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Case Laws
Showing 21 to 40 of 382 Records
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1998 (1) TMI 517
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... ... ..... either of the partners of ISC to the ITO, that does not mean that no services are rendered or to disbelieve the genuineness of the agreement for services or sales, as well as of the payment. Even payment has not been denied. Therefore, in such cases, it cannot be said that the finding of fact is perverse. When the finding of fact regarding rendering of service is not perverse, then how the payment of commission can be disallowed; thus, no interference is called for in the order of the Tribunal. 6. In the result, question No. 1 referred to us, we answer in the affirmative, i.e., that finding is based on material on record and so far as whether the finding is perverse, we answer the same in the negative, i.e., the first part in favour of the assessee and against the revenue and the second part in favour of the assessee and against the revenue. Question No. 2 is a consequential question and we answer that in the light of answer to question No. 1. B. Bhattacharya, J. - I agree.
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1998 (1) TMI 516
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... ... ..... . 5. The order of the Commissioner was challenged before the Tribunal by the assessee mainly on the ground that the order of assessment had been the subject-matter of appeal before the AAC and, therefore, the Commissioner could not have exercised the jurisdiction under section 263 of the Act to touch the order of assessment. The plea has been upheld by the Tribunal. 6. As question No. 1 itself suggests, the point in issue before the Commissioner was not agitated before the AAC, nor considered by him. That being the factual position and the question being founded on those factual premises, in view of the principles laid down by us in CIT v . Printers House IT Reference No. 307 of 1982, dated 19-1-1998 , the applicability of the doctrine of merger was not attracted and the jurisdiction of the Commissioner under section 263 was not excluded. 7. For the foregoing reasons, both the questions are answered in the negative, i.e., in favour of the department and against the assessee.
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1998 (1) TMI 515
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... ... ..... tep; (iv)If suitable residential accommodation is not expected to be available in near future say, within three months from today, by any of the above means, the Central Government shall take steps to hire accommodation of the prescribed standard and allot the same to the members of the Tribunal. In that situation, the rent in excess of what the members are entitled to by way of HRA shall be borne out by the Union Government. 17. The matter be listed in Court on 4-5-1998 for compliance of the above directions with the hope and expectations that by that time, the problem of residential accommodation to the members of the Tribunal shall be solved. Presently, we discharge contempt notice issued by this Court vide order dated 24-10-1997 as we find that the Law Secretary, Government of India has taken steps to get a house for the Judicial Member of the Tribunal. However, it is not the end, as we expect that fresh directions given by us shall be complied with in letter and spirit.
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1998 (1) TMI 514
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... ... ..... said addition by the CIT(A) is upheld for this year also. Thus, the entire second ground stands rejected. 51. The third ground pertains to the allowability of additional depreciation on computer room at Madras and Mumbai and on electrical work of computer at Mumbai. In our opinion additional depreciation is allowed only on plant and machinery and as the above-mentioned items do not constitute plant & machinery, we disallow the claim of the assessee. On this issue, therefore, we restore the disallowance made by the AO and upheld that ground of the Revenue. 52. The last ground is against the direction to recompute the claim of ₹ 1,43,500 on account of technical know-how expenditure. This ground appears to be misconceived in so far as that we find no such direction given by the CIT(A) in his order. The ground is thus rejected as not arising out of the order appealed against. 53. In the result, the appeal of the assessee as well as of the Department are partly allowed.
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1998 (1) TMI 513
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... ... ..... igh Court in the case of Chase Bright Steel Ltd. (No. 1) ( supra) is inapplicable. In our view section 37(1) provides for deduction of expenditure. Sub-section (3) restricts the allowance and sub-section (3A) puts further restrictions for the allowance of deduction. The contention on behalf of the assessee that sub-section (3) provides for a deduction in respect of the advertisement expenses is not well founded. It is sub-section (1), as already pointed out, which permits deduction in respect of the expenditure not falling under sections 30 to 36 and not being of capital nature. Therefore, in the case of advertisement expenses, the deduction would be permissible under section 37 within the limits under sub-section (3). Out of the said qualifying amount 20 per cent thereof has got to be disallowed. In this view of the matter, we do not find any infirmity in the order of the CIT(Appeals) in having upheld the disallowance. 21. In the result, appeal of the assessee is dismissed.
