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The Finance Act, 1979--Explanatory Notes on the provisions relating to direct taxes

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..... charging of income-tax on current income in certain cases during the financial year 1979-80. 2. Amendment of the Income-tax Act, 1961, with a view to modifying the scheme of tax exemption in respect of long-term capital gains in certain respects; plugging certain loopholes for tax avoidance through intra family transfers of income providing greater tax incentive for contributions to associations or institutions engaged in carrying out programmes of rural development; liberalising the tax concession to approved financial corporations and its extension to approved public companies providing long-term finance for construction or purchase of residential houses liberalising the provisions regarding export markets development allowance; restricting the scope of the provisions relating to deduction in respect of long-term savings through specified media restricting the scope of the provisions relating to tax holiday rationalising the jurisdiction of Commissioner (Appeals); modification of the provisions relating to the Settlement Commission and a few other matters. 3. Amendment of the Wealth-tax Act, 1957, with a view to raising the rates of wealth-tax applicable on higher slabs of ne .....

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..... urce during the financial year 1979- 80 from incomes other than "salaries" and retirement annuities. 4.1 The rates for deduction of income-tax at source during the financial year 1979-80 from incomes, other than salaries"and retirement annuities payable to partners of registered firms engaged in specified professions, have been specified in Part n of the First Schedule to the Finance Act 1979. These rates apply to income by way of interest on securities, other categories of interest, dividends, insurance commission, winnings from lotteries and crossword puzzles, winnings from horse races and other categories of non-salary income of non-residents and differ from the rates specified in Part R of the Schedule to the Finance Act, 1978, for purposes of deduction of income-tax at source from such incomes during the financial year 1978-79, in the following respects: 1. Payments to residents other than companies - (i) In the case of income by way of winnings from lotteries and crossword puzzles and income by way of winnings from horse races payable to resident taxpayers other than companies during the financial year 1979-80, tax will be deductible at the rate of 36 per cent made up .....

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..... of 15 per cent and surcharge of 3 per cent (being 20 per cent of the income-tax). 3. Payments to domestic companies - In the case of income by way of interest other than "interest on securities" payable to domestic companies during the financial year 1979-80, income-tax will be deducted at the rate of 21.5 per cent made up of income-tax of 20 per cent and surcharge of 1.5 per cent (being 7.5 per cent of the income-tax). Further, in the case of any other income (other than interest on a tax-free security) payable to domestic companies during the financial year 1979-80, tax will be deducted at the rate of 24 per cent made up of income-tax of 22.5 per cent and surcharge of 1.5 per cent. 4. Payments foreign companies- In the case of income by way of royalty payable by an Indian concern in pursuance of an agreement made after 31-3-1961 but before 1-4-1976 with the lndian concern and approved by the Central Government, income-tax will be deducted at the rate of 53.75 per cent made up of income-tax of 50 per cent and surcharge of 3.75 per cent (being 7.5 per cent of the income-tax) as against 52.50 per cent deductible at source from such income during the financial year 1978-79. .....

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..... sed income represented by seized assets [section 132(5)] b. levy of tax on provisional basis on the income of non- residents from shipping of cargo or passengers from Indian ports [section 172(4)]; c. assessment of persons leaving India [section 174(2)]; d. assessment of persons likely to transfer property to avoid tax [section 175]; and e. assessment of profits of a discontinued business or profession [section 176(2)]. These rates are the same as the rates specified in Part I of the First Schedule to the Finance Act, 1979 for the assessment of incomes liable to tax for the assessment year 1979-80, except for certain modifications. The modifications in the rate schedule, read with section 2 of the Finance Act, 1979, relate to the following matters: 1. Increase in the rate of surcharge in the case of all categories of non- corporate taxpayers from 15 per cent to 20 per cent. 2. Increase in the rate of surcharge in the case of all corporate taxpayers from 5 per cent to 7.5 per cent. 3. Modification of the provision relating to marginal relief in respect of non-corporate taxpayers such as individuals, Hindu undivided families, unregistered firms, associations of person .....

