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Showing 181 to 200 of 214 Records
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1991 (6) TMI 34 - CALCUTTA HIGH COURT
Capital Gains ... ... ... ... ..... e, cannot be applied retrospectively to the assessment year in question. In other words, section 2(14)(iii)(b) will have no application to the facts of this case. However, the Tribunal did not properly apply its mind as to whether section 2(14)(iii)(a) would be applicable or not. We, therefore, answer the first question in the affirmative (sic) and in favour of the Revenue. We, however, decline to answer the second and third questions as reframed. We direct the Tribunal to determine these questions in the light of the amendment of section 2(14)(iii)(a). If necessary, the Tribunal can call for fresh evidence and the parties will be at liberty to adduce such evidence as they may be advised. Upon considering the materials on record and fresh evidence and material, if any, to be placed before the Tribunal, the Tribunal will dispose of the appeal within six months from the date of service of this judgment and order. There will be no order as to costs. SHYAMAL KUMAR SEN J.-I agree.
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1991 (6) TMI 33 - MADRAS HIGH COURT
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... ... ..... . In fact, the assessee has produced prima facie evidence and discharged the initial burden placed upon him. But the Department has not brought out any circumstances to indicate that the assessee s failure to disclose the above amounts in the returns filed by him was due to any fraud or wilful neglect on his part. Thus, the Tribunal, after considering the cumulative circumstances arising in this case and on an appraisal of facts, came to the conclusion that even if the Explanation to section 271(1)(c) is made applicable, penalty for concealment is not exigible in the case of the assessee for the above-said two assessment years. Therefore, we have come to the conclusion that there is no infirmity in the orders passed by the Tribunal in cancelling the penalties in these two assessment years under consideration. Accordingly, we answer the questions referred to us in the affirmative and against the Department. The assessee is entitled to his costs. Counsel s fee Rs. 500. One set.
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1991 (6) TMI 32 - MADRAS HIGH COURT
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... ... ..... is only the consequence of the former and that the pension was liable to be assessed to income-tax under section 5(1)(c) of the Act. We find that the factual background giving rise to these references are very different from the case dealt with in B. R. Sundaram v. CIT 1979 117 ITR 960 (Mad), where the court was concerned with the applicability of section 5(1)(c) of the Act and not of section 5(l)(a) or the Act as here. In this case, the Revenue had sought to assess the pension of the assessee only on the basis of its having been received in India for the first time and not on any other ground and, under those circumstances, even that decision is not very helpful. On a careful consideration of the facts and the circumstances, we hold that the Tribunal was quite right in the view it took. We, therefore, answer the question referred to us in the affirmative and against the Revenue. The assessee will be entitled to the costs of these references. Counsel s fee Rs. 500 (one set).
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1991 (6) TMI 31 - MADRAS HIGH COURT
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... ... ..... d counsel for the Revenue to the effect that the scheme of amalgamation was a device for tax avoidance. Though learned counsel for the respondent relied on the decision in McDowell and Co. Ltd. v. CTO 1985 154 ITR 148 (SC) to contend that a construction of the provisions in the scheme of amalgamation which would encourage tax avoidance should be avoided and learned counsel for the petitioner countered this by referring to the decision in CWT v. Arvind Narottam 1988 173 ITR 479 (SC), we are of the view that when, on the interpretation of the clause in the scheme of amalgamation, it is clear that January 1, 1982, was not the date of amalgamation, it is unnecessary to consider the appeal to discourage tax avoidance. We, therefore, do not express any opinion on this and also on the question of availability of an alternative remedy, as we have considered the matter on merits. No other point was urged. The writ petition is, therefore, dismissed with costs. Counsel s fee Rs. 1,500.
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1991 (6) TMI 30 - MADRAS HIGH COURT
Revised Return, Revision By Commissioner ... ... ... ... ..... r, and on that very date, viz., March 11, 1976, the Commissioner s order tinder section 263 was also passed. If reassessment had to be made invoking section 147, there was enough time for the issuance of the required notice as per section 149 of the Act. The result is, in the light of the observations of this court in the above-referred 1987 163 ITR 129, cited by the Revenue and with which we concur, the above said second assessment order of the Income-tax Officer was certainly erroneous in so far as it was prejudicial to the Revenue and so the Tribunal is not right in coming to the conclusion that the said assessment order was non est and that the Commissioner cannot treat such non est order as prejudicial to the Revenue. Therefore, we answer the second question referred to us in the negative and in favour of the Revenue and, consequently, we answer the first question also in the negative and in favour of the Revenue. In the circumstances, there will be no order as to costs.
