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Case Laws
Showing 1 to 20 of 45 Records
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1956 (3) TMI 56 - RAJASTHAN HIGH COURT
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... ... ..... inor plaintiffs as well as Mst. Gulabkanwar have arisen on that footing and the legal implications said to arise from such a situation. To such a suit it appears to us that it would be entirely illogical to say that the holder is not a necessary or a proper party or that there is any misjoinder of plaintiffs and causes of action. We have, therefore, no hesitation in saying that there is no misjoinder of the plaintiffs and causes of action in the present case and the defendant's contention in this connection is not well-founded. 20. The result is that there is no force in this appeal, and we hereby dismiss it with costs. We however, add a rider to the decree passed by the lower court and direct that all moneys realised in execution of this decree shall enure to credit of the plaintiffs Sampatchand and Suratsingh and shall be recoverable on the footing that Mst. Gulabkanwar do give a discharge to the defendant in respect thereof as the holder of the promissory note in suit.
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1956 (3) TMI 55 - BOMBAY HIGH COURT
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... ... ..... an executor or administrator and that they were, therefore, practically executors de son tort. We see no reason to disagree with the view of the learned trial Judge that defendants 2 to 10 must be regarded as executors de son tort and liable to satisfy the claim of the plaintiff out of the estate if any, in their possession. 9. On the view taken, we set aside the decree of the learned trial Judge dismissing the plaintiff's suit and pass in his favour a decree for ₹ 20,000 with interest at the rate of 4 per cent per annum from the date of the suit till satisfaction. The decree will be passed against defendants 2 to 10 as representing the estate of Shri Narayan Maharaj and to be satisfied by them out of the estate if any received by them and not duly applied for. The plaintiff will also be entitled to his costs in proportion to his successors in both the Courts from defendants 2 to 10 as representatives of the estate of Shri Narayan Maharaj. 10. Appeal partly allowed.
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1956 (3) TMI 54 - PATNA HIGH COURT
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... ... ..... hips, however, have given no reasons for taking the above view. In the case of 'Jackson v. Beaumont', (1885) 156 ER 844 (R) an appeal against the direction of the county court judge was pending at the time when the writ application was being heard. Even then writ of prohibition was issued in that case. In my opinion the pendency of the appeal before the Labour Appellate Tribunal against the award in question cannot prevent the petitioner from seeking a relief by way of issue of writ from this Court when the award on its own terms has been found to be without jurisdiction. The contention raised on behalf of the opposite party in this regard is, therefore, overruled. 15. For the reasons given above, it is manifest that the award passed in this case under Section 33A of the Act is without jurisdiction and, therefore, an order of certiorari must go and it must be quashed. The petitioner is entitled to costs. Hearing fee is assessed at ₹ 100. Banerji, j. 16. I agree.
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1956 (3) TMI 53 - CALCUTTA HIGH COURT
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... ... ..... g point of limitation. If we had not found that the claim of the plaintiff was otherwise barred it would have been necessary for us to consider this aspect in greater detail. 37. If the claim falls under Article 31 of the Limitation Act it is clearly barred as one year had expired from the date when the goods ought to have been delivered. A substantial portion of the consignment was delivered on 7-6-1946 & that would be the date when the remaining portion of the consignment ought to have been delivered. The suit having been filed on 9-4-1948 it was barred by limitation. In view of our decision on the other points it is not necessary to consider this defence at greater length. 38. The result therefore is that the appeal is allowed, the cross-objection is dismissed and the plaintiff's suit is dismissed. Considering the special circumstances of this case we direct that the parties would bear their respective costs in both the Courts. Jyoti Prakash Mitter, J. 39. I agree.
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1956 (3) TMI 52 - CALCUTTA HIGH COURT
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... ... ..... stions that his client intended to put in cross-examination arose on the different statements and counter-statements already filed before the Arbitrators as early as 3-12-1954, then his client could easily have written to say that he would take a little longer time for cross-examination and other purposes in which event I have no doubt the Arbitrators would have given still earlier dates for hearing. Having regard to my conclusions on the merits of the points of objection raised by Mr. Meyer, I do not think it is necessary for me to hold whether the applicant' had the motive which, the respondent's counsel stated and shall leave the question of motive undetermined by recording the fact that such a charge was made in argument by the respondent. 33. Per the reasons stated above, I hold that the Award is not invalid or void, and I dismiss the applicant's prayer to set aside the Award. The applicant will pay the costs of this application, including all reserved costs.
