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Case Laws
Showing 81 to 100 of 491 Records
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1998 (2) TMI 538
Reassessment, Reason To Believe, Capital Asset, Conversion, Stock-In-Trade, Capital Gains ... ... ... ... ..... ification or cause to form a belief sought to be corrected, cannot be said to be cases of mere change of opinion. In Chimanram Motilal s case 1943 11 ITR 44 (Bom), on which reliance was sought to be placed, it was in fact observed by Beaumont C. I., that .... if it be once admitted that an assessment may be reopened under section 34 (and the language seems to make such an admission inevitable) it is very difficult to draw the line in any way, and to say that it can only be reopened on a particular ground, such as change of facts, or alteration in the law. It was in the facts of the case held that the notice issued under section 34 was justified. The decision is rendered under the old law while we ire concerned with the provisions of section 147 of the said Act, which we have tried to construe in our humble light. Under the above circumstances, we find no merit in these petitions and they are, therefore, rejected. Rule is discharged in each of them, with no order as to costs.
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1998 (2) TMI 537
Ceiling limit provided u/s 40(c) and 40A(5) - remuneration to directors outside India - impugned remuneration has to be excluded u/s 40A(5)(b)(i) while calculating the ceiling laid down in the first proviso to section 40A(5)(a) & 40(c)
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1998 (2) TMI 536
Exemption when available under two entries ... ... ... ... ..... hen the goods were equally classifiable under Sl. No. 40. The ld. Advocate had referred to a number of decisions of this Tribunal to the effect that when there are two exemption notifications equally applicable to a manufacture, it is his option as which of the exemption notification he avails of. In this case we find that the Sl. Nos. 39 and 40 are not similarly worded and we consider that it was the option of the assessees to pay the duty and not avail the full exemption which in any case was subject to the condition as given in Column 5 of the Table annexed to the exemption notification. 5. emsp The Collector of Central Excise (Appeals) had observed that in the facts and circumstances of the case the benefit of Sl. No. 40 could not be denied to the manufacturers. We do not find any infirmity in the view taken by the Collector of Central Excise (Appeals). As a result there is no merit in both these appeals filed by the Revenue and the same are rejected. Ordered accordingly.
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1998 (2) TMI 535
... ...
... ... ..... TA)1591/88 against the order-in-original No. Mod/ST/10/88, dated 11-4-1988 which is serial No. 1 shown in paragraph 1 of the appellate order. 4. emsp The dispute relates to 2 discount declared in respect of immediate/advance payment of which deduction was claimed in the relevant price list. The question is, whether the direction of the Superintendent that deduction would be allowed only in those cases where the discount has been actual granted to the buyer is correct. There is no dispute that this discount was known to the trade and available to wholesale buyers who conformed to the condition for the discount. That being so, the amount of discount has to be deducted from the assessable value, irrespective of whether a particular buyer takes advantage of the benefit of the discount by making advance or prompt payment. The condition imposed by the Superintendent cannot stand and the same is set aside. The appeal is allowed in this manner. The supplementary appeals are rejected.
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1998 (2) TMI 533
Copper castings - Exemption ... ... ... ... ..... notification would be admissible even if other metals such as Zinc, Lead, Tin etc. have been added to extract copper alloy provided the copper content is predominant. 3. emsp In the present case, the appellants had taken the stand in reply to the show cause notice that their product contained 80 to 85 copper and that the use of ingredients such as Tin or Lead of minimal percentage. This averment has not been rebutted by the Revenue. Hence applying the Tribunal rsquo s final order cited supra, we hold that the appellants are entitled to the notification claimed by them, set aside the impugned order and allow the appeal. We note that the objection raised by the learned DR to approval of classification lists retrospectively, is no longer relevant in this case in view of the fact that the demands arising as a consequence of the approval of classification list filed in February rsquo 89 for the earlier periods has already been set aside by the Tribunal rsquo s order cited (supra).
