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Showing 1 to 20 of 23 Records
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1951 (11) TMI 27 - CALCUTTA HIGH COURT
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... ... ..... luation period, there is no reason why in Rule 3 (b) it should provide for deduction of any amount as loss where in fact no loss occurred. 64. In the result, the questions referred must, in my opinion, be answered as follows REFERENCE No. 2 of 1946 Question (i) By neither. Question (ii) No. REFERENCE No. 4 of 1947 Question (i) Yes. Question (ii) Does not arise. Question (iii) Does not arise, the facts assumed not being correct. On the correct facts, the answer is, No. Question (iv) Yes, a part proportionate to the total amount utilised for the policy-holders. Question (v) No. Question (vi) No. 65. As the two references were heard together, there will be only one set of costs and in view of the proportion of the divided success, the Commissioner will have three-fourths of them. He will also have the full costs of and incidental to the application on which the Rule Nisi, resulting in Reference No. 4 of 1947, was issued. Certified for two counsel. S.R. Das Gupta, J. 66. I agree.
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1951 (11) TMI 26 - SUPREME COURT
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... ... ..... was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point. We, therefore, allow the appeal and set aside the judgments of both the Courts below. The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the Arbitration Act the question whether the respondent was or was not a party to the arbitration agreement. If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to, proceed by way of arbitration in accordance with the arbitration clause. If on the other hand the finding is adverse to the appellant, the application will be dismissed. The appellant will have its costs of this appeal. Further costs between the parties will abide the result. Appeal allowed.
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1951 (11) TMI 25 - BOMBAY HIGH COURT (NAGPUR BENCH)
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... ... ..... ficers to issue notices of demand. Rule 233 empowers the Board to issue written instructions providing for any supplemental matters arising out of the rules. But as we read the rules they do not except under Rules 10 or 160 as already explained earlier provide for a demand of the tax after the goods leave the warehouse. Unless a matter is dealt with by the rules it cannot be said to arise out of the rules. There is nothing to supplement in such a case. The power under Rule 233 is supplementary not residuary. So the order of the Board is of no avail to the respondent. (45) In the result we hold that respondent No. 3 was not under law authorized to make the demand he did on the 4th June 1951. That demand is accordingly quashed. As we have held that Section 7 (2) is valid and governs the case, none of the respondents is in any way prohibited from collecting the tax in accordance with law. Respondent No. 1 will pay the costs of the paper book and also the costs of the petitioner.
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1951 (11) TMI 24 - NAGPUR HIGH COURT
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... ... ..... ed in lieu of salary for the purposes of this sub-section unless the payment is made solely as compensation for loss of employment and not by way of remuneration for past services. Unless the assessee can therefore prove that the net payment of ₹ 85,000 was made solely as compensation for loss of employment and that there was no other element of receipt, he is not entitled to any relief. In view of the above circumstances, the net payment of ₹ 85,000 cannot be held to be a payment solely as compensation for loss of employment. In this view I am taking, it is not necessary to consider the several English and Indian decisions noticed by my learned brother. There are a number of other decisions bearing on the question, but the propositions laid down in all those decisions are not quite reconcilable. ORDER We answer the question in the affirmative. The assessee will pay the costs of the Department. Counsel's fee ₹ 100. Reference answered in the affirmative.
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1951 (11) TMI 23 - GAUHATI HIGH COURT
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... ... ..... sue a writ of certiorari to him merely because he happens to be present within the jurisdiction of this Court? We do not think so. The prerequisites for the exercise of the powers of a High Court under Art. 236 of the Constitution of India are (1) that the territories in which the act is alleged to be done is done within the territories over which the High Court has jurisdiction, (2) that the person against whom a writ is sought must have exercised judicial or quasi judicial functions in the territories which are subject to the jurisdiction of this Court. It is obvious that the Deputy Collector in this case exercised the alleged judicial or quasi -judicial functions not within the territories over which this Court has jurisdiction, but in a territory over which this Court has no jurisdiction For these reasons, the preliminary objection prevails and the petition is returned to the petitioner for presentation to the proper Court. o p /o p Deka, J. o p /o p 3. I agree. o p /o p
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1951 (11) TMI 22 - ASSAM HIGH COURT
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... ... ..... of business that the assessee was carrying on. This could not be presumed. Even here the onus would be on the Department to show that it was the income of the business. If that finding had been arrived at on any evidence, it would have resulted in a higher estimate of the income of the assessee. In any case as thing are, it is not possible to say on the facts and in the circumstances of the case that the sum of ₹ 90,000 which has been held to be assessee's income from undisclosed sources is liable to excess profits tax. The answer to the question is in the negative. It is not necessary to consider the third question which has been included in the reference on a hypothetical basis. The answer to the question in para. 10 of the reference is in the affirmative while the answer to the question raised in 12 of the reference is in the negative. The reference is disposed of accordingly. Parties shall bear their own costs. DEKA, J.--I agree. Reference answered accordingly.
