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Showing 141 to 160 of 197 Records
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1990 (5) TMI 59 - ITAT AHMEDABAD-C
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... ... ..... ence between the figure stated by the assessee and that adopted by the department is very nominal. The department has also not made any attempt to tax the value of 10 shares as also the dividend income arising thereof in the hands of the appellant since that should have been the logical conclusion in case the transaction was to be ignored as being a non-genuine one. The observations of their Lordships of the Gujarat High Court in the case of Harikishan Jethalal Patel straightaway help the assessee. 10. In the final analysis we opine that the decision of the Supreme Court in the case of Sunil Siddharthbhai would squarely apply to the facts of the assessee s case and although the transaction of contributing 10 shares to the firm would come within the definition of transfer the same would not attract the capital gains tax in the absence of a consideration. The addition made by the ITO in respect of the aforesaid transaction also stands deleted. 11. The appeal is partly allowed.
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1990 (5) TMI 58 - ITAT AHMEDABAD-C
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... ... ..... ompany, also any director of, or the holder of any other office in, the company), on tour or visit to the place at which such accommodation is situated is accommodation in the nature of a guest house within the meaning of sub-s. (4). 10. It is absolutely clear on the facts of the present case that the two properties located at Jamnagar are not being used by any of the persons specified in the aforesaid sub-section for purposes of touring or visiting but these are being used strictly for the residential purposes by the employees of the principal at Jamnagar on more or less a permanent basis. In any case no evidence to the contrary has been placed on record on behalf of the Revenue. 11. In the final analysis we opine that the expenditure of Rs. 21,000 incurred on the hiring of residential accommodation at Jamnagar for the employees of the principal is not hit by the provisions of s. 37(4) and (5) and is allowable as a deduction. We order accordingly. 12. The appeal is allowed.
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1990 (5) TMI 57 - ITAT AHMEDABAD-C
Advance Payment, Assessed Tax, Late Filing ... ... ... ... ..... upon its filing the return late, the question of levy of penalty upon it for default u/s 271(1)(a) shall have to be decided in accordance with the principle laid down by the full bench in the case of I.M. Patel and Co. and in doing that the conduct of the assessee shall have to be appreciated in right perspective. In fact the conduct of an assessee in making advance payment of tax in excess of the assessed tax clearly shows that his conduct is not fraudulent or contumacious. Once his conduct is not found contumacious no penalty can be levied upon him u/s 271(1)(a). 12. In the instant case the assessee firm, as has been pointed out above and has not been disputed before us, had made advance payment of tax in excess of the assessed tax and had become entitled to refund. That clearly showed that the conduct of the assessee-firm was not contumacious. That being so no penalty u/s 271(1)(a) was leviable upon it. 13. In the result, the penalty is cancelled and the appeal is allowed
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1990 (5) TMI 56 - ITAT AHMEDABAD-C
Advance Payment, Assessed Tax, Late Filing ... ... ... ... ..... upon its filing the return late, the question of levy of penalty upon it for default u/s 271(1)(a) shall have to be decided in accordance with the principle laid down by the full bench in the case of I.M. Patel and Co. and in doing that the conduct of the assessee shall have to be appreciated in right perspective. In fact the conduct of an assessee in making advance payment of tax in excess of the assessed tax clearly shows that his conduct is not fraudulent or contumacious. Once his conduct is not found contumacious no penalty can be levied upon him u/s 271(1)(a). 12. In the instant case the assessee firm, as has been pointed out above and has not been disputed before us, had made advance payment of tax in excess of the assessed tax and had become entitled to refund. That clearly showed that the conduct of the assessee-firm was not contumacious. That being so no penalty u/s 271(1)(a) was leviable upon it. 13. In the result, the penalty is cancelled and the appeal is allowed
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1990 (5) TMI 54 - ITAT AHMEDABAD-B
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... ... ..... ntative is clearly distinguishable on facts. In that case, the loan was taken on the security of the F.D.R. and amount was utilised for personal purposes and not for earning of dividend or interest and that case related to a claim of deduction under s. 57(iii) and not under s. 36(1)(iii) as in the present case. 6. Considering the fact that the interest free funds and the current profit of the assessee were substantially more than the amount of interest free loan advanced to the sister concern and also in view of the fact that there is no direct co relation or nexus between the fund borrowed on interest from the bank and the amount of interest free loan advanced to M/s Navrang Pottery, we are of the view that the disallowance of the part amount sustained by the CIT (A) out of such interest expenditure deserves to be cancelled. We therefore direct the ITO to allow the entire amount of interest paid to the bank as a deduction. 7. In the result, the assessee s appeal is allowed.
