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1955 (12) TMI 53
... ... ... ... ..... him can arise. Here the contract consists of a unilateral undertaking by the defendant to convey conditionally on payment of Rs. 50/- by the plaintiff within six years. The plaintiff was and is ready and willing to perform the condition. There is no reason why the defendant should not be compelled to perform the contract specifically. 14. By the express 'terms of Section 73, Evidence Act, the court is entitled to compare the disputed signature with the signature proved to be that of the defendant in order to ascertain whether the disputed signature was that of the defendant. The appellate court duly considered all the evidence on record and came to the conclusion that the disputed signature is genuine. I have no doubt" that the finding of the appellate court on this question of fact was correct. The appellate court quite properly rejected the very belated application of the defendant for recording of additional evidence. 15. I concur in the order proposed by my Lord.
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1955 (12) TMI 52
... ... ... ... ..... by limitation. He therefore cannot be said to have an alternative remedy which is adequate. . 14. This Rule must therefore be made absolute in part. I do not think that it is necessary to quash the assessment order against the firm. It would be sufficient if the enforcement thereof against the petitioner is prohibited. There would be a writ in the nature of Mandamus directing the respondents to forbear from enforcing the assessment order dated 12-12-1947 in the petition mentioned, against the petitioner. But this will not in any way exonerate the petitioner from liability or prevent the respondent from proceeding against the petitioner or against any partner of the dissolved, firm in accordance with law. Nothing in this order relates to the validity of the notice under Section 34 issued to the petitioner on 25-11-1944. If it is a valid notice, nothing in this order will prevent the respondents from taking proceedings under the said notice. There will be no order as to costs.
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1955 (12) TMI 51
... ... ... ... ..... vious conviction under section 5 of the Act, the sentence of three months' rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified". Now, the question is whether, in the circumstances, the order of the High Court could be held to be bad for want of notice under section 439(2). The law does not prescribe that any particular formalities should be complied with, before action is taken under that section. It only provides that the accused should have an opportunity of showing cause against the conviction and enhancement, and, as the first appellant was heard on both these questions, the require- ments of the section were satisfied. The order of the High Court could accordingly be maintained under section 439, even if it were to be regarded as an enhancement of the sentence. In any event, no prejudice has resulted to the first appellant by reason of the absence of a formal notice under section 439(2). In the result, the appeal is dismissed.
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1955 (12) TMI 50
... ... ... ... ..... h the learned Judges were dealing with a different point, they held that the retrospective operation of the Amending Act would not extend to the extent of reopening an assessment finally made on the basis of the then existing law by the change of law introduced by the amendment. If it was so in the case of final assessment made subsequent to the coming into force of the Amending Act, it would a fortiori be not permissible to reopen the final assessment made prior to the coming into force of the Amending Act on the basis of change in law. 21. In the result we hold that the Income Tax Officer has no jurisdiction to reopen assessments finally made before April 1, 1952, on the basis of the provisions of sub-section (5) inserted in section 35 by the Amending Act 1953. We, therefore, quash the orders made by the First Additional Income Tax officer, Nellore, dated March 20, 1954, and March 31, 1954. The applicant will have have his costs. Advocates fee ₹ 200. Petition allowed.
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1955 (12) TMI 49
... ... ... ... ..... cing an equity. If on receiving notice of the assignment, he sees that the assignee has been deceived and yet stands and allows him to be defrauded, he will not be allowed to set up an equity which he has against the assignor. The authority for this proposition is the decision in Mangles v. Dixon, (1852) 3 HLC 702 (F). 24. In the result, there will be a decree in favour of the liquidators for the amount claimed with interest and costs so far as the K.K.D. and V.B.K. and Co. is concerned. The decree will be only for the amount due on the fixed deposit receipt, i.e., ₹ 3125 with interest thereon at six per cent from 17-6-1947 and proportionate costs. The KK.D. and V.B.K. and Co., it is said has deducted the amount due on the fixed deposit receipt when it filed a suit against respondents 1 to 6 in the Sub-Court, Kumbakonam. The K.K.D. and V.B.K and Company will be entitled to proceed against respondents 1 to 6 for the amount so deducted in the suit in the Kumbakonam Court.
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1955 (12) TMI 48
... ... ... ... ..... any instead that it did. We were not prepared to investigate that dispute at that late stage but we make it plain that the Labour Appellate Tribunal will be at liberty to consider it or not as it deems right after hearing what both sides have to say about it. 52. The award and the decision of the Labour Appellate Tribunal are set aside and the case is remitted to the Labour Appellate Tribunal for a re-hearing of the appeals filed before it and for a fresh decision in the light of the foregoing observations. 53. We will, however, have to make some interim arrangement for payment of what may be termed a sort of subsistence allowance to the affected workmen during the pendency of those further proceedings. As there is no agreement between the parties on the subject, we leave it to the Labour Appellate Tribunal or the Adjudicator, as the case may be, to make suitable orders in this respect. 54. There will be no order about costs as neither party is to blame for what has happened.
