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Showing 161 to 180 of 385 Records
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1991 (1) TMI 242
Immovable Property, Movable Property ... ... ... ... ..... uired by the bank for its ownership. Therefore the capital gains here cannot be regarded as part of the assessee s business income. The exemption is of profit and gains of business which would be a revenue receipt and not of capital gains flowing from the transfer of immovable property. The learned counsel relied upon the dictionary meaning of profit which may include capital gains but here we are concerned with the profits and gains of business. Therefore that representation would not help the assessee s case. Therefore we hold that the assessee would not be entitled to exemption in respect of capital gains. However, it has been calculated wrongly at Rs. 96,158 whereas the assessee s counsel pointed out that the correct figure would be Rs. 75,900. The learned departmental representative has not contested this and we therefore hold that it is that amount which would be liable to be taken into account. 15 to 17. These paras are not reproduced here as they involve minor issues.
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1991 (1) TMI 241
Orders Prejudicial To Interests ... ... ... ... ..... ditions to be made was not definite. But with all that doubt the other parts of the above Commissioner s order show certain imperative directions to the ITO which, in our view, is incorrect. The assessee should have an opportunity to show to the ITO that the shortage claimed was justified and the ITO may then allow such reasonable shortage after considering the evidence and the submissions of the assessee. The fact that the earlier shortage was lower does not mean that the considerably higher shortage in any circumstances should be accepted this year. Exceptional circumstances can lead to exceptional reasons. Everything depends upon the facts and the available evidence put forward before the ITO. The Commissioner s order should be read subject to the above modification. The Commissioner has not given any direction regarding the shortage in other commodities and his order does not affect the accounts regarding those commodities. 9. In the result, the appeals are partly allowed
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1991 (1) TMI 236
Assessment Order, Orders Prejudicial To Interests, Original Assessment, Total Income ... ... ... ... ..... ascertained as to whether the Commissioner has set aside the entire order of assessment or only that part of the order of assessment which was not the subject matter of an appeal either because the AAC had no jurisdiction to consider that matter or because the AAC, though having jurisdiction to examine that subject matter, did not do so. If the Commissioner has set aside the entire order of assessment, then it could not be held that he has exercised power confered upon him because he has no power under section 263 of the Act to revise the order of the AAC, or in the present case CIT (Appeals). For this additional reason also the order of the CIT passed under section 263 for the assessment year 1981-82 is also liable to be set aside. 5. In the result, all these three appeals in the case of Kalpa Constructions, will be allowed and the orders passed by the CIT under section 263 for these years set aside. 6 to 10. These paras are not reproduced here, as they involve minor issues.
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1991 (1) TMI 232
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... ... ..... onsidered to be part of the total income of the previous year, the total income has to be recomputed. The addition actually results in a compulsory deduction of provident fund as well as enhancement of the deduction under section 16. When the rule requires that tax is to be calculated after making the addition to the total income, the exercise cannot be completed without making the consequential changes which result in additional deduction under sections 16 and 80C. Therefore, I accept the contention of the assessee that the total income of the earlier previous years must be recomputed in accordance with law after adding the additional salary attributable to those previous years and the tax payable ascertained thereon. The resultant relief under section 89(1) will the amount given in the working sheet of the assessee at Rs. 10,390 instead of Rs. 6,542 determine by the ITO. He is, therefore, directed to substitute Rs. 10,390 and grant relief accordingly. The appeal is allowed.
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1991 (1) TMI 230
Annual Value, Assessment Order, House Property, Orders Prejudicial To Interests ... ... ... ... ..... ral person. The only question is whether a Hindu undivided family could be regarded as such a person. On this point we have the authority of the Supreme Court in the case of Banarsi Dass v. WTO 1965 56 ITR 224 stating that an individual includes a Hindu undivided family. Moreover, even the Income-tax Act itself recognises that the HUF has a residence in section 6. It is unfortunate that a provision which has existed even in the 1922 Act to give a benefit to a self-occupied property and has been understood and applied to Hindu undivided families for decades should be considered to be erroneously applied on the basis of a decision of a High Court which is not directly on the point. Again, when hundreds of Hindu undivided families all over the country have been granted this benefit, it is discriminatory to choose this particular assessee for denying that allowance. Thus, in any view of the matter the order of the Commissioner is untenable. It is cancelled. The appeal is allowed.