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1998 (1) TMI 512
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... ... ..... ther under the Statute or any executive instruction. Moreover, if the post of Lecturer was filled up by promotion of Demonstrator, it would defeat the existing mode of recruitment, namely, that it can be filled up by direct recruitment only and not by promotion. It may also be stated that the appellant did not make any clear, sound and positive averment as to which officer of the Government, when and in what manner gave the assurance to the appellant or any of his colleague that hey would be promoted as Lecturers. It was also not stated that he appellant had, at any time, acting upon the promise, altered his position, in any manner, specially to his detriment. Bald Pleadings cannot be made the foundation for involving the Doctrine of Promissory Estoppel. The appeal being without merits has to be dismissed reminding the appellant that a mind, conscious of integrity, scorns to say more then it means to perform and the Government and Director were not of the material. No costs.
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1998 (1) TMI 511
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... ... ..... ter must take the necessary pleas in defence in the reply to the show cause notice and must satisfy the concerned authority with acceptable material; if those pleas are rejected, he cannot raise them in the High Court unless there is a clear pleading in the writ petition to that effect. In the present case before us, no doubt there is delay of 14 years in initiating action and the damages are levied because of the delay in realisation of the amounts paid by cheque where the amounts were credited into the accounts of the department beyond the grace period of 5 days. The plea of strike, even assuming it to be relevant, was not proved. The plea of the appellant that the department must be deemed to have dropped the proceedings in 1971 did not also have any legs to stand. There is no plea of any irretrievable prejudice either in the reply to the show cause or in the writ petition. For the aforesaid reasons, this appeal fails and is dismissed. There shall be no order as to costs.
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1998 (1) TMI 510
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... ... ..... the entire words of an instrument. Applying the said principle to the notification, which is for consideration before us, we had no hesitation to come to the conclusion is that under the said notification no direction has been given by the Governor to apply the policy of reservation in appointments to the promotional posts. The High Court, therefore, committed serious error of law in interpreting the aforesaid notification and by holding that the policy of reservation has been made applicable to the promotional posts also. We accordingly set aside the impugned judgment of the High Court as well as the judgment of the learned single Judge and hold that though it was open to the Govt, to apply the principle of reservation but by the impugned Notification it has not been made applicable to the promotional posts available in the society. This appeal accordingly is allowed and the writ petition filed by the private respondents stand dismissed. There will be no order as to costs.
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1998 (1) TMI 509
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... ... ..... ck-post or on demand by an officer empowered in this behalf. Rules 62-A and 63 are of no help to the owner or the person in-charge of the goods in this behalf. They simply lay down the procedural requirements with regard to the type of documents which are required to be carried and produced, the seizure of goods and their release as also the period of notice for the completion of enquiry. The procedural tail cannot be allowed to wag the substantive head. Once the offence under section 22A of the Act is committed it cannot be washed off by the procedure laid down in rules 62-A and 63. It is also immaterial that the documents produced at a later stage were not adjudged as not reliable. 9.. To conclude, we accept the revision petitions, set aside the orders of the Tax Board dated March 31, 1993 and restore the orders of the ACTO dated November 16, 1990 and orders of the Deputy Commissioner (Appeals), Jodhpur dated January 7, 1991. We make no order as to costs. Petitions allowed.
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1998 (1) TMI 508
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... ... ..... ing aside the penalty imposed upon the assessee-dealer cannot at all be stated to be not sustainable in law. 13.. We want to state here that the order of the Tribunal setting aside the penalty imposed upon the assessee-dealer is confirmed for the reasons as we have given above, and not for the reason, on which the Tribunal set aside the penalty imposed upon the assessee-dealer. The Tribunal assigned the reason that the transactions representing a turnover of Rs. 2,59,135 are not at all assessable to tax in the sense of the same falling under item No. 22 of the Schedule to the Notification issued under section 17 of the T.N.G.S.T. Act and therefore, the penalty imposed is not sustainable. 14.. In fine, the order of the Tribunal setting aside the assessment on a turnover of Rs. 2,59,135 is set aside and the order of the Assessing Officer in that regard is ordered to be restored. The revision in other respects shall stand dismissed. Revision partly allowed and partly dismissed.
