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Showing 181 to 200 of 240 Records
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1993 (1) TMI 60 - CALCUTTA HIGH COURT
Capital Gains, Transfer By Book Entries ... ... ... ... ..... releasing the property in favour of a partner inasmuch as the transfer was not accompanied by a registered deed of conveyance. Nor is it a release in settlement of accounts on dissolution. Accordingly, we answer question No. 1 in the negative and question No. 2 in the affirmative. But that does not advance the Revenue s case. Because, in our view, as expressed in the foregoing, there was no transfer by the firm of the property and section 45 was not attracted. Though the Tribunal is not correct in its view as assailed in the first two questions, its ultimate conclusion that there was no transfer of the property and no income by way of capital gains arose to the firm is consistent with the legal position as applied by us to the set of facts present in the case. We, therefore, answer question No. 3 and question No. 4 which form the crux of the matter, in the negative in favour of the assessee and against the Revenue. There will be no order as to costs. J. N. HORE J. -I agree.
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1993 (1) TMI 59 - BOMBAY HIGH COURT
Business Expenditure, Gratuity, Remuneration ... ... ... ... ..... on the other hand, has allowed such depreciation at 20 per cent. The assessment year is 1974-75. In other words, by this time, the assessee would get full depreciation whether it is allowed at 30 per cent. or 20 per cent. After some discussion, both the parties agreed that the issue raised in the aforesaid question is of academic interest only. In this view of the matter, we decline to answer this question. As regards the issue raised in question No. 3, the same is covered by the decision of this High Court in the case of CIT v. Colour-Chem Ltd. 1977 106 ITR 323 and of the Supreme Court in the case of CIT v. Gwalior Rayon Silk Mfg. Co. Ltd. 1992 196 ITR 149. Both the courts have held that the roads constructed within the factory premises are to be considered as buildings for the purpose of depreciation. We, accordingly, answer this question and hold that depreciation on the roads constructed within the factory premises should be allowed as on building . No order as to costs.
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1993 (1) TMI 58 - KERALA HIGH COURT
Agricultural Income Tax, Appeal To Tribunal ... ... ... ... ..... v. S. P. Jain 1973 87 ITR 370, 385 (SC), will provide ample guidelines as to how the Appellate Tribunal should dispose of an appeal. Since we are of the view that the common order passed by the Appellate Tribunal dated February 23, 1991, is cryptic or laconic and it does not disclose the basis on which the best judgment assessments have been sustained in an understandable form, we hold that the order of the Appellate Tribunal is infirm and is not in accordance with law. We set aside the common order passed by the Appellate Tribunal dated February 23, 1991, and remit the matter to the Agricultural Incometax Appellate Tribunal for a proper consideration in accordance with law. The appeals shall be disposed of after adverting to all facts and circumstances, including the inspection report or comparable cases, if Any, and assessments of the assessee himself for the previous years, etc., as expeditiously as possible. The revisions are allowed. There shall be no order as to costs.
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1993 (1) TMI 57 - GUJARAT HIGH COURT
Capital Gains, HUF, Law Applicable To Assessment ... ... ... ... ..... ible to compute the capital gains. Lastly, and in the alternative, he submitted that the word devolution is covered by section 49(1)(iii)(a) and, therefore, the cost of acquisition may be the cost of acquisition to the previous owner. In support of this contention, he relied upon the decision of the Madras High Court in CIT v. S. Krishnamurthy 1985 152 ITR 669 and further submitted that section 49(1)(iii)(a) is, therefore, only clarificatory. We are in this case concerned with the transaction that took place in 1970. We are told at the Bar that the tax effect is also very small. The law was changed from April 1, 1976. For all these reasons, we do not think it proper not to follow the said decision and refer the matter to a larger Bench. Following the decision of this court in Ashwin M. Patel s case 1983 144 ITR 566, we answer question No. 1 in the negative and question No. 2 in the affirmative, that is, in favour of the assessee and against the Revenue. No order as to costs.
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1993 (1) TMI 56 - ALLAHABAD HIGH COURT
Charitable Purpose, Charitable Trust, Exemptions ... ... ... ... ..... recovery may be satisfied by selling a portion thereof. The further grievance of the Petitioner is that the proclamation has not been made in accordance with law. In substance, the petitioner complains of violation of rules 52 and 54 of the Second Schedule of the Income-tax Act, 1961. It cannot be disputed that the provisions contained in rules 52 and 54 aforesaid are mandatory in nature and have got to be complied with, This court believes that the authorities shall not be so indiscreet as to ignore the aforesaid provisions while proceeding to recover the income-tax dues by sale of the property under attachment. It is needless to say that if the sale of the house is conducted without complying with the rules 52 and 54 aforesaid, the sale would be open to challenge by the petitioner. Subject to the observations made above, the petition is disposed of finally. A certified copy of this order may be issued to learned counsel for the petitioner today on payment of usual charges.