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1991 (6) TMI 29 - MADRAS HIGH COURT
Criminal Conspiracy, Offences And Prosecution ... ... ... ... ..... thereby committed the offence punishable under section 420 of the Indian Penal Code, 1860. The materials disclosed as above, I am of the view, prima facie constitute an offence under section 420, Indian Penal Code, and whether such an offence is made out or not is a matter for the trial court by giving a finding on the materials, in the shape of evidence to be placed before it and any further delving discussion, if made, is likely to cause irreparable prejudice to the respective cases of the parties. As such, this part of the submission also merits little substance. In view of what has been discussed above, it goes without saying that this petition deserves to be allowed in part only in so far as it relates to the offences under sections 193 and 196 of the Indian Penal Code, emerging from the sworn statement stated to have been given by the petitioner-accused No. 1 to the raiding officer and in other respects, it deserves to be dismissed. The petition is ordered accordingly.
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1991 (6) TMI 28 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... been cited. The Andhra Pradesh High Court dissented from the decision of the Orissa High Court whereas the Karnataka High Court did not refer to that decision. On a consideration of all the three judgments, with due respect, we follow the reasoning of the Orissa High Court judgment referred to above. In fairness to counsel for the assessee, reference may also be made to CIT v. Polaki Butchi Babu 1988 174 ITR 430, another decision of the Orissa High Court. We have gone through the judgment. The facts are distinguishable. Moreover, in this judgment the earlier decision was not considered. For the reasons recorded above, we answer the referred question in the negative, in favour of the Revenue and against the assessee. The Tribunal was not right in holding that the share income of Talu Ram from Ganesh Factory should be assessed in the hands of Talu Ram Hindu undivided family. It should be assessed in the hands of Talu Ram individual. However, there will be no order as to costs.
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1991 (6) TMI 27 - CALCUTTA HIGH COURT
Business Expenditure, Excise Duty ... ... ... ... ..... vant accounting year on the assessee. However, the date of service of notices dated March 14, 1979, demanding Rs. 1,05,514 and Rs. 78,750 could not be furnished by the assessee. Hence, we are unable to decide the matter in respect of these two amounts. In the circumstances, we restore this matter to the file of the Income-tax Officer. If he finds that the notices dated March 14, 1979, demanding these two amounts were served on the assessee during April 1, 1979, to March 31, 1980, he should allow deduction, in the assessment year 1980-81, of those two amounts. It is not in dispute that a similar question was considered by Division Bench of this court in the case of CIT v. Century Enka Ltd. 1981 130 ITR 267. The parties are agreed that, in view of the aforesaid decision, the question of law referred to this court must be answered in the affirmative and in favour of the assessee. We return our answer accordingly. There will be no order as to costs. SHYAMAL KUMAR SEN J.-I agree.
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1991 (6) TMI 26 - KARNATAKA HIGH COURT
Benami Transactions (Prohibition) Act, Exemptions, Rule Against Retrospectivity
... ... ... ... ..... trustee or is a person standing in a fiduciary capacity, for the benefit of a person for whom he is a trustee or towards whom he stands in a fiduciary capacity vide clause (b) . As far as the present case is concerned, it is true that the purchase of the property by the father of the plaintiff/appellant was in the name of his wife, Gangamma, defendant No. 2. Even so, section 3(2) is not attracted as it has no retrospective effect. But section 4(1) is attracted. Therefore, the appeal of the appellant is liable to be dismissed, in view of the bar created by section 4 of the Act, as the appellant is seeking to enforce a right in respect of the suit property held in the name of the second defendant on the plea that she was only a benamidar for her husband, i.e., the father of the appellant, and as the case does not fall within the two exceptions provided for in sub-section (3) of section 4 of the Act. In the result, we make the following order The appeal is dismissed with costs.
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1991 (6) TMI 25 - CALCUTTA HIGH COURT
Bonus, Business Expenditure ... ... ... ... ..... our view, the finding of the Tribunal is that the payment was made to maintain -industrial peace without which the business would have come to a standstill. Such payment, whatever may be the term used in the agreement, must be held to be wholly and exclusively laid out for the purpose of business and commercial expediency. Had the employer not agreed to such payment to the workmen, the assessee could not have continued the business. For the foregoing reasons, we are of the view that the question referred should be reframed as follows Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the payment of bonus as per bipartite agreement cannot be called as bonus and it was made for the purpose of the business and was deductible under section 37(1) of the Income-tax Act, 1961. ? We answer the reframed question in the affirmative and in favour of the assessee. There will be no order as to costs. SHYAMAL KUMAR SEN J. -I agree.
