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Showing 161 to 178 of 178 Records
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1989 (6) TMI 18 - KERALA HIGH COURT
Agricultural Land, Capital Asset ... ... ... ... ..... d ITO 1981 128 ITR 87. It is, thereafter, at the instance of the Revenue that the question of law, formulated hereinabove, has been formulated for the decision of this court. We heard counsel. At the time of hearing, it is agreed that this court had dissented from the decision of the Bombay High Court in Manubhai A. Sheth s case 1981 128 ITR 87 and has held that the income arising from the transfer of agricultural lands is exigible to capital gains tax. The decision is reported in CIT v. T. K. Sarala Devi 1987 167 ITR 136 (Ker). In the light of the decision of this court in T. K. Sarala Devi s case 1987 167 ITR 136, we are of the view that the decision of the Appellate Tribunal was not justified in law. We answer the question referred to us in the negative, against the assessee and in favour of the Revenue. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, immediately.
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1989 (6) TMI 17 - CALCUTTA HIGH COURT
Advance Tax, Interest Payable By Government, Regular Assessment ... ... ... ... ..... harge his duty which he was bound to do under the Act, with the result that he became amenable to a writ of mandamus directing him to do what he should have done under the Act. Under the circumstances, the Income-tax Officer assessed finally pursuant to the direction of the Tribunal or the appellate authority. Hence, Dr. Debi Pal contended that the regular assessment was made in a case where there had been an appeal by the Income-Tax Officer by making such order passed by the appellate authority workable. Any deviation therefrom would entitle the assessee to seek relief Linder article 226 of the Constitution. The reasoning given and the view expressed by Sabyasachi Mukharji J. in the impugned judgment had been followed by other High Courts as indicated above. Linder the circumstances, this court does not find any reason or ground to differ from the view expressed by the learned trial judge. Under the circumstances, this appeal is dismissed. There will be no order as to costs.
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1989 (6) TMI 16 - CALCUTTA HIGH COURT
Business Expenditure, Contribution To Gratuity Fund ... ... ... ... ..... ioner of Income-tax granting approval with effect from March 27, 1976. Section 40A(7)(b)(ii)(2) provides that the assessee shall create an approved gratuity fund and the application for approval of such gratuity fund trust must be made before January 1, 1976. Admittedly, the assessee made an application for approval on December 30, 1975, and, accordingly, the assessee had done whatever he could have done in this behalf. Where the assessee makes an application in compliance with the mandate of section 40A(7)(b)(ii)(2), it is immaterial whether the approval has been accorded before the assessment is made. If the Department does not accord approval within a reasonable time and the approval comes after four years, for that the assessee cannot be penalised. The approval once granted must relate back to the assessment year in question. We, therefore, answer the question in the affirmative and in favour of the assessee and against the Revenue. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 15 - CALCUTTA HIGH COURT
Assessment, Draft Assessment Order U/S 144B ... ... ... ... ..... heads. When the Income-tax Officer does not allow the business loss to be determined which could have been carried forward for the subsequent year, the assessee would be prejudiced. Short-term capital loss for the subsequent years can only be set off against short-term capital gains. When the assessee carries on the business or it has got income from its business, it can carry forward the loss and can set off against the business income for the subsequent years. On the facts of this case, we are of the view that the Commissioner of Income-tax (Appeals) as well as the Tribunal came to the correct conclusion that there was a variation and, accordingly, the Income-tax Officer exercised his jurisdiction properly under section 144B(1) of the Act, and the assessment is not barred by limitation. For the reasons aforesaid, we answer this question in the reference in the negative and in favour of the Revenue. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 14 - CALCUTTA HIGH COURT
Trade Association ... ... ... ... ..... Officer disallowed the depreciation was that the assets were not used in the business. In our view, where an assessee derives income from business and the assets on which depreciation is claimed are used for the purpose of business, in arriving at the net assessable income, depreciation has to be allowed. But where there is no business income, in working out the deficiency under section 44A, the depreciation debited in the accounts should be allowed as laid down in Indian jute Mills Association 1982 134 ITR 68 (Cal). We, therefore, reframe the question referred to us as follows Whether, on the facts and circumstances of the case, the Tribunal was justified in law in holding that depreciation amounting to Rs. 24,703 is not admissible as expenditure in working out the deficiency under section 44A of the Income-tax Act, 1961 ? We answer the reframed question in the negative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 13 - CALCUTTA HIGH COURT
Business Expenditure, Disallowance ... ... ... ... ..... s allowable. The expenditure incurred in preparation of the return and for obtaining advice cannot be held to be an expenditure in connection with the appearance before the income-tax authority, the Tribunal or court in connection with the determination of the liability under the Act by way of tax, penalty or interest. Such expenditure does not come within the purview of that section and, accordingly, it was rightly allowed. Only Rs. 6,000 was incurred by the assessee, as found by the Tribunal, being the fees of the income-tax lawyer in connection with the appearance before the appellate authorities or the Tribunal. Accordingly, the Tribunal rightly restricted the disallowance to Rs. 1,000 and allowed Rs. 5,000 under section 80VV. We are of the view that, on the facts of this case, the Tribunal came to a correct conclusion. For the reasons aforesaid, we answer the question in this reference in the negative and in favour of the assessee. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 12 - CALCUTTA HIGH COURT