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1990 (5) TMI 53 - ITAT AHMEDABAD-B
Late Filing, Legal Representative, Orders Passed, Penalty Proceedings ... ... ... ... ..... 9 had held that the assessment made u/s. 147(a) read with sec. 143 falls within the definition of reassessment and therefore, penalty u/s. 273(1)(b) cannot be levied in such cases. In fact, the use of the term regular assessment in the opening sentence of sub-sec. (1) of sec. 273 makes the point clear. It is in the cases of regular assessments only that the provisions of sec. 273(1)(a) or (b) would stand attracted. In the instant case, the return was filed, admittedly, in response to notice issued u/s. 148 and the Income-tax Officer made the assessment u/s. 147(a) read with sec. 143(3). On the face of it, it was not a regular assessment which could have attracted the penalty contemplated u/s. 273(1)(b) of the Act. For this additional reason also, the penalty order passed u/s. 273(1)(b) in the instant case could not be sustained. 16. In the result, both the appeals are allowed. The penalties levied u/s 271(1)(a) and 273(1)(b) of the Act as mentioned above, are hereby cancelled
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1990 (5) TMI 52 - ITAT AHMEDABAD-B
Investment Allowance, Plant And Machinery ... ... ... ... ..... t u/s. 147(b) but also the assessee was not entitied to claim investment allowance as building was not an article or thing within the meaning of section 32A(2)(b) of the Act. Such are not the facts obtaining in the case before us. The ratio of these decisions of the Tribunal, in our opinion, also does not advance the case of the revenue. 7.9 We are, therefore, clearly of the opinion that the activities being carried out by the assessee-firm in converting the thick or crude oil imported by it into marketable oil after giving it due heat treatment by mechanical process amounts to manufacturing activities entitling the assessee-firm to investment allowance in respect of the new plant and machinery installed by it at its Kandla project. 8. In the result, both the appeals are allowed. The order of the CIT(A) is set aside and the ITO is directed to allow investment allowance to the assessee as claimed by it in both the years in respect of the machineries installed at Kandla project
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1990 (5) TMI 51 - ITAT AHMEDABAD-A
Discretionary Trust, Orders Prejudicial To Interests ... ... ... ... ..... ry had not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. At the hearing, we were informed that in compliance of the order of the learned CIT, the ITO has already made reassessment in this case and an appeal against that order is pending before the first appellate authority. We have, therefore, advisedly avoided to express our opinion on the merits of the points involved regarding the nature and character of the appellant-trust. 13. On the basis of the discussion made hereinabove, we feel satisfied that there existed sufficient ground for the learned CIT to have exercised his jurisdiction u/s. 263 of the Act to have set aside the assessment and asked the ITO to reframe the same after conducting proper enquiries and investigation after hearing the appellant-trust. 14. Having come to the above conclusion, we would like not to interfere with the impugned order. 15. In the result, the appeal is dismissed
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1990 (5) TMI 50 - ITAT AHMEDABAD
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... ... ..... Revenue Rs. 65,218 which compares favourably with the net income of the asst. yrs. 1981-82 and 1982-83 at Rs. 65,040 and at Rs. 66,285, respectively. The learned Departmental Representative has emphasised the difference in the gross income this year from that for earlier years. That aspect of the matter is fully met by taking into consideration the Tribunals order of the asst. yrs. 1981-82 and 1982-83. The Tribunal has taken into account all the facts which the ITO had in his proposed action pointed out and also the comparable cases of other doctors. Therefore, it is the net receipts which have to be taken into consideration. Since as stated above they are comparable with those of the earlier years there is no prejudice to the interests of the Revenue. Therefore, the assessment order of February, 1986 is neither erroneous nor prejudicial to the interest of the Revenue. The Commissioner s order under s. 263 dt. 24th March, 1987 is, therefore, set aside. The appeal is allowed.
