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Case Laws
Showing 161 to 180 of 332 Records
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1994 (3) TMI 176 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... cond plea of the ld. adovcate. There is no dispute that ingots and bars and rods are specified in Notification No. 177/86 issued under Rule 57A of the Central Excise Rules, 1944. Therefore, MODVAT credit of duty paid on ingots used in the manufacture of bars and rods would be available to the various applicants. Mere fact that the applicants could not file a declaration on the ground of their plea that they were entitled to Notification No. 202/88 cannot deprive the applicants/appellants benefit of MODVAT credit. Accordingly, we allow the stay petitions unconditionally. In the facts and circumstances, we remand the matters to the adjudicating authority to allow the MODVAT credit and adjust the payment of duty now demanded from them against such MODVAT credit admissible to them after verifying the duty paid character of ingots (inputs) in accordance with law. Appeals are thus allowed by remand in the light of the aforesaid directions. Dictated and pronounced in the open court.
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1994 (3) TMI 175 - CEGAT, NEW DELHI
Product forming system ... ... ... ... ..... in the present case, the freezing tunnel and conveyor system has to go alongwith the product forming and enrober machines. Therefore, the lower authorities have rightly invoked interpretative Rule 2(a) and Section Note 3 of Section XVI for the purpose of classifying the three disputed items alongwith the main machine namely product forming and enrober machine. 16. emsp Our finding is strengthened by the rulings rendered in the case of Mazda Packaging Ltd. (Supra), Purety Flex Ltd. (Supra) and that of Modern Food Industries rsquo case (Supra). The ld. Advocate has relied on the rulings which deal with the principle that the item is required to be classified in the specific entry and not in the general entry. These rulings are distinguishable as they are not rendered in the context of Section Notes and Chapter Notes and also in the light of the HSN Explanatory Notes, which have got a persuasive value. 17.In the result, there is no merit in this appeal and the same is dismissed.
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1994 (3) TMI 174 - CEGAT, NEW DELHI
Modvat credit - Duty paying documents ... ... ... ... ..... these paras appears to be that M/s. Salig Ram Shiv Prasad will act as consignment agent for TISCO and will be mainly responsible for custody and documentation and do the work on behalf of TISCO. The photocopies of some of the Challans also show that apart from Salig Ram Shiv Prasad, they have also been shown for TISCO. They also bear a certificate that the duty has been paid and also given the gate pass number/consignment number Ad. V/Inspection voucher/Railway receipt number. 14. emsp In the circumstances, there is no reason why these documents should not be accepted as a proof of payment of duty particularly when TISCO rsquo s Challan-cum-invoices and certificates are admittedly acceptable to the Department. Of course it is open to the Department to verify or cross-check or otherwise satisfy themselves in any particular case or all cases as may be deemed appropriate as precautionary measure or otherwise. 15. We therefore, set aside the impugned order and accept the appeal.
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1994 (3) TMI 173 - SUPREME COURT
Whether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), become illegal and consequently vitiate the conviction?
Held that:- Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions also are there in the Cr. P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two Sections contain certain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.
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1994 (3) TMI 172 - ITAT PUNE
... ...
... ... ..... scharged, or on being refused leave, he quits his employment. Till these circumstances arise, the liability that rests on the employer to pay to a worker wages for leave period remains a contingent liability which the employee may or may not be called upon to discharge. Consequently, a sum set apart by an employer in any year for meeting the contingency of some of his workers going on leave in the next year cannot be regarded as a permissible expenditure under the IT Act. In view of this direct ruling of the jurisdictional High Courts on the subject and the decisions of two other High Courts on the same subject, we would like to agree with the learned Departmental Representative that such liability can only be regarded as a contingent liability and no deduction, whether or not determined on actuarial basis, can be allowed as an expenditure on actual basis. These grounds of appeal are therefore entitled to succeed. 13. In the result, the Departmental appeal is allowed in part.