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1956 (3) TMI 51 - BOMBAY HIGH COURT
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... ... ..... to which section 23A applies, it would not be liable to tax provided that company satisfies the provisions of clause 14. But the very assumption underlying the enactment of clause 14 is that the provisions of section 23A do apply to that company It is precisely because they do apply that an exemption is granted to that company under certain circumstances. Therefore, in our opinion, clause 14 of the Taxation Concessions Order does not help Mr. Palkhivala either. The final contention urged by Mr. Palkhivala was that the directors are members of the public, and therefore the holding by them will be holding by members of the public. There is a decision of this Court directly in point on this question in Raghuvanshi Mills Ltd. v. Commissioner of Income-tax, Bombay City 1953 24 ITR 338 , and Mr. Palkhivala concedes that in view of that decision he cannot ask us to come to a contrary conclusion. The result is that the answer to the question submitted to us will be in the negative.
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1956 (3) TMI 50 - MADRAS HIGH COURT
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... ... ..... January, 1945, could not have been the crop harvested in November or December, 1944. They must have been dried and cured prior to 1st April, 1944, in which case they are not liable to be taxed. We agree on point No. 1 with the finding of the learned Subordinate Judge in paragraph 7 of his judgment that the goods were pre-excise goods, relying upon the evidence of P.W. 1. The learned Subordinate Judge was of the opinion that the goods which were sold to the second plaintiff on the 5th, 15th and 22nd of January, 1945, were goods which were cured prior to 1st April, 1944, and therefore exempt from any taxation. If they are goods exempted from taxation and the same fact was known to the taxing authorities then it cannot be said that the levy of tax on such goods was not done in good faith as due care and attention have not been bestowed in the matter of assessment of the goods. 16. The decision of the lower appellate Court is right and the Second Appeal is dismissed with costs.
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1956 (3) TMI 49 - CALCUTTA HIGH COURT
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... ... ..... modifications and alterations of the amounts specified in the document for expenditure on different items according to his discretion and according to the times. In that case Harries, C.J., and Banerjee, J., held that as the Sebait was entitled to vary the amounts to be spent for the two deities, the shares of the deities could not possibly be regarded as determinate. That decision is of no assistance in the present case as here, as I have pointed out above, clause 5a of the Arpan-nama does not give the Sebait a right to alter the amounts as between the two deities. I have, therefore, come to the conclusion that the decision of the Income-tax Tribunal that the two deities took equally and that their shares being thus defined there was no scope for assessment at the maximum rate was correct and that the answer to the question stated should be in the affirmative. The assessee is entitled to the costs of this reference. GUHA, J.--I agree. Reference answered in the affirmative.
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1956 (3) TMI 48 - BOMBAY HIGH COURT
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... ... ..... tion 34 was necessary in certain cases under section 34 as the first step in the assessment proceedings. There is to my mind little force in the present argument and the present contention must be negatived. 7. Mr. Jhavery wanted to refer to some additional points in support of the petition. I did not deem it necessary to hear him on those points since the view I have taken is that the first respondent was patently in error when he assumed jurisdiction and issued the notice challenged in this petition. 8. In the result, the petition succeeds and the rule will be made absolute and writ of prohibition will issue against the first respondent and his successors in officer from taking and further steps or proceedings or from assessing or re-assessing the petitioner in respect of the assessment year 1944-45 in pursuance of the notice dated 5th March, 1954. 9. Respondents 1 and 2 will pay the petitioner's costs of this petition. Costs fixed at ₹ 250. 10. Petition allowed.
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1956 (3) TMI 47 - CALCUTTA HIGH COURT
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... ... ..... The Bombay decision does not furnish an answer to this question, but it must be answered against the Department on the language of the section, as I have already indicated. I have to add that during the pendency of the reference in this Court the assessee, H.M. Thadeus, died leaving a will under which the Imperial Bank of India, now defunct, was constituted his executor and trustee. The Imperial Bank of India was duly substituted in the record of these proceedings in the place of the deceased assessee and after the Imperial Bank of India ceased to exist and the State Bank of India took its place, an application was made for the substitution of the said Bank which was ordered by us and has been made. For the reasons given above, the answer to the question referred to this Court must, in our opinion, be in the affirmative. The assessee is entitled to the costs of this reference and costs of the connected applications. SARKAR, J.--I agree. Reference answered in the affirmative.