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1990 (5) TMI 49 - HIGH COURT OF PATNA
Prosecution ... ... ... ... ..... under Section 9B of the Act. Therefore, the conviction of the petitioners under Section 9B of the Act must be held to be erroneous and void and on this ground alone, in my opinion, this revision must succeed. 7. Mr. Devi Prasad argued that because the petitioner had not paid tax assessed, therefore, the facts of the aforesaid case is not applicable to the present case. In my view, this cannot be accepted as correct. The decision was given not on the basis of non-payment of tax but on the basis of what the word evasion or evades means. It was found that mere non-payment of duty which has already been assessed, cannot amount to evasion as contemplated under Section 9(B) of the Act. The petitioners, in this case, have not been convicted for contravention of any permit and Section 9(B) of the Act is not intended for that. 8. In the result, for the reasons stated above, this revision is allowed. The judgment of conviction and sentence passed by both the courts below are set aside.
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1990 (5) TMI 48 - HIGH COURT AT CALCUTTA
Exemption Notification ... ... ... ... ..... of the main Act and the existing Rules. The Explanation is well within the scope of the Act and Rule and thus the Explanation cannot be treated as an act beyond the law and the petitioner can ask for striking it down. Thus finding no merit in the writ petition, this Court is not inclined to interfere in the matter. For the foregoing reasons, the Rule is discharged, all interim orders if any, are vacated. There will be no order as to costs. 11. There will be stay of operation of this order for a period of a fortnight from date. C.R. No. 10344(W) of 1980, 8542(W) of 1980, 8543(W) of 1980 and 8388(W) of 1980. 12. As the ratio of the above decision is applicable to the present cases, which were heard analogously with the consent of the parties, and for the same reasons as stated above, the present Rules are also discharged, interim orders, if any, are vacated. There will be no order for costs. 13. There will be stay of operation of the orders for a period of fortnight from date.
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1990 (5) TMI 46 - HIGH COURT OF GUJARAT AT AHMEDABAD
Valuation (Central Excise) ... ... ... ... ..... ssed fabrics, trader s profit is required to be excluded. It is the petitioner s case and not in dispute now that the assessable value has been determined by the excise authorities after including the trader s profit. It would, therefore be necessary now to direct the excise authorities to reassess the value of the processed fabrics in light of the Judgment of the Supreme Court in Ujagar Prints and Ors. v. Union of India - 1988 (38) E.L.T. 535 read with 1989 (39) E.L.T. 493 and refund that amount which is found to be in excess of the duty payable.
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1990 (5) TMI 45 - HIGH COURT OF GUJARAT AT AHMEDABAD
Valuation (Central Excise) ... ... ... ... ..... he processed fabrics for the period involved in these petitions and work out the amounts refundable to the petitioners. The excise authorities are directed to complete the re-assessment of value within three months from today and refund the excess amount within one month thereafter. In order to facilitate the work of the excise authorities, the petitioners are also directed to submit their claim statements to the excise authorities within one month from today. 4. In view of the fact that the matters are finally disposed of, it will be open to the Registrar to encash the bank guarantees given to him to the extent of 75 and make payment to the department. As the bank guarantees given by the petitioners in Special Civil Applications Nos. 1284, 1287 and 703 of 1990 have lapsed, they are directed to renew the bank guarantees given by them within a period of one month from today. 5. Rule in each of these petitions is made absolute to the aforesaid extent with no order as to costs.
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1990 (5) TMI 44 - HIGH COURT AT CALCUTTA
Rebate of duty - Writ Jurisdiction - Limitation ... ... ... ... ..... wdhury, Advocate on record of the petitioners for preparation of the instant application and the same was completed on 18th December, 1986 and on 19th December, 1986 this application was moved and rule was issued by this court. Under such circumstances it appears that delay in moving the writ application has been sufficiently explained. Accordingly the petitioner should succeed in this writ petition. The rule issued herein should be made absolute. A writ in the nature of mandamus will be issued directing the respondent to act according to law and to rescind and/or withdraw and/or cancel the order dated 8th March, 1984 passed by the respondent No. 1 as also the order dated 25th October, 1984 by the respondent No. 2 and further commanding the respondents to forthwith refund and pay to the petitioner company a sum of Rs. 2,19,245.42 P. There will be no order as to costs. 35. Such payment to be made within 6 weeks from the date of communication of operative portion of the order.
