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Showing 81 to 100 of 183 Records
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1978 (2) TMI 103 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Meaning of Trade Discount ... ... ... ... ..... n by reason of consideration of favour. The agreements were between the manufacturers and the distributors and, therefore, the entire deduction of 11 per cent comprising of three items of trade discount, onward freight allowance and the special rebate, was permissible having regard to the language of the explanation to Section 4 of the Act. Thus, in our opinion, the Collector of Central Excise was in error in taking the view that this deduction was not permissible. 9. As the decision on this point is sufficient to dispose of this appeal, it is unnecessary for the purpose of the present case to go into the question whether when the refund was allowed of the balance of the amount from the two Current Account there was any provisional assessment or there was a case of mere short levied excise duty. 10. In the result, the appeal fails and is dismissed with costs. The costs are quantified at Rs. 500/-. Liberty to the respondents to withdraw the amount of Rs. 500/- by way of costs.
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1978 (2) TMI 102 - HIGH COURT OF MADRAS
Packing of biscuits in tin containers - `Deemed Value' occurring - Significance ... ... ... ... ..... .N. Guha - 1977 E.L.T. (J 14) (1977 T.L.R 2189) and Hind Lamps. v. Union of India (1977 T.L.R. 2299) the question in the form in which it has arisen before me did not come up for consideration. All of them related to the meaning of the wholesale price, whether the post-manufacturing cost could be included or not Even the explanation to Section 4 throws some light on this. I am unable to conclude that the packing in tin containers would ever be characterised as post-manufacturing operation so as to exclude the cost of the tin containers. In my view, it is the value at wholesale price when the excisable article is delive-red at the factory gate, which should provide the quantum for the levy. From this point of view, it is unnecessary to decide whether the petitioner manufactures these tins or not, as otherwise the deeming clause occurring under Section 4 will be rendered otiose. 18. For all these reasons, the petition will stand dismissed. However, I make no orders as to costs.
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1978 (2) TMI 101 - HIGH COURT AT CALCUTTA
Appeals - Discharge order - Scope of. - Constitution - Article 20(2) - Prosecution in Court ... ... ... ... ..... tive tribunal can only be questioned after exhausting all the reliefs available under the statute. Here hat was not done. The order was sought to be challenged in a criminal prosecution which lay undoubtedly, but which ended in a discharge. The order of discharge is a judicial order. It cannot be said to be perverse, when the adjudicating authority which is a pro-administration administrative Tribunal refused to impose any penalty. The Ld. Magistrate considered the evidence and in his view, the evidence on record did not warrant a conviction u/s 85 of the Gold Control Act, 1968. This order is not an order without jurisdiction, because the Ld. Magistrate applied his mind to the available evidence and came to the conclusion. He did not attach undue weight upon the order of the adjudicating authority. Under these circumstances it is not a case where the rule should subsist and as a revisional court cannot interfere in such a case. Hence it is ordered that the rule be discharged.
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1978 (2) TMI 100 - ALLAHABAD HIGH COURT
Application For Registration, Minor Admitted To Benefits Of Partnership ... ... ... ... ..... , it is not necessary for every partner to sign the instrument of partnership, and that even though the instrument of partnership has been signed by only some of them, but if it had been assented to by the others, who had not signed it and they had joined in putting it forward along with the other partners for registration, it would be admissible for registration under the Indian Income-tax Act. The same is the view of the Punjab High Court taken in the case of Jagan Nath Pyare Lal v. Commissioner of Income-tax 1973 92 ITR 207. We are in respectful agreement with the view taken in the aforesaid cases and hold that merely because Smt. Saroj Gupta did not sign the partnership deed that would not disentitle that assessee-firm from getting the registration. In the result, we answer the question in the affirmative and against the Commissioner of Income-tax. The assessee-firm would be entitled to its costs which we assess at Rs. 200. The advocate s fee is also assessed at Rs. 200.
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1978 (2) TMI 99 - CALCUTTA HIGH COURT
Law Applicable ... ... ... ... ..... Court in the case of Commissioner of Income-tax v. Data Ram Satpal 1975 99 ITR 507 (All). We are in respectful agreement with this view of the Division Bench of the Allahabad High Court. The same view has been reiterated by the Allahabad High Court in the case of Commissioner of Income-tax v. S. Devendra Singh 1977 108 ITR 314 and in the case of Additional Commissioner of Income-tax v. Jiwan Lal Shah 1977 109 ITR 474 (All). As the offence was committed after the Explanation had come into effect, we are of the opinion that the penalty proceedings, in the instant case, would be governed by the Explanation mentioned in the section. In the aforesaid view of the matter, we would answer the question by saying that the penalty proceedings would be governed by the Explanation to section 271(1) of the Income-tax Act, 1961, and the Tribunal was not justified in holding that the Explanation would not govern the proceedings. There will, however, be no order as to costs. GUHA J.--I agree.