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1956 (3) TMI 46 - BOMBAY HIGH COURT
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... ... ..... ratio of the Supreme Court judgment applied to the facts of this case, whatever our view might have been, we would have unhesitatingly applied it and come to a decision in conformity with the decision of the Supreme Court. But when we are asked to extend the principle of that decision, with very great respect, we hesitate to do so because we feel that if all the aspects of the matter had been present before the Supreme Court, they would not have agreed to extend that principle to cases where an asset was realise by a business man and where the question arise as to what were his business profits and how those business profits should be allocated. Under the circumstance, we must uphold the view taken by the Tribunal and decide the Question as follows "The assessee's assessable profit on the sale of shares is the difference between the sale price and the market price prevailing on 1st April, 1945." The Commissioner to pay the costs. Reference answered accordingly.
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1956 (3) TMI 45 - PATNA HIGH COURT
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... ... ..... a." The address purports to be pointed to the assessee under care of his lawyer at Patna, although the destination is described as "P.O. Dhanbad". In this circumstance, it can very well be argued that the notice was not sent to the lawyer who was supposed to be the authorised agent of the assessee. It is clear, therefore, that the Tribunal wrongly construed the power in question to mean that it authorised the lawyer to receive orders passed in the appeal. There can be no doubt that, in the circumstances of the case, there was no valid and legal notice on the assessee of the order passed the Appellate Tribunal, which the assessee was entitled in law to get. Accordingly, this application succeeds as we are not satisfied of the correctness of the decision of the Appellate Tribunal, which shall now treat this Application as if it had been made within the time allowed under sub-section (1) of section 66. The hearing fee is fixed at ₹ 100. Application allowed.
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1956 (3) TMI 44 - CHANCERY DIVISION
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... ... ..... gment that falls very far short of showing that this expenditure was in the performance of the duties of her office of director. I must therefore reverse the finding of the commissioners in regard to the expenditure on behalf of the wife and say that there was no evidence that this expenditure was necessarily incurred in the performance of the duties of her office of director. The reason why I think that the commissioners used the word "necessarily" was partly because they were able to find-as I could not possibly do-that she was wholly and exclusively performing the duties of that office in Australia and partly because, as I think, they did not make the right approach to the question which is what are the duties of the office of a director? Accordingly, I allow the appeal in part, that is to say, I allow it in so far as it relates to one moiety of the sum in question, being the expenditure on behalf of the wife, and reject it qua the other. Appeal allowed in part.
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1956 (3) TMI 43 - BOMBAY HIGH COURT
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... ... ..... question, which we had asked the Tribunal to refer, in order to clearly bring out the controversy between the parties which has now been clarified by reason of the arguments advanced by us, and the amended question will be "Whether it was competent to the Tribunal to give a finding that at the relevant date the price of the shares was ₹ 524-6-0 per share and that this was a clear case of under-assessment?" We will answer the question in the negative. With regard to the main question on the reference, in view of our decision of I.T. Reference No. 30 of 1956, it is clear that on the second question we must hold that the purchase price was ₹ 715 and not ₹ 1,100. With regard to question (1) the Tribunal has now stated that that question was referred to us by mistake, so we need not answer it. The Commissioner to pay three-fourths of the costs of the reference. No order on the notice of motion. No order as to costs. Reference answered in the negative.
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1956 (3) TMI 42 - BOMBAY HIGH COURT
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... ... ..... tion 9(3). Therefore, if we omit "immoveable property" which could be managed for the purpose of producing income and which in fact was managed by these widows, but which is now exempted under section 9(3), then there is no other income shown in their assessment with regard to which it could be said that that income was earned by these three widows by reason of their association or that they performed any operation as an association which resulted in producing the income or which even helped in producing the income. Therefore, in our opinion, the Tribunal was in error in coming to the conclusion that these three widows could be assessed in the status of an association of persons with regard to the income which they earned as heirs of their deceased husband. We therefore answer question (1) in the affirmative, question (2) in the negative, question (3) in the negative and question (4) as unnecessary. The Commissioner to pay the costs. Reference answered accordingly.