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1955 (12) TMI 47
... ... ... ... ..... orsed on the nomination paper. That we indicated was mere form and said at page 488 - “If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality”. 17. A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decisions that deal with other laws made in other countries to deal with situations that do not necessarily arise in India. 18. The appeal succeeds and is allowed with costs here and in the High Court. The order of the High Court is set aside and that of the Civil Judge restored.
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1955 (12) TMI 46
... ... ... ... ..... iew it seems to me that what the assessee company was doing was to set apart tentatively a sufficient sum of money in the form of a trust fund in order that it might be available for the payment of a gratuity to Mr. and Mrs. Harvey or one or the other of them in certain specified contingencies, should those contingencies occur, but making no provision for the application of the money in the event of those contingencies not occurring and no annuity being payable to anyone. It appears to me that payments made to the trustees in those circumstances and under those conditions cannot be said to constitute moneys expended in any real and practical sense of the term and that in holding that there was no expenditure in the present case, the Tribunal was right. The answer to the question referred must, therefore, be in the negative. The Commissioner of Income-tax will have his costs of this reference. Certified for two counsel. SARKAR, J.--I agree. Reference answered in the negative.
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1955 (12) TMI 45
... ... ... ... ..... ction enacted by section 4(2) excluded the operation of section 4(3)(vii). That after all is yet another legal fiction for purposes of the Act that, though there is a receipt which may normally be income, it is not an income assessable to income-tax. We have pointed out the underlying principle of the unity of the married couple which justified the enactment of the impugned provision, section 4(2). The monies taxed as income are still the husband's monies ; only for the purposes of taxation, the legal fiction is enacted, that it is the income of the wife, with the further legal fiction, that it is income which accrued to the wife within the taxable territories. Here again we are unable to hold that section 4(2) offends article 14 of the Constitution. We have no hesitation in upholding the validity of section 4(2) of the Act. The only point raised by the petition before us having failed, we direct that the rule be discharged and that this petition be dismissed with costs.
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1955 (12) TMI 44
... ... ... ... ..... and yet the annual payments provided for, which were a part of the consideration and which could not be regarded as rent or royalty, were nevertheless trading profits, because they could not be properly segregated from other business earnings of the company. (See British South Africa Co. v. Commissioner of Income-tax 1946 14 I.T.R. Suppl. 17; 1946 A.C. 62). I do not say that the case is on all fours with the present one, but it goes very near and furnishes valuable guidance in interpreting the transaction before us. In my opinion, the receipts which came into the hands of the assessee company under the first of the purchaser's covenants were clearly of an income character. In the result the questions referred to this Court are answered as follows Question 1 "Not pressed". Question 2 "Yes". The Commissioner of Income-tax, West Bengal, will have his costs of this reference. Certified for two counsel. SARKAR, J.--I agree. Reference answered accordingly.
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1955 (12) TMI 43
... ... ... ... ..... ivision Bench of this Court. Section 47 of the Act provides for recovery of the penalty imposed. But that postulates the existence of a valid order imposing the penalty. Section 28 is a complete code in itself, regulating the procedure for the imposition of the penalties prescribed. The provisions for the assessment and levy of the tax will not as such apply. As pointed out by the learned Judges in Commissioner of Income-tax, Bihar and Orissa v. Sanichar Sah Bhim Sab 1955 27 ITR 307, there is a lacuna, but it is not for the Court to fill up. In our opinion no penalty was imposed on any of the petitioners. The order dated 18th March, 1948, did not amount in fact or in law to an imposition of a penalty under section 28 of the Act on any of the petitioners. It follows that no portion of the penalty imposed by the order dated 18th March, 1948, can be recovered from any of the petitioners as an arrear of land revenue. The rule is made absolute. The petition is allowed with costs.
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1955 (12) TMI 42
... ... ... ... ..... the ruling that I have referred to and as I am of opinion that for the purposes of this case it is absolutely and entirely irrelevant to determine what quantity of Hall's Wine would cause a state of intoxication or drunkenness. 30. The result therefore is that the challenge of the petitioners to the regulation of the sale, possession, consumption and use of Hall's Wine fails and the petition shall be dismissed and the rule discharged with costs, 31. I direct that the costs of this petition should be taxed on the basis of a long cause. As only one counsel has appeared throughout on behalf of the State of Bombay, in taxing the costs as a long cause, only one counsel shall be allowed. 32. Although this petition was presented In March 1955, it has not been disposed of earlier mainly because after the matter reached hearing, it had once to be adjourned because I was called away to the Appellate Side and thereafter it was adjourned at the request of counsel on both sides.