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..... n addition to total income - Under a provision made in the Finance Act, 1978, the income-tax payable by non- corporate taxpayers such as individuals, Hindu undivided families, unregistered firms, associations of persons, etc., having net agricultural income in addition to total income was restricted to 70 per cent of the amount by which the total income exceeds Rs. 10,000. The amount of income-tax so determined was increased by surcharge at the rate of 15 per cent of such income-tax. The Finance Act, 1979 has modified this provision to provide that where a non corporate taxpayer referred to above has net agricultural income in addition to total income, the income-tax payable shall not exceed 60 per cent of the amount by which the total income exceeds Rs. 10,000. The amount of income-tax as so determined will be increased by a surcharge at the revised rate of 20 per cent of such income- tax. 5.5 Modification in the provisions for calculating income-tax in cases where the taxpayer has net agricultural income in addition to total income - The net agricultural income is to be computed in accordance with the rules contained in Part IV of the First Schedule to the Finance Act, 1979. .....

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..... 980-81 and subsequent years. [Section 3(a) of the Finance Act] Restriction of the amount of exemption in respect of interest on deposits in public accounts with the Post Office Savings Bank - Section 10(15)(ii) 7.1 Section 10(15)(ii) provides for exemption from income-tax in respect of interest on specified certificates and deposits, to the extent of the maximum amount permitted to be invested therein. The certificates and deposits specified in this behalf are the Treasury Savings Deposits Certificates; Post Office Cash Certificates; Post Office National Savings Certificates; National Plan Certificates; 12, Year National Plan Savings Certificates; deposits in Post Office Savings Bank and bonus in respect of deposits under the Post Office Savings Bank (Cumulative Time Deposits) Rules, 1959. 7.2 Under the Post Office Savings Bank Rules, a 'public account" can be opened by a local authority, a lawfully constituted association, institution or other body for the encouragement of thrift or for the mutual benefit of its members and certain educational institutions. The rate of interest on these accounts has recently been raised from 3.5 per cent to 4.5 per cent per annum. The r .....

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..... yment opportunities in rural areas, the Finance Act, 1979 has inserted a new clause (23BB) in section 10 to provide for exemption from income-tax in respect of the income, profits or gains of the Khadi and Village Industries Boards set up under, any State or Provincial Act. 8.2 This provision has been made with retrospective effect from 1-4-1962, i.e., from the commencement of the Income-tax Act, 1961. [Section 3(c) (Part) of the Finance Act]. Exemption from income-tax in the case of statutory bodies or authorities for the administration of public religious or charitable trusts or endowments, etc. - Section 10(23BBA) 9.1 Section 9 of the Wakfs Act, 1954 provides for the establishment of the Board of Wakfs for each State for the general superintendence of all wakfs in that State. Section 8A of the Wakfs Act provides for the establishment of the Central Wakf Council for the purpose of advising the Central Government on matters concerning the working of State Wakf Boards and due administration of the wakfs. In the cases of public religious or charitable trusts or endowments of other communities, there are similar bodies set up under enactments in force in different States .....

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..... facilities; c. preparation and submission of tenders for the supply or provision outside India, of such goods, services or facilities, and activities incidental thereto, d. furnishing to a person outside India samples or technical information for the promotion of the sale outside India of such goods, services or facilities; e. travelling outside India for the promotion of the sale outside India of such goods, services or facilities, including travelling outwards from and return to India; f. performance of services outside lndia in connection with or incidental to the execution of any contract for the supply outside India of such goods, services or facilities; g. such other activities for the promotion of the sale outside India of such goods, services or facilities as may be prescribed. 10.2 The Finance Act, 1979 has made the following modifications in the scheme of export markets development allowance: 1. The benefit of export markets development allowance will be extended to all domestic companies and non-corporate taxpayers resident in India at the uniform rate of 133'/3 per cent of the qualifying expenditure. 2. Expenditure incurred on advertisement or publicity ou .....

