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Case Laws
Showing 161 to 180 of 241 Records
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1985 (4) TMI 81 - ITAT AHMEDABAD-B
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... ... ..... ate rectification proceedings and levy penal interest as he did, since the omission on his part at the time of the original assessment was an error apparent from the record, because the relevant provisions of penal interest is a mandatory provision of law Dalwadi and Co. vs. CIT (ITR No. 54 of 1972, decided on 17th Dec., 1973 (Guj) not reportable applied. 8.1 According to us, the assesee s case would be analogous to a case under the IT Act, wherein, while framing assessment under that Act, the ITO had failed to levy surcharge and additional surcharge as prescribed under a particular Finance Act. Surely, the ITO would be entitled to levy surcharge and additional surcharge by invoking the provisions of s. 154 of the IT Act, 1961 (which are analogous to s. 35 of the Act). Therefore, respectfully following the decision in the case of Ramjibhai Hirjibhai and Sons, we have no hesitation in upholding the order of the AAC under appeal. 9. In the result, all the appeal are dismissed.
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1985 (4) TMI 80 - ITAT AHMEDABAD-B
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... ... ..... the services rendered by him to his employer. The assessee could have neither foreseen this payment nor could he have expected it. He had no legal right to it. This is the first payment in 12 years of service. He has shown extra-ordinary talent regarding his work but that cannot be expected in the normal course from any employee. Taking all these circumstances into account we are of the view that this is a payment over and above the salary or remuneration and does not fall within that category and consequently cannot be said to be his taxable income under the Act. The fact that this payment has been made to him by his employer although relevant, is not a deciding factor. These conclusions are justified on the basis of authorities cited before us. The assessee s appeal is allowed on this point. 6. One more ground is that the AAC erred in not considering the assessee s appeal against the charge of interest under s. 217. This matter is restored to the AAC to decide this ground.
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1985 (4) TMI 79 - HIGH COURT OF KARNATAKA AT BANGALORE
Smuggling - Detention - Burden of proof ... ... ... ... ..... goods, shall be on the person from whose possession the goods were seized. The procedure prescribed by Section 123(1), in our opinion, is just fair and reasonable procedure and cannot, therefore, be regarded as violative of Article 21(1) of the Constitution. We have, therefore, no hesitation in repelling the contention of Sri Jestmal that retrospective operation of Section 123(1) is violative of Articles 20 and 21 of the Constitution. As we are inclined to dismiss this Writ Petition on merits, we have considered it unnecessary to examine the contention of the learned Advocate General that this Writ Petition is not maintainable having regard to the dismissal of the previous Writ Petition 138 of 1984 and that at any rate, the contention now raised by him should not be permitted to be urged as the petitioner had sought to raise these contentions by raising additional grounds which he subsequently withdrew. For the reasons stated above, this Writ Petition fails and is dismissed.
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1985 (4) TMI 78 - BOMBAY HIGH COURT
Valuation - Trade discount ... ... ... ... ..... ) decided on 21-11-1983 M.P. (copy furnished) (7) New India Industries - 1983 (14) E.L.T. 1763 decided on 22-2-1983 Gujarat (8) Ahmedabad Calico - 1984 (17) E.L.T. 246 decided on 6-4-1984, Gujarat and (9) Godavari Plywood - 1984 (18) E.L.T. 732 decided on 18-9-1984 Andhra. Our own Division Bench has in the case of M/s. Ogale Glass Works Ltd. v. The Union of India reported in 1975 Census, Volume III, page 115 1979 (4) E.L.T. (J 468), has taken a similar view which has so far not been overruled. Although some later Division Benches of this Court have taken a different view, all that can be said is that there is a difference of view on the subject in this Court. However, it must be noted here that none of these later Benches had the benefit of the three Supreme Court judgments referred to by me earlier. I have also not come across any further Supreme Court judgment which has taken a contrary view. 6. In the result the petition is dismissed and the Rule is discharged with costs.
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1985 (4) TMI 77 - HIGH COURT OF JUDICATURE AT BOMBAY
Prosecution - Search and seizure ... ... ... ... ..... aintained since the dates of offence in both the cases were different. It appears that it was not shown to the learned Magistrate how this complaint should be entertained in respect of the offences, which took place on two different dates. No nexus had been established between these two offences concerning two different persons. This was also one of the grounds on which the story of the complainant came to be discarded by the learned Magistrate, 14. It will thus be seen that the view taken by the learned Magistrate and the findings recorded by him on merits appear to be well justified on the material on record. Consequently, I have got to maintain the order of acquittal recorded by the learned Magistrate in favour of both the Respondents. 15. In the result, this Criminal Appeal is dismissed. The order of acquittal recorded by the learned Chief Judicial Magistrate, Nanded, in favour of the Respondents for offence under Section 135(1)(b) of the Customs Act is hereby confirmed.