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1994 (3) TMI 169 - ITAT PATNA
Agricultural Land, Assessment Year, Capital Gains Tax, Chargeable To Tax, High Court ... ... ... ... ..... ction necessary for the purpose of disposing of the appeal before him. The only question before the CIT (Appeals) was whether the assessment of the entire interest of Rs. 11,56,008 in the year under appeal was right in law. The CIT (Appeals) found that the judgment of the Supreme Court in Rama Bai v. CIT 1990 181 ITR 400 was in favour of the assessee and as per the said judgment the assessment of the entire interest cannot be upheld. That would have been sufficient for the disposal of the appeal. The further direction to the ITO to re-open the assessments of the earlier years was not necessary for the disposal of the appeal. This position has been laid down by the Supreme Court in Rajinder Nath v. CIT 1979 120 ITR 14. We cannot therefore give effect to the argument of Mr. Das based on the provisions of section 153(3)(ii) of the Act. 12. In the result, the appeal is allowed. 13. In view of our order in the appeal, the stay petition becomes infructuous and is dismissed as such.
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1994 (3) TMI 168 - ITAT PATNA
Amnesty Scheme, Assessing Officer, Assessment Year, Income Tax Authorities ... ... ... ... ..... , instead of pointing out to the defects in the form in which the evidence was adduced. He should have, with respect, focussed his attention on the substance of the matter. Not having made any attempt to disprove the sources of the minors--petty gifts--it was not justified on his part to confirm the addition. It is not expected of the income-tax authorities to sit back with folded hands till the assessee exhausts all the evidence in his control and possession and then merely reject the same, thereby converting good proof into no proof 8. For these reasons, we hold that the assessee has established the identity of the creditors, their capacity to advance the money, and the genuineness of the transactions. On the other hand, the income-tax authorities have not discharged the burden that lay upon them to show that the credits were not properly explained. The credits shall, therefore, have to be treated as properly explained. 9. The addition is deleted and the appeal is accepted.
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1994 (3) TMI 165 - ITAT INDORE
Assessment Year ... ... ... ... ..... cted to the act of processing. In the instant case, on appreciation of facts, we find that the commodity Tendu Leaves remained the same there was no alteration in the nature and character of the goods. Reading the precedents in unison, which are of the binding nature, we find that activity in question, is neither a manufacturing activity nor a processing activity. The assessee is involved only in the trading activity. The case of the assessee, therefore clearly falls within the ken of section 44AC. We, therefore, direct the Assessing Officer to follow the prescription of the said section and apply the presumptive rates of profit as contemplated in section 44AC. 12. Ground Nos. 4 and 5 were not pressed. We dismiss the same as not pressed. 13. In regard to ground No. 6, it was stated that consequential relief may be given in the matter. Accordingly, we direct the Assessing Officer to give consequential relief. 14. In the result, the appeal of the assessee stands partly allowed.
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1994 (3) TMI 164 - ITAT HYDERABAD-A
... ...
... ... ..... issued and, therefore, that was an invalid notice suffering from a fundamental mistake and not a mere irregularity. Such a vital infirmity could not be cured or obliterated by reliance on s. 292B of the IT Act. 14. The reliance on the Full Bench decision of the Andhra Pradesh High Court in the case of Amali English Medium High School is also of no help. That was a case where the principle of estoppel was exercised under s. 115 of the Evidence Act with regard to the concession made by the council. There is no such case appearing in the present appeal. Therefore, the question of estoppel would not be applicable in the present case. 15. In view of the aforesaid, I am of the opinion that the notice issued by the ITO to the assessee was vague and invalid and, therefore, the assessment order made by the ITO in such a proceeding would be invalid and bad in law. I, therefore, uphold the order of the Dy. CIT(A), though for different reasons. 16. In the result, the appeol is dismissed.
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1994 (3) TMI 163 - ITAT HYDERABAD-A
A Partner, Assessing Officer, Assessment Year, Income Tax, Set Off Of Loss ... ... ... ... ..... e adjusted from out of the profits derived by him from other firms in the same assessment year and for making this adjustment, the assessment by the Assessing Officer of the firm which suffered loss is not necessary and this adjustment can be made even on the basis of the data furnished in the income-tax statement of the assessee, a partner of the firm. It is significant that we are not dealing with the assessment of the firm but with the assessment of a partner of the firm. Under the circumstances, I hold that the amount of Rs. 10,974 should be adjusted from out of the profit derived by the assessee from out of two other firms for assessment year 1989-90. I further hold that in the guise of making prima facie adjustment, loss of Rs. 10,974 is not permitted to be disallowed under law. It is beyond the powers of the Income-tax Officer to make such adjustment under section 143(1)(a). 10. In the result, the appeal is allowed and the orders of the lower authorities are set aside.