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1991 (1) TMI 229
Natural Justice, Valuation Officer ... ... ... ... ..... as held that the provisions of section 171(9) are invalid, we are not proceeding on that basis. We are proceeding with this case only on the limited issue whether in the assessment for the assessment year 1979-80 the Income-tax Officer can invoke the provisions of section 171(9). As observed by the Andhra Pradesh High Court, the CBDT has itself declared in the Memorandum explaining the object of this amendment that it will apply only for the assessment year 1980-81 onwards. The counsel for the revenue has also conceded this in the Madras High Court in the case of M.V. Valliappan. Hence there can be no dispute that the partial partition cannot be ignored when a claim is made in the assessment for the assessment year 1979-80. The CIT (Appeals) was, therefore, right in cancelling the subsequent order of the Income-tax Officer ignoring the partial partition already recognised under a proper order made under section 171 on 9-1-1980. His order is confirmed. The appeal is dismissed.
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1991 (1) TMI 228
Natural Justice, Valuation Officer ... ... ... ... ..... ion 23(3A) requires that the Valuation Officer should be given an opportunity of being heard. But this does not mean that he should be heard when the assessee s representative was not present. The hearing of the parties will not satisfy the requirement of the statute because the principles of natural justice require that the parties are heard simultaneously so that each will have the opportunity of meeting the point raised by the other. In the circumstances, the disposal of the appeals by hearing the Valuation Officer and the assessee s representative separately is in violation of the principles of natural justice and the order of the Commissioner (Appeals) becomes a nullity. We are compelled to restore the appeals to the file of the Commissioner (Appeals) for fresh disposal in accordance with law. He will no doubt take into consideration the order of the Tribunal referred to above while disposing the appeals afresh. The appeals are treated as allowed for statistical purposes
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1991 (1) TMI 227
Adequate Consideration, Closing Stock, Deemed Gift, Equity Shares, Market Value ... ... ... ... ..... qual extent. Consequently, there can never be any shortfall in the consideration given by way of shares of equal value. The only other point which is to be noted is that the GTO has assumed that the profit embedded in the closing stock has been transferred without consideration. This view is incorrect because the Allahabad High Court has held in the case of CGT v. Motor Sales 1990 186 ITR 419 that where the entire assets of the firm were taken over by the company as a going concern, the shares allotted would encompass all the assets of the company including the profits which are embedded in the assets transferred. The inevitable conclusion is that, the consideration for the transfer of the business of the going concern by issue of shares of equal value has not-been established to be inadequate and, therefore, there could be no deemed gift under section 4(1)(a) of the Gift-tax Act. The assessment bringing to tax such a deemed gift is, therefore, annulled. The appeal is allowed
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1991 (1) TMI 223
Accounting Year ... ... ... ... ..... e a new construction was put up and hence the assessee is entitled to relief under section 23(1)(c). The ITO denied the relief on the sole ground that the assessee carried out only some repairs to the old buildings and did not construct any new building. The disallowance was confirmed by the Dy. Commissioner(Appeals), A-Range, Madurai. At the time of arguments, it is clearly admitted that though new buildings were constructed, they were all shops and not residential building. Section 23(1)(c) speaks of residential houses and not non-residential properties and in view of the admission made before us during the course of hearing, we hold that the relief is correctly denied to the assessee by the lower authorities. 4. Since both the points fail in the appeal for the assessment year 1982-83, in which the assessee-HUF is the appellant, ITA No. 2475/Mds/88 is dismissed. Since the single point involved is held against the assessee in ITA Nos. 2473 and 2476/Mds/88, they are dismissed
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1991 (1) TMI 221
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... ... ..... hirdly, as rightly pointed out by the CIT(A), it is only when the assessee received ex gratia compensation from the Government of India that the capital loss could be computed. This is because the award by the Government of India of compensation for the property lost in Pakistan by the Indian nationals is purely ex gratia. That is to say, the assessee had no legal right to receive it. It should, therefore, follow that it was only on the receipt of such compensation that the question of computing capital gains, or, as the case may be, capital loss, would arise. 24. In view of the foregoing, therefore, we decline to interfere with the impugned order of the CIT(A) relating to the asst. yr. 1973-74. Being as they are in consonance with the view taken by him in the appeal relating to the asst. yr. 1973-74, the orders of the CIT(A) relating to the asst. yrs. 1974-75 and 1976-77 also do not invite any interference. 25. In the result, all the three departmental appeals are dismissed.