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1956 (3) TMI 41 - BOMBAY HIGH COURT
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... ... ..... s part of that capital should not be permitted to claim the loss as a business loss. We are in entire agreement with that proposition, but the question is whether in this case the assessee has lost any part of his borrowed capital. He wanted to borrow only ₹ 50,000, that money he obtained, the put it in his business, and he had not claimed any loss with regard to that capital. The loss that he is claiming is the loss which was caused to him by reason of the fact that he could only get the sum of ₹ 50,000 by undertaking joint and several liability for ₹ 1,00,000, ₹ 50,000 of which went to Kishorilal and with which the assessee had nothing whatever to do. Therefore, on the facts of this case it is an entirely untenable position to take up that the assessee is claiming the sum as representing loss of borrowed capital. We will, therefore, answer both the question in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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1956 (3) TMI 40 - ALLAHABAD HIGH COURT
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... ... ..... 8 to effect a radical alteration in the law by the indirect method of inserting a proviso to a sub-section dealing with another matter when, as we have already said, the object could have been achieved directly by the substitution of the word "issue" for the word "serve" in sub-section (1). For these reasons we are of opinion that the notice in the case now before us was not served within the prescribed time and the Income-tax Officer has no jurisdiction to continue proceedings against the petitioners under section 34. As in our opinion the further exercise of jurisdiction by the respondent would be illegal we think this is a fit case in which a writ in the nature of prohibition should issue directing him to refrain from proceeding further with the contemplated assessment of the petitioners under section 34 of the Indian Income-tax Act, and we direct accordingly. The petitioners are entitled to their costs which we assess at ₹ 200. Petition allowed.
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1956 (3) TMI 39 - BOMBAY HIGH COURT
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... ... ..... er or by the party to the appeal and when the reference comes before us, the only parties are the Commissioner on the one side and the assessee on the other, in the sense of a person who was a party to the appeal before the Tribunal. But in this case complication is caused by the fact that the appellant before the Tribunal was the petitioner, and the fourth respondent has made an application for reference. In our opinion, the reference should be made at the instance of the fourth respondent who would be the applicant. The Commissioner as usual would be the respondent. The petitioner who would also have the right to be heard would be the second respondent and as we are told that there are other partners in the firm besides the petitioner and the fourth respondent, the proper thing would be to make the unregistered firm as a third respondent to the application. The result is that the petition fails and is dismissed with costs. The Income-tax Commissioner to bear his own costs.
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1956 (3) TMI 38 - SUPREME COURT
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... ... ..... provision. It was within the competence of the State Legislature to insert section 64-A into the Act. It was a reasonable provision in keeping with the entire scheme of the Act concerning transport vehicles and control of road transport. As to the extent of powers of revision in a court or authority we do not intend to express any opinion in this case having regard to the view we take that the order of the State Government cannot be interfered with by the issue of a writ of certiorari. As regards the limits of judicial review which the courts have under article 226 which is one of the grounds on which the certificate was issued by the High Court, that question has since been considered in the various decisions of this Court, which do not require recapitulation. In our opinion, this is not a case in which it would be reasonable to hold that the State Government acted in excess of its jurisdiction. The appeal is accordingly dismissed with costs to be paid to respondent No. 2.
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1956 (3) TMI 37 - SUPREME COURT
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... ... ..... r attempting to give any bribe for hushing up the case. There is, however, the clear and definite evidence of Labhu Ram that Gian Chand came along with the appellants to him when the talk about the bribe took place. He says that on the morning of the 29th December, 1951, the three accused who were staying at the Coronation Hotel, Delhi, told him that they had amongst themselves collected ₹ 5,000 to be paid to Madan Lal and that in the of Madan Lal all the three accused one by one made request to Madan Lal to hush up the potato case pending against them. This (1) 1951 S.C.R. 1098. (2) Cr. Appeal No. 81 of 1953. is corroborated by Madan Lal who states that all the three accused said that the money had been subscribed by them jointly and requested him to accept the same and get the case withdrawn. The case of Gian Chand does not stand on any different footing from that of the other appellants. The convictions and sentences are confirmed and the appeal will stand rejected.
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