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1990 (5) TMI 43 - HIGH COURT AT CALCUTTA
Import policy - Estoppel - Promissory estoppel - Interpretation of Statute ... ... ... ... ..... ) as aforesaid, which are allowed under the provisions of the Policy, has been taken by the office of the Development Commissioner for Iron and Steel Calcutta . I do not know how and whether the office of the Development Commissioner , or, for that matter, the Development Commissioner himself can take such decision, which virtually amends and alters the Policy itself, and which can only be done by the Government through the Chief Controller of Imports and Exports, and would be effective only on being duly notified. Annexure E therefore fails on that score as well. 14. The Writ Petition, therefore, must succeed and is accordingly allowed and the Respondents are commanded to register forthwith the import contracts mentioned in paragraphs 13 and 15 of the Writ Petition being Annexures D and G thereto and to return the duplicate copies to the Petitioner after necessary stamping and endorsements. 15. The Writ Petition is accordingly disposed of, but without any order as to costs.
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1990 (5) TMI 42 - HIGH COURT OF GUJARAT AT AHMEDABAD
Natural Justice ... ... ... ... ..... justice and as such, the order cannot stand. Hence, we quash the order impugned in this Special Civil Application only on this short ground and remand the case back to the file of the Assistant Collector to dispose of the matter on the basis of the original show cause notice issued. We direct the Assistant Collector, on remand of this case, to dispose of the same within two months from the date of receipt of the writ from this Court. The petitioners are directed to cooperate in the proceedings and to assist the Assistant Collector to dispose of the matter within the period mentioned by us. It is needless to say that the petitioners will have all liberties to agitate all points, which they want to take, before the Assistant Collector and if once the show cause notice issued is held to be invalid by the Assistant Collector, necessary orders may be passed by the appropriate authorities for refunding the excess amount collected. 3. Rule is made absolute to the aforesaid extent.
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1990 (5) TMI 41 - HIGH COURT OF JUDICATURE AT BOMBAY
Precedents - Customs duty - Taxable event - Appeal - Dismissal of - Costs - Award to respondents
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1990 (5) TMI 40 - SUPREME COURT
Whether the show cause notice was barred by limitation and hence, the Government had no power to annul the Appellate Collector's Order under Section 131(3) of the Act?
Held that:- The limitation prescribed by Section 28 is applicable when under sub-section (5) of Section 131 the Government seeks to annul or modify orders other than those passed under Sections 128 and 130. It is not applicable to the action taken under sub-section (3) for annulling or modifying orders passed under Sections 128 and 130. Since in the present case the impugned show-cause notice is issued to annul/modify the order passed by the Appellate Customs under Section 128, it will have to be held that it is not barred by limitation. Appeal dismissed.
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1990 (5) TMI 39 - ALLAHABAD HIGH COURT
Question Of Law ... ... ... ... ..... uthority in this case is under the same head of Income . So far as the second question is concerned, it cannot be treated as question of law. Undoubtedly, the order of the Tribunal is correct. In this case, it may be remembered, the account books of the assessee were rejected. Having rejected the account books, the assessing authority took into account the order of the Sales Tax Appellate Tribunal while arriving at the estimate of income. The order of the Tribunal cannot be said to be irrelevant. There is no rule of law that there must necessarily be some evidence other than the order of the Tribunal. Adequacy of evidence is not within our province. So far as the third question is concerned, it does not really arise from the facts of the case. The order of the Sales Tax Appellate Tribunal is based on a survey made no doubt subsequent to the assessment year, but the material which was considered pertains to the relevant assessment year. The petition is, accordingly, rejected.
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1990 (5) TMI 38 - ALLAHABAD HIGH COURT
Charitable Trust, Exemptions ... ... ... ... ..... he application is made in accordance with the requirements of section 12A read with rule 17A and whether Form No. 10A has been properly filled up. He may also see whether the objects of the trust are charitable or not. At this stage, it is not proper to examine the application of income. The order impugned does not say that the objects of the society are not charitable in nature it merely says that they are general in nature. Just because they are general, they do not cease to be charitable. The Commissioner has also observed that no activity has been carried on by the society. It is also not the requirement of section 12A of the Act. Nor has section 80G any relevance at this stage. The impugned order cannot, therefore, be sustained and it is quashed. The Commissioner shall re-examine the issue in the light of the objects of the society and in the light of the observations made herein and pass fresh orders accordingly. The writ petition is disposed of with these observations.
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