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1998 (2) TMI 532
Valuation - Job work ... ... ... ... ..... issioner (Appeals) that the case of Ujagar Prints is different from the present case in the sense that it was neither a point at issue nor was it decided as a matter of principle as to what would be the valuation of the goods by Supreme Court, particularly with reference to the provisions of Valuation Rules, as discussed above, when value of comparable goods is available, does not appeal to us. There is no doubt that the goods are being manufactured on job work basis. We have already held that the same very goods cannot be held to be comparable to their same goods. In the circumstances, the ratio of the Supreme Court judgment in the case of Ujagar Prints squarely applies to the facts and circumstances of the case. Accordingly, we find that the value declared by the appellants on the basis of cost of raw materials plus job charges is the correct assessable value. The impugned order is, therefore, set aside and the appeal is allowed with consequential reliefs to the appellants.
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1998 (2) TMI 531
SSI Exemption - Value of clearances - Clubbing of - Penalty - SSI Exemption ... ... ... ... ..... to be in effect, one single whole and the two so-called units were merely acting as parts of the whole. Therefore, it is the entire production of ldquo both taken together rdquo which will be required to be considered for the purpose of assessment. 14. emsp We, therefore, hold that the order of the Collector is correct and confirm the demand. However, we notice that the Collector has erred in imposing a penalty of Rs. 15,000/- on each of the two firms. 15. emsp Once the Department had come to the conclusion that there was, in reality, only one organisation in existence and the legal cover did not matter, it will be inappropriate to say that the above penalty was imposable on each of the two firms. Further, looking to the totality of facts and circumstances, we consider that it would be sufficient if the penalty was held as payable by the organisation on its behalf by M/s. T.R. Corporation i.e., in all, a penalty of Rs. 15,000/- (and not Rs. 30,000/-) was required to be paid.
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1998 (2) TMI 530
Valuation - Loading charges - Demand - Limitation ... ... ... ... ..... m the price variation clause and once it is seen that the contracts contained price variation clause, the provisionality attaching to the price and the approval cannot be restricted to any particular aspect. If it is provisional for one purpose, it must be provisional for all purposes. Therefore, the period of limitation prescribed in Section 11A(1) of the Act cannot apply to the facts of the case and there is no bar of limitation. 5. emsp In view of what we have indicated above, we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh after giving appellant an opportunity of producing of evidence to prove that loading work in the factory premises was done by the regular salaried staff of the appellant and not by labourers hired for the purpose who would be paid specifically for the purpose and of personal hearing. 6. emsp Appeal is allowed as indicated above. The cross-objection being merely supportive is dismissed.
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1998 (2) TMI 525
Winding up – Suits stayed on winding-up order ... ... ... ... ..... 21, 1998. The order of winding up was passed after the presentation of the application by the bank before the Debts Recovery Tribunal, but that would in no way absolve the bank of its responsibility to seek permission of the company court to pursue the said remedy before the Tribunal at a subsequent stage. For the reasons aforestated, I find no reason as to why permission prayed for be not granted to the applicant-bank. Consequently, this petition is allowed. The bank is granted permission under section 446(1) of the Companies Act to continue and proceed with the application filed by it before the Debts Recovery Tribunal and to have the same decided in accordance with law. Leave is granted subject to the condition that any decree/recovery certificate issued by the Debts Recovery Tribunal shall not be executed against the assets of the company without the specific permission of this court at that stage. The petition is accordingly allowed. There shall be no order as to costs.
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1998 (2) TMI 520
Court - Meaning of, Service of documents on members by company, Court - Jurisdiction ... ... ... ... ..... rt of the cause of action arose within the jurisdiction of the city civil court, Calcutta and, therefore, that Court has the jurisdiction to deal with the civil suit from which this appeal has arisen. 10. We make it clear that the question as to territorial jurisdiction of the city civil court was raised by the learned counsel for the respondents and both the learned counsel wanted us to deal with this question. It is for this reason that we have dealt with this question, even though the question was not raised before the city civil court. 11. In the result, we allow the appeal, set aside the order of city civil court, and direct the city civil court to proceed to dispose of the injunction application expeditiously according to law. Parties shall maintain status quo with respect to the shares in question till the disposal of the injunction application. Parties shall appear before that Court on 16-3-1998. There shall no order as to costs. Samanta, J. - I agree. Appeal allowed.
