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1961 (11) TMI 67 - MADHYA PRADESH HIGH COURT
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... ... ..... s was capital borrowing is treated as a question of law, the Tribunal cannot be directed to record fresh findings of fact in order to enable the department to put forward a new case here. As has been held by the Supreme Court in New Jehangir Vakil Mills Ltd. v. Commissioner of Income-tax 1959 37 I.T.R. 11 (S.C.) and Zoraster & Co. v. Commissioner of Income-tax 1960 40 I.T.R. 552 (S.C.), section 66(4) does not enable the High Court to raise a new question of law which does not arise out of the Tribunal's order and direct the Tribunal to investigate new and further facts necessary to determine this new question of law which has not been referred under section 66(1) or section 66(2) and direct the Tribunal to submit a supplementary statement of the case. For all these reasons our, answer to the question stated by the Tribunal is in the negative. The assessee shall have costs of this reference. Counsel's fee is fixed at ₹ 250. Question answered in the negative.
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1961 (11) TMI 66 - ALLAHABAD HIGH COURT
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... ... ..... tive argument also. There is another ground on which these writ petition must be dismissed. The enquiry against the petitioner in respect of this income is not yet concluded. In the circumstances it is difficult to say whether such reason as the Income-tax officer has to believe that the income was of the petitioner can prima facie be held to be invalid. Obviously there is no question of jurisdiction involved in the case. In such a situation, the proper remedy to mind is the remedy of appeal against any order finally passed under section 34. The attempt of the petitioner to short circuit the enquiry by this writ petition was to my mind not justified. The Supreme Court in a recent decision in C. A. Abraham v. Income-tax Officer, Kottayam, has ruled in very definite terms that the remedy under article 226 of the Constitution cannot be allowed to bypass the remedies under the Act. For all these reasons the writ petition must fail and is dismissed with costs. Petition dismissed.
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1961 (11) TMI 65 - SUPREME COURT
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... ... ..... e date on which the tenancy stands terminated". Mr. Bengeri, for the appellant, fairly conceded that the decision of this Court in Jivabhai's case was against his contention but he purported to rely on another decision of this Court in Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah. In that case the Court was called upon to consider the question as to whether the provisions of s. 88 of Bombay Act LXVII of 1948 were retrospective in operation or not, and it has been held that the said provisions are prospective. However, we do not think that the position with regard to the provisions contained in s. 88 can be said to be analogous or similar to the position with regard to the relevant provisions of the amending Act XXXIII of 1952 with which we are concerned in the present appeal. Therefore, we do not think that Mr. Bengeri can make any effective use of the said decision. In the result the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (11) TMI 64 - CALCUTTA HIGH COURT
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... ... ..... ything to do with any of the acts which must have preceded the importation of the gold bars into this country. Tentatively speaking, it seems to us that item 81 refers to things or goods which have been illegally imported into the country and in that sense also, it is different from item 8. We need not, however, express any final opinion on this aspect of the matter. Suffice it to say that there is no evidence in this case upon which it could be held that the respondent had taken any part in the act or series of acts which resulted in importation of the gold bars. 29. We, therefore, agree with the conclusions of the learned trial Judge and we think that there is no merit in this appeal which is, accordingly, dismissed. 30. We have been exercised on the question of costs in this case but taking everything into account we do not think that although the appeal fails, the respondent is entitled to any costs. There will, therefore, be no order as to costs. Bose, C.J. 31. I agree.
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1961 (11) TMI 63 - SUPREME COURT
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... ... ..... he time of the previous complaint. The argument that this Court gave Special Leave in the case of Pramode Ranjan Sarkar and therefore there were points of importance is, in the circumstances of this case, a neutral circumstance and that fact cannot be used as a point in favour of the respondent. In these circumstances, we are of the opinion that the bringing of the fresh complaint is a gross abuse of the process of the Court and is not with the object of furthering the interests of justice. In regard to the power of reference to a larger Bench, we are in agreement with S. K. Das, J, and in the circumstances it is unnecessary to express an opinion as to the applicability of s. 196A Criminal Procedure code to the facts of this case. For these reasons we allow the appeals, set aside the order of the High Court and of the learned Chief Presidency Magistrate and dismiss the complaint. BY COURT In accordance with the judgment of the majority, the appeal is allowed. Appeal allowed.