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1991 (1) TMI 218
Advance Tax, Interest Payable By Assessee ... ... ... ... ..... argument that section 209A(4) had no application to it since it had filed Form No. 28A showing nil income and nil advance-tax has to be rejected. Accordingly we hold that the ITO is justified in charging interest under section 217(1A) amounting to Rs. 3,19,265. 13. We may herein mention that the cases relied on by the assessee s counsel are not applicable to the facts and circumstances of the assessee s own case. In the case of Televista Electronics (P.) Ltd., the said assessee had not filed any estimate of advance-tax. In that case the interest was charged under section 217(1)(a). In the case of Patel Aluminium (P.) Ltd. also interest under section 217(1)(a) was charged for that assessee s failure to file a statement of advance-tax. In the case before us the interest charged is under section 217(1A) for not filing the revised estimate of advance-tax as per section 209A(4). 14. In the result, the appeal filed by the assessee is treated as allowed to the extent indicated above
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1991 (1) TMI 216
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... ... ..... rged Rs. 18,797 as interest under s. 215. 21. In appeal, the learned Commissioner(A) noticed that the assessee had paid Rs. 1,980 as advance tax and Rs. 4,169 as TDS, totalling to Rs. 6,149. He also noticed that the assessee has declared an income of Rs. 40,882 whereas the income assessed by the ITO was Rs. 2,64,400 (tax assessed) Rs. 54,401). He confirmed the charging of interest under s. 215 looking to the fact that the advance tax paid was less than 75 per cent of the assessed tax. He, however, directed the ITO to recalculate interest at the time of giving effect to the appellate order. 22. After hearing the learned representatives on both the sides, we are of the view that in the light of the finally assessed income, the liability for the payment of tax under s. 215 should be quantified by the ITO while giving appeal effect. 23. In the result ITA No. 876/Jp/88 filed by the assessee is partly allowed whereas ITA No. 937/Jp/88 filed by the Department fails and is dismissed.
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1991 (1) TMI 215
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... ... ..... established that the voluntary contributions in question had been made with the specific direction that they shall form part of the corpus of the trust and, therefore, they could not have been treateds the income of the assessee. So treated, since the income of the assessee. So, treated, since the income of the assessee fell below Rs.25,000 for each of the assessment years in question, there was no obligation on its part to furnish audited accounts in terms of s. 12A (b) as referred to above. 6. The ground regarding assessment order being time barred not having been pressed at the time of hearing of the appeals before us, no longer survives for our consideration. 7. The only other ground relates to the charging of the interest under ss. 139 (8) and 217. However, we find that these grounds do not arise out of the order of the learned CIT(A). They are, therefore, not entertained. 8. In the result the appeals filed by the assessee have to be taken as having been partly allowed.
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1991 (1) TMI 214
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... ... ..... assessee and the processing done by him of these matters. The Explanation does not authorise consideration of any matter by the first appellate authority which was not raised before or processed by the ITO. 14. Considering the facts of the case and the judicial pronouncements, we are of the view that the CIT(A) was not justified in enhancing the income of the appellant 172 by valuing the closing stock at market rate. The action of the CIT(A), in our view is illegal and, therefore, we set aside his order on this ground. The assessee succeeds on this ground. 15. Since the appellant has succeeded on preliminary ground in view of the judicial decisions discussed above, we do not consider it necessary to examine the case on merit whether the closing stock on dissolution can be valued at market rate or not. 16. The assessee s appeal is allowed. 17. The assessee vide his letter dt. 2nd Jan., 1991 has not pressed the appeal in ITA No.2076/H/89. Hence, it is dismissed as not pressed.
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1991 (1) TMI 213
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... ... ..... ed document shall operate from the time it would have commenced to operate if no registration thereof had been required or made not from the time of registration. Considering the judicial decisions placed before us, we are, therefore, of the view that the gift was complete in accounting year relevant to asst. yr. 1986-87. 7. It may not also be out of place to mention that the GTO has completed the asessment for asst. yr. 1987-88 without there being any valid gift-tax return. Neither the assessee voluntarily filed the return the gift nor statutory notices were issued by the GTO to the assessee. In view of the above, the assessment of gift for asst. yr. 1987-88, for which there is no return, is highly irregular. Considering all the facts and the circumstances of the case, we are, therefore, of the view that the impugned gift is assessable for asst. yr. 1986-87. We, therefore, accept the contention of the learned counsel. 8. In the result, the assessee rsquo s appeal is allowed.
