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Showing 141 to 160 of 3459 Records
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1991 (12) TMI 85
Penalty For Concealment, Total Income, Undisclosed Income, Voluntary Disclosure Scheme ... ... ... ... ..... the facts and circumstances of the case and having regard to the principles laid down by the Supreme Court and other High Courts, to which detailed reference has been made, the penalties levied in the present case for all the four years cannot be sustained and have to be deleted. 9. We will now deal with the departmental appeals relating to the assessment years 1977-78, 1979-80 and 1980-81. The common ground in all these appeals is that the CIT(A) erred in holding that the additions of Rs. 32,724 for the assessment year 1977-78, Rs. 59,774 for the assessment year 1979-80 and Rs. 9,600 for the assessment year 1980-81 should not be considered while leaving penalty under section 271(1)(c). We have in the preceding paragraphs held that there is no case for sustaining any penalty at all on the facts and circumstances of the case for the reasons discussed at length therein. In view of this finding, we find no substance in these departmental appeals, which are consequently dismissed
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1991 (12) TMI 84
Assessment Order, Right To Appeal, Tax Liability ... ... ... ... ..... h is incorrectly made in an assessment under section 143(1) and which causes grievance to the appellant can be challenged by the assessee in appeal under section 246(c) because he is, in effect, denying his liability to tax in a manner that the Assessing Officer intends to do, though such tax is raised in what is ostensibly an order under section 143(1). We are, therefore, of the opinion that in filing an appeal before the AAC the assessee was denying his liability to be taxed at 20 which was done by the ITO on a wrong assumption that his income was from non-external account deposits. In this view of the matter, we hold that the first appellate authority erred in dismissing the appeal in limine. We would direct the first appellate authority to admit the appeal and decide it on merits. For this purpose, we would set aside the AAC s order and restore it to the file of the first appellate authority. 4. In the result, the appeal will be treated as allowed for statistical purposes
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1991 (12) TMI 83
Issues Involved:
1. Deduction of Rs. 31,71,231 for material import entitlement and its exclusion from the computation of total income.
Summary:
Issue: Deduction of Rs. 31,71,231 for Material Import Entitlement
The appellant, a textile mill, claimed a deduction of Rs. 31,71,231 for material import entitlement, arguing that this amount should be excluded from the computation of total income as it was neither received nor accrued. The appellant participated in the duty exemption scheme, allowing duty-free import of raw materials against export commitments. Although the appellant exported goods and was entitled to import 36,674.705 kgs of fiber duty-free, no imports were made during the year. The appellant recorded the expected duty exemption as income in its accounts but claimed it should not be taxed as it was not realized.
The CIT(A) denied the claim, stating that the right to import goods duty-free is a benefit or perquisite u/s 28(iv) and must be accounted for on an accrual basis. The CIT(A) relied on the Bombay High Court decision in Metal Rolling Works (P.) Ltd. v. CIT, which held that such rights should be treated as business receipts in the year exports are made.
The appellant argued that the benefit of duty exemption would accrue only upon the actual import of goods, which did not occur during the relevant year. The appellant cited opinions from the Export Advisory Committee of the Institute of Chartered Accountants and various judicial precedents, including CIT v. Shoorji Vallabhdas & Co., to support that anticipated profits should not be taxed until realized.
The Tribunal considered the appellant's arguments and relevant case law, concluding that no real income had accrued during the year as no imports were made. The amount recorded in the accounts was an anticipated benefit, not actual income. Therefore, the Tribunal held that the amount of Rs. 31,75,231 did not constitute income for the year under appeal, as it neither accrued nor was received.
Conclusion:
The appeal was allowed in part, with the Tribunal deciding that the amount of Rs. 31,75,231 for material import entitlement should not be included in the appellant's income for the year under appeal.