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1961 (11) TMI 62 - CALCUTTA HIGH COURT
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... ... ..... behalf of the beneficiaries, their conduct would amount to an assent and the administration of the estate has come to an end. The result is that the assessment orders are bad inasmuch as the Wealth-tax Officer proceeded on the footing that the provisions of section 21(1) of the Wealth-tax Act do not apply to this case and that the administration of the property has not yet come to an end, as also because it has been held that the shares of the beneficiaries are indeterminate. For all these reasons, the application should succeed and the rule is made absolute and the impugned assessment orders for the years 1957-58, 1958-59 and 1959-60 mentioned in the petition are quashed and/or set a side by a writ in the nature of certiorari and there will be issued a writ in the nature of mandamus directing the respondents not to give effect to the same. The respondents will now be at liberty to make assessments in accordance with law. There will be no order as to costs. Petition allowed.
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1961 (11) TMI 61 - MADRAS HIGH COURT
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... ... ..... e income under the major head can be computed. In the present case, as it is not denied that the assessee is in receipt of income which also falls under the head "income from other sources", it should follow that the interest payment being an allowable item of expenditure under section 12(2) can be set off or adjusted against the other income under the same head before the assessable income under section 12 is reached. Though it is not altogether necessary, we may also refer to Chhail Behari Lal v. Commissioner of Income-tax , a decision of the Allahabad High Court, where again it was held that the interest payment on sums borrowed for purposes of investing in shares was an allowable items of expenditure under section 12(2) of the Act notwithstanding that no dividends were received from those shares. We accordingly answer the question in favour of the assessee. The assessee will be entitled to his costs. Counsel's fee ₹ 250. Question answered accordingly.
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1961 (11) TMI 60 - SUPREME COURT
onus to prove on the department that the gold was of foreign origin, and this foreign gold had been imported after restrictions had been imposed in March 1947.
extremely improbable that the gold would remain in the same shape of bars and with the same fineness as when imported after the passage of this length of time
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1961 (11) TMI 59 - SUPREME COURT
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... ... ..... sed in a manner which will be contrary or different from the procedure expressly provided in the Code." The Court in that case held that in exercise of the powers under s. 151 of the Code of Civil Procedure, 1908 the Court cannot issue a commission for seizing books of account of plaintiff-a purpose for which a commission is not authorized to be issued by s. 75. The principle of the case is destructive of the submission of the appellants. Section 75 empowers the Court to issue a commission for purposes specified therein even though it is not so expressly stated that there is no power to appoint a commissioner for other purposes, a prohibition to that effect is, in the view of the Court in Padam Sen’s case, implicit in s. 76. By parity of reasoning, if the power to issue injunctions may be exercised, if it is prescribed by rules in the Orders in Schedule I, it must he deemed to be not exercisable in any other manner or for purposes other than those set out in O. 39
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1961 (11) TMI 58 - SUPREME COURT
Whether sugar-cane falls within the term "green vegetables" and is therefore exempt from sales tax under the exemption given by the notification dated August 28, 1947, issued under section 6 of the Bihar Sales Tax Act (Act XIX of 1947)?
Held that:- The preamble cannot limit or change the meaning of the plain words of section 2(c) of the Act which apply to the case of the appellant and therefore the amended section is applicable to the present case. It is an erroneous approach to the question to say that because of the words "for the financial year beginning on the first of April, 1950" in the particular context in the preamble, the definition of the word "dealer" was amended only for one year. Nothing has been shown indicating that section 2(i) of the Bihar Annual Finance Act intended to effect a temporary amendment in the previous definition of the word "dealer" in clause (c) of section 2 of the Act. The contention is therefore repelled. It was also submitted that the assent of the President was not given to the Bihar Annual Finance Act, 1950. In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President. In our opinion the appeals and the petitions under Article 32 are without merit and are therefore dismissed
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1961 (11) TMI 57 - RAJASTHAN HIGH COURT
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... ... ..... ceedings under the Rajasthan Sales Tax Act as well. Firstly, it was the duty of the officers who prepared the list and survey report to provide the copy at the spot so that no allegation of any change therein is made by the assessee at any point of time. Thereafter when the said list, statement and report were to be used against the assessee it was incumbent upon the assessing authority to himself provide copy thereof. In the present case the copies were not delivered in spite of the application for the certified copy submitted again and again. The finding of the Tribunal that the certified copies of the survey report and the list prepared, and statement recorded were not supplied to the assessee and were used for levying tax and for imposing the penalty and the conclusion that on this ground also the orders of the assessing authority is vitiated is upheld. Both the revisions are rejected and the order of the Tribunal is maintained. No order as to costs. Petitions dismissed.
