cited supra) held in the manner mentioned earlier. In view of the above decisions, the contention now advanced by Shri Gulati to the contrary is not acceptable. Further, as pointed out by Shri Sachar, the Madhya Pradesh High Court had in 1982 E.L.T. 97 (cited supra) held that Rule 9A was intra vires and not in excess of the Rule making power of the Government. In this view also, the contention of Shri Gulati that the provision in Rule 9A should not be enforced as being contrary to the provisions of the Act (under which the chargeable event was manufacture only), could not be accepted. 10. emsp In the light of the above discussion, we hold that the orders of the lower authorities were correct. This appeal is accordingly dismissed.
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1985 (12) TMI 148
Sate Manufactures ... ... ... ... ..... n of ldquo Jute manufactures rdquo under Item 22-A of Central Excise Tariff. From the department rsquo s side we have been referred to certain Trade Notices issued by the Collector of Central Excise, Bombay, later in point of time, indicating that the product in question would be classifiable under Item 17(2) of the Central Excise Tariff. No reason whatsoever is given for making a change from the decision taken in the earlier Tariff Advice of the Central Board of Excise and Customs which is well reasoned and based upon expert technical advice. We are therefore, unable to go into the reasoning or merits behind such trade notices. On the other hand, we find that all the relevant issues relating to the classification of the impugned product have already been examined and orders passed on the correct classification by this Tribunal in the case of Mahakali Plastic-Weave Pvt. Ltd., Bombay (supra), with which we fully concur. 5. In view of our foregoing findings we allow the appeal.
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1985 (12) TMI 134
... ...
... ... ..... spectively), mdash (i) interest paid by the firm to such individual or by such individual to the firm otherwise then as partner in a representative capacity, shall not be taken into account for the purposes of this clause Since this is an explanatory provisions, the provision will be retrospective and will apply to the year in appeal as well. Taxing into account this provision, I have no hesitation in holding that the findings of the lower authorities are misconceived in law and does not have any support in law. It is not disputed by the ITO that the interest was not on the personal loan advanced by Mahesh Kumar. If it was the interest earned by Mahesh Kumar on his individual account, interest derived on it could not be considered as liable for disallowance under aegis of s. 40(b). Accordingly, I reverse the findings of the lower authorities and direct that the interest amount of Rs. 98,30 should not be added to the income of the firm. 3. In the result, the appeal is allowed.
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1985 (12) TMI 132
Additional Income-Tax On Undistributed Profits ... ... ... ... ..... ferred to the general reserve have to be excluded to arrive at the available profits for distribution. The notional income does not become the commercial profit. The cash availability is a factor to be taken into consideration. 6. Applying the ratio laid down in the above cases, we are of the view that section 104 cannot be applied to the instant case. The dividend distributed amounting to Rs. 93,660 was reasonable. Thus, the Commissioner (Appeals) was justified in cancelling the order made under section 104. 7. The decision of the Gauhati High Court in Ahmed Tea Co. (P.) Ltd. s case is distinguishable. That is a case where it was found that the company was in a sound financial condition and was capable of declaring dividend at the statutorily prescribed rate. Hence, it has no application. We do not think that section 107A of the Act would in any way help the revenue. Thus, we uphold the order of the Commissioner (Appeals). 8. In the result, the appeal fails and is dismissed.
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1985 (12) TMI 130
... ...
... ... ..... owing the Delhi High Court decision and in the Tribunal decision case IAC vs. Garware Paints Ltd. (1984) 7 ITD 445 (Bom) allow the appeals of the assessee in respect of interest under ss. 214 and 244(1A) and in s. 154 proceedings as he had not at all considered the same while arising the appeal effect, partly in respect of interest under s. 243. The case law relied upon by the Department especially of the Tribunals order, supra, would not apply to the facts of the case as in that case the ITO had granted refund of some amount and under rectification proceedings the assessee claimed some more interest and the Department had withdrawn part of the interest already paid to the assessee. The claim of the assessee as well as the claim of the Department was negatived on the ground that rectification does not permit re-thinking and re-applying of mind to the same set of fact as there were divergent view on the subject. With these remarks, the appeal of the assessee is partly allowed.
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1985 (12) TMI 129
... ...
... ... ..... wran Singh Balbir Singh, (1981) 20 CTR (PAH) 131 (1982) 136 ITR 595 (P and H) this Bench had itself deleted the disallowance made in more or less similar circumstances under s. 40H(3) in Chaman Lal Sanchore vs. ITO, ITA No. 306 and 307/Jp/84 Durga Oil Mills vs. ITO ITA Nos. 474 and 632/Jp/84. Keeping in view the over all position of law as expounded by the Rajasthan High Court above, and the fact that certain circumstances have been brought out by the assessee for justifying its failure to comply with the provision of s. 40A(3), we are of the opinion that the benefit claimed by the assessee should be given to it. In such border line cases, a harsh provision of law which has imposed rather technical obligation, should not be applied so as to disallow an otherwise genuine expenditure. We, therefore, accept the ground and delete the disallowance. (Para Nos. 7 to 9 are deleted being related to minor issues.) 10. In the result the appeal is partly allowed for statistical purposes.