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..... sessment year 1980-81 and subsequent years. [Section 5 of the Finance Act] Deduction of insurance premium paid by a federal milk cooperative society against loss of cattle owned by members of a primary milk cooperative society - Section 36(1)(ia) 12.1 With a view to encouraging federal milk cooperative society to incur expenditure on payments of insurance premia on the fives of cattle owned by the members of a primary milk cooperative society affiliated to it, the Finance Act, 1979 has inserted a new clause (ia) in sub-section (1) of section 36 to provide that the amount of such premia win be snowed as a, deduction in the computation of the taxable profits of the federal milk co- operative society. 12.2 This provision will take effect from 1-4-1980 and will, accordingly, apply in relation to the assessment year 1980-81 and subsequent years. [Section 6(a) of the Finance Act]. Deduction in respect of provisions made for bad and doubtful debts relating to rural branches of scheduled commercial banks - Section 36(1)(viia) 13.1 Under section 36(1)(viia), a taxpayer carrying on business or profession is entitled to a deduction, in the computation of the taxable profits .....

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..... f bad debts. In other words, the scheduled commercial banks would continue to get the full benefit of the write off of the irrecoverable debts under section 36(1)(vii) in addition to the benefit of deduction of the provision for bad and doubtful debts under section 36(l)(viia). 13.4 This provision will take effect from 1-4-1980 and will, accordingly, apply in relation to the assessment year 1980-8-1 and subsequent years. [Section 6(b) of the Finance Act] Higher deduction in respect of profits transferred to special reserve account In the case of certain financial corporations and extension of these provisions to approved housing finance companies - Section 36(1)(viii) 14.1 Under section 36(1)(viii), approved financial corporations engaged in providing long-term finance for industrial or agricultural development in India are entitled to a deduction, in the computation of their taxable profits, in respect of amounts transferred by them to a special reserve account, up to 40 per cent of the total income computed before making any deduction under Chapter VIA in the case of State Financial Corporations and up to 25 per cent of such income in the case of others. The Finance Ac .....

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..... to certify the circulation of all newspapers, the Finance Act, 1979 has modified the provisions of Explanation I below section 37(3B) so as to exclude the requirement of certification of the circulation of the newspaper by the prescribed authority. The effect of this modification will be that the burden of proving that the average circulation of the newspaper during the calendar year did not exceed 15,000 copies would hereafter be on the taxpayer. 15.3 In this connection, it may be relevant to mention that under the Press and Registration of Books Act, 1867, every newspaper is required to furnish an annual return to the Registrar of Newspapers functioning under the Ministry of Information and Broadcasting, Government of India. Where the average circulation of the newspaper exceeds 2,000 copies, the publisher of the newspaper has to obtain a certificate from a chartered accountant certifying the circulation figures of the newspaper. A taxpayer who claims to exclude the expenditure on advertisement in a small newspaper under section 37(3B)(i) would be able to obtain an extract of the information regarding the average circulation given by the news- paper in its annual return. Howev .....

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..... olly and exclusively in connection with the transfer of the capital asset, Where a part of the net consideration is so invested, a proportionate part of the capital gains shall be exempted from income-tax. Under the existing provisions, where the taxpayer transfers the preferred asset within a period of three years from the date of its acquisition, the amount of capital gain arising from the transfer of the original capital asset exempted from tax under section 45 is deemed to be the income chargeable under the head "Capital gains" relating to long-term capital assets of the previous year in which the preferred asset is transferred. These provisions will, mutatis mutandis, apply in relation to the 7-Year National Rural Development Bonds as well. 3. The third modification is in respect of sub-section (3) of section 54E. Under sub-section (3), where the transfer of the original asset is by way of compulsory acquisition under any law, or where the consideration for transfer of the original asset is determined or approved by the Central Government or the Reserve Bank of India, and the compensation or, as the case may be, the consideration for such transfer is enhanced by any court, t .....

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..... nterest in the concern and both are in receipt of the remuneration from such concern, the remuneration from such concern will be included in the total income of the husband or, as the case may be, the wife whose total income excluding such remuneration is higher. 2. Under clause(i) of section 64(1), the income arising directly to the spouse of the individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner is included in the total income of the individual. The Finance Act, 1979 has inserted a new Explanation 1A below section 64(1) to provide that where the spouse of an individual is a beneficiary under a trust and the trustee joins in any partnership business with the individual, the income arising from such partnership to the trust to the extent it is for the immediate or the deferred benefit of the spouse, will be included in the total income of the individual. It should be noted that the provisions of the new Explanation 1A will be attracted even in i case where, under the term of the trust, the income is required to be accumulated for a specified period and thereafter the accumulations are to be paid over to the spouse a .....