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1978 (2) TMI 98 - CALCUTTA HIGH COURT
Revenue Receipt ... ... ... ... ..... Enforcement 1963 33 Comp Cas 231, 241 AIR 1962 SC 1764 held that the amount paid in this case was by way of compensation. This observation appears at page 1771 of the report. The finding of the Tribunal that the payment was made on account of loss of production and loss of profits have also not been challenged under the provisions of the Sale of Goods Act, 1930, a buyer if supplied with defective goods can, if he has not paid the price thereof, treat the defects as breach of warranty and claim diminution of the price. If price has been paid, he can sue for damages on account of such breach. In the instant case it cannot be said that at any stage the assessee preferred any claim for diminution of price. The judgment of the Supreme Court also confirms the stand of the assessee. For the reasons given above we answer the question in the affirmative and in favour of the assessee. In the facts and circumstances of the case, there will be no order as to costs. BANERJI J.--I agree.
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1978 (2) TMI 97 - CALCUTTA HIGH COURT
Law Applicable ... ... ... ... ..... on in respect of the assets used by an assessee for its business. The assessee in this case is one who is carrying on business in petroleum. For this purpose he has petrol pumps. These petrol pumps are situated in a place which has been considered to be building on which depreciation was allowed. The building is unusable for the business purpose, that is, for the purpose of petrol pumps unless there are driveways. It has been so found by the Tribunal which further held that the pump cannot be used without fencing by the walls. If this is so then these are parts of the building in which the assessee carries on the business. In the aforesaid view of the matter, in our opinion, the Tribunal was right in holding that driveways and compound walls are eligible for depreciation allowance. The question referred is, therefore, answered in the affirmative and in favour of the assessee. The assessee will get the costs of the reference from the revenue. SUDHINDRA MOHAN GUHA J.--I agree.
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1978 (2) TMI 96 - KERALA HIGH COURT
Reduction Or Waiver ... ... ... ... ..... not mandatory when an application is laid under section 220(3) of the Act. Secondly, it should be noted that even if he should pass an order, the order can only (a) extend the time for payment or (b) allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case. So even if an order is passed under section 220(3) by the Income-tax Officer in compliance with the directions contained therein, I fail to understand how that order can amount to the making of satisfactory arrangement for payment of tax or interest referred to in section 273A of the Act. It cannot, therefore, be said that the conditions laid down in section 273A have been complied with so as to justify the first respondent for interference with that portion of exhibit P-1 which relates to the levy of penal interest under sections 217 and 139(8) of the Act. In the result, this original petition is dismissed but, in the circumstances of the case, without costs.
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1978 (2) TMI 95 - CALCUTTA HIGH COURT
Business Income, Expenditure Incurred, Shares And Securities ... ... ... ... ..... e allowable under the head Business income . Even assuming that the income of the assessee is solely referable to dividend, there can be no question of apportionment. The entire expenditure would then be allowable against the dividend earned. We had occasion to consider a similar question in Income-tax References Nos. 365, 369 and 367 of 1971 (Commissioner of Income-tax v. Birds Investment (Anniversary Investment Agency)), where we held that where the assessee was holding shares as its circulating capital and it was not possible to ascertain if any shares were held solely for the purpose of earning dividends, there was no justification for apportioning the expenditure incurred by the assessee against income arising under two separate heads, i.e., business and dividend. For the reasons stated above we answer the question referred in the affirmative and in favour of the assessee. In the facts and circumstances of the case, there will be no order as to costs. BANERJI J.-I agree.
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1978 (2) TMI 94 - DELHI HIGH COURT
Account Books, Tax Proceedings ... ... ... ... ..... ts of the year to which the adjustments relate and not in a subsequent year, it is often inevitable that such adjustments relating to earlier years have to be made in subsequent years. This is specially so, when the business, as of the assessees, is of giant proportions and the branches are farflung. The Tribunal has also very properly relied upon the auditors reports to draw the proper inference from the same. Since the evidence in income-tax proceedings need not consist necessarily of evidence admissible under the Evidence Act but may consist of other material which has a probative value, the Tribunal was justified in taking such material into account. It cannot, therefore, be said that the decision of the Tribunal was not based on any evidence. On the contrary, it was based on evidence meaning thereby that it was based on relevant material which can be considered in the income-tax proceedings. The applications are, therefore, dismissed. There will be no order as to costs.
