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Showing 1 to 20 of 29 Records
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1954 (8) TMI 44 - HIGH COURT OF PATNA
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... ... ..... iable to pay Income Tax upon the excess sale proceeds of the machinery since it was carrying on the other business of commissioner agency. We must take it, therefore, that the finding of the Appellate Tribunal was that for no part of the accounting year did the assessee carry on the business of rice milling. To put it differently, the finding of the Appellate Income Tax Tribunal must be taken to mean that for no part of the accounting year the machinery of the rice mill was used. Upon this finding of fact, it is clear that the principle of the decision of the Supreme Court applies to this case and the amount of ₹ 22,310 which is the excess amount realised from the sale of machinery over its written down value. It follows that the question referred to the High Court must be answered in favour of the assessee and against the Income Tax Department. The assessee is entitled to the costs of the reference. Hearing fee ₹ 250. Reference answered in favour of the assessee.
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1954 (8) TMI 43 - MADRAS HIGH COURT
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... ... ..... delled. 4. It was contended on behalf of the Commissioner, H. R. E. that the scheme framed by the Board contains the following clause "The decree will provide that on application to the Board, (he), or the Court with notice to all parties these rules can be further modified on due and sufficient cause shown." The petitioners, it was said, can utilise the above provisions and apply for the modification of the scheme. No doubt the existence of an alternative remedy will very often dissuade this Court from granting an application for a writ. But this is a matter of discretion and the Court is not bound to refuse a writ merely because an alternative remedy exists. This has been held in the case referred to above and also in other cases since decided. 5. As it is not possible to salvage any part of the scheme the whole of it must be set aside. A writ will issue to this effect. The petitioners will get their costs from the third respondent. Advocate's fee ₹ 150.
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1954 (8) TMI 42 - PATNA HIGH COURT
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... ... ..... g that the same test must be applied in examining whether the quality of the income is "agricultural" within the meaning of Section 2 (1) (a) of the Act. The dictum of the learned Chief Justice cannot be applied in the context of the present case where the question at issue is of an entirely different character. For the reasons I have assigned I hold that no part of the dividend income of ₹ 36,229 received by the assessee from tea companies is agricultural income within the meaning of Section 2 (1) or is exempt from being taxed under the Indian Income Tax Act. I would accordingly answer this question also against the assessee and in favour of the Income Tax Department. In the result I would answer all the three questions referred by the Income Tax Appellate Tribunal against the assessee and in favour of the Income Tax Department. The assessee must pay the costs of this reference. Hearing fee ₹ 250. Anwar Ahmad, J. I agree. Reference answered accordingly.
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1954 (8) TMI 41 - HIGH COURT OF CALCUTTA
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... ... ..... hich had passed the appellate order relating to the first of the two chargeable accounting periods. Nor can I regard it wholly satisfactory that in stating the facts with regard to the third question, the Tribunal should not have explained the apparent want of conformity between the basis on which the Appellate Assistant Commissioner had proceeded and the basis adopted by itself, 11. In the result, we answer the first question in the negative and the second question in the affirmative. With regard to the third question, we refer the case back to the Tribunal under the provisions of Section 66(4) of the Act and direct the Tribunal to submit a further Statement of Case in which it should clarify the matters referred to in this judgment. Let such further statement be submitted to this Court by the end of February 1955. 12. Orders regarding the costs of the hearings already taken place will be passed at the time of the final disposal of the Reference. S.C. Lahiri, J. 13. I agree.
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1954 (8) TMI 40 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... e. This Section is wide enough to give powers to this Court to correct errors for which there is no other provision in the Code and that was the opinion of the Lahore High Court as given in -- 'Raju v. Emperor' AIR 1928 Lah 432 (H). But it is not necessary in this case to invoke the inherent powers of the Court since the revisional powers of the Court are sufficient for giving relief to the petitioner. 18. As I have already held that there was no proper and legal proclamation specifying the period of thirty days or more for the petitioner to appear, all proceedings which have been taken in consequence of the non-observance of that order are without jurisdiction and must be set aside. 19. I would, for the reasons I have given above, allow this petition, order that the attachment be withdrawn and direct restoration to the petitioner of the attached Immovable property and also that he be paid ₹ 178/71- the sale proceeds of the moveable property which was attached.