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1993 (1) TMI 55 - ORISSA HIGH COURT
Agricultural Land, Capital Gains ... ... ... ... ..... ties or cantonment boards are also covered by the amended definition of capital, asset , if such areas are, having regard to the extent and scope for their urbanisation and other relevant considerations, notified by the Central Government in this behalf. Prior to April 1, 1970, agricultural land in India was excluded from the definition of capital asset in clause (14) of section 2. The change, as indicated above, was introduced with effect from April 1, 1970. Section 45 of the Act prescribes levy of capital gains tax. Section 47 sets out certain transactions which shall not be regarded as transfer. Agricultural land not failing within items (a) and (b) of sub-clause (iii) of clause (14) of section 2 continued to be not capital asset for the purpose of the Act. The Tribunal was justified in concluding that capital gains tax was not leviable. Our answer to the question is in the affirmative, in favour of the assessee and against the Revenue. No costs. D. M. PATNAIK J. -I agree.
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1993 (1) TMI 54 - KERALA HIGH COURT
Reassessment ... ... ... ... ..... ications and pointed out the error in the application of the provisions by working out details. The audit party pronounced on the law. Such a case is not covered by the ratio of the decisions in Teekoy Rubbers (India) Ltd. v. CIT 1990 181 ITR 387 (Ker) and Bharat Plywood and Timber Products Ltd. v. CIT 1992 198 ITR 692 (Ker). We hold that the reassessment in the instant case is invalid. We answer the question of law referred in I. T. R. No. 93 of 1988, in the negative, in favour of the assessee and against the Revenue. Since we have held that the reassessment made in the instant case is invalid, illegal and without jurisdiction, it is unnecessary to answer the question referred in I. T. R. No. 37 of 1986. We decline to answer the question referred in I. T. R. No. 37 of 1986. The references are disposed of accordingly. A copy of this judgment, under the seal of this court and the signature of the Registrar, shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1993 (1) TMI 53 - GUJARAT HIGH COURT
Deduction From Income From Other Sources, Income From Other Sources, Motive, Purpose ... ... ... ... ..... ssing more shares. The reason why the assessee sold the shares was that it was not able to get 100 control by purchasing all the remaining shares. Thus, from the nature of the transaction, it becomes apparent that the expenditure which was incurred by the assessee was not for the purpose of earning income, but for the purpose of getting full control over SOML. Thus, applying the test as laid down in Kasturbhai Lalbhai s case 1968 70 ITR 267 (Guj) and Smt. Virmati Ramakrishna s case 1981 131 ITR 659 (Guj) to the facts of this case, it becomes clear that the dominant purpose for which expenditure was incurred was not to earn income. At the highest, it was a mixed purpose. For that reason, it will have to be held that the expenditure incurred in that behalf fell outside the purview of section 57(iii) of the Act. For the reasons stated above, we answer the question referred to us in the affirmative, that is, against the assessee and in favour of the Revenue. No order as to costs.
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1993 (1) TMI 52 - ALLAHABAD HIGH COURT
Transfer Of Case, Writ ... ... ... ... ..... smuch as in case the transfer application is allowed, the basis of grievance of the petitioner may disappear and the transferee authority may act in accordance with law. Needless to say this court is not deciding upon the prayer of the petitioner with regard to inspection of relevant records. The prayer survives and shall be dealt with by the concerned Income-tax Officer on merits and in accordance with law. Subject to the observations made above, the petition is disposed of finally with the direction to the Commissioner of Income-tax, Meerut, respondent No. 1, to dispose of the petitioner s application dated October 28. 1992, within a reasonable period but not later than two months from the date of the presentation of a certified copy of this order before him. Till the disposal of the transfer application, further proceedings in pursuance of the impugned notices under section 148 of the Act pertaining to the assessment years 1983-84, 1984-85 and 1985-86 shall remain stayed.
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1993 (1) TMI 51 - GAUHATI HIGH COURT
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... ... ..... upation of a tenant. The parties are governed by the provisions of the West Bengal Premises Tenancy Act, 1956, which offers a considerable degree of protection to the tenants from eviction. The landlord may not be in a position to evict the tenant. It is not shown that standard rent which may be fixed would be in excess of the contract rent. In such circumstances, the method of valuing the land and building separately would be unrealistic and unjust. The only appropriate method to be adopted in such a case would be the multiplier method on the basis of the contract rent and the net income derived therefrom. That is the method which has been followed by the appellate authorities in this case. We, therefore, answer the question in the affirmative, that is, in favour of the assessee and against the Revenue. A copy of this judgment with the signature of the Registrar and the seal of the High Court will be transmitted to the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati.