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1985 (12) TMI 128
... ...
... ... ..... ny reason an appeal before the Tribunal or a reference before the High Court or an appeal by way of Special Leave is pending before the Hon ble High Court, the assessment cannot be reopened. This would lead to a ridiculous situation. Such proposition at least is not acceptable to us. All the decided cases are on the special facts and circumstances of each case and do not lay down a general proposition that there cannot be a reopening because originally arrangement proceedings are somehow or the other a subject matter of dispute before any higher authority. CWT vs. Vimlaben Vadilal (1983) 37 CTR (SC) 280 (1984) 145 ITR 11 (SC) was not directly concerned with this question and in the other authorities, the appellate proceedings in retaliation to the original reopening under the relevant provision of law were not pending. We, are, therefore, not inclined to accept this ground. 6. In the result we are of the opinion that there is no force in this appeal which is hereby dismissed.
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1985 (12) TMI 127
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... ... ..... Engg. Corpn. vs. CIT (1981) 20 CTR (Cal) 228 (1981) 130 ITR 602 (Cal). This case proceeded on only the legal proceeded on only the legal proposition as to whether furnishing of inaccurate particulars would render an assessee liable to penalty and atleast there was no dispute on facts that the particulars of its income furnished by the assessee were false. A presumption was raised that the particulars were inaccurate to the knowledge of the assessee because the Act was done with wilful or gross neglect. Even this decision of the High Court is not free from doubt in a much as, as reported at (1983) 141 ITR (St.) 43, there is a report that their Lordships of the Supreme Court had granted Special leave to the assessee to appeal against this decision. What we mean to say is that all furnishing of inaccurate particulars may not be sufficient to justify a levy of penalty. 4. Keeping the overall facts and circumstances of the case in view, we accept the appeal and cancel the penalty.
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1985 (12) TMI 126
... ...
... ... ..... advance of Rs. 22,813 could be said to have materialised into a receipt of income nature. Since it is a case of a limited company which bears tax on a uniform rate year after year and since as stated at the Bar by the ld. authorised counsel for the assessee, the receipt had already been included and taxed as income of the asst. yr. 1982-83, no useful purpose would be served if the Department contends that the amount of Rs. 22,813 should be assessed in the asst. yr. 1981-82. For the above mentioned reasons, we would hold that the sum of Rs. 22,813 received by the assessee company in the asst. yr. 1981-82 was merely a deposit or a money held in trust by way of advance and should not be treated as income in that assessment year. Ground No. 1(a) in the assessee rsquo s appeal shall therefore, stand allowed. 4. Ground No. 1(b) and ground No. 2 have not been pressed by the ld. authorised counsel of the assessee. 5. In conclusion, the appeal filed by the assessee is allowed in part.
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1985 (12) TMI 125
... ...
... ... ..... cation charge of Rs. 9,235 paid to Taj Enterprises. This amount was paid as tailoring charges in the normal course of business of the assessee. The payment was made by account payee cheque. Thus, the entire expenses were incurred wholly and exclusively for the purposes of the business. 20. The learned departmental representative contended that in the absence of proper accounts these expenses were rightly confirmed by the Commissioner (Appeals). The assessee has furnished all the details of the expenses. From the record and the nature of business carried on by the assessee, it is clear that some tailoring charges must have been paid by the assessee. In the absence of detailed account the entire expenses cannot be disallowed. Looking to the aforesaid facts and the circumstances of the case, in our opinion, the disallowance is only sustained at Rs. 5,000. 21. In the result, IT Appeal No. 2313 (Delhi) of 1984 is dismissed and IT Appeal No. 1845 (Delhi) of 1984 is allowed in part.
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1985 (12) TMI 124
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... ... ..... income of the assessee, the computation of income will be as under In the case of Mumtazuddin, the total income is Rs. 34,360 while the capital gains are Rs. 22,500. Therefore, the net income is Rs. 34,360 mdash 22,500 11,800. It is stated that in the assessment year under consideration the income to the extent of Rs. 10,000 is exempted and, therefore, if there is tax in this case, it is nominal on which the penalty is to be computed. The ITO to compute it. In the case of Hasmuddin, the total income is Rs. 30,319 while the capital gains are Rs. 22,500. Therefore, the taxable income in this case is Rs. 30,319 mdash 22,500 Rs. 7,819. The aforesaid income is below taxable income and as such no penalty is imposable in this case. 10. In view of my above discussion and reason thereto, I hold that appeal in the case of Shri Mumtazuddin is partly allowed, which in the case of Shri Hasmuddin is liable to be fully allowed. 11. In the result, the appeals are allowed in part and in full.