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1991 (12) TMI 82
Assessing Officer, Assessment Order, Two Partners ... ... ... ... ..... that in the instant case assessee (new firm) has duly filed its return of income. The assessments were completed under section 144. Subsequently these were re-opened under section 146. In view of this fact, in our opinion, the case of assessee does not come within the ken of section 124(5)(b). 18. Under the law, it is a fundamental principle that an order passed without jurisdiction is a nullity. A defect of jurisdiction, cannot be cured even by the consent of the parties. The assessee pointed out that defect of jurisdiction at the embryonic stage. But department proceeded on the basis that the new firm is the continuation of the old firm. Legally this is not correct. New firm is distinct from the old firm. The Assessing Officer had no jurisdiction over the assessee firm (new firm). Having regard to these facts, we are of the opinion that since there is want of jurisdiction, the whole proceedings are, coram non judice. 19. In the result, appeals of the assessee stand allowed
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1991 (12) TMI 81
Issues Involved:
1. Deduction u/s 32AB and 80-I for "Zarda Yukt Pan Masala" as a tobacco preparation.
2. Interpretation of item No. 2 in the Eleventh Schedule.
3. Evidence regarding consumer perception of "Zarda Yukt Pan Masala."
4. Rule of interpretation and ejusdem generis.
5. Calculation of eligible business profit u/s 80-I(8).
6. Disallowance of Rs. 19,738 for goods lost in transit.
7. Short allowance of deductions u/s 80HHC.
Summary:
1. Deduction u/s 32AB and 80-I for "Zarda Yukt Pan Masala" as a tobacco preparation:
The assessee contended that "Zarda Yukt Pan Masala" is not a tobacco preparation and thus should be eligible for deductions u/s 32AB and 80-I. The Assessing Officer and CIT(A) denied the deductions, considering it a tobacco preparation as per item No. 2 in the Eleventh Schedule. The Tribunal held that "Zarda Yukt Pan Masala" is predominantly Pan Masala with only 4-5% Zarda, and thus cannot be classified as a tobacco preparation. Consequently, the assessee's unit manufacturing "Zarda Yukt Pan Masala" is entitled to the deductions.
2. Interpretation of item No. 2 in the Eleventh Schedule:
The Tribunal emphasized that in the absence of a specific definition in the Income-tax Act, the term "tobacco preparation" should be understood in its popular sense. The Tribunal referred to the Supreme Court's decision in CIT v. Taj Mahal Hotel, which stated that words should be construed in their popular sense. The Tribunal concluded that "Zarda Yukt Pan Masala" is not a tobacco preparation as its main content is Pan Masala.
3. Evidence regarding consumer perception of "Zarda Yukt Pan Masala":
The Tribunal noted that consumers do not consider "Zarda Yukt Pan Masala" as a tobacco product. The Excise and Sales Tax Acts also treat it differently from tobacco preparations, supporting the assessee's claim.
4. Rule of interpretation and ejusdem generis:
The Tribunal applied the rule of interpretation, stating that words should be understood according to their common commercial understanding. The Tribunal also referred to the principle of ejusdem generis, noting that "tobacco preparation" as a genus is followed by specific illustrations, which do not include "Zarda Yukt Pan Masala."
5. Calculation of eligible business profit u/s 80-I(8):
The Tribunal did not find it necessary to address the alternative pleas regarding the small-scale industry status and the computation of raw material valuation, as the primary issue was decided in favor of the assessee.
6. Disallowance of Rs. 19,738 for goods lost in transit:
The Tribunal upheld the CIT(A)'s decision to disallow the claim for goods lost in transit, as the loss was still sub judice. The assessee was allowed to claim the deduction in the subsequent year when the liability is ascertained.
7. Short allowance of deductions u/s 80HHC:
The Tribunal agreed with the CIT(A) that deductions u/s 80HHC cannot be allowed for trade with Nepal, where sale proceeds are received in non-convertible foreign exchange, as no evidence was provided to support the claim.
Conclusion:
The appeal was partly allowed, with the Tribunal ruling in favor of the assessee on the primary issue of deductions u/s 32AB and 80-I for "Zarda Yukt Pan Masala," while upholding the CIT(A)'s decisions on the other issues.