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..... e provisions of section 64(2) will be attracted and the income from such separate property (which is deemed to be the converted 'property) will be included in the total income of the individual. It may be relevant to mention that where the separate property of the member is transferred to his Hindu undivided family otherwise than for adequate consideration, the provisions of section 4(i)(a) of the Gift-tax Act are attracted and the amount which represents the difference between the fair market price of the asset on the date of its transfer and the consideration for which it is transferred is chargeable to gift-tax. Under the provisions of section 64(2), as amended by the Finance Act, 1979, in such cases, the entire income arising from such separate property transferred to the Hindu undivided family will be included in the total income of the individual and not merely the part of such income attributable to the amount representing the difference between the fair market value of the asset and the consideration for the transfer. Under section 64(2), the clubbing provisions in respect of the converted property are applicable where the individual has, after 31-12-1969, converted his s .....

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..... fe of any member of such association or body or on the life of any child of either member, as also through the public provident fund, unit-linked insurance plan and 10-year and 15-year cumulative time deposit accounts qualify for tax relief. 18.2 The tax relief in all these cases is allowed by deducting the whole of the first Rs. 5,000 of the qualifying savings plus 50 per cent of the next Rs. 5,000 plus 40 per cent of the balance of such savings in computing the taxable income of the taxpayer. The long- term savings qualify for the tax relief only to the extent that such savings do not exceed the ceiling limits laid down in this behalf. In the case of individuals, Hindu undivided families and married couples governed by the system of community of property in force in the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu, the ceiling limit is 30 per cent of the "gross total income" or Rs. 30,000, whichever is less. A higher ceiling limit is laid down in the case of authors, playwrights, artists, musicians and actors. The ceiling limit in their case is 40 per cent of the professional income of the specified professionals plus 30 per cent of the remaining part of t .....

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..... d scientific research associations or approved associations or institutions set up for executing programmes of rural development was hitherto allowed only in the case of taxpayers carrying on business or profession. The Finance Act, 1979 has inserted a new section 80GGA to provide that in the case of taxpayers, other than those carrying on business or profession, the following sums paid during the previous year will qualify for deduction in the computation of the total income, namely: 1. Sums paid to an approved scientific research association which has as its object the undertaking of scientific research, or to an approved university, college or other institution to be used for scientific research. 2. Sums paid to an approved association or institution which has as its object the undertaking of any programme of rural development to be used for the purposes of carrying out any approved programme of rural development. 3. Sums paid to an approved association or institution which has as its object the training of persons for implementing programmes of rural development. 19.4 Sub-section (3) of the new section 80GGA restricts the operation of this new provision to those taxpaye .....

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..... es specified in the Eleventh Schedule also applies in respect of any small-scale industrial undertaking. 20.4 This provision has come into force with effect from 1-4-1979. [Section 12 of the Finance Act] Deduction in respect of profits and gains derived from growing mushrooms under controlled conditions - New section 80JJA 21.1 Under section 10(1), agricultural income is exempt from income-tax. For this purpose,"agricultural income" includes any income derived from land situated in India and used for agricultural purposes. Mushrooms are generally grown in a closed chamber and not necessarily in an open field. Its raw material is a composite made of wheat straw, poultry manure, calcium carbonate, gypsum and other fertilisers. Different layers of artificial soil are prepared in wooden trays and temperature is controlled to a specified degree by closing the inlets and outlets of air to provide the necessary humidity for cultivation of mushrooms. The process is known as "mushrooms growing under controlled conditions". Income derived from a business of growing mushrooms under controlled conditions cannot be regarded as agricultural income and is, therefore, chargeable to inco .....

