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Case Laws
Showing 81 to 100 of 164 Records
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1992 (5) TMI 94 - CEGAT, CALCUTTA
Imports - Confiscation ... ... ... ... ..... ch clubbing on the basis that the two firms are only in the nature of a facade for evading the prohibition of the import. rdquo Applying the above principles to the facts of this case, it is seen that both the appellants are having separate entities and there is nothing to show that they have got any common interest. The mere fact that these two imports were made in the same ship and from the same party, is no reason to hold that the goods in question are offending ones. These are two separate imports made by two separate parties and the clubbing of these goods in question is not proper in view of the above-said decisions relied on by the learned Counsel for the appellants. That being the case, the confiscation of these goods is not in accordance with law. Accordingly, the above appeals are allowed. The confiscation of the goods in question are hereby set aside. The penalty imposed on the appellants is also set aside. The appellants are entitled for the consequential reliefs.
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1992 (5) TMI 93 - CEGAT, CALCUTTA
Confiscation and Penalty ... ... ... ... ..... ade in the first time in the impugned order was not known to the parties and in such circumstances, it cannot be said that the burden had shifted on to the appellants to prove that those are smuggled goods. Moreover, the milk powder in this case was auctioned by the Department which clearly shows that milk powder is an article which is available in the market. This also strengthens the plea of Shri R.C. Deb that he had purchased this milk powder under several vouchers from Calcutta and Gauhati. In that view of the matter, we are of the opinion that the burden was not shifted on to the appellants to prove that these are not smuggled goods and the Department has not discharged this burden. That being the case, we set aside the order of confiscation of the milk powder in question and also set aside the imposition of penalty which was imposed on the appellants by the impugned order. The appeals are accordingly allowed and the appellants are entitled for the consequential reliefs.
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1992 (5) TMI 92 - CEGAT, CALCUTTA
Import licence ... ... ... ... ..... e licence and he will be going beyond his jurisdiction in deciding whether these materials are capable of manufacturing the bicycle parts which the appellants have already exported. The learned Barrister, therefore, rightly contended that determination by the Collector, of this question is not under the statute and, therefore, does not constitute a decision under the provisions of the Customs Act and hence it is in excess of his jurisdiction. rdquo Relying on the above observations it is clear that what the Collector has to examine is whether the goods imported are covered by the licence. He will be going beyond the jurisdiction in deciding whether these materials are used in the manufacture of the goods already exported by the concerned party. That being so, the confiscation of the goods in question cannot be upheld. Accordingly, this appeal is allowed and the confiscation of the goods in question is hereby set aside. The appellants are entitled for the consequential relief.
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1992 (5) TMI 91 - CEGAT, NEW DELHI
Tyres for Power Tillers - Countervailing Duty ... ... ... ... ..... re of contemporaneous exposition. Even going by the wording of the Tariff Item, the power tiller for which the tyres were imported is not a motor vehicle designed for use upon roads. Nor is it use off-the-road vehicle or equipment like dumpers, front-end loaders, excavators etc. Therefore, tyres meant for power tillers will fall outside the scope of Item 16-I(1) CET, and will correctly be classifiable under the residuary Item 16-III, CET under ldquo All other tyres rdquo . It is also noted that the Collector (Appeals) in the impunged order has largely based his conclusion on the fact that there was an admission by appellants that the equipment for which the tyres are imported is designed for use off-the-road, without detailed consideration of the nature of such equipments and whether power tiller would be covered thereunder. In the result, the appellants rsquo claim for reassessment of the tyres under Item 16-III CET for CVD is well founded. The appeal is accordingly allowed.
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1992 (5) TMI 90 - CEGAT, CALCUTTA
Smuggled goods - Onus of proof ... ... ... ... ..... the contrary, the description of these goods clearly indicate that they are made in India itself out of fibres manufactured in Japan. In that view of the matter, the Department has not discharged its burden cast on it to prove that the goods in question are smuggled goods. That being the position, the confiscation of the goods in question and the imposition of penalty are to be set aside. In this view of the matter, it is not necessary for me to determine whether the show cause notice is issued within six months of the seizure and on that count, the goods in question are liable to be returned. I have already come to the conclusion that the confiscation of the goods in question as well as the imposition of penalty on the appellant are not in accordance with law. Hence, the appeal is hereby allowed. The goods in question are ordered to be returned to the appellant within three months from the date of receipt of this order. The penalty imposed on the appellant is also set aside.