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... ... ..... redited as loan taken from M/s. Raj Kumar Jain and Co. was the income of the assessee and that the assessee failed to disclose that income in his return. The Tribunal, on the facts, came to the finding that there was no case for levying penalty. That apart, the order of penalty is vitiated because of non-compliance with the principles of natural justice. The assessee was , not afforded any opportunity to cross-examine the partner whose confession was sought to be used against him. Accordingly, the confession on the basis whereof penalty was levied ought not to have been relied on by the Inspecting Assistant Commissioner. This has vitiated the penalty proceeding. In our view, on the facts of this case, the Tribunal has come to a correct conclusion. We, therefore, answer the first question in the negative and the second question in the affirmative, both in favour of the assessee and against the Revenue. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 11 - CALCUTTA HIGH COURT
Draft Assessment Order U/S 144B ... ... ... ... ..... in order to enable the assessee to prospect and search for its stock-in-trade. This expenditure could not be said to be incurred with view to obtain any asset of enduring nature. It was linked up and connected with the production, i.e., for earning profits at the factory. It was, in our opinion, allowable as revenue expenditure. It was not in the nature of capital expense. In our view, the principles laid down in this decision will govern this case. In our view, the assessee was entitled to the deduction and the Income-tax Officer was justified in allowing the deduction in the relevant assessment year to the extent of a sum of Rs. 25,000. Accordingly, the direction of the Inspecting Assistant Commissioner under section 144B of the Act to disallow the said expenditure is not sustainable. For the reasons aforesaid, the question in this reference is answered in the negative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 10 - CALCUTTA HIGH COURT
Business, Business Expenditure, Capital Gains, Depreciation, Disallowance, Expenditure On Guest Houses, Export Incentive Scheme, Gratuity, Guest House, Income, Intercorporate Dividends, New Industrial Undertaking, Special Deduction
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1989 (6) TMI 9 - CALCUTTA HIGH COURT
Appeal To Appellate Controller, Estate Duty ... ... ... ... ..... en assuming that the appeal could not be presented before payment of duty, when the duty was paid, the appeal became competent subject to the condonation of the delay. The Appellate Controller, having entertained the appeal after the duty is paid, must be deemed to have condoned the delay in filing the appeal as the accountable person was in financial difficulty. In a case where the accountable person does not pay the entire duty when the appeal is presented to save the period of limitation but, ultimately, before the appeal is entertained and heard, the entire duty is paid, in such a case it cannot be said that the appeal is not competent. That is what has been done in this particular case. We are of the view that the Appellate Controller rightly entertained the appeal. We, therefore, answer the question in the negative and in favour of the accountable person. The Tribunal will dispose of the case on the merits of imposition of penalty. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 8 - CALCUTTA HIGH COURT
Exemptions, Firm, Reassessment, Wealth Tax ... ... ... ... ..... essment is validly reopened, then the entire assessment is at large. Accordingly, the assessee is entitled to claim such exemptions and reliefs which are available to the assessee although, in the original assessment, the assessee might not have claimed such reliefs or exemptions. Reference may be made to the decisions of this court in the case of Sun Engineering Works (P.) Ltd. v. CIT 1978 111 ITR 166, and in the case CIT v. Assam Oil Co. Ltd. 1982 133 ITR 204, where it was held that, although the relief was not claimed in the original assessment, if the assessee is entitled to such relief, such relief should be granted in the reassessment proceedings. We are, therefore, of the view that the Tribunal is justified in holding that the assessee is entitled to exemption under section 5(1)(iv) of the Act. We, therefore, answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 7 - CALCUTTA HIGH COURT
Developement Rebate ... ... ... ... ..... t and further having held that West Laikdihi Coal Co. s case 1973 87 ITR 501 (Cal) was decided under the provisions of the Indian Income-tax Act, 1922, and there being no Explanation such as the one appended to clause (a) of section 34(3) of the 1961 Act, the reasoning and conclusions of the Tribunal in the case before us cannot be sustained. The assessee, having not complied with the mandatory condition of section 34(3), is not entitled to any development rebate or carry forward of the unabsorbed development rebate. If no development rebate is allowable, the question of carry forward of any such unabsorbed development rebate would not arise. For the reasons aforesaid, both the questions in this reference are answered in the negative and in favour of the Revenue and against the assessee. There will be no order as to costs. Leave is given to Mr. R. N. Saha to file vakalatnama within two weeks from date. Let the paper book be given to him. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 6 - CALCUTTA HIGH COURT