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..... ia. 2. The book, dictionary, thesaurus or encyclopaedia is written in a language specified in the Eighth Schedule to the Constitution. The Central Government has been empowered to notify any other language for the purpose of this tax concession, having regard to the need for promotion of publication of such text books in that language. 23.2 The deduction will be admissible for the assessment years 1980-81 to 1984-85 (both inclusive). It may, however, be relevant to mention that it is not necessary that such a text book should have been prescribed or recommended as a text book by any University for a degree or post- graduate course for the first time during the previous year relevant to the assessment years 1980-81 to 1984-85 (both inclusive). 23.3 The new provision will take effect from 1-4-1980. [Section 15 of the Finance Act] Lowering of threshold for payment of advance tax in the case of registered firms - Section 208 24.1 Under Chapter XVIIC, income-tax is payable in advance during every financial year in three equal instalments on days specified in section 211 on the taxpayer's current income (other than capital gains and winnings from gambling) liable to tax fo .....

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..... ate on which the last instalment of advance tax is payable in his case. Thus, the statement or, as the case may be, the estimate of advance tax is required to be furnished a day before the date on which the first or, as the case may be, the last instalment is due. A statement/estimate of advance tax made on the specified date is considered to be non-existent in the eyes of law and is, therefore, ignored. This has resulted in avoidable hardships in cases where the statement or estimate of advance tax is filed on the specified date and not before that date. The Finance Act, 1979 has amended the provisions of section 209A in order to provide that the statement or estimate of advance tax may be furnished on the same date on which the relevant instalment becomes payable. 25.3 The taxpayer also has the option of revising the statement or estimate of advance tax sent by him if his current income, according to his own estimate, would be lower than that shown in the statement or estimate by making a lower estimate of advance tax before the date on which the last instalment of advance tax is payable by him and pay the balance amount of advance tax in equal instalments on the remaining date .....

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..... ave come into force with effect from 1-4-1979 and will, accordingly, apply in relation to advance tax payable during the financial year 1979-80 and subsequent years. [Sections 17, 18 and 19 of the Finance Act] Amendment of provisions relating to the settlement cases - Section 245D 26.1 Chapter XIXA. contains provisions relating to the settlement of cases. An application for settlement of cases can be made by a taxpayer at any stage of a proceeding. On receipt of the application, the Settlement Commission calls for a preliminary report from the Commissioner who has jurisdiction over the case. At this stage, the Commissioner can object to the application being proceeded with by the Settlement Commission, if he is of the view that concealment of income or perpetration of fraud for evading any tax other sum chargeable under the 1961 Act or the 1922 Act on the part of the applicant has been established (or is likely to be established) in relation to the case by any income-tax authority. In such an event, the Settlement Commission is at present debarred from proceeding with the application. 26.2 While it may be desirable to prevent the taxpayer from taking advantage of the pr .....

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..... xceeds Rs. 5 lakhs; f. an order of assessment made on the basis of directions issued by the Inspecting Assistant Commissioner under section 144B; g. an order imposing a penalty under section 271(1)(c), where the penalty has been imposed with the previous approval of the Inspecting Assistant Commissioner under the proviso to clause (iii) of sub-section (1) of that section; h. an order made by the Inspecting Assistant Commissioner imposing a penalty under section 272A; and an order made by an Income-tax Officer under the provisions of the Income-tax Act in the case of such persons or classes of persons as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct. 27.2 At present, appeals against assessments made in the case of all foreign companies and those domestic companies whose assessed total income or loss exceeds Rs. 5 lakhs lie to the Commissioner (Appeals). This has led to the position that in some cases of companies while appeals against assessment order lie to the Commissioner (Appeals), appeals against orders of rectification, penalty, etc., lie to the Appellate Assistant Commissioners. Moreover, i .....

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..... perty is included in the net wealth of the individual. After the partition of the Hindu undivided family (Whether partial or total), only the converted property or any part thereof which is received by the individual's spouse or minor child is so included. The provisions of sub-section(1A) apply where the conversion of the separate property of the individual into the joint family property takes place by the act of the individual impressing his separate property with the character of the joint family property or by throwing such property into the common stock of the Hindu undivided family. 28.2 As mentioned in paragraph 17.1, these provisions do not cover cases where the individual makes a direct or indirect gift of is separate property to the Hindu undivided family of which he is a member, or were he makes a transfer, directly or indirectly, of his separate property to such family for less than its market value. With a view to closing this loophole for the avoid acne or reduction of tax liability through the device of making a direct or indirect gift of the property by an individual to the Hindu undivided family or through the device of making a transfer of the separate property .....