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1991 (12) TMI 80
Additional Depreciation, Higher Rate, Industrial Undertaking, Investment Allowance, Manufacture Or Production, Plant And Machinery
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1991 (12) TMI 79
... ...
... ... ..... aised by the learned counsel for the assessee was that since there was a delay in filing of return for asst. yr. 1981-82 no penalty for asst. yr. 1982-83 should be levied. He has relied on several decisions which are mentioned at page 1 of the paper book. I find that every case has to be decided in peculiar facts therein. As far as the facts are concerned no two cases are similar. As far as asst. yr. 1981-82 was concerned, there was no reasonable cause for delay in filing of return. The penalty has been cancelled only because the advance tax exceeded the assessed tax. In the circumstances of the present case the assessee would not be entitled to take advantage of his default in not filing the return for asst. yr. 1981-82 in time. I hold that there was no reasonable cause for delay in filing the return for asst. yr. 1982-83 and as such the penalty was rightly levied by the ITO. 4. The appeal for asst. yr. 1981-82 is allowed while the appeal for asst. yr. 1982-83 is dismissed.
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1991 (12) TMI 78
Investment Allowance Reserve ... ... ... ... ..... he partners does not attract any of the above factors. Consequently the investment allowance should not have been withdrawn merely on the ground that the amount had been transferred to the capital account of the partners particularly when the amount had been utilised in purchase of new machinery in the very next year. It may be mentioned here that the learned counsel for the assessee has filed a copy of the order of the Tribunal for asst. year 1982-83 and the Tribunal had restored the matter to the ITO to examine the matter afresh. The assessee has filed copy of fresh order of the ITO for AY 1982-83 in which investment allowance has again been allowed. This is on the footing that if the amount is utilised for the purchase of new machinery in the next year, investment allowance cannot be withdrawn simply because the amount is credited to capital account of the partner. I, accordingly set aside the order of the ITO withdrawing the investment allowance. 4. The appeal is allowed.
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1991 (12) TMI 77
Assessment Order, Mistake Apparent From Record, Original Assessment
... ... ... ... ..... view of the above mentioned provisions the order of the ITO cannot be rectified in exercise of powers under section 154(1) of the Act. The submission of the assessee is that the question whether the amount was assessable in assessment year 1979-80 or in assessment year 1980-81 had not been decided by the learned Commissioner and as such that question could be considered by the ITO in proceedings under section 154 of the Act. This submission cannot be accepted. The question whether the amount was assessable in assessment year 1979-80 or in assessment year 1980-81 was only one of the aspects of the subject matter before the learned Commissioner. It is not altogether a different subject matter. All the arguments that could be made pertaining to addition of Rs. 41,000 would form part of the same subject matter. Consequently powers under section 154 could not have been exercised in the present case. The ITO was justified in refusing to rectify the order. 5. The appeal is dismissed
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1991 (12) TMI 76
Short-landing of goods ... ... ... ... ..... a statutory document has to be preferred unless proved to be incorrect by any other contemporaneous statutory documentary evidence say like tally-sheets. The survey report relied upon by the respondents is not a statutory document issued by a statutory body to which neither the customs nor the port-authorities were a party. The same, therefore, cannot be relied upon 1988 (33) E.L.T. 538 (Tribunal). Further the survey was conducted without association of the customs authorities and therefore cannot be relied upon in view of the para 8C(1) of Justice Pendse s Judgment relied upon by the respondents themselves. Government hold that in absence of any other statutory document, reliance by the original adjudicating authority on OTR is legally correct and sustainable. 5. In view of the said discussions, Government, in exercise of powers conferred under the provisions of Section 129DD, set aside the impugned order-in-appeal and restore the order-in-original of the original authority.