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1954 (8) TMI 39 - BOMBAY HIGH COURT
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... ... ..... nistrator or an executor is as much an assessee under the Act as any other individual, and if he carries on business or makes profit or receives dividends or makes capital gains, he is as much liable to pay tax as any other individual. Therefore, there is no force whatever in the contention that the administrator is not liable to pay tax on capital gains because the capital assets were not realised by the testator but by the administrator himself. 13. The third question raised is as to whether the capital gains tax is ultra vires of the Legislature. We have already decided this question against the assessee and it is unnecessary to repeat the arguments which we have set out in that decision. We will merely confirm the view that we took there. 14. Therefore, we will answer the questions as follows (1) The sale of shares and securities by the assessee is a sale for the purpose of Section 24B(1). (2)(a) In the negative. (b) In the affirmative. 15. The assessee to pay the costs.
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1954 (8) TMI 38 - PATNA HIGH COURT
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... ... ..... that "the amendment made in the Indian Income-tax Act, 1922, by Section 2 shall be deemed to be operative so as to apply in relation to all assessments subsequent to the assessment for the year ending on the 31st day of March, 1948." It is manifest that the Dominion Legislature intended that Section 1 (2) should apply to the assessments made subsequent to the assessment year 1947-48 and that Sections 3 to 12 shall apply to the assessment year 1947-48 and subsequent years. If the view that we have expressed is a correct view as to the legal effect of Section 1 and Section 4 of the Income-tax Amendment Act of 1948 it follows that fine assessee in this case fia not liable to be taxed as the holder of an. impartible estate for the income from the house property the assessment years 1941-42 and 1942-43 For the reasons we have expressed We hold that the question referred to the High Court should be answered in favour of the assessee and against the Income-tax Department.
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1954 (8) TMI 37 - CALCUTTA HIGH COURT
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... ... ..... s necessary on imperative to recall the Income Tax Officer, District III(2), to the scene for the purpose of challenging the Appellate Assistant Commissioner's order before the Appellate Tribunal while the transferee Officer appears to have been in charge of the case even before the Appellate Assistant Commissioner. It is true that the former officer had made the assessment order but it can hardly be necessary for purposes of good administration that an officer, making an assessment, should be detained to defend it in all subsequent proceedings even though he may have been transferred in the meantime to another circle and the file taken over by another Officer. But as I have said, such considerations are not even pertinent while the question is one of construction of the Act. 9. For the reasons given above, the answer to the question referred must be in the affirmative and we answer it accordingly. 10. The assessee is entitled to and will get the costs of this Reference.
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1954 (8) TMI 36 - CALCUTTA HIGH COURT
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... ... ..... her utilised for roping in further sums by being taken into account under section 4A(c)( b). It appears to me that the section is content with bringing the amount back to charge and leaving it there. There is no warrant in the language of section 11(14) for the view that an amount of repayment can be treated as income arisen in India and that not only can it be itself taxed, but it can also be utilised for the purpose of determining the residence of a company. In my view, the amount of ₹ 2,31,009 was rightly brought under assessment, but it was wrongly taken into consideration for the purposes of section 4A(c)(b ). The answers to the questions referred-must, therefore, be as follows - Question (1)-'Yes'. Question (2)-'No'. There is a connected application by which the assessees prayed for a direction on the Tribunal to refer certain other questions or the same questions in an amended form. No orders are necessary on that application. Lahiri, J.-I agree.
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1954 (8) TMI 35 - PUNJAB-HARYANA HIGH COURT
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... ... ..... s of Parliament. But at the same time it declared in' Section 4 that "The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to;........" The provisions of this section make it quite clear that although the Act of 1949 has been repealed, the substantive portion of the Act which was incorporated in the Criminal P. C. and which. became a part and parcel of it, continues to remain intact. The Act of 1952 was enacted with the sole object of getting rid of a certain quantity of obsolete matter. 7. The view taken by the Additional Sessions Judge that as the Act of 1949 has been repealed the new provision which was inserted in Section 488 by the Act of 1949 must fall with the Act by which it was enacted appears to me to be wholly misconceived. I am accordingly of the opinion that there is no force in the recommendation made by him. The petition must therefore be dismissed.