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..... de by the Finance Act, 1979, it is relevant to mention that the provisions for including the separate property gifted or transferred otherwise than for adequate consideration in the net wealth of the individual or, as the case may be, for allowing deduction in respect of debts referable to such converted property will apply where such property has been, at anytime, so gifted or transferred after 31-12-1969. In other words, although the amendment made by the Finance Act, 1979 is not retrospective and applies only in relation to the assessment year 1980-81 and subsequent years, the separate property gifted or transferred to Hindu undivided family would be includible in the net wealth of the individual if the property was gifted or transferred after 31-12-1969. 28.6 This provisions will take effect from 1-4-1980 and will, accordingly, apply in relation to the assessment year 1980-81 and subsequent years. [Section 23 of the Finance Act] Amendment of provisions relating to Wealth-tax Settlement Commission Section 22D. 29.1 Under section 22, an application for settlement of wealth-tax cases is not proceeded with if the Commissioner of Wealth-tax objects to the application being .....

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..... stant Commissioner of Wealth-tax to the Commissioner of Wealth-tax (Appeals) is the Board is satisfied that it is necessary or expedient so to do having regard to the nature of the case, the complexities involved and other relevant considerations. After the appeals is so transferred, the Commissioner (Appeals) will be empowered to proceed with such appeal from the stage at which it was before it was so transferred. However, the appellant will have a right to demand that before proceeding with the appeal, the previous proceeding or any part thereof may be reopened or that he may be reheard. This amendment is on the lins of the amendment made is section 246(2) of the Income-tax Act as explained in paragraph 26. 30.3 This amendment has come into force with effect from 1-6-1979. [Section 25 of the Finance Act] Increase in the rats of wealth-tax - Part I of Schedule I 31.1 Under the existing provisions of the Wealth-tax Act the rates of wealth-tax in the case of individuals and Hindu undivided families (other than Hindu undivided families having at least one member with independent net wealth exceeding Rs. 1,00,000) range from 1/2 per cent of the net wealth in the first slab .....

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..... ing Assistant Commissioner under section 17(3); d. any penalty imposed by an Inspecting Assistant Commissioner under section 17A; and e. any order made by a Gift-tax Officer in the case of such persons or classes of persons as the Board may, having regard to the nature of the cases, the complexities involved and other relevant consideration, direct. 32.2 The Finance Act, 1979 has inserted a new sub-section(1C) in section 22 with a view to empowering the Board to transfer any appeal pending before an Appellate Assistant commissioner of Gift-tax to the Commissioner (Appeals) if the Board is satisfied that it is necessary or expedient so to do, having regard to the nature of the case, the complexities involved and other relevant consideration. The Commissioner of Gift-tax (Appeals) will be empowered to proceed with such appeal from the Stage at which it was before it was so transferred. However, the appellant will have the right to demand that before proceeding with the appeal, the previous proceeding or any part thereof may be reopened or that he may be reheard. This amendment is on the lines of the amendment made in section 246 of the Income-tax Act as explained in paragraph 2 .....

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..... o.2) Act, 1977. The Credit Guarantee Corporation of India Ltd. has merged with the Deposit Insurance Corporation setup under the Deposit Insurance Corporation Act, 1962, with effect from 15-7-1978, in terms of the Deposit Insurance(Amendment and Miscellaneous Provisions) Act, 1978. The Finance Act, 1979 has extended the exemption of the Credit Guarantee Corporation of India Ltd. for one more year, i.e., assessment year 1979-80 in respect of its income for the previous year beginning with 1-1-1978 , and ending on 14-7-1978. For this purpose, a specific amendment has been made to section 23 of the Finance Act, 1973. 34.2 This amendment has come into force with effect from 1-4-1979, and will, accordingly, apply in relation to the assessment year 1979-80. [Section 45 of the Finance Act] AMENDMENT TO COMPULSORY DEPOSIT SCHEME (INCOME-TAX PAYERS) ACT Continuance of the scheme of compulsory deposit by income-tax payers for two years. 35. Under the Compulsory Deposit Scheme (Income-tax Payers)Act, 1974, individuals who are citizens of India, Hindu undivided families and trustees of discretionary trusts were required to make compulsory deposits for the assessment years 1975-7 .....

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