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1991 (6) TMI 24 - KARNATAKA HIGH COURT
Advance Tax ... ... ... ... ..... Officer found that the assessee had filed all the estimates properly and made the payments of advance tax and in fact, the total advance tax paid by the assessee exceeded the tax assessed on the assessee. In the very nature of things, a business concern can only estimate the income that may be earned by the assessee. It is not possible to hold that the estimate of the income for the purposes of the first instalment was in any way opposed to the provisions referred to already. In fact, the finding given by the Income-tax Officer is that all the provisions have been duly complied with by the assessee. In view of this finding, no further question arises for consideration. The order of the Income-tax Officer was liable to be set aside solely on the ground that there was no finding given by him as to the underestimate, which is a jurisdictional fact, to attract section 216(a). In view of the above, the question referred to us is answered in the affirmative and against the Revenue.
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1991 (6) TMI 23 - KARNATAKA HIGH COURT
Association Of Persons ... ... ... ... ..... U THOMMEN JJ., dismissed the Department s special leave petition against the judgment dated October 20, 1986, of the Madras High Court in T. C. Nos. 338-340 of 1984, whereby the High Court, following 112 ITR 839, answered against the Department the question whether, where the Income-tax Officer had already assessed each member of an association of persons (under the 1961 Act), he could again assess the association of persons. While dismissing the petition, their Lordships made the following order In view of the fact that the view taken by the Tribunal is also the view that has been followed since 1966 as per Circular of the Central Board of Direct Taxes, dated August 24, 1966, extracted in 128 ITR 747, 751, we do not think this is a fit case for interference under article 136. The special leave petitions are therefore, dismissed . In these circumstances, the question referred to us has to be answered in the affirmative and against the Revenue. References answered accordingly.
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1991 (6) TMI 22 - KARNATAKA HIGH COURT
Business Expenditure, Disallowance ... ... ... ... ..... on 139 of the Income-tax Act, 1961, and the assessee had furnished proof of having made such payment. This proviso was inserted by the Finance Act, 1987, with effect from April 1, 1988. We need not go into the question whether giving effect to this proviso in the present case is actually making the said proviso effective retrospectively. We are of the view that the said proviso is only a machinery provision which could be applied to all pending matters which are not concluded finally. Now, since the matter is sent back to the Appellate Tribunal to consider the effect of Explanation 2 in the light of the observation made already, it is but fair for the Appellate Tribunal to give effect to the first proviso to section 43B in the instant case. In case the assessee had actually paid the amount on or before the due date as stated in the said proviso and furnishes proof of the same, at least now, the benefit shall be given to the assessee. The reference is disposed of accordingly.
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1991 (6) TMI 21 - KARNATAKA HIGH COURT
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... ... ..... rs, but the inferences drawn from an independent investigation of the circumstances. Sri Sarangan, learned counsel for the assessee, urged that the assessee agreed to the assessment and thereby the Revenue had the benefit of non-contest of the order by way of appeal, etc., and, therefore, penalty should not have been levied. We are constrained to reject the assessee s contention. We are pained to note that the Appellate Tribunal completely ignored the assessment order which was not based on any concession by the assessee. Concealment of income in the return filed by the assessee is a glaring fact, in the instant case. It is not possible to infer any agreement by the Revenue, either in clear terms or by necessary implication, to act on the basis of the assessee s letter. The assessee has to thank himself that the Incometax Officer levied the minimum penalty only. The question is, therefore, answered in the negative and in favour of the Revenue. Reference answered accordingly.
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1991 (6) TMI 20 - KARNATAKA HIGH COURT
Accounting, Income, Reassessment ... ... ... ... ..... said year when Chunnilal retained the amount in deposit as per the agreement. This reasoning has been completely ignored by the Appellate Tribunal when it made, its present order leading to this reference. There is no dispute that the method of accounting of the assessee is mercantile. If so, the receipt in question accrued to the assessee when the trading transaction took place. The fact that the assessee resorted to make its own entries in the books of account would not alter the real nature of the receipt. The income accrued, during the year 1968-69. If the actual date of the receipt is to be taken, then it accrued when it was paid during 1972-73 there cannot be a third period when the income could be deemed as having accrued to the assessee. Therefore, on this short ground, we conclude that the amount in question was not assessable in the, assessment year 1975-76. The second question also is answered in the negative and against the Revenue. Reference answered accordingly.