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1994 (3) TMI 162 - ITAT HYDERABAD-A
In Part, Income From Other Sources, Income From Property, Set Off ... ... ... ... ..... e. The transactions involved did not give rise to any income assessable to income-tax nor any revenue loss in respect of which any deduction could be claimed. Therefore, the Tribunal was right in disallowing the assessee s claim of loss in the chit fund account during the year in question. So according to the Punjab and Haryana High Court s decision, neither dividend which is derived from out of the chit fund transaction is income nor the loss incurred as a consequence of the bid of the assessee of the chit at a discount is a loss admissible. I hold that the Punjab and Haryana High Court s decision is quite opposite to the A.P. High Court s decision. Since I am deciding the issue at Hyderabad, I am bound by the A.P. High Court s decision and therefore, following the same I have to hold that the order of the Deputy Commissioner (Appeals) does not call for any interference from me and consequently I fail to see any valid ground in the revenue s appeal and hence it is dismissed.
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1994 (3) TMI 161 - ITAT HYDERABAD-A
Assessed Income, Assessment Order, Assessment Year ... ... ... ... ..... therefore, that was an invalid notice suffering from a fundamental mistake and not a mere irregularity. Such a vital infirmity could not be cured or obliterated by reliance on section 292B of the IT Act. 14. The reliance on the Full Bench decision of the Andhra Pradesh High Court in the case of Amali English Medium High School is also of no help. That was a case where the principle of estoppel was exercised under section 115 of the Evidence Act with regard to the concession made by the council. There is no such case appearing in the present appeal. Therefore, the question of estoppel would not be applicable in the present case. 15. In view of the aforesaid, I am of the opinion that the notice issued by the ITO to the assessee was vague and invalid and, therefore, the assessment order made by the ITO in such a proceeding would be invalid and bad in law. I therefore, uphold the order of the DC (Appeals), though for different reasons. 16. In the result, the appeal is dismissed.
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1994 (3) TMI 160 - ITAT HYDERABAD-A
Assessment Year, Backward Area, Deduction In Respect, Industrial Undertaking, Manufacture Or Production, Profits And Gains
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1994 (3) TMI 159 - ITAT DELHI-E
... ...
... ... ..... support of the evidence. 16. We, on careful consideration of the rival contentions, are of the view that the matter needs redetermination. The learned CIT(A) has recorded the contention on behalf of the assessee that there was some difficulty in the title of the shares. The assessee s plea that proper explanation had been given before the CIT(A) and that no fault could be found with the assessee for the CIT(A) not having elaborated the claim of the assessee in his order, cannot be brushed aside. Let this issue be decided by the Assessing Officer afresh by examining the claim of the assessee that the shares had been sold and repurchased under compelling circumstances. There is no doubt that the onus is on the assessee to establish that the loss claimed by it is genuine and incurred in the course of business. The matter be decided afresh after giving adequate opportunity of being heard to the assessee. 17. For statistical purposes, the appeal of the assessee is partly allowed.
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1994 (3) TMI 158 - ITAT DELHI-E
... ...
... ... ..... bmissions, we are of the view that the question of investment alnowance on computers requires re-examination at the hands of the Assessing Officer vis-a-vis the place at which the same is installed and the role that it plays in the manufacturing process. The Assessing Officer has recorded a finding of fact to the effect that the computer is installed in the office premises whereas the CIT(A) refers to the office being located in the factory premises. On a specific query from the Bench the learned counsel high-lighted the fact that the office of the assessee-company was situated atDelhiwhereas the factory was situated atGhaziabad. For purposes of ascertaining the correct facts and applying the law thereof we set aside the order passed by the CIT(A) vis-a-vis the issue under consideration and restore the matter back to the file of the Assessing Officer to be decided on merits after giving a reasonable opportunity to the assessee. 11. In the result, the appeal is partly allowed.