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1998 (1) TMI 507
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... ... ..... first question raised in the application for revision is answered in the negative as the fact of the matter is that expansion was the basis for eligibility on which benefits were sought and granted. The second question too is answered in the negative in the sense that in the facts and circumstances of the case the DLSC could not have cancelled the EC. As such the third question is answered in the affirmative. The Board was justified in this case in holding that EC granted in favour of an entrepreneur cannot be cancelled retrospectively even if the benefit under the Scheme was availed on the basis of an EC wrongly granted. The fourth question is answered in the negative. This was not a case of promissory estoppel. 42.. For the reasons given above we find that the decision of the DLSC to cancel the EC after a lapse of so many years for no fault of the dealer cannot be sustained. 43.. The application for revision is dismissed. No order as to costs. Revision petition dismissed.
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1998 (1) TMI 506
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... ... ..... no such application of mind by the authority while imposing penalty. Merely because section 10(b) stipulates the quantum, the order is passed imposing the levy. I therefore quash annexure C notice. The assessing authority is directed to re-consider the issue and pass fresh orders under section 10(b) read with section 10-A of the Act. I am informed that 30 per cent of the amount as demanded by the authority has already been paid by the petitioner. In view of the circumstances there is no necessity to make any payment as a pre-condition for giving an opportunity of being heard. The petitioner shall appear before the assessing authority on February 20, 1998 and thereafter the assessing authority will pass fresh orders within three weeks thereof. It is made clear that there will be no further notice to the petitioner to appear before the authority as he has took notice before this Court itself. The writ petition stands disposed of as above. Writ petition disposed of accordingly.
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1998 (1) TMI 505
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... ... ..... ing the officer who placed the order, the form signed by him is prima facie in accordance with the requirements of the provisions of the statute and the rules. There was no dispute as to the competence of the Director of Medical Services to sign the form on behalf of the Government, before the authorities below. 4.. The Joint Commissioner was, therefore, in error in holding that the goods were sold to the E.S.I. corporation, and that the form D furnished had been signed by the officer of the corporation. His findings are not supportable by any material on record. We have perused the original D form. We are satisfied that the form had been issued by the Director of Medical and Health Services, who was in-charge of the E.S.I. Scheme, but who was nevertheless an officer of the Government. As noticed earlier, payment for the goods supplied pursuant to the order placed by him has been made by the Government. 5.. In the result, these appeals are allowed. No costs. Appeals allowed.
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1998 (1) TMI 504
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... ... ..... nterest. It needs to be borne in mind that interest is not chargeable because deposits towards possible contingencies were collected and not deposited with the Government. Such deposits are not collection of tax and are not liable for forfeiture. Interest is chargeable if the sales are exigible to tax and the payment of tax is delayed-the interpretation of such delay being dependent on whether section 11B, RST Act as it stood prior to or after April 7, 1979 was attracted. In the facts and circumstances of the case we do not consider it proper to restrain the AA from proceeding in the matter in view of our finding that the sales in question were exigible to tax under the RST Act for the period in question. The AA shall determine this aspect of the matter in accordance with law bearing in mind the observations made by this Tribunal and the law as laid down by the Supreme Court. In view of the above, the writ petition is dismissed. No order as to costs. Writ petition dismissed.
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1998 (1) TMI 503
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... ... ..... otice of the assessing authority. However when the case is considered in its entirety and in the light of facts stated hereinabove, we have no hesitation in saying that the respondent/assessing authority has proceeded with unnecessary haste in passing the impugned orders and that too without complying with the mandatory requirement of the provisions of the Act to which reference has already been made. The cancellation of the registration has a serious consequence in continuing the business of a dealer and such an order cannot be permitted to be passed unless the due procedure provided under the Act is adopted by the assessing authority. 10.. For the reasons stated above, the impugned orders cancelling the registration of the petitioner are quashed. However, it will be open to the assessing authority to proceed afresh, if considered necessary and to pass appropriate orders in accordance with law. In the result, the writ petition succeeds and is allowed. Writ petition allowed.