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1993 (1) TMI 50 - CALCUTTA HIGH COURT
Appeal To Supreme Court, Depreciation ... ... ... ... ..... depreciation for hotel, in view of the fact that the hotel works for 24 hours without any break. We do not see any fallacy in the view as aforesaid. Learned counsel s reading that this interpretation would entitle an unapproved hotel to triple shift allowance is totally misconceived. As a corollary to the ratio decidendi in our answer, an unapproved hotel will be entitled neither to extra shift depreciation allowance nor to extra depreciation allowance especially provided for an approved hotel. Thus, the misapprehension of learned counsel that the decision creates an anomaly is unfounded. We find that the position of law as declared by us is so self-evident and manifest that it cannot be said that our order leaves any question which is open to be resolved by the Supreme Court. We, therefore, decline to certify the questions to be fit for appeal to the Supreme Court. The prayer for certificate under section 261 of the Act prayed for is dismissed. SHYAMAL KUMAR SEN J. -I agree.
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1993 (1) TMI 49 - KERALA HIGH COURT
Diversion By Overriding Title ... ... ... ... ..... e, that unless and until the contents of the affidavit are found to be wrong, she cannot be proceeded against for realisation of the amount of Rs. 14,26,382.30 due from Bharathan. It is unnecessary for me to go into this question which is beyond the pale of this writ petition, where the only relief claimed relates to the cesser of the attachment effected earlier for realisation of the amounts due from her. Therefore, I leave this question open without any adjudication thereon. The original petition is allowed and exhibit P-7 is quashed. The second respondent is directed to proclaim at the petitioner s expense, in terms of rule 12 of the Second Schedule to the Income-tax Act, 1961, that the attachment of the petitioner s properties for recovery of the amounts due from her personally stands withdrawn. The second respondent shall make the proclamation within a period of two months from the date on which the petitioner makes payment of the requisite expenses for the proclamation.
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1993 (1) TMI 48 - BOMBAY HIGH COURT
Assessment, Extension Of Period Of Limitation, Limitation ... ... ... ... ..... nce may be answered accordingly. Further, he also brought to our notice the decision of the Gauhati High Court in the case of Smt. Savitri Rai Malik v. CIT 1990 186 ITR 701, which has also taken a similar view in favour of the assessee. Faced with this position, learned counsel for the Revenue strongly relied on the orders of the income-tax authorities and submitted that the Tribunal was not justified in holding that the assessments framed by the Income-tax Officer were barred by limitation. We have considered the submissions of the parties. It would be clear from the facts of the case and also from the question itself that the Income-tax Officer had not come across any alleged item of concealment before the normal period of limitation ran out. That being so, the above decision of the Supreme Court is squarely applicable. Therefore, following the aforesaid decisions, we answer the question referred to us in the affirmative and in favour of the assessee. No order as to costs.
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1993 (1) TMI 47 - BOMBAY HIGH COURT
Speculative Transactions ... ... ... ... ..... d by the award of such damages and their acceptance by the aggrieved party is the dispute between the parties. The law, however, speaks of a settlement of the contract, and contract is settled when it is either performed or the promisee dispenses with or remits, wholly or in part, the performance of the promise made to him or accepts instead of it any satisfaction which he thinks fit. We are concerned with the sense of law, and it is that sense which must prevail in clause (5) of section 43. Accordingly, we hold that a transaction cannot be described as a speculative transaction within the meaning of clause (5) of section 43 of the Income-tax Act, 1961, where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation by an arbitration award. In view of the above judgment of the Supreme Court, we answer the question referred to us in the affirmative that is in favour of the assessee and against the Revenue. No order as to costs.
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1993 (1) TMI 46 - BOMBAY HIGH COURT
Depreciation, Developement Rebate ... ... ... ... ..... hether the amount of Rs. 4,23,453.56 represents the interest or not. On the other hand, it is clear from the statement of the case itself that the cost of the machinery was Rs. 16,59,625.52 only and the amount of Rs. 4,23,453.56 represented interest payable by the assessee on instalment basis for acquisition of the asset under the deferred payment scheme. Thus the question whether the amount in question represented interest or not does not arise in this case. There is also no dispute about the fact that it relates to a period subsequent to the date the machinery was first put to use. That being so, Explanation 8 to section 43(1) is clearly attracted and in view of the same, the amount of interest cannot be included in the actual cost of the dumpers. In the light of the foregoing discussion, we answer the question referred to us in the negative, i.e., in favour of the Revenue and against the assessee. Under the facts and circumstances of the case, we make no order as to costs.