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1978 (2) TMI 93 - CALCUTTA HIGH COURT
Business, Loss, Set Off ... ... ... ... ..... can be validly issued even after that period. The right to appeal against the demand arises from the date of service of the second notice and it cannot be held that the assessee s right is being prejudiced in any way. In our view, the purpose of a notice under section 29 of the Act is to bring to the attention of and demand from the assessee the order of assessment and the amount of tax including interest and other items due from the assessee. It is the statutory duty of the Income-tax Officer concerned to give this notice, and there is no bar to the issue of such a notice if a proper or correct notice have not been issued earlier. For the reasons given above, we are unable to accept the contention of the assessee. We answer the questions referred as follows The question No. 1 is answered in the affirmative and in favour of the revenue. Question No. 2 is answered in the negative and also in favour of the revenue. There will be no order as to costs. C. K. BANERJI J.--I agree.
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1978 (2) TMI 92 - GUJARAT HIGH COURT
Reduction Or Waiver ... ... ... ... ..... at the concept of voluntary filing of return is irrelevant for the purpose of grant of relief except to the extent that it must be shown that the return was not filed pursuant to a notice issued under section 14(2). Since the language of section 18(2A) and section 271(4A) is in pari materia, so far as the point under consideration is concerned, we must, following the said decision, hold in the present case that the relief which the petitioner sought was refused to him on a total misconstruction of the relevant statutory provision which resulted in failure on the part of the Commissioner to exercise the discretion which was vested in him. In the result, the writ petition succeeds and is allowed. The Commissioner will reconsider the matter and determine the question of grant of relief afresh in accordance with law and in the light of the observations made in this judgment. Rule is accordingly made absolute. The Commissioner will pay the costs of this petition to the petitioner.
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1978 (2) TMI 91 - DELHI HIGH COURT
Estate Duty, Rate Purpose ... ... ... ... ..... by the aggregation under section 34. This conclusion is supported by the decisions in T. R. Jayasankar v. Assistant Controller of Estate Duty 1972 83 ITR 445 (Ker), Sardarni Virpaul Kaur v. Controller of Estate Duty 1972 85 ITR 45 (Punj) and V. Devaki Ammal v. Assistant Controller of Estate Duty 1973 91 ITR 24 (Mad). The questions referred to us are, therefore, answered as follows for the reasons given above 1. On the facts and circumstances of the case, the Tribunal was correct in law in holding that no estate duty was chargeable under section 5 of the Act. 2. The provisions of section 34(1) of the Act do not make the estate passing on the death of Shri Jai Ram Dass liable to the charge of estate duty because they come into play only for the purpose of aggregation and thereupon for determining the rate at which the estate duty is charged provided that independently of them the property passing on death is liable to payment of estate duty. There will be no order as to costs.
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1978 (2) TMI 90 - CALCUTTA HIGH COURT
Capital Gains, Liability To Tax ... ... ... ... ..... reasonable person can come to such a finding. We, therefore, answer the first question in the affirmative and the second question in the negative and both in favour of the assessee. Parties will pay and bear their own costs. Before we part with this matter we must confess that it seems to us that this is really an academic pursuit and an exercise in futility because the assessee originally showed a profit on this head. The revenue computed a loss. We have not been able to appreciate how the assessee is worse off by the finding of the Income-tax Officer and what was the real purpose of appeal to the Appellate Assistant Commissioner unless, as was suggested, to settle a question of law which we find difficult to appreciate. There was no question of carrying forward of any capital loss to the next year. We have also not appreciated the revenue s endeavours to pursue this rather academic, in the facts and circumstances of this case, controversy. SUDHINDRA MOHAN GUHA J.-I agree.
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1978 (2) TMI 89 - GUJARAT HIGH COURT
Reduction Or Waiver, Waiver Of Penalty, Waiver Or Reduction Of Penalty ... ... ... ... ..... eous. There is nothing in section 18(2A) which restricts the relief to the assessees who file their returns for the first time. Imposition of such a condition would amount to addition of a new condition in the relevant statutory provision. Even on that ground, therefore, it must be held that the Commissioner misdirected himself in law in refusing to consider the request of the petitioner. The foregoing discussion would show that in the present case, the Commissioner, upon an apparent misconstruction of the scope of his statutory power, has refused to exercise discretion vested in him by law. Under the circumstances, the petitioner is entitled to succeed. The Commissioner is directed to take up for reconsideration the petitioner s application under section 18(2A) and to determine it afresh in accordance with law and in the light of the observations made in this judgment. Rule is accordingly made absolute. The Commissioner will pay the costs of this petition to the petitioner.