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1998 (1) TMI 502
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... ... ..... ioner. In para 21 of the said judgment, it is observed as follows .......This cannot be permitted because it will amount to causing greater hardship to the assessee because the assessee has acted upon the eligibility certificate issued by the competent authority and on the basis of the appreciation of facts, the authority has now changed its opinion and wants to withdraw the certificate..... . So, that was a case where the assessee did not collect sales tax only after obtaining the eligibility certificate. But, in this case, even from June 1, 1987 the assessee did not collect sales tax. 9.. In this view of the matter, this Court holds that the petitioner is liable to pay sales tax for the period from June 1, 1987 to October 31, 1989. The petitioner is not liable to pay sales tax for the period from November 1, 1989 to November 16, 1991. The original petition is allowed in part. Order on C.M.P. No. 22131 of 1991 in O.P. No. 12730 of 1991-M dismissed. Petition allowed in part.
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1998 (1) TMI 501
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... ... ..... uction of the provisions in the enactment and the purpose and object it seeks to achieve. 13.. In the view we have taken about the applicability of the Act to imported cars, we think it unnecessary to deal with the question of exemption granted under the proviso to section 3 of the Act, that, it was said, is violative of article 14 of the Constitution. This aspect has been dealt with in the impugned judgment, where relevant judicial precedents have been considered and we agree that the contention urged was rightly repelled. 14.. We declare that vehicles brought from abroad are not liable to entry tax. They are directed to be given registration in Kerala in terms of the applications made therefor before the concerned respondents, who shall not insist upon production of clearance certificate under the provisions of the Act. The writ appeals and the original petitions are accordingly allowed. Order on C.M.P. No. 2147 of 1997 in W.A. No. 770 of 1997 dismissed. Petitions allowed.
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1998 (1) TMI 500
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... ... ..... ted questions of fact are involved. In paragraph 7 of the counter-affidavit, it is averred that in similar circumstances the petitioner was assessed to sales tax on the value of gunny bags in respect of the assessment year 1987-88 both under the U.P. and Central Sales Tax Acts. No rejoinder affidavit has been filed by the petitioner denying these allegations. 12.. The writ petition is accordingly dismissed on the ground of alternative remedy without entering into the merits of the contentions of the contending parties, leaving it open to the petitioner to challenge the impugned assessment orders in appeal or otherwise, if so advised, before the appropriate forum. However, in case the petitioner prefers appeal(s) against the impugned assessment orders within 30 days from today, the same will be entertained by the concerned authority and they shall not be dismissed on the ground of limitation alone. The stay order dated September 12, 1995 stands discharged. Petition dismissed.
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1998 (1) TMI 499
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... ... ..... es which have so far been furnished by the petitioners pursuant to the interim directions for the differential tax shall be kept alive for a period of one year from today. So also, in respect of the future purchases, similar bank guarantees valid for one year should be furnished by the petitioners. If the declarations in form G are rejected by the Sales Tax Department either in the course of assessment of the Corporation or the petitioners, the bank guarantees can be encashed by the Corporation subject to the remedies open to the petitioners under law. The commercial tax authority concerned should furnish necessary information to the Corporation in regard to acceptance or otherwise of G forms. In case the petitioners have failed to furnish bank guarantees for the differential tax, the petitioners are liable to pay the tax at 9 per cent as per the demand made by the Corporation. Subject to the above directions, the writ petitions are allowed. No costs. Writ petitions allowed.
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1998 (1) TMI 498
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... ... ..... ws. The constitutional point as raised on the limited and narrow scope regarding exercise of powers by the sales tax authorities is not appreciated and we are afraid, we do not find any merit on this point. The petitioner will have ample opportunity so far as merit of its case is concerned and disposal of the present matter would not prevent the authorities in disposing of the reference. We sustain the point raised by Mr. B.K. Mohanti that because the petitioner has taken steps in the alternative forum it is not estopped to raise any constitutional issue. But on examination of merit of the case, we do not find that there is anything that the steps taken by the sales tax authorities and the acts done and/or caused to have been done by them in the instant case suffer from any constitutional infirmity which should be struck down. With such observation and direction we dispose of both the writ petitions. No costs. D.M. PATNAIK, J.-I agree. Writ petitions disposed of accordingly.
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