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1991 (12) TMI 75
Duty Drawback ... ... ... ... ..... e of the defective crank shaft at the time of export was declared and verified Reference 1986 (25) E.L.T. 104 (Tribunal) . In that case if the value was higher than drawback claim it could be sanctioned if otherwise in order. But for the Collector (Appeals) to hold that the PMV was irrelevant is an uncalled for conclusion not sanctioned by law. 5. Quite independently, the value of the defective crank shaft as given in the shipping bill (Rs. 1,10,000/-) which is the FOB value and assuming (but not accepting it as no market verification took place) this to its the PMV, amount of drawback claim being much higher the same is not permissible by virtue of Section 76. In the result, Government holds that the Order-in-Appeal suffers from non-compliance of the second ingredient of drawback claim as mentioned above and therefore, is hereby set aside and the Order-in-Original is restored to the extent that the drawback claim is not admissible for want of compliance with Section 76 ibid.
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1991 (12) TMI 74
Import - Sale on high seas ... ... ... ... ..... e petitioner-Devasthanam cannot be compelled to answer either to the first respondent or the third respondent. So, though the relief asked for in the writ petition is for re-shipment of goods, considering the facts and circumstances of the case on hand, I am of the view that a direction is to issue to the second respondent to face the proceedings before the Customs Authorities as well as the Port Trust Authorities. The first respondent herein, the Port Trust, Madras, is also directed to issue notice to the second respondent, the State Trading Corporation with regard to dues and proceed as if the second respondent is the owner of the goods. It is also made clear that it is open to the second respondent herein to take any appropriate action for reshipment and against the petitioner-Devasthanam for damages, if so advised, on the basis of the contentions raised before me in a civil Court. The writ petition is allowed to the extent stated above. There will be no order as to costs.
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1991 (12) TMI 73
Export under bond - T.V. sets ... ... ... ... ..... ny Rule or notification exempting payment of excise duty itself, I fail to see how an additional duty of excise can be levied and collected on the products unless clear contrary intention appears in the Notification or the Rule itself. 12. Section 49(3) of the Act itself makes it clear that the provisions of the Act and Rules relating, inter alia, to exemption of Central Excise will apply to additional duty of excise which was being levied. Therefore, if there is any Rule exempting imposition of Central Excise, then such rule should also apply to levy of additional excise. The exemption should also be granted to manufacturer from payment of additional duty of excise. 13. In that view of the matter, the writ petition must succeed. 14. There will be orders in terms of prayers (a), (b) and (c). 15. The writ petition is finally disposed of as above. 16. The Respondents have not used any affidavit-in-opposition. The allegations in the petition are not admitted by the respondents.
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1991 (12) TMI 71
Refund - Duty paid under mistake of law ... ... ... ... ..... al exaction in a writ petition filed under Article 226. In this situation, the question has often arisen whether a petitioner s prayer for refund of taxes collected over an indefinite period of years should be granted once the levy is found to be illegal. To answer the question in the affirmative would result in discrimination between persons based on their choice of the forum for relief, a classification which, prima facie, is too fragile to be considered a relevant criterion for the resulting discrimination. This is one of the reasons why there has been an understandable hesitation on the part of Courts in answering the above question in the affirmative. 7. In above view of the matter, on each of the grounds stated above it would not be proper to grant relief under Article 226 of the Constitution of India and direct the department to refund the amount of tax collected. No other contention be raised. 8. There is no substance in the petition. Hence rejected. Rule discharged.
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1991 (12) TMI 70
Valuation - Writ jurisdiction ... ... ... ... ..... of filing an appeal by incurring large expenses. Secondly, the decision of the Collector is entirely unsustainable on the facts and circumstances of the case and there is no dispute whatsoever about the facts on which the decision is to be resisted. In these circumstances, we decline to accede to the preliminary objection raised by Mr. Desai. 8. Accordingly, petition succeeds and the impugned order dated July 7,1983 passed by Collector of Central Excise and Customs, Pune, and a copy of which is annexed as Exhibit A to the petition, is set aside. We wish to make it clear that we are not expressing any opinion about the claim rejected by the Assistant Collector by order dated October 3l, 1981 as appeal filed by the petitioners against the refusal of part of the claim of refund .is still pending. In the circumstances of the case, there will be no order as to costs. The bond executed by the petitioners in accordance with the interim orders passed by this Court stands discharged.