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1998 (2) TMI 519
Winding up – Suits stayed on winding-up order ... ... ... ... ..... ank is a secured creditor and the decree passed by the court of competent jurisdiction has already become final between the parties. The observations of the apex court also indicate that execution proceedings can continue. Learned counsel appearing for the bank has not been able to clarify as to what was the final result of the directions passed by the apex court. In the facts and circumstances of the case, this petition is allowed. The applicant-bank is granted leave to pursue its execution proceedings before the Debt Recovery Tribunal at Jaipur. However, the. sale of the assets of the company would be confirmed subject to sanction of the company court. It will be desirable that the bank must pursue the aforestated special leave petition before the apex court. Needless to say that implementation of this order is subject to the orders that may be passed by their Lordships of the Supreme Court in the aforestated special leave petition. This petition is accordingly disposed of.
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1998 (2) TMI 518
Winding up – Suits stayed on winding-up order ... ... ... ... ..... su, before the leave is obtained from this court for confirmation of sale and be bound by any direction that may be given by the court with regard to payments on that account. (9)It is open to the official liquidator to move this court for appropriate directions in case the workmen s claims come to light on an examination of the account books notwithstanding the direction in the preceding clause. (10)The official liquidator shall file before the court the list of secured creditors, if any, as may be ascertained from a perusal of the account books or documents of the company at the time of hearing the application for leave of the court to finalise the sale. (11)Whatever surplus remains after sale and realisation of dues of secured creditors and workmen dues as per law, the funds shall be made available to the official liquidator for being dealt with in accordance with the provisions of the Companies Act and Rules. The company applications are accordingly disposed of. No costs.
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1998 (2) TMI 517
Articles of Association ... ... ... ... ..... hesitation to hold that the challenges as made by the petitioner are misconceived. 35. Opposite party No. 4 has also made a bona fide offer. The petitioner could have avoided the auction making payment of the admitted default dues. Admitted dues could have been asked for redemption by setting aside the auction. The petitioner has not preferred to do the same and rather he has refused to make payment. Under such facts and circum-stances, we find that opposite party No. 1 has taken cool steps giving a notice to the petitioner to show cause regarding the default he committed. By complying with the principles of natural justice, it has caused suspen-sion and cancellation of membership of the petitioner and the step taken as to auction sale of the membership is not prohibited by any of the provisions as relied upon. For the foregoing reasons, we do not find any merit in the writ petition. We dismiss the same accordingly. There would be no order as to costs. SCL q SEPTEMBER 5, 1999
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1998 (2) TMI 515
Power to refuse registration and appeal against refusal ... ... ... ... ..... to be read in consonance with sub-sections (2) and (3) of section 111A by equating transfer of shares with the allotment of shares. It is, thus, clear that there is no right of appeal provided by section 111A in relation to the public limited companies, which was contained in sub-section (4) of section 111. It is, thus, clear that the plaintiff would not been entitled to approach the CLB for seeking the reliefs that are prayed for in the civil suit and, therefore, there is no question of jurisdiction of the civil court being barred by the availability of remedy to the plaintiff under section 111A. 6. In this view of the matter, therefore, the appeal is allowed and the order impugned in the appeal is set aside. It is held that the civil court has jurisdiction to entertain the civil suit filed by the appellant-plaintiff. The trial court is directed to try the suit and any application that may be filed in the suit in accordance with the law. Appeal allowed. SCL q OCTOBER 5, 1999
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1998 (2) TMI 513