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1991 (6) TMI 19 - KARNATAKA HIGH COURT
Business Expenditure, Depreciation ... ... ... ... ..... efit of provident fund, and thus this was a payment made for the purpose of earning the profits of the business by the assessee or in the course of earning profits of the business by the assessee. In the instant case, the provision made by the assessee is to meet its statutory obligation, since this statutory corporation is obliged to pay pension to its employees under the rules governing it there is no dispute about this fact. The concept of commercial expediency is not foreign to a statutory corporation like the instant assessee which is obliged to carry on a venture which any other commercial enterprise also can carry on. In these circumstances, we are of the opinion that there are no compelling reasons for us to differ from the earlier view stated in Karnataka State Warehousing Corporation s case 1980 125 ITR 136 (Kar) and, accordingly, we accept the same. The second question referred is answered in the affirmative and against the Revenue. References answered accordingly.
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1991 (6) TMI 18 - CALCUTTA HIGH COURT
Notice, Reassessment ... ... ... ... ..... Board was satisfied that it was a fit case for the issue of such notice. The satisfaction appears to have been arrived at by the Under Secretary of the Central Board of Direct Taxes. It is not disputed by Mr. A. C. Moitra, the learned advocate appearing on behalf of the respondents, that such satisfaction is not the satisfaction of the Board as required under section 151(1) of the Act. The condition precedent to the issuance of notice under section 148, therefore, being absent, the notice cannot survive and is, accordingly, quashed. The rule is made absolute. There will be no order as to costs. Let a xerox copy of this order be given to the respective parties upon usual terms.
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1991 (6) TMI 17 - CALCUTTA HIGH COURT
Business Expenditure, Disallowance ... ... ... ... ..... ses of depreciation and for development rebate. In this connection, we take note of the following decisions (1) CIT v. Warner Hindustan Ltd. 1979 117 ITR 15 (AP). (2) CIT v. Warner Hindustan Ltd. 1979 117 ITR 68 (AP). In the case of CIT v. Hindusthan Motors Ltd. 1988 170 ITR 431 (Cal), the expenditure was allowed under clause 12(ii) of the second supplemental agreement and not as a revenue expenditure. Development rebate is allowable under section 33 of the Act over and above the recoupment of the total cost of machinery by way of depreciation allowance. The allowance under section 33 of the Act is obviously given to provide an incentive for industrial expansion. It has no connection with depreciation allowance, which is an yearly feature. Accordingly, question No. 6 is answered in the affirmative and in favour of the assessee. Question No. 7 is also answered in the affirmative and in favour of the assessee. There will be no order as to costs. AJIT KUMAR SENGUPTA J. -I agree.
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1991 (6) TMI 16 - CALCUTTA HIGH COURT
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... ... ..... Co. (P.) Ltd. v. CIT and CIT v. Sikri and Co. (P.) Ltd.). We are of the view that a further opportunity has to be given to the assessee to show whether there was any gross or wilful neglect on the part of the assessee in not returning the correct income, having regard to the difference between the assessed income and the returned income. We, therefore, decline to answer the questions referred to us. We direct the Tribunal to dispose of the matter afresh in the light of the observations made in the judgment and the principles laid down by the Supreme Court in the several decisions cited above and any other relevant decisions that may be relied upon by the parties. The Tribunal shall give the parties a reasonable opportunity of adducing fresh evidence. In view of the fact that the assessment year involved is 1963-64, we direct the Tribunal to dispose of the matter within six months from the date a copy of this judgment is served upon the Tribunal. SHYAMAL KUMAR SEN J.-I agree.
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1991 (6) TMI 15 - CALCUTTA HIGH COURT
Business Expenditure, Electrification Machinery, Investment Allowance ... ... ... ... ..... y or the purpose for which it was installed has not been mentioned at all. We, therefore, do not find any material on the basis whereof we can decide this question as to whether electrification machinery is eligible for investment allowance or not. We, therefore, decline to answer the third question so far as it relates to electrification machinery. In the premises, we answer the third question in R. A. No. 1112 (Cal) of 1986 by saying that no investment allowance is admissible on fire extinguishers and time-office equipments. The Tribunal will decide as to whether, having regard to the nature and function of the electrification machinery, such machinery can be termed as plant within the meaning of section 32A and whether such machinery is otherwise eligible for investment allowance. The Tribunal will be at liberty to allow the parties to adduce fresh evidence, if necessary, for determination of this question. There will be no order as to costs. SHYAMAL KUMAR SEN J. -I agree.
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