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1991 (12) TMI 69
Refund - 'Unjust enrichment' - Meaning of - Indirect taxes collected without authority of law - Interpretation of statute - Discrimination
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1991 (12) TMI 68
Writ Petition - Show Cause Notice stage - Exemption ... ... ... ... ..... 52 Tax Cases 160, it was observed by Lord Salmon that However much the courts may deprecate an Act they must apply it. It is not possible by torturing its language or by any other means to construe it so to give a meaning which Parliament clearly did not intend it to bear . 24. This principle should also apply to the notifications issued by the Government. There is no need or justification for torturing the language of notifications and extract a meaning which it does not naturally bear on the basis of assumed intention of the Government. 25. In view of the aforesaid it is not necessary to go into the question whether the stabled wagons manufactured by the petitioner can be considered to be independent goods with a market of its own. There are also certain disputed questions of facts on which no opinion need be expressed. 26. This writ petition must succeed. There will be an order in terms of prayers (a), (b) and (c) of the writ petition. There will be no order as to costs.
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1991 (12) TMI 67
Prosecution (Customs) - Acquittal ... ... ... ... ..... the accused persons must fail and, therefore, for the reasons given as above, I confirm the decision of the trial Court on that point. 34. I have already discussed the evidence in the light of the observations made by the trial Court and I am of the opinion that there is no evidence to come to a conclusion that accused No. 2 had any knowledge about the contents of the bag. Further as argued by the defence, the trial Court has given reasons for the acquittal and there is nothing in the arguments on behalf of the appellant to show that the said reasoning given by the trial Court for acquittal is unreasonable much less perverse. It cannot be said that this is the rare and exceptional case or a case where the observations are palpably and erringly shaky and, therefore, requires interference from this Court in appeal against acquittal. 35. I, therefore, confirm the decision of the trial Court and dismiss this appeal. 36. Certified copies to be supplied to the parties immediately.
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1991 (12) TMI 66
Exemption from excise duty not automatically applicable to additional customs duty ... ... ... ... ..... iven hundred per cent Bank Guarantee as well as executed a bond in respect of the additional duty charged by the Customs Authorities. As the petitioner has failed in the present petition, the respondents are entitled to encash the said bank guarantee as well as to enforce the bond. As regards the basic customs duty, we are informed that the Customs Authorities have accepted the contention of the petitioner in the matter of basic customs duty at the rate of 45 ad valorem and therefore to the extent of differential duty, the personal bond executed by the petitioner regarding basic customs duty stands discharged. 20. Mr. Halwasia, the learned Counsel for the petitioner applies for 8 weeks time to move the Supreme Court. Mr. Devdhar, the learned Counsel for the respondents opposes the same. In the circumstances, we direct the respondents not to encash the bank guarantee till 5th February, 1992. We also direct the respondents not to enforce the above bond till 5th February, 1992.
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1991 (12) TMI 65
Writ jurisdiction - Demand - Limitation ... ... ... ... ..... lack of jurisdiction, total lack of competence of the statutory authority to grant relief, fundamental rights having been infringed which are all lacking in this case, a petition under Article 226 of the Constitution of India would not be maintainable without exhausting the statutory remedy merely because the statutory remedy is onerous. Collector of Customs v. Bava (AIR 1968 SC 13) relied on. The decision cited by Shri Neema set out above would support the view taken by us. 7. As a result admission of petition is declined. It is, however, ordered that if the petitioner presents an appeal before CEGAT, New Delhi by 15-1-1992 the same shall be disposed of in accordance with law. Further the stay order dated 13-7-1991 granted by this court will remain in force till 15-1-1992 by which date the petitioner may also present a stay application to the CEGAT, New Delhi and get further orders from the same. 8. Subject as aforesaid, the petition is dismissed with no order as to costs.
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9911796707