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1961 (11) TMI 56 - ORISSA HIGH COURT
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... ... ..... or and lessee. The question of transfer of ownership-whether in part or in its entirety-therefore does not arise in this case. Agreeing, therefore, with the opinion of the learned Tribunal, I hold that in the facts and circumstances of the case, there was no transfer of business. The Tribunal was, therefore, right in holding that in case of a lease of business premises and utensils there could not be a complete transfer of business as contemplated under section 19(1) of the Act. 5.. Having answered question No. (2) in the affirmative, question No. (1) becomes purely academic and does not arise for consideration in this case. It is thus unnecessary to answer question No. (1). This, however, does not mean that we accept as correct the construction put by the Tribunal on section 19(2) of the Act. The reference is disposed of accordingly. In the circumstances of the case, parties are to bear their own costs of this Court. NARASIMHAM, C.J.-I agree. Reference answered accordingly.
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1961 (11) TMI 55 - MYSORE HIGH COURT
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... ... ..... to it in trade that expression means not only pure gold or silver but also an alloy of gold or silver with such small percentage of some other metal as does not take away from it, the character of bullion. If I may say so with great respect, the view taken by their Lordships of the Andhra Pradesh High Court that bullion always means pure gold or pure silver does not rest upon a correct interpretation of that expression and should not commend itself to us. These writ petitions therefore succeed. We should, therefore, issue a direction to the Commercial Tax Officer, Additional Circle, Mangalore, directing him to determine the tax payable by the petitioners in respect of the sovereign gold sold by them only at the rate specified in the 74th entry of the Second Schedule to the Mysore Sales Tax Act. and not at the rate specified in section 5(1) of the Act. It is so ordered. In the circumstances, there will be no order as to costs. MIR IQBAL HUSSAIN, J.-I agree. Petition allowed.
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1961 (11) TMI 54 - MYSORE HIGH COURT
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... ... ..... the quondum members of a Hindu joint family. Mr. Srinivasan asked us to contrast the provisions of the Rules made under the old Sales Tax Act of 1948, and points out that there is no provision either in the old Act or in the Rules made thereunder corresponding to what is contained in rule 43 made under the new Mysore Sales Tax Act. In my opinion, far from supporting the inference which Mr. Srinivasan asks us to draw, rule 43 framed under the new Act does no more than merely declare what all along was the correct legal position in the case of Hindu joint families. Mr. Srinivasan asks us not to express an opinion on what the position was in the case of a partnership firm, and we abstain from doing so, and leave that question open to be decided at the appropriate stage. In my opinion, these two writ petitions must therefore fail and should be dismissed. It is so ordered. In the circumstances, there will be no order as to costs. MIR IQBAL HUSSAIN, J.-I agree. Petition dismissed.
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1961 (11) TMI 53 - ORISSA HIGH COURT
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... ... ..... I would hold that the assessee was not a dealer within the meaning of the Orissa Sales Tax Act. 10. My attention was also drawn by the learned counsel for the assessee, to letter No. 1795 dated the 26th August, 1950, in which the Business Manager of the Textile Marketing Organization informed the assessee though somewhat guardedly that he was not liable to pay sales tax. The liability to pay sales tax has to be decided on a construction of the provisions of the relevant statute and the facts found, and any opinion expressed by the Business Manager, one way or the other, has no value. 11. For the aforesaid reasons I am satisfied that the learned Tribunal was right in holding that the opposite party was not liable to pay sales tax for the quarters in question. The question is therefore answered in the affirmative. The assessee will get the costs of this reference. Hearing fee is fixed at Rs. 100. (One hundred only). R.K. DAS, J.-I agree. Reference answered in the affirmative.