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1985 (4) TMI 76 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Refund - Civil suit by customer for refund of excise duty ... ... ... ... ..... at in case the plaintiff-company succeeds in the suit, the Central Government might take up the position that they would refund the amount to the defendant-company since the defendant-company had paid it, and therefore, it should be clarified that the defendant-company would not be entitled to claim refund to the extent of goods supplied to the plaintiff-company and the amount would be payable to the plaintiff-company and not to the defendant-company. To this Shri L.M. Suri, appearing for the defendant-company, has no objection, and therefore, it is ordered accordingly. 8. For the reasons recorded above, this appeal is allowed, the order of the Court below dated 25th October, 1976 is hereby set aside and the matter is remitted to the trial Court to proceed with the suit in accordance with law keeping in view the observations made above. The parties, through their counsel, are directed to appear in the trial Court on 6th May, 1985. However, there will be no order as to costs.
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1985 (4) TMI 75 - HIGH COURT OF CALCUTTA
Prosecution - Acquittal ... ... ... ... ..... bmits that this Court may construe the order of acquittal impugned in appeal as an order of discharge under Section 249 of the Code. We have our difficulties in so construing the order, the most obvious of which will be that a fresh complaint for the same offence filed hereafter may be held to be barred under Section 468 of the Code. So, we do not proceed that way. We are convinced that the learned Magistrate was wrong in treating the case as a summons case when he passed the impugned order of acquittal in the case in exercise of his power under Section 256 Cr. P.C. In the result the appeal will succeed. Hence ordered that the appeal against the order of acquittal is allowed on contest. The order of acquittal is set aside. The learned Magistrate is directed to treat the case as a warrant case and try it according to the procedure prescribed by the Code. The records of the case be sent down to the Court below with direction to dispose of the case as expeditiously as possible.
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1985 (4) TMI 74 - HIGH COURT OF CALCUTTA
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... ... ..... ase made out by the petitioner as also the interests of the revenue which is substantially secured by the offer made out by the petitioner that the amount of Rupees eight lakhs refundable to the petitioner by the Department the petitioner undertakes not to withdraw the said amount. 3. Considering the facts and circumstances of the case it appears that the order of Tribunal is not correct. Accordingly, I set aside, the order of the Tribunal and direct the Tribunal to reconsider the said application in accordance with law and in the light of the observations made above within a period of six weeks from today. I also direct to deal and dispose of the Appeal itself as expeditiously as practicable but not later than three months from this date. Until the said application is disposed there shall be stay of the realisation of the demand in question. 4. Let a plain copy of this order countersigned by the Assistant Registrar (Court) be given to the learned Counsel for the petitioner.
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1985 (4) TMI 73 - HIGH COURT OF BOMBAY
Writ jurisdiction - Refund - Unjust enrichment - Countervailing duty - Naphthalene ... ... ... ... ..... of India, Ministry of Finance and others, reported in 1985 (19) E.L.T. 3 (S.C.) the Supreme Court has awarded interest on duty which was wrongly collected. The Supreme Court has awarded a lump-sum interest of Rs. 50,000/- in that case when the duty had been wrongly collected in the year 1966. In the case of Metal Distributors Ltd. and another v. Union of India and others, reported in 1984 (18) E.L.T. 269 (Bom.) this High Court also awarded interest at the rate of 12 per annum on the excise duty which was collected illegally. In the interest of justice and looking to the circumstances of the case it would be just and fair to award to the petitioners interest at the rate of 12 per annum from the date of the petition till payment. In the premises, the petition is allowed and the rule is made absolute with costs as prayed, save and except that interest will be at the rate of 12 per annum. The said amount will be refunded to the petitioners within a period of 4 weeks from today.
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1985 (4) TMI 72 - HIGH COURT OF CALCUTTA
Cement - Writ jurisdiction - Taxing statute ... ... ... ... ..... ite cement, it is not necessary to decide other points raised by Mr. Gupta in this behalf. Accordingly I hold that the refusal on the part of the Customs Authorities to clear the goods, the issue of show cause notice and the order dated February 1, 1985 being No. 548-Cr. 1(P) 154-84A S 33-7-85 A-Gr. at Sl. No. 1, dated February 1, 1985 were wholly illegal and without jurisdiction. The proceedings are quashed. Accordingly, the writ petition succeeds. The adjudication proceeding including the order passed by the Collector of Customs are quashed and I direct the respondents to forthwith allow the clearance of the said goods. 7. In the result the writ petition succeeds with costs assessed at 10 gms. 8. On the undertaking to apply for certified copy of this order and depositing the necessary folios and stamps in the department within a week from date, let a plain copy of this order, duly counter signed by an Officer of this Court, be given to the learned Advocate for the parties.