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1992 (5) TMI 89 - CEGAT, NEW DELHI
Plant and Machinery - Capital Investment ... ... ... ... ..... pon by them for their stand in the appeal, there is contradiction between what is stated at Serial Number (I) and the ones at Serial Numbers (n) and (o). There is a further observation later on, as pointed out above, that the cost of electrical installation and water supply lines which are used for productive purpose will have to be included. Taking an overall view of what is stated in the reference material cited by the appellants and taking note of the fact that the cost of the impugned electrical panels are shown in respect of various machines like Polishing machine, Bevelling machine etc. go to show that these are linked to these machines and are required for operating them. In the circumstances, the decision of the Collector (Appeals) treating them as essential part of the plant and machinery cannot be faulted. We see no merit in the appeals. We, therefore, dismiss them. 7. The operative part of the order was pronounced in the open Court at the conclusion of the hearing.
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1992 (5) TMI 88 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... applies only to those which have been cut into rectangles (including squares). The goods imported are circular industrial discs they are neither rectangles nor squares. Therefore by virtue of Chapter note these goods apparently fall outside the scope of Heading 35.20 CTA. The Notification 226/76 specifically covers sheets and films falling under Chapter 39 and as such imported discs are not eligible for the benefit of this notification. I am therefore in agreement with the views expressed by Hon rsquo ble Member (Technical) for the reasons mentioned in detail in his order with which I entirely agree. The reference is answered accordingly. The file may now be sent to the Regular Bench for communicating the order of the Tribunal as per majority opinion. 22-4-1992 (S.K. BHATNAGAR) VICE PRESIDENT 16. The impugned order of the Additional Collector is upheld and the appeal is rejected as per the majority view above. Sd/- (K.S. Venkataramani) Member (T) Sd/- (S.L. Peeran) Member (J)
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1992 (5) TMI 87 - SUPREME COURT
Non service of notice - Held that:- After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.
Therefore, of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court.set aside the order of the Family Court dated June 24, 1990 and allow the appellant's application dated December 18, 1989 and set aside the ex parte decree passed against the appellant in Marriage Petition
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1992 (5) TMI 86 - ITAT PUNE
Accounting Year, Agricultural Produce, Carrying On Business ... ... ... ... ..... not apply to the case of the assessee as the facts of the assessee s case could be distinguished to the facts of that case. Therefore, there is no question of the Market Committee or the State Government indirectly through the Market Committee levying a tax or duty in the disguise of a fee so as to attract the mischief of section 43B of the Income Tax Act, 1961. The Item 66 of the State List of the Seventh Schedule of the Constitution of India would be applicable in the facts and circumstances of the case enumerated, rather than Item 52 of the State List which deals with taxes on the entry of goods into a local area for consumption, use or sale therein. In any case, the amendment made by the Finance Act, 1988 is applicable only from 1-4-1989 and therefore not applicable prior to assessments for 1989-90. In the facts and circumstances of the case, we uphold the order of the C.I.T(A) and reject the common ground taken by the revenue. 12. In the result, the appeals are dismissed
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1992 (5) TMI 83 - ITAT MADRAS-D
Carrying On Business, Substantially Interested ... ... ... ... ..... the assessee from the franchisees was assessed in the hands of the assessee as income from business and not as income from property, i.e., by mere letting out the buildings. After giving our anxious consideration to the nature of the franchise business of the assessee and also taking into consideration the terms and conditions of the franchise agreement, and also takng into consideration the facts of this case, we have no hesitation in agreeing with the finding recorded by the CWT (A) that the buildings in question have been used by the assessee for purposes of its own business within the meaning of clause (vi) of sub-section (3) of section 40 of the Finance Act, 1983. Hence, we confirm the order of the CWT (A) that the buildings at D. Nos. 17, 18 and 19, East Chitrai St., Madurai, owned by the assessee are exempt from wealth-tax under clause (vi) of sub-section (3) of section 40 of the Finance Act, 1983. 11. In the result, all these appeals fail and are, therefore, dismissed