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1954 (8) TMI 34 - CALCUTTA HIGH COURT
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... ... ..... eliminary even to the setting up of a business can bear no comparison with the detailed activities which had taken place in the Bombay case. The other ground on which the assessee relied was that, in any event, the amount in question was a revenue expense, inasmuch as it had been expended for the purpose of guarding or preserving the capital asset of the business. In my view, the Tribunal dealt with that point correctly when it said that expenditure incurred for the purpose of preserving the capital asset of a business could be properly regarded as revenue expense when there was a business going on and when the capital asset was supporting an actual business. In my view, the second ground relied on by Mr. Mitra must equally fail. For the reasons given above, the answer to the question referred to this Court must be in the affirmative. The Commissioner of Income-tax, West Bengal, will have his costs of this reference. LAHIRI J.--I agree. Reference answered in the affirmative.
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1954 (8) TMI 33 - ALLAHABAD HIGH COURT
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... ... ..... ary to refer to cases in which this principle has been clearly laid down as it has been very well recognised. In these circumstances, since the sales tax has been assessed on the company and not on the shareholders, the Collector is entitled to proceed against the assets of the company only and any proceedings taken against the shareholders or their personal assets are void and against law. Consequently, these petitions are allowed and it is hereby ordered that a writ of mandamus be issued to the Collector of Bulandshahr, restraining him from taking proceedings to realise the sales tax of the District Syndicate Bulandshahr, Limited, from the person or personal assets of these petitioners. This order is not to be interpreted as restraining the Collector from proceeding against any assets of the company which may be in the hands of any individual shareholder. The petitioner, in each case, will be entitled to his costs from the opposite party in the petition. Petitions allowed.
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1954 (8) TMI 32 - PATNA HIGH COURT
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... ... ..... ompetent to the discharge of his office ought to confine himself Wilson v. Rastall 4 T.R. at p. 757." Applying this principle to this case it is manifest that the order of remand made by the Appellate Tribunal is not a legally valid order, and the first question referred to the High Court should be answered in favour of the assessee and against the Income-tax Department. In view of the answer to the first question, we do not consider it necessary to furnish any answer to the other two questions referred by the Income-tax Appellate Tribunal. We should make it clear that in view of our answer to the first question the appeal preferred by the Income-tax Department, namely I.T.A. 1637 of 1949-50, should be treated as still pending in the file of the Income-tax Appellate Tribunal and should be disposed of in accordance with law. The Income-tax Department should pay costs of this reference to the assessee. Hearing fee ₹ 250. Reference answered in favour of the assessee.
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1954 (8) TMI 31 - TRAVANCORE COCHIN HIGH COURT
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... ... ..... wn by Lord Haldane in John Smith and Son. v. Moore 1928 12 TC 266 (HL), thus - ..............."fixed capital as what the owner turns to profit by keeping it in his own possession, circulating capital as what he makes profit of by parting with it and letting it change masters." Thus the expenditure is revenue expenditure and not capital expenditure. It is a payment incurred wholly for the purpose of business as contemplated in clause (iv) of section 13 of the Travancore Income-tax Act corresponding to section 10(2)(xv) of the Indian Act. 6. Question No. 5.-The company is not estopped from claiming allowance for the 10 per cent, payable to the Government. The learned Advocate who appeared for the department was not able to submit any ground which would operate to estop the assessee. We are clear that there can be no estoppel in this case. 7. Reference is answered accordingly. The assessee will have the costs of this reference including Advocates' fee ₹ 150.
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1954 (8) TMI 30 - BOMBAY HIGH COURT
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... ... ..... t in this case all the necessary facts are not stated. Therefore, what we have to decide is whether on the facts stated the assessee is entitled to exemption from tax, under the relevant provision of the Income-tax Act, and if we come to the conclusion that the relevant provision of the Income-tax Act is section 4(3)(i) and not section 4(3)(ia), it is open to us to do so under our advisory jurisdiction. Therefore, in our opinion, this is a case which does not fall under section 4(3)(ia) but under section 4(3)(i). In our opinion the income in respect of which the assessee claims exemption is an income derived from an activity or a business which is held in trust wholly for a charitable purpose, and therefore that income need not be included in the total income of the assessee. We, therefore, answer question (2), after reframing it by deleting from it the words "under section 4(3)(ia) of the Income-tax Act or on the ground raised by the assessee", in the affirmative.