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1985 (4) TMI 71 - HIGH COURT OF JUDICATURE AT BOMBAY
Aluminium silicate - Fiscal statute - Classification of goods ... ... ... ... ..... vision also proceeds on the basis that properties of extender are the same as these of fillers and stoppings. There is no material for coming to this conclusion. The revisional order excludes these goods from Chapter 28 on the ground that these goods are Complex Sodium Aluminium Silicate. It is difficult to see why these goods should be excluded from Chapter 28 on the ground that they are Complex Sodium Aluminium Silicate. All silicates are included in Brussels Nomenclature under Chapter 28 and the same is the case with Chapter 28 of the Customs Tariff Act, 1975. The decisions of the Customs Authorities are, therefore, not based on evidence produced before them. The decisions must, therefore, be classified as perverse. In the premises the petition is allowed and the rule is made absolute in terms of prayer (b). The respondents will grant to the petitioners refund of Rs. 9908.55 within three months from today. The respondents will pay to the petitioners costs of the petition.
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1985 (4) TMI 70 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Dutiability - Intermediate products not dutiable if not independently excisable ... ... ... ... ..... T. (J 24) (S.C.) while dealing with Tariff Items 19 to 22 of Schedule 1 to the Act it was held by the Supreme Court - The well-known rule in interpreting items in statutes like the one we are concerned with is that resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense. Commissioner of Sales Tax, Madhya Pradesh, Indore v. M/s. Jaswant Singh Charan Singh (A.I.R. 1967 S.C. 1454) 23. For all these reasons we are of opinion that the impugned notice and the detention order deserve to be quashed. 24. In the result the writ petition succeeds and is allowed. The impugned notice dated 13/14-2-1985 and the detention order dated 14-2-1985 (copies whereof have been attached as Annexures 4 and 5 to the writ petition) are hereby quashed and the respondents are directed not to give effect to them. We, however, make no order as to costs.
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1985 (4) TMI 69 - HIGH COURT OF GUJARAT AT AHMEDABAD
Cross examination of experts not allowed ... ... ... ... ..... ine those two witnesses and after considering the evidence which is already on record and that may be adduced on cross-examination of the said two witnesses. Mr. Shah, the Learned Advocate for the Respondent states that in case the Assistant Collector passes the order holding the Petitioners liable to pay duty under Tariff Item No. 18-III (ii), the Petitioner company should furnish bank guarantee so as to secure payment of duty for which the demand is raised under the said assessment order, if any. Mr. Contractor, the learned advocate for the Petitioners states that the Petitioner company shall furnish a bank guarantee or a security as may be required by the Assistant Collector. Rule is accordingly made absolute by setting aside the impugned order and directing the Assistant Collector, Central Excise, Rajkot to permit the cross-examination of the aforesaid two witnesses as directed above and decide the matter afresh in accordance with law. There will be no order as to costs.
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1985 (4) TMI 68 - HIGH COURT OF DELHI AT NEW DELHI
Paints - Classification of goods - Appeal ... ... ... ... ..... Appellate Collector in that regard is not noticed or reversed. 6. Apart from it, the petitioners have made allegations of discrimination. They have placed on record the photo copies of the orders granting exemption from payment of excise duty to several other manufacturers manufacturing identical goods. These have also not been considered by the Central Government. 7. Accordingly, I quash the impugned order dated January 24, 1981 and direct that the suo motu review be decided afresh by Customs, Excise and Gold (Control) Appellate Tribunal after granting a hearing to the petitioners. If the suo motu review is dismissed, the Tribunal shall direct the payment of the duty paid by the petitioners. The bank guarantees already given by the petitioners shall be kept alive till the disposal of the suo motu review. The petitioner would, however, be entitled to the exemption for the future clearances, if otherwise admissible. On the facts and circumstances, I make no order as to costs.
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1985 (4) TMI 67 - SUPREME COURT
Whether the mode of determination of "value" prescribed by Section 4 is not attracted while computing the "value" of the articles of footwear for the purposes of testing the availability of the exemption granted under the Notification dated July 24, 1967?
Held that:- Inasmuch as the value of the articles of footwear in question calculated in accordance with the provisions of Section 4 of the Act did not exceed ₹ 5 per pair, the articles in question were exempt from the charge to duty of excise under the Notification dated July 24, 1967. Appeal allowed.