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1994 (3) TMI 157 - ITAT DELHI-E
Assessment Year, Bona Fide, Cash Payments ... ... ... ... ..... aheshwari Dass 1980 121 ITR 232 and which subsequently came to be affirmed by the Hon ble Supreme Court in the case of Attar Singh Gurmukh Singh v. ITO 1991 191 ITR 667. In other words, the decision in the case of Hari Chand Virender Paul stands impliedly approved by the Hon ble Supreme Court. 11. It is also the assessee s case before me that the payments are genuine and these are reflected in the books of the sellers. According to him genuine payments are not to be hit by the provision of section 40A(3). This argument, in my view, runs contrary to the decision of the Hon ble Supreme Court in the case of Attar Singh Gurmukh Singh according to which, genuine and bona fide transactions are not taken out of the sweep of the section . Respectfully following the decision of the Hon ble Punjab and Haryana High Court in the case of Hari Chand Virender Paul, I reject the submissions made on behalf of the assessee and confirm the order of the DC (Appeals). 12. The appeal is dismissed.
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1994 (3) TMI 156 - ITAT DELHI-D
... ...
... ... ..... cording to Shri Bhatnagar, there was no justification for the impugned addition. The learned DR supported the orders of the authorities below. 11. We have heard both the parties at length and have also perused the relevant record including the paper book filed by the assessee. On a consideration of relevant facts and circumstances as also after perusing the relevant evidence on record including the confirmations filed by the creditors, their statements recorded by the AO, we are of the view that there is no justification for the impugned addition. We cannot ignore the facts that all of them are existing assessees atAgraitself and the payments made are by way of cheques. Further, in the case of Rama Industrial Corporation, the credit of Rs. 50,000 is also properly accounted for in the books of that party as is shown outstanding as a part of sundry debtor. We, therefore, allow this ground of appeal and delete the addition of Rs. 88,000. 12. In the result, the appeal is allowed.
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1994 (3) TMI 155 - ITAT DELHI-D
... ...
... ... ..... July, 1985reproduced in his order at paragraph 59.7, held that the claim of the assessee is not bona fide, overlooking the fact that this note was prepared in July, 1985 subsequent to the happening which had already taken place and it gives narration of that. As per the ratio laid down by the Hon ble High Courts cited above, we have to see the bona fide of the assessee at the time of furnishing of estimate of advance tax. If the basis is proper and justification shown is reasonable, it cannot be said that it is an underestimate. In view of our above discussion, we are of the opinion that estimate furnished by the assessee was reasonable and bona fide. Therefore, no interest under s. 216 can be charged. We, therefore, set aside the order of the CIT(A). 39. The last grievance in assessee s appeal relates to charging of interest under ss. 215 and 139(8) of the IT Act. These are consequential and call for no comment at this stage. 40. In the result, the appeal is partly allowed.
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1994 (3) TMI 154 - ITAT DELHI-D
... ...
... ... ..... re fulfilled in any case, it is mandatory to take the actual cost, capital expenditure or cost of acquisition at the higher or lower figure for the purposes of the provisions mentioned therein irrespective of whatever might have been the position independent of the section. The non obstante clause with which the section begins, indeed, makes it clear that, if the position had been different otherwise, it cannot prevail after the introduction of this section. Equally, even if the position would have been the same otherwise, that would be no justification to ignore or disregard the enacted provision on the ground that a specific statutory provision was not at all necessary. Once the provision is there and its terms apply, it should be applied. Respectfully following the ratio laid down by the Hon ble Supreme Court, we do not find any substance in the arguments of the learned Departmental Representative. This ground is hereby rejected. 98. In the result, the appeal is dismissed.
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1994 (3) TMI 153 - ITAT DELHI-D
... ...
... ... ..... . Nor is the section meant to get at sheer escapement of revenue which, as is well known, is taken care of by provisions elsewhere in the Act such, for instance, as s. 147 of the Act. The prejudice must be prejudice to the Revenue administration. 10. After a careful analysis of the issue in question, on the facts and in the circumstances of the case before us, in the light of the aforesaid case laws relied upon by the assessee, particularly of the ratio decidendi of the Hon ble Supreme Court, cited supra, we are of the considered opinion, after a due examination of the rival submissions made before us, that the order impugned herein deserves to be quashed. We, thus, sustain the stand of the assessee being not convinced with the arguments raised on behalf of the Revenue though we have to appreciate that the learned representative on behalf of the Department made his strenuous efforts to rescue the order impugned. 11. In the result, the appeal of the assessee is allowed hereby.
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