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... satta (Hindi) dated 3-9-1997 and copy of Haryana Government Gazette dated 18-8-1997 where notice is directed vide aforesaid order was published. In spite of this, nobody appeared to oppose this petition. 4. From the documents aforesaid and in view of the order dated 8-8-1997, this Court has no option but to direct winding up of the respondent-company. From the documents produced on record it is clear beyond doubt that the respondent-company has failed to pay its admitted debts in spite of due notice. It is a case of clear intentional default and inability to pay its debts. 5. Consequently, this petition is allowed. The respondent-company Apex Cables P. Ltd. is ordered to be wind up in accordance with law. The official liquidator attached to this Court is appointed as official liquidator of the respondent-company with immediate effect. The official liquidator shall take over assets, statutory books and records of the respondent-company forthwith. ------------------------- p. 3
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1998 (2) TMI 510
Winding up – Exclusion of certain time in computing periods of limitation ... ... ... ... ..... nuary 24, 1991, upon the respondent-company which was admittedly received by them and replied to on February 1, 1991. However, in spite of this notice, the payment was not tendered or made to the official liquidator. The official liquidator has claimed 18 per cent. interest which is obviously the minimum market rate of interest payable on commercial transactions. As such, the official liquidator would also be entitled to the interest at the rate of 18 per cent. per annum. In view of my discussion above, all the three issues i.e., issues Nos. 2 and 3 are answered in favour of the petitioner-company and against the respondent while issue No. 1, the onus of which was on the respondent-company, is also decided against the respondent-company. Consequently, the order for payment of Rs. 19,500 with interest at the rate of 18 per cent. per annum from February 1, 1991, till the date of realisation is passed against the respondent-company. However, there shall be no orders as to costs.
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1998 (2) TMI 509
Winding up – Suits stayed on winding-up order ... ... ... ... ..... d under the statute. The company court can grant leave in its discretion which may be conditional or unconditional depending on the facts and circumstances of the case. Reference in this regard can be made to a detailed judgment of this court in the case of Industrial Finance Corporation of India v. Rama Fibres Ltd. (C.P. No. 159 of 1997 decided on 21-1-98-since reported in 1999 97 Comp. Cas. 80). For the reasons aforestated, this petition is allowed. The bank is granted leave under section 446 of the Companies Act to present the accompanying proposed petition, annexure A, to the main petition before the Debt Recovery Tribunal, Jaipur, and pursue the same. However, the grant of leave is conditional that the recovery certificate/decree passed by the Tribunal on this petition would not be executed against the assets of the company without the specific leave of this court to that effect at that stage. This petition is accordingly disposed of. There shall be no order as to costs.
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1998 (2) TMI 480
Clauses of the contracts - Held that:- There is no reason whatsoever to conclude, as was urged, that Goel’s case [1988 (10) TMI 106 - SUPREME COURT OF INDIA] was not properly decided and that it requires reconsideration.
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1998 (2) TMI 472
Classification - Expert Opinion ... ... ... ... ..... Tribunal rsquo s decision in Seal Tite Industries v. CCE 1991 (53) E.L.T. 111 (Tribunal) 1991 (17) ETR 172 to say that test report is not conclusive on classification is misplaced. We have already dealt, at some length, with this argument earlier. In the decision referred to, one member of Tribunal did not accept the classification which appears to be solely based on the Chemical Examiner rsquo s report because he was of the view that it would not form a sufficient or satisfactory basis. In coming to this conclusion, the member had cited the chemical literature and referred to earlier test report. The classification proposed in the notice therefore cannot be acceptable and consequent demand for duty has to be set aside and therefore the penalty imposed. 14. emsp In view of our finding on the merits on the issue, we do not consider it necessary to deal with other arguments raised by the appellant including those on limitation. 15. emsp Appeal allowed. Impugned order set aside.
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1998 (2) TMI 464
Refund of the earnest money rejected - Held that:- Appeal partly allowed. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the general body of creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in withholding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages. Keeping that right of the bank open we allow this appeal partly. That part of the order of the High Court whereby the appellant's application for refund of Rs. 9 lakhs being the balance amount out of the total deposit of Rs. 59 lakhs was rejected is set aside and we allow Company Application to that extent.
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