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1985 (4) TMI 66 - SUPREME COURT
Whether the Hansa Corporation judgment validated the action taken by the State?
Held that:- The judgment of this court in Hansa Corporation's case upholding the validity of the 1979 Act [Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979] is binding on all concerned whether they were parties to the judgment or not. Appeal dismissed.
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1985 (4) TMI 65 - SUPREME COURT
Whether cotton yarn could not be subjected to sales tax because one of the conditions prescribed by S. 15 of that Act had not been complied with?
Held that:- There is ample power under s. 5A of the State Act enabling the Chief Commissioner to specify the single point at which tax may be levied in a series of sales. This can, however, be done by him only by a notification in the Official Gazette. No such notification has been placed before us which could relate to the assessment year under consideration. We hold, therefore, that a vital prerequisite of S. 15 of the Central Sales Tax Act, namely, that the tax shall not be levied at more than one stage, has not been satisfied in respect of the turnover of cotton yarn, and accordingly the assessment complained of is liable to be quashed.
Thus the assessment of the turnover of cotton yarn for the assessment year 1968-69 under the Bengal Finance (Sales Tax) Act, 1941, as applied to the Union Territory of Delhi cannot be sustained. Appeal allowed.
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1985 (4) TMI 64 - SUPREME COURT
whether excise duty paid directly to the excise authorities or deposited directly in the State Exchequer in respect of Indian liquor by the buyers before removing the same from the distillery could be said to form part of the taxable turnover of the appellant distillery?
Held that:- Admittedly, the bills issued by the appellant did not include the excise duty. As already found, payment of excise duty is a legal liability of the manufacturer ; its payment is a condition precedent to the removal of the liquor from the distillery and payment by the purchaser is on account of the manufacturer. According to normal commercial practice, excise duty should have been reflected in the bill either :as merged in price or being shown separately. As a fact, in the hands of the buyer, the cost of liquor is what is charged by the appellant under its bill together with excise duty which the buyer has directly paid on seller's account. The consideration for the sale is thus the total amount and not what is reflected in the bill. We are, therefore, clearly of the 'opinion that excise duty though paid by the purchaser to meet the liability of the appellant, is a part of the consideration for the sale and is. includible in the turnover of the appellant. The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer.
The taxing authority is entitled and is indeed bound to determine the true legal relation resulting from a transaction. If the parties have chosen to conceal by a device the legal relation, it is open to the taxing authorities to unravel the device and to determine the true character of the relationship. But the legal effect of a transaction cannot be displaced by probing into the 'substance of the transaction'. Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. Appeal dismissed.
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1985 (4) TMI 63 - ANDHRA PRADESH HIGH COURT
Appeal To Tribunal, Assessment ... ... ... ... ..... n (natural love and affection) and that adequate consideration means valuable consideration which can be measured or tested on the basis of the money s worth, was accepted as representing the correct position. Indeed, the case before the Bombay High Court did not pertain to Muslims, nor did they deal with the question of dower, or deferred dower, at all. For the aforesaid reasons, we answer the question referred to us in the negative, i.e., in favour of the assessee and against the Revenue. In the circumstances, we make no order as to costs. R.C. No. 160 of 1978 For the reasons recorded by us in R.C. No. 108 of 1977, we answer the question referred to us in this referred case in the affirmative, i.e., we hold that the payment of Rs. 50,000 by the assessee to his wife towards the liquidation of Meher debt due by him, is for adequate consideration within the meaning of s. 64(1)(iv) of the I.T. Act, 1961. Our answer is in favour of the assessee and against the Revenue. No costs.
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1985 (4) TMI 62 - ANDHRA PRADESH HIGH COURT
Appeal To Tribunal, Assessment ... ... ... ... ..... f Smt. Panna Bai and her minor children. The Tribunal should have annulled the assessment with liberty to the ITO to assess the income in the status of a body of individuals, if permitted by law, after issuing notice to that body of individuals to submit a return as required by s. 139(2) of the I.T. Act. It would be open to that body of individuals to plead among other things that during the assessment year in question, Smt. Panna Bai was not actively associated with the business of the firm and that she did nothing more than receiving 30 per cent. of profits of the firm. We, accordingly, answer the second question in favour of the assessee and against the Revenue. Our answer to the first question will abide by the decision of the ITO on remand of the case by the Appellate Tribunal. The reference is answered accordingly. No costs. Before parting with the case, we wish to place on record our appreciation of the valuable assistance rendered by Sri Habib Ansari as amicus curiae.
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