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1985 (12) TMI 123
... ...
... ... ..... ntained by the assessee. In the asst. yr. 1979-80, no doubt the Tribunal had made the addition of Rs. 23,349 by applying a GP rate of 7.5 per cent to whole sale sales but in the succeeding year the assessee rsquo s gross profit of 6 per cent on sales of Rs. 11,28,185 was accepted with an addition of Rs. 4,892 only. Trading conditions differ from year to year and, therefore, the results of 1979-80 could not be the sole basis for the addition. Looking to the facts of the case and the circumstances that a proper stock register and inventory details were not maintained, we are of the view that while the addition of Rs. 22,270 is excessive, some addition is, however, called for. In our view, an addition of Rs. 7,500 would be proper in this case and we accordingly order that an addition of Rs. 22,270 be reduced to Rs. 7,500. 12. In the result, the appeal is partly allowed as above. The ITO is directed to recompute the assessee rsquo s income in accordance with our directions above.
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1985 (12) TMI 122
... ...
... ... ..... not going into this aspect of the matter because we are not considering the grounds raised by the assessee see before us on merits. We are merely admitting the grounds and the quantum of actual allowance will depend upon their determination by the ld. CIT(A) in accordance with law. In admitting these grounds and in issuing these directions, we are fortified by the following judgement which were also relied upon by the ld. counsel for the assessee. (i) Hukamchand Mills Ltd. vs. CIT (1967) 63 ITR 232 (SC) (ii) CIT vs. Mahalaxmi Textile Mills (1967) 66 ITR 710 (SC) (iii) CIT vs. Indian Express (Madurai) (P) Ltd. (1983) 33 CTR (Mad) 314 (1983) 140 ITR 705 (Mad) (iv) CIT vs. Pierce Leslie and Co. Ltd. (1984) 38 CTR (Mad) 309 (1984) 147 ITR 157 (Mad). 6. In view of what is stated above, we restore the appeal to the file of the CIT(A) for disposal in accordance with law taking into consideration the observations made by us above. 7. For statistics, the appeal be considered allowed.
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1985 (12) TMI 121
... ...
... ... ..... irm to the partner. Indeed, the capital represented by the notional entry to the credit of the partner rsquo s account may be completely wiped out by losses which may be subsequently incurred by the firm, even in the very accounting year in which the capital account is credited. Having regard to the nature and quality of the consideration which the partner may be said to acquire on introducing his personal asset into the partnership firm as his contribution to its capital, it cannot be said that any income or gain arises or accrues to the assessee in the true commercial sense which a businessmen would understand as real income or gain. 5. This ruling covers the assessee rsquo s case on all the fours and the amounts in question have to be deleted as no capital gain has arisen to the assessee. The appeal is accordingly allowed and the amounts of Rs. 4,206 and Rs. 4,850 added to the assessee rsquo s income on account of capital gains are hereby deleted. 6. The appeal is allowed.
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1985 (12) TMI 120
... ...
... ... ..... ale consideration having been received, the capital gain as declared requires to be assessed in his hands. That the question regarding capital gains on sale of these lands by the purchaser in smaller plots was not the point as issue is this assessment year. It is, therefore, prayed that the capital gains as declared by the petitioner require to be assessed in his hands no substantive basis. The petitioner submits that the ld. AAC erred in not allowing exemption under s. 54-B as claimed. It is submitted that the petitioner has already satisfied the conditions for exemption under s. 54-B by purchase of agricultural lands in excess of the amount of the sale consideration sold during the year, within the period allowed. It is, herefore, prayed that exemption under s. 54-B be allowed to him. As the assessee rsquo s counsel has not pressed ground Nos. 3 and 4 of the memorandum of appeal, therefore, they are rejected being not pressed. 6. In the result, the appeal is allowed partly.
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1985 (12) TMI 119
... ...
... ... ..... sessee rsquo s case, Further, the AAC rsquo s finding wherein he has held that in the case of the assessee the penalty under s. 271 (1) (c) is leviable is based upon reason supported from the material on record and the assessee is not in a position to rebut these. Therefore, his findings have also gone unrebutted. 9. In view of my above discussion and reason thereto, I held that in the case of the assessee the penalty is imposable as the assessee has filed the inaccurate particulars of income for the assessment year under consideration with contumacious conduct. Since in the case proviso 1 to s. 271 (1) (c) is applicable being the income assessed more than the income shown by 80 per cent and the assessee has failed to show that it is not there on account of his wilful or gross neglect or fraud on his part, as I have observed above. Accordingly, the penalty sustained by the AAC is confirmed on totality of the facts and circumstances. 10. In the result, the appeal is dismissed.
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