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1991 (1) TMI 212
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... ... ..... by which export turnover of such goods exceeds the export of such expression such goods refers to the main clause of section 80HHC, viz., the goods to which the section applies, i.e., qualifying goods and not to particular goods exported in the particular assessment year (sic). The meaning of the section is self-evident and is in no way ambiguous. In view of the ratio of the this decision, we are, therefore, of the view that the Assessing Officer had rightly allowed the additional deduction under s. 80HHC(1)(b) of the Act. The order of the ITO, therefore, was not erroneous is so far as it was prejudicial to the interests of Revenue and, therefore, the Commr. was not justified to invoke the provisions of s. 263 of IT Act. We, therefore, cancel the order of the Commr. under s. 263 of IT Act. 6. In the result, the assessee s appeal in ITA No. 1357/Hyd/88 is allowed. 7. In view of our decision in above appeal, ITA No. 1434/Hyd/90 has become infructuous and accordingly dismissed.
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1991 (1) TMI 211
Business Expenditure ... ... ... ... ..... e commission paid could be considered to be unreasonable or excessive. The learned Accountant Member has found material in the books of the assessee itself indicating that similar commission has been paid to the Bombay Agency which remains undisputed and the assessee had received such commission on purchases from other manufacturers in respect of its transport business. The learned Judicial Member has rejected this practice only with reference to the statement of Shri K.V.R. Chowdhary and has not made it a separate issue. However, since a question has been posed, I agree with the learned Accountant Member that there is evidence on record to establish the trade practice of giving large commissions and in the light of the evidence on record, the amount paid by the assessee-company to the agency firms could not be considered to be unreasonable or excessive. I, therefore agree with him that the assessee s appeals should be allowed and the departmental appeals should be dismissed.
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1991 (1) TMI 209
A Firm, A Partner, Carry Forward And Set Off, Registered Firm ... ... ... ... ..... y time limit. 14. To sum up, the appellant before us did not file his return of loss for assessment year 1982-83 in the prescribed form and prescribed manner within the time allowed by sub-section (4) of section 139 and therefore, the I.T.O. was justified in treating the said return as non est in the eye of law. The I.T.O. was also justified in not quantifying the loss of the appellant and in not allowing set off of the said loss in a subsequent year. The set off and carry forward of losses is a beneficial provision and with a view to claim it, the assessee has to comply with the statutory requirements. In our view, therefore, the assessee is not entitled to the set off of loss of 1982-83 assessment year in the year under appeal. We, therefore, hold that the Commissioner of Income-tax (Appeals) was in error to allow the set off. We, therefore, vacate the order of the Commissioner of Income-tax (Appeals) and restore that of the Income-tax Officer. The revenue appeal is allowed
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1991 (1) TMI 208
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... ... ..... under 0. XIX, r. 1 or 2 of CPC. 37. As mentioned earlier, the CIT(A) has deleted the addition made by the ITO as observed by him that in view of the decisions referred to by him in the impugned order, the addition made by the ITO was not justified. Having regard to the decisions of the different Courts discussed by us in the preceding paragraphs and after considering the rival submissions made by both the sides as well as the findings of facts as available from the orders of the authorities below, we are of the opinion that although the assessee has identified the creditors, the ITO has established that the creditors did not have the capacity to advance such loans at the relevant point of time as relevant to the year under consideration. In the circumstances of the case, the order of the CIT(A) cannot be maintained, which we hereby reverse and that of the ITO is restored in respect of the points involved in this appeal. 38. In the result, the appeal by the Revenue is allowed.
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1991 (1) TMI 207
House Property ... ... ... ... ..... section 33(1)(n) of the Estate Duty Act, but as rightly stated on behalf of the revenue, the analogy cannot be drawn as sought to be made out on behalf of the assessee. The present case is under the Wealth-tax Act and the provision regarding exemption has been specified. In fact the charging and machinery provisions of these two enactments are separate. In a slightly different situation in the case of CWT v. Pachigolla Narasimha Rao 1982 134 ITR 640, the Hon ble Andhra Pradesh High Court on the facts of that case while dealing with the wealth-tax matters has observed that analogy of Income-tax law cannot be applied to the wealth-tax Act. 22. On the facts available and in view of what we have discussed above, we are of the opinion that the claim of the assessee has correctly been rejected by the authorities below in their respective orders for both the years. Accordingly, the appeals by the assessee are not accepted. 23. In the result, the appeals by the assessee are dismissed
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