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1961 (11) TMI 52 - MAHARASHTRA HIGH COURT
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... ... ..... ction (1) of section 35 shows that, where the prior order was passed in appeal or revision, the Commissioner is to make a report to the appropriate appellate or revising authority and thereupon such appellate or revising authority is to pass an appropriate order under section 35. There was no reason why the respondent could not follow the procedure of section 35 in the present case except for the period of limitation prescribed by that section. In the result, I must hold that the respondent is not entitled to proceed against the petitioner for the purpose of re-assessment under section 31 of the Bombay Sales Tax Act, 1953. Accordingly, the notice dated 17th June, 1960, issued by the respondent (and produced as Exhibit E to the petition) is quashed and the respondent is directed not to act in furtherance thereof. Rule is made absolute in terms of prayers (a) and (b). The respondent will pay the petitioner s costs of the petition. Costs quantified at Rs. 500. Petition allowed.
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1961 (11) TMI 51 - ALLAHABAD HIGH COURT
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... ... ..... one then except for the words omitted all other earlier provisions must continue to be given their full import. It is true that ordinarily a statute applies from the date from which it is specified in the Act to come into operation and it is ordinarily prospective, but when the phraseology is clear and unambiguous the Legislature can make the legislation retrospective. In the instant case the proviso to section 1(2) and section 4 of Act XV of 1961 when read with the proviso to section 1 of Act XXXII of 1957 leaves no manner of doubt, and the intention can be unhesitatingly gathered, that the Legislature intended and in fact made this piece of legislation retrospective. For the reasons aforesaid the petition is without merits and it is accordingly dismissed. In view of the writ having been filed before the U.P. Sales Tax (Amendment) Act XV of 1961 came into force which purported to clear certain doubts which had arisen, there will be no order as to costs. Petition dismissed.
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1961 (11) TMI 50 - ALLAHABAD HIGH COURT
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... ... ..... orked up into the building and as such has become immovable. The mere fact that this ground is not available in the present case would not make the Supreme Court decision any the less binding in the present case. I am, therefore, of the view that the Supreme Court decision fully covers the present case and the Sales Tax Authorities were wrong in distinguishing that case and in not following it. It is argued on behalf of the State that the alternative remedy by way of a revision to the Judge (Revisions) Sales Tax was open to the petitioner in this case. This point, however, is met by a very recent decision of the Supreme Court reported in Carl Still G. m. b. H. v. State of Bihar(1), in a similar matter. Accordingly there is no force in this objection. The result is that the writ petition must be allowed. A writ of certiorari shall issue quashing the assessment order dated 28th March, 1960, and the order of the Judge (Appeals) Sales Tax dated 27th July, 1961. Petition allowed.
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1961 (11) TMI 49 - MADRAS HIGH COURT
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... ... ..... help the petitioner to substantiate his contention that the term coffee under the Madras General Sales Tax Act will not include coffee powder. Our attention was drawn to the definition of coffee under the 1959 Act, which is as follows Coffee, that is to say, any one of the forms of coffee, such as coffee beans, coffee seeds (raw or roasted) coffee powder, but not including coffee drink. The comprehensive definition of coffee contained in the 1959 Act is no indication that the term coffee used in the previous enactment should Have a restricted meaning. It may be that by way of abundant caution, the Legislature thought fit to define the term coffee expressively so as to obviate any contention that coffee powder is not coffee within the meaning of the Act. We are of opinion that the petitioner s turnover in respect of coffee powder in the sum of Rs. 7,56,861-59 nP. was properly included. The petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1961 (11) TMI 48 - MADRAS HIGH COURT
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... ... ..... for their own buildings and for various reasons a larger quantity was produced, that quantity was liable to deteriorate, and therefore they had to be disposed of, and the important fact which cannot be overlooked is that these bricks were disposed of without the society making any profit whatsoever. That was a case where there was a complete absence of any profit motive because what was sold was really the surplus stock and that was for the cost price. We are unable to see how that decision can help the petitioner to advance the contention in this case that there was no profit motive on the part of the canteen when it sold tiffin and lunch and catered to persons other than the members of the canteen. We are of opinion that on the facts found by the Tribunal in this case there were sales within the meaning of the Act and that the assessment on the petitioner s turnover is well-founded. The petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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