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1951 (11) TMI 21 - SUPREME COURT
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... ... ..... impossible such contracts become void." "56. An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful......... The enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of section 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default. We accordingly allow the appeal, set aside the judgment of the High Court, and restore the decree of the trial court. The appellant will be entitled to his costs throughout. Appeal allowed.
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1951 (11) TMI 20 - SUPREME COURT
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... ... ..... t sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the 'decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one year's rent was paid, a tenancy for one year was brought into existence. We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 1924. This view finds support from a number of reported cases(1), and in all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour. The appeal thus fails and is dismissed with costs. Appeal dismissed.
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1951 (11) TMI 19 - CALCUTTA HIGH COURT
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... ... ..... assessment orders for the first three years without reference to which the impugned method of computation cannot be understood at all and to which the Tribunal itself felt bound to refer in its appellate order, have not been included. In the second place, the inefficiency of the proof-reading betrayed by almost every page of the Paper Book is shocking. Not only have whole sentences been left out or long phrases and clauses transposed, but gross misprints such as "some pension", for "same person", "age" for "paid", "local representative" for "legal representative" appear throughout. We must record a warning that if Paper Books of this kind are submitted in future, we shall feel compelled to decline to hear the reference till a proper Paper Book is prepared and filed. The Commissioner of Income-tax will have the costs of the reference. Certified for two Counsel. DAS GUPTA, J.--I agree. Reference answered accordingly.
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1951 (11) TMI 18 - SUPREME COURT
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... ... ..... et to find that this rule is so often ignored. 26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess, the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true, and in addition is supported by two prosecution witnesses, then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit. We are not satisfied that the prosecution evidence in this case removes the grave doubts which a close examination of the evidence tested in the light of the defence reveals. 27. The appeal is allowed. The conviction and sentence of the appellant Hate Singh are set aside. He will be restored to liberty.
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1951 (11) TMI 17 - SUPREME COURT
Whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of Police, Bombay?
Held that:- Appeal dismissed. The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanctioned by his letter dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to bear his own unlettered judgment on the subject, himself to issue a definite and unambiguous order either canceling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914
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1951 (11) TMI 16 - MADRAS HIGH COURT
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... ... ..... in some respects an unusual petition, the unusual feature attaching to the case being that Government have perfectly bona fide collected this tax on this and similar Clubs for more than 10 years without any demur, protest or challenge as to legality. The finding that this tax is illegal, which I have had under law to give, may raise some hopes in the petitioning Club and also other Clubs of claiming a refund of some of the tax paid in the past from Government. I would like to express the view that no such claim would, in the circum- stances, be really equitable, the collection of this tax having been acquiesced in all these years. Nor can I of course grant any such relief on this petition. The petitioning Club which is given on this petition the relief it seeks, can well rest content with it and the free- dom this decision gives them from any future levy of the tax regarding the past tax they have paid as an ex gratia contribution to the State Treasury. Ordered accordingly.
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1951 (11) TMI 15 - MADRAS HIGH COURT
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... ... ..... leader raised the preliminary objection that the petitioner has other adequate and effective remedy by way of filing a suit in a civil court and therefore this application should be dismissed. In The Province of Madras v. Satyanarayanamurthy(1), Govinda Menon and Basheer Ahmed Sayeed, JJ., held that the Madras General Sales Tax Act of 1939 with its subsequent amendments has not ousted the jurisdiction of the ordinary civil courts when a party is alleged to have been aggrieved by the administration of the Act, and that suits alleging that sales tax was illegally levied against the plaintiffs and that excessive amounts were collected from them as sales tax are maintainable. This judgment was delivered on 26th April, 1951. The petitioner could have filed a suit in a civil court for the relief which he now seeks to obtain in this writ. As he has other effective remedy, this application is dismissed with costs. Advocate s fee Rs. 100. Application dismissed. (1) 1951 2 S.T.C. 141.
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1951 (11) TMI 14 - MADHYA PRADESH HIGH COURT
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... ... ..... to these conclusions, we are fortified by the decisions of the Supreme Court of Canada and of the Privy Council in the cases of the The King v. Dominion Press Limited(1), and Dominion Press Limited v. Minister of Customs and Excise(2). The Supreme Court of Canada held that the job printer, whose work consists in executing special orders for customers, but who procures the material upon which such orders are to be executed, is a manufacturer selling a product and his business is not a lease or hire of work and services. The questions put to the printers in this case and their answers suggest a similarity to the contentions raised on behalf of the applicant before us. The decision of the Canadian Supreme Court was upheld by the Privy Council. 6.. For the reasons given above, we are satisfied that the case has been rightly decided by the learned Sales Tax Commissioner and we dismiss this application for revision. Application dismissed. (1) 1927 Dom. L.R. 225. (2) 1928 A.C. 340.