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1993 (1) TMI 45 - GUJARAT HIGH COURT
Business Expenditure ... ... ... ... ..... rs to us that to make the provision of penalty reasonable, it has been provided that penalty shall be payable for the period for which the default continues. For the same reasons it appears to us that it is made payable at certain percentage of the amount of tax due as in the case of interest. Therefore, these two factors which are heavily relied upon by learned counsel for the assessee cannot, in our opinion, persuade us to take the view that the true nature of the payment to be made under section 45(5) is that it is interest and not penalty. For the reasons stated above, we are of the opinion that the Tribunal was right in holding that the additional payment of Rs. 28,843 made under section 45 of the Gujarat Sales Tax Act was made for infraction of the law and was, therefore, not an allowable expenditure. In the result, the question referred to us is answered in the affirmative, that is, against the assessee and in favour of the Revenue. There will be no order as to costs.
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1993 (1) TMI 44 - KERALA HIGH COURT
Industrial Undertaking, Investment Allowance, Supreme Court ... ... ... ... ..... uce Co. 1979 120 ITR 84, the Division Bench was construing an agreement for sale of uneconomic rubber trees. The court said that (headnote the preamble of the agreements purports to be only sale of rubber trees which have become old and uneconomic, for the purpose of being replanted with rubber. The first agreement covers an extent of 383 acres, the second, an extent of 105 acres, and the third, an extent of 205 acres. This, and the difficulties in the matter of communication, transport, labour and other factors in the region in which the trees were situate, should sufficiently explain the comparatively long time allowed for the purpose of felling and clearing the old trees and replanting the same with new ones. No clear indications are seen in the agreement construed by the Division Bench in Commr. of Agrl. L T. v. Pullangode Rubber and Produce Co. 1979 120 ITR 84 (Ker). In these circumstances. We see no merit in this tax revision case. It is only to be dismissed. We do so.
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1993 (1) TMI 43 - BOMBAY HIGH COURT
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... ... ..... reading of section 71 of the Act, it is very much apparent that the assessee has no option of exercising setting off of business loss against income under any other head other than the income under the head Capital gains . In our opinion, the Tribunal has wrongly construed the expression be entitled to used in section 71 to mean that the assessee had an option in the matter of set off of business loss against the income under any other head. In our considered view, that expression simply enables the assessee to set off business loss against income under any other head and, but for that expression, the assessee would not be entitled to set off loss under another head in the same year. For all these reasons, we are of the view that the Tribunal was not justified in accepting the assessee s contention regarding the carry forward of business loss. In this view of the matter, we answer the question referred to us in the negative and in favour of the Revenue. No order as to costs.
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1993 (1) TMI 42 - BOMBAY HIGH COURT
Depreciation ... ... ... ... ..... to share the requirements and qualifications of an enduring capital asset. In view of the decisions of this court in the assessee s own case and the decision of the Supreme Court referred to above, we are of the clear opinion that the expenditure incurred by the assessee in the instant case by way of technical fees and drawing charges is revenue expenditure. The first three questions are, therefore, answered in the affirmative, that is in favour of the assessee and against the Revenue. So far as the fourth question is concerned, it is fairly stated by counsel for the parties that this question is now squarely covered against the assessee and in favour of the Revenue by the latest decision of the Supreme Court in the case of Escorts Ltd. v. Union of India 1993 199 ITR 43. Following the said decision, we answer question No. 4 in the negative, that is, in favour of the Revenue and against the assessee. Under the facts and circumstances of the case, we make no order as to costs.
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1993 (1) TMI 41 - BOMBAY HIGH COURT
Income, Mutual Concern, Res Judicata ... ... ... ... ..... each case by the authorities concerned. In the instant case, there is a clear finding of the Tribunal to that effect which has not been challenged. In that view of the matter, it is not necessary to decide the question whether all the members had the right to contribute or not because that will be purely academic. In view of the foregoing discussion, we are of the opinion that, the Tribunal was right in holding that the test of mutuality was satisfied with regard to laga receipts in the case of the assessee for the years under consideration and that in that view of the matter the said receipts did not constitute income of the assessee assessable to tax. In the result, we answer the first question referred to us in the negative, that is in favour of the Revenue and against the assessee. We also answer the second and third questions in the negative but in favour of the assessee and against the Revenue. Under the facts and circumstances of the case, we make no order as to costs.
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