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1978 (2) TMI 88 - CALCUTTA HIGH COURT
Failure To Pay Advance Tax ... ... ... ... ..... e recovery of arrears of tax. Section 229 only permits recovery of any interest, fine or penalty under the provisions of that Chapter, but it does not authorise such recovery on the basis of an order which has not attained a finality. Section 229, therefore, does not at all support the contention of the petitioner that the penalty imposed on an assessee for his default to pay advance tax is recoverable by the issue of a certificate under section 222 of the Act before the completion of assessment. The impugned certificate has been issued in terms of an order under sub-section (1) of section 221 of the Act, before a final order under sub-section (2) of section 221 has been passed and, as such, it cannot be sustained. In these circumstances, we affirm the order of the learned Additional District Magistrate setting aside the impugned certificate, though for different reasons. The rule is, accordingly discharged, but there will be no order for costs. D. C. CHAKRAVORTI J.-I agree.
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1978 (2) TMI 87 - KERALA HIGH COURT
Business Expenditure, Entertainment Expenditure, Income From Business, Total Income ... ... ... ... ..... spect and submit the relevant data to the Tribunal. The further statement of facts will be submitted to this court within six months from this date. The same principle, we find, was also stated by the Gujarat High Court in Addl. Commissioner of Income-tax v. Desai Bros. 1977 108 ITR 14, when it dealt with the question whether the replacement of the petrol engine by the diesel engine was on account of the unserviceability of the vehicle. On this crucial aspect of the case, we find no material and no consideration in the order of the Tribunal. In the circumstances, we decline to answer the question of law, but would direct the Tribunal to deal with the matter afresh in accordance with law and in the light of the observations contained in this judgment, and pass appropriate orders. There will be no order as to costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be communicated to the Income-tax Appellate Tribunal, Cochin Bench.
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1978 (2) TMI 86 - CALCUTTA HIGH COURT
Powers Of Tribunal, Substantially Interested ... ... ... ... ..... Reliance was also placed on certain observations of the Mysore High Court in the case of Pathikonda Balasubba Setty v. Commissioner of Income-tax 1967 65 ITR 252 (Mys). There, the Division Bench reiterated that the powers of the Tribunal were limited to the subject-matter of appeal and the Tribunal had no power to make an enhancement beyond the figure fixed by the Income-tax Officer. This principle, in our opinion, again is not germane to the controversy before us. For the reasons mentioned hereinbefore, we are, therefore, of the opinion that the order of the Tribunal cannot be challenged as being illegal and without jurisdiction. It is true that the Tribunal might have disposed of the appeal but the Tribunal has the power to make the remand in the manner it had done. If that is the position, we will answer the question in the affirmative and in favour of the revenue. In the facts and circumstances of this case, each party will pay and bear its own costs. GUHA J.-- I agree.
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1978 (2) TMI 85 - ANDHRA PRADESH HIGH COURT
Business Loss, Speculation Business ... ... ... ... ..... ded as a speculative business. Explanation 2 to section 28 says Where speculative transactions carried on by an assessee are of such a nature as to constitute a business, the business (hereinafter referred to as speculation business ) shall be deemed to be distinct and separate from any other business. It cannot be said, having regard to the meaning of speculation business, that the transaction in question was such as to constitute a speculation business. There was only one such transaction in both the cases, and they were isolated instances. Therefore, having regard to the meaning of speculation business, we agree with the finding recorded by the Tribunal that it is a loss in business and not a loss in speculation business. In the result, the first question is answered in the affirmative and in favour of the revenue and the second question is answered in the negative and against the revenue. The references are answered accordingly with costs. Advocate s fee Rs. 250 in each.
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1978 (2) TMI 84 - MADRAS HIGH COURT
Excise Duty ... ... ... ... ..... is that the duplex board cleared should also have the benefit of the tax credit certificate scheme. We have no hesitation in this contention of the petitioner. Schedule I to of the Scheme gives under serial No. (3) the following class of goods Paper, all sorts, other than (i) newsprint, and (ii) boards, including paste-board, mill board, straw-board, pulp board, card coated board. Having regard to the nature of the entry, paper of all sorts other than newsprint and boards will be entitled to the benefit of the tax certificate under that Scheme. When boards are specifically excluded from the entry, we do not see how the petitioner can claim the benefit of tax credit certificate in respect of duplex board manufactured by it. This contention has, therefore, to be rejected. The writ petitions are, therefore, partly allowed to the extent indicated above and the quantum of tax credit for each of the years will be calculated accordingly. There will, however, be no order as to costs.
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