Business Expenditure, Provision For Gratuity ... ... ... ... ..... assessee is not liable to be approved. Once the application has been made within the time prescribed by the Act to the Commissioner for approval, it is immaterial when such approval is accorded, inasmuch as the approval would relate back to the date of application for such approval. If, however, for any reason, the approval is not granted, the Department may withdraw the benefit extended to the assessee under section 40A(7). However, the assessee has to satisfy all the three conditions mentioned in section 40A(7)(b)(ii). The condition of creating an approved gratuity fund would be satisfied if the assessee makes an application for such approval on or before January 1, 1976, irrespective of the fact whether such approval was accorded to the assessee before the assessment was completed. For the reasons aforesaid, we answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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1989 (6) TMI 5 - CALCUTTA HIGH COURT
Offences And Prosecution, Prima Facie Case, Wilful Attempt To Evade Tax ... ... ... ... ..... judgment is pronounced, Mr. Y. Ratnakar, learned counsel for the petitioner, made a request for grant of a certificate to appeal to the Supreme Court. Questions Nos. 5 and 6 were answered against the accountable persons following the judgments of this court in CED v. Estate of Late Omprakash Bajaj 1977 110 ITR 263 (AP) and CIT v. Barkat Ali Khan 1974 TLR 90 (AP). It is represented by learned counsel that leave was granted against the decision in those two cases and appeals are pending in the Supreme Court. In view of this, we grant a certificate in this case also in respect of all the questions. Since the identical question is pending before the Supreme Court on the certificates granted by the Andhra Pradesh High Court, we also grant a certificate that this is a fit case for appeal to the Supreme Court under section 65 of the Estate Duty Act, 1953. Let the certificate be drawn up and issued separately. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J.-I agree.
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1989 (6) TMI 4 - CALCUTTA HIGH COURT
Export Market Development Allowance, Weighted Deduction ... ... ... ... ..... to the expenditure of Rs. 780 for purchase of foreign periodicals. The assessee has to obtain information regarding the foreign markets from foreign trade journals and it cannot be said that such expenses do not relate to export promotion. As a matter of fact, in 1981, rule 6AA was inserted in the Income-tax Rules, 1962, prescribing the activities for export markets development allowance under sub-clause (ix) of clause (b) of sub-section (1) of section 35B. One of the activities for promotion of sales would be purchase of foreign periodicals or journals relating to the export business of the assessee. Having regard to the facts and circumstances of this case, we are of the view that such expenditure is allowable under section 35B which facilitates the carrying on of the export business. For the foregoing reasons, we answer the question in this reference in the affirmative and in favour of the assessee. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J.-I agree.
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1989 (6) TMI 3 - CALCUTTA HIGH COURT
Business Loss, Illegal Business ... ... ... ... ..... h 1980 124 ITR 40, where the Supreme Court observed that the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subjected to tax as profits. We may also add that the carrying of the business in groundnuts and masoor is not by itself illegal. It was not prohibited under any law. It was beyond the power of the company. The transactions may be void vis-a-vis the company and the purchasers. But this has nothing to do with the assessment of the income derived from such business. If the income of such business is taxable, the loss suffered in such business is necessarily allowable. We are, therefore, of the view that, in the circumstances of this case, the Tribunal has come to a correct conclusion. We, therefore, answer the question in this reference in the affirmative and in favour of the assessee and against the Revenue. F There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. - I agree.
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1989 (6) TMI 2 - CALCUTTA HIGH COURT
Business Expenditure, Export Market Development Allowance, Rates And Taxes ... ... ... ... ..... by its circular dated December 28, 1981, accepted the said decision of the Special Bench in so far as the question of allowability of the weighted deduction under section 35B of the Act is concerned. The Board has, however, not accepted the apportionment of the claim at 75 per cent. In the instant case, the receiver does not dispute the allowability of the claim. The assessee, however, contends that the rate at which it was allowed is not reasonable. The question of allowability of an expenditure in a given case is basically a question of fact. The receiver has not challenged the determination made by the Tribunal. In our view, the Tribunal upheld the question of claim on the basis of the Special Bench formula on the facts of this case. We do not find any ground to interfere with such determination. For the reasons aforesaid, we answer the second question in the negative and in favour of the Revenue. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. - I agree.
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1989 (6) TMI 1 - CALCUTTA HIGH COURT
Delay In Filing Return, Penalty ... ... ... ... ..... prove mens rea before penalty can be levied under section 271(1)(a). It is for the assessee to satisfy the authority that there was reasonable cause for the delay in filing the return. Merely because there was a dispute amongst the partners or the Income-tax Department had seized the books of account could not be a ground for such inordinate delay. It has not been suggested that the assessee could not get hold of the books of account and papers from the Income-tax Department for the purpose of preparing the accounts. Ultimately, the assessee filed an incomplete return. There is no material or record to hold that the assessee was prevented by reasonable cause from filing the return in time. We are, therefore, of the view that the Tribunal was not justified in cancelling the penalty. For the reasons aforesaid we answer both the questions in this reference in the affirmative and in favour of the Revenue. There will be no order as to costs. BHAGABATI PRASAD BANERJEE J. -I agree.
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