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1954 (8) TMI 29 - CALCUTTA HIGH COURT
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... ... ..... n to decide the questions of law referred can arise, a hearing of the case must take place, because the section opens with the words "The High Court upon the hearing of any such case" etc. Where the party, who has caused the reference to be made and who is in the position of a plaintiff, fails to appear, no hearing of the case can take place and in my view since the preliminary condition of the sub-section is not satisfied in such a case, the consequent obligation of deciding the questions of law and delivering a judgment does not also arise. It appears to me, therefore, that it is not required of us that we should answer the question referred to us in this reference at all since the assessees are not appearing before us. We therefore decline to answer the question. As the Commissioner of Excess Profits Tax, West Bengal, Calcutta, is appearing and has incurred the usual expenses, he will have the costs of this reference. LAHIRI, J.--I agree. Reference not answered.
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1954 (8) TMI 28 - BOMBAY HIGH COURT
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... ... ..... questions raised before us. Our answer to question (2), which is really the substantial question, is in the negative. With regard to question (1) it is clear that the order, made by the Appellate Assistant Commissioner that the appeal was incompetent was made under section 31. That is the view we have taken in K.K. Porbunderwalla v. Commissioner of Income-tax, Bombay City 1952 21 I.T.R. 63. If the order of the Appellate Assistant Commissioner was made under section 3 then clearly an appeal lay to the Tribunal from that order, and it was open to the Tribunal to either confirm the view of the Appellate Assistant Commissioner or to differ from him. In this case the Income- tax Tribunal differed from the view taken by the Appellate Assistant Commissioner and remanded the appeal to the Appellate Assistant Commissioner for disposal according to law. Therefore, we must answer the question (1) in the affirmative. The assessee to pay the of the costs. Reference answered accordingly.
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1954 (8) TMI 27 - CALCUTTA HIGH COURT
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... ... ..... a debt or a loan can be allowed only if and to the extent the Income-tax Officer estimates it to be irrecoverable, it becomes wholly immaterial to enquire for practical purposes of taxation on what basis the assessee may himself make a claim. If the decisive factor be the view taken by the Income-tax Officer, what contentions are urged by the assessee are of no relevancy at all and I cannot see what useful purpose can be served by our answering the question referred. In my view, the question referred is pointless and in view of the terms of section 10(2)(xi) requires no answer. This Court has always declined to answer academic questions. The present question is not an academic one, but it is unrealistic and appears to me to have no practical bearing of any kind. The reference is disposed of in the above manner. The Commissioner of Income-tax, West Bengal, will be entitled to his costs of this reference. Certified for two counsel. LAHIRI, J.- I agree. Reference not answered.
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1954 (8) TMI 26 - NAGPUR HIGH COURT
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... ... ..... ass panes. I answer the second question accordingly. 2.. The decision of this Court was followed by the Board of Revenue in the revision application made before it by the applicant Haji Jamaluddin challenging the levy of the sales tax on him in respect of the sale of bangles. At the instance of the applicant the Board of Revenue has now referred the question already quoted for the decision of this Court. 3.. In our judgment the answer to the question posed must clearly be in the affirmative. The expression glass-ware is wide enough to include all articles made of glass. If there was any doubt whatsoever about the matter it must now be deemed to have been removed by the addition of the words excepting bottles and lamp and lantern chimneys in Entry No. 15. 4.. Our judgment answering the reference in the affirmative may now be communicated to the Board of Revenue. Costs of the reference will be borne by the applicant. Counsel s fee Rs. 50. Reference answered in the affirmative.
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1954 (8) TMI 25 - MYSORE HIGH COURT
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... ... ..... now abandoned. The taxing officer has in the absence of proof allowed a reduction of 30 per cent. from the entire bill amount and this does not appear to be either inadequate or unreasonable. On a consideration of the circum- stances, I am of opinion that no case is made out for interference in either of these petitions. Lastly, the learned advocate urged that the fines levied are rather severe. The amounts of taxes in respect of which there was default in payment are Rs. 243-11-3 and Rs. 956-6-3 respectively. The Advocate- General who was heard, has left to the Court the consideration of the question of severity of the sentence. Taking all circumstances into con- sideration, I reduce the amount of fine to Rs. 10 and Rs. 20 respectively in place of Rs. 25 and Rs. 25 respectively imposed by the trial Court. The direction for the recovery of tax levied will stand. With the modi- fication of the sentence as indicated above, both the petitions are dis- missed. Order accordingly.
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