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1992 (5) TMI 81 - ITAT MADRAS-C
Assessing Officer, Assessment Order, Original Assessment, Penalty Proceedings ... ... ... ... ..... in the first round. The factum of such reconciliation having been made is a material fact which the officer who levied the impugned penalty in the second round of proceedings ought to have taken into account. As we see it, the said officer failed to take into account the said material fact. Therefore, his conclusion that penalty under section 271(1)(c) of the Act is exigible in this case is vitiated. In our considered opinion, in the first round of the proceedings, the IAC (Asst.) is fully justified in taking into account the explanations and reconciliations given by the assessee and in dropping the penalty proceedings initiated. In other words, on merits also this is not a fit case for levying penalty under section 271(1)(c) of the Act. 32. In view of the foregoing, therefore, we hold that the impugned penalty order cannot be sustained in law. We, therefore, cancel the penalty of Rs. 3,26,312 sustained by the CIT (Appeals). 33. In the result, the assessee s appeal is allowed
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1992 (5) TMI 80 - ITAT MADRAS-C
Any Person, Appellate Authority, Concessional Rate, Fees For Technical Services, Higher Rate, Indian Company, Non-resident Company, Orders Prejudicial To Interests, Words And Phrases
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1992 (5) TMI 77 - ITAT MADRAS-A
Capital Gains, Cost Of Acquisition ... ... ... ... ..... ovisions of Rule 1BB. On the other hand, tax on capital gains is a one time tax on the difference between the consideration received and the market value as on 1-1-1964. Since the assessee is not estopped from contending that the value taken for wealth-tax purposes need not be followed for capital gains purposes, that value taken for wealth-tax purposes can be considered to be only one piece of evidence which could be contradicted by the assessee by producting further data for a more accurate determination of the market value. In the present case, the assessee has done only that by producing the sale deed relating to the sale of an adjacent property in April 1964 which indicated a value of Rs. 10,000 per ground. In the circumstances, we have to accept the claim of the assessee that the value of the property could be reasonably estimated at Rs. 3 lakhs as on 1-1-1964 for the purpose of computing the capital gains. We direct accordingly. 14. In the result, the appeal is allowed
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1992 (5) TMI 75 - ITAT INDORE
Assessment Year, Disclosure Petition, Income Tax, Voluntary Disclosure ... ... ... ... ..... logic only. Your predecessors abstained from doing this needful, resulting into a week assault upon the contention raised. He (a) artificially extracted its scope from a comprehensive inquiry to interrogation only and (b) interrogation of the person only, in place of many. 17. We fail to understand what precisely the ld. CIT(A)-II wanted the Asstt. Commissioner of Income-tax to do in the course of further inquiry. On the whole, we find no merit in such type of observations for calling a remand report. However, the appeal of the assessee against the order of the CIT(A)-II calling for a remand report is infructuous, since the order of the CIT(A)-II is not being sustained. 18. In the light of foregoing discussion, the order of the CIT(A)-I is sustained and that of the CIT(A)-II and so also the assessment order for the assessment year 1986-87 are vacated. 19. In the result the Income-tax Appeal Nos. 350 to 354/Ind/1991 are dismissed and ITA Nos. 313 and 751/Ind/1990 are allowed.
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1992 (5) TMI 74 - ITAT GAUHATI
Business Loss, Carry Forward And Set Off, Legal Fiction, Total Income ... ... ... ... ..... taken. But present is not such a case. Here legislative intent is clear and therefore the object of the provisions is to be effectuated and not defeated on equitable consideration. There is no equity about a tax. Now, the legal fiction under which 30 (thirty percent) of book profit is treated as deemed total income is created for a definite purpose mentioned in sub-section (1) and has a limited scope. The legal fiction does not affect other provisions particularly saved under sub-section (2). Thus, computation of set off and brought forward losses made under section 72(1) is not disturbed by section 115J of the Act. 10. In view of above discussion and clear language of sub-section (2) of section 115J of the Act, the brought forward loss has to be carried after adjustment and set off of Rs. 2,55,866. I fully agree with the submissions advanced by Mrs. Jhingran. The order of the CIT(A) is set aside and that of the A.O. is restored. Consequently, the Revenue s appeal is allowed
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1992 (5) TMI 73 - ITAT DELHI-E
... ...