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1951 (11) TMI 13 - ORISSA HIGH COURT
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... ... ..... arty must adopt the form of remedy given by the statute. Liability to sales tax is a statutory liability and the petitioner should have availed him- self of the provisions of the Sales Tax Act itself to obtain redress. (1) (1881) 21 Q.B.D. 313. (2) (1940) A.I.R. 1940 P.C. 105 at 110. Sections 43 and 44 of the Bihar and Orissa Public Demands Recovery Act have been relied upon before us, as though they give an independent right of suit. I confess I have been unable to follow the argument. The Sales Tax Act is a special Act dealing with a parti- cular kind of public demand. We have been shown no authority for thinking that the said provision of the statute which provide the machinery for recovery of public demands in general has the effect of giving the party against whom the demand is made an independent right of suit to deny liability on grounds or in a manner different from what are provided in the substantive law relating to that particular public demand. Petition rejected.
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1951 (11) TMI 12 - MADHYA PRADESH HIGH COURT
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... ... ..... tional only when the customer takes delivery of the receipt, making payment for it. From what has been stated in paragraphs 4 and 5 above, it seems to me that the case is not really one governed by Section 19 of the Sale of Goods Act in the sense suggested, but that it involves a variant of the circumstances described in Section 23. Also, for the reasons given, in none of the instances of supplies made to customers in Central India can the sale be considered as having taken place in the Province. Further, the goods at no point of time having been situated in the Province, the sales are not such as can even be deemed to have taken place in the Province, by virtue of Explanation II to Section 2 (g) of the Sales Tax Act. This contention of the applicants learned counsel is accepted by the learned counsel for the State. The sales in dispute are not taxable. I, therefore, set aside the order of the learned Commissioner and allow this application for revision. Application allowed.
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1951 (11) TMI 11 - BOMBAY HIGH COURT
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... ... ..... r- warded to him. 8. As regards (2) the instances in which the applicants have re- covered sales tax on conveyance charges are contained in Exhibit 19 which has been prepared by the parties. The applicants do not dispute this and are prepared to forego that portion of their claim in the revision vide Exhibit 21. In the circumstances the Sales Tax Officer will have to investigate only the instances mentioned in Exhibit 20 and make his report. 9. The Sales Tax Officer will make his report (through the Collector of Sales Tax) within two months of the papers of this case reaching him. November 23, 1951. 10. The Sales Tax Officer has made his report dated 24th Septem- ber, 1951. Both parties have nothing to say against it vide Exhibit 28. In the circumstances, we accept it and pass the following order. ORDER. The order under revision is modified and it is directed that Rs. 184-6-0 out of the sales tax already paid by them should be refunded to the applicants. Ordered accordingty.
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1951 (11) TMI 10 - MADRAS HIGH COURT
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... ... ..... s in Government of Madras v. Veerabhadrappa(3) went too far in holding that in no event and under no circumstances can a commission agent be deemed to be a person carrying on the business of buying or selling goods and I must express my respectful dissent from them. In my opinion, the plaintiffs in these cases would be dealers within the meaning of that expression in the Act and liable to tax under Section 3 but for the exemption given by Section 8. As I have held that the conditions of the licence granted under Section 8 have not been infringed, the plaintiffs will be entitled to the exemption. All the suits will therefore be decreed. In the result, Appeals Nos. 365, 468, 551 and 447 of 1947 will be allowed and Appeal No. 641 of 1947 will be dismissed. There will be decrees as prayed for. The plaintiffs will have their costs here and in the Court below. Suits decreed. (1) (1871) L.R. 5 H.L. (E and 1) 395. (3) 1950 1 S.T.C. 245 I.L.R. 1951 Mad. 257. (2) (1883) 11 Q.B.D. 797.
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1951 (11) TMI 9 - MADHYA PRADESH HIGH COURT
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... ... ..... far as the revising authority is concerned, it may well be argued that one of the parties to the dis- pute will be adversely affected by the order. Even in such a case, a hearing, of course, may not be claimed as of right by the party con- cerned, but at the same time it may be regarded as proper for the revisional tribunal to hear him before passing the order. These con- siderations, however, do not apply to the present case. The refusal to revise has not introduced any element of finality to the proceedings, which are still in progress and which can certainly be brought before the Commissioner once again, should the assessee find it necessary to do so, when the appropriate stage is reached. Even on grounds of propriety, therefore, the order refusing revision cannot seriously be ques- tioned. For the reasons given above, we decline to interfere with the learned Sales Tax Commissioner s order and dismiss the application for revision made to the Board. Application dismissed.
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1951 (11) TMI 8 - MADHYA PRADESH HIGH COURT
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... ... ..... in view of Section 2(b) of the Act. But sale , as defined in Section 2(g) is very much wider than a transfer of property in goods made in the course of execution of a contract . This is only one type of transfer of property that comes within the definition of sale . There are other types too. In fact, sale means any transfer of property in goods and the Board has already held that when a printer executes his customer s order, himself providing the paper and other materials required for executing the order and delivers the printed goods, there is a transfer of property or sale within the meaning of the main clause of the definition of sale contained in Section 2(g). The execution of the order is undoubt- edly in pursuance of a contract, but the contract is not one answering to the definition contained in Section 2(b), but a contract of sale as ordi- narily understood (vide Section 4 of the Sale of Goods Act). In the result, the appeal so called is dismissed. Appeal dismissed.
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