... ... ..... essee s own pleadings if it is not dealer and not liable to sales tax, there would be no corresponding liability which could be allowed as a deduction. This aspect of the matter has also perhaps escaped the notice of the C Bench of the Tribunal. Thirdly, the decision of the P and H High Court is applicable in respect of supplies made by the Corporation to the State Government at concessional rates. The Hon ble High Court has not decided assessee s liability in respect of supplies made to roller flour mills. Despite decision of the P and H High Court that assessee is not a dealer it has continued to be a registered dealer under the sales tax statutes and collections have been made in the capacity of a registered dealer. 15. We are, therefore, satisfied that there is no mistake in our order by reason of the C Bench of the Tribunal having taken a different view in respect of applicability of s. 43B. 16. For statistical purposes, the application of the assessee is partly allowed.
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1992 (5) TMI 72 - ITAT DELHI-E
Fixed Assets, Revenue Expenditure ... ... ... ... ..... d to be brought on record. We, therefore, set aside this matter and restore it to the file of the Assessing Officer to bring all such relevant facts on record and if it is found that the cheque was issued genuinely and really on or before 31-3-1985 and did not bounce back and was honoured and encashed subsequently in the normal course then the payment shall relate back to the date of issue of the cheque and the exemption under section 80-G would be admissible to the assessee provided all other conditions for the grant of such exemption were available. In case the cheque itself was issued after31-3-1985or it was dishonoured in the first instance then on exemption would be admissible to the assessee under section 80-G in the year under consideration. With these observations, we send this issue back to the Assessing Officer for a fresh adjudication after bringing on record all the relevant and necessary facts of the case. 19. In the result, the cross objection is partly allowed.
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1992 (5) TMI 71 - ITAT DELHI-E
House Property ... ... ... ... ..... this regard warrants no interference. This ground is, therefore, rejected. 7. The next ground is against the disallowance of collection charges amounting to Rs. 5,576 in respect of the aforesaid property. 8. As per clause 1.1 of the Lease Agreement, the lessee is to pay yearly rental of Rs. 96,000 in advance on the 1st day of April each year of the lease period without any deduction whatsoever. The facts of the present case indicate that the assessee did receive rental of Rs. 96,000 in advance in April 1984. There is also no evidence to show that the assessee had, in fact, incurred an expenditure of Rs. 5,576 as claimed, to collect the rent from the property. By the very nature of things, no sums were to be spent in the present case for collection of rent because the rent was payable by the lessee in lump sum in advance. We, therefore, hold that the Income-tax Authorities were justified in disallowing the claim of collection charges. 9. In the result, the appeal is dismissed
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1992 (5) TMI 70 - ITAT DELHI-D
... ...
... ... ..... provisions of s. 37(2A). We do not find any substance in this ground and the ground is hereby rejected. 11. The next grievance in assessee rsquo s appeal is that the CIT(A) erred in not reducing the disallowance on account of personal use of vehicle. The assessee has claimed expenses on maintenance of vehicle. The ITO disallowed l/4th of expenses for business purposes because the director did not own their personal vehicle and personal use of vehicle was not disputed. 12. When the matter came before the CIT(A), the same was confirmed. The learned assessee rsquo s counsel assailed the order of the Revenue rsquo s authorities. As against this the learned Departmental Representative supported the order of the CIT(A). In our opinion, the personal use of the vehicle is not denied. The disallowance made by the Revenue authorities is correct. No interference is called for. 13. In the result, the appeal filed by the Department is dismissed and that of the assessee is partly allowed.
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1992 (5) TMI 69 - ITAT DELHI-D
... ...
... ... ..... . 1989-90 and by this I refer to the stipulation that the audit report must accompany a return filed under s. 139(1) or a return filed under s. 142(1)(i). In spite of the aforesaid omissions on the part of the CIT(A) I am of the view that the penalty cannot be sustained, inasmuch as, the lsquo return filed by the assessee on 21st Nov., 1989 cannot be treated as a return filed under s. 139(1) and it is not the Department rsquo s case that notice under s. 142(1)(i) was issued to the assessee asking him to file a return. It is only under the aforesaid two situations that a penalty under s. 27IB is attracted consequent to the non-filing of an audit report. This aspect by itself can lead to the cancellation of penalty and the examination of a reasonable cause is not at all necessary. In the final analysis the cancellation of penalty by the CIT(A) is upheld but on grounds different to those which had been considered by the learned first appellate authority. The appeal is dismissed.
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