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1955 (12) TMI 41
... ... ... ... ..... quittal on the basis of this theory? Surely not, as that would render the right conferred by section 417 illusory. Thus, the doctrine of "compelling reasons" would appear to have use only as a guide to the appellate court in determining questions of fact. It has no independent value as bearing on its powers under section 417. If that is the true position, it follows on the principles laid down in Sheo Swarup v. King- Emperor( 1934 L.R. 61 I.A.398. ) and Nur Mohammad v. Emperor(A.I.R. 1945 P.C. 151.) and in Pritam Singh v. The State( 1950 S.C.R. 453.) that this Court cannot interfere with the orders passed under section 417 merely on the ground that the findings of fact were not justified, having regard to the doctrine of "compelling reasons". In my opinion, this appeal ought to be dismissed. ORDER. BY THE COURT.-In accordance with the Judgment of the majority this Appeal is allowed. The conviction and sentence are set aside and the Appellant is acquitted.
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1955 (12) TMI 40
... ... ... ... ..... But this objection was not taken in the trial court, and is not now open. Vide section 536 of the Code of Criminal Procedure. It is next contended that there has been a violation of section 234 of the Code of Criminal Procedure in that the appellant had been charged with three offences under section 409 and one under section 477-A. But the case is governed by section 235, as the several offences under sections 409 and 477-A arise out of the same acts and form part of the same transaction. Moreover, the appellant. has failed to show any prejudice as required by section 537. This objection must accordingly be overruled. It was finally contended that there had been no proper examination of the appellant under section 342, and that therefore the conviction was illegal. This objection was not raised in the Courts below, and is sought to be raised in this Court by a supplemental proceeding. We find no substance in this objection. In the result, this appeal fails and is dismissed.
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1955 (12) TMI 39
... ... ... ... ..... at we have taken as to the contentions raised before us regarding the validity of the order of dismissal, we do not feel called upon to enter into the discussion relating to the availability of the writ. We express no opinion on the questions so raised. We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under article 226 of the Constitution in an appropriate case. That is a question on which we express no opinion one way or the other in this case. In the result the appeal must be dismissed with costs. Along with this appeal, the appellant filed an application to this Court for leave under article 136 to appeal against the orders dated the 3rd September, 1951, and 16th September, 1952, dismissing him from service and declining to review it. In view of our judgment just delivered, that application must also be rejected.
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1955 (12) TMI 38
... ... ... ... ..... eceipt from Naganatha in the capital account Annexure B-2. Bad accounting is not necessarily proof of concealment of the real nature of the transactions between the family and the company. A settlement of a portion of the liability of the family to the company by adjustment from what was due by the company to Naganatha cannot obviously act retrospectively and make the family a partner in the company from its very inception. The family was not a partner but a customer of the company even in the year of account. In our opinion there was no evidence on record to sustain the conclusion of the Tribunal that it was not Naganatha in his individual capacity but it was the family, of which he was the de facto manager, though a junior coparcener, that was the real partner in the company. The question referred to us is answered in the negative, and in favour of the assessee. The petitioner will be entitled to his costs. Counsel's fee ₹ 250. Reference answered in the negative.
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1955 (12) TMI 37
... ... ... ... ..... or income tax purposes. In the recent case of Patrick v. Broadstone Mills Lid. Singleton L.J., in words that are equally apt if applied to the Lifo method, declined to accept the base stock method as conformable to income tax law, though it might be approved by accountancy practice. In the result their Lordships are of opinion that this appeal must be allowed, the judgments of the Supreme Court and the Exchequer Court set aside and the appeal of the respondent company from the Minister's assessment rejected, and they will humbly advise Her Majesty accordingly. They repeat that they have reached this conclusion not because they dissent from any finding of fact by the President of the Exchequer Court, of whose lucid and exhaustive judgment no criticism can from this aspect fairly be made, but because his findings of fact do not offer a complete solution of the question. The respondent company must pay the costs of this appeal and of the proceedings in the courts of Canada.
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1955 (12) TMI 35
... ... ... ... ..... earned Judges were dealing with a different point, they held that the retrospective operation of the Amending Act would not extend to the extent of reopening an assessment finally made on the basis of the then existing law by the change of law introduced by the amendment. If it was so in the case of final assessment made subsequent to the coming into force of the Amending Act, it would a fortiori be not permissible to reopen the final assessment made prior to the coming into force of the Amending Act on the basis of change in law. In the result we hold that the Income-tax Officer has no jurisdiction to reopen assessments finally made before 1st April, 1952, on the basis of the provisions of sub-section (5) inserted in section 35 by the Amending Act of 1953. We, therefore, quash the orders made by the First Additional Income-tax Officer, Nellore, dated 20th March, 1954, and 31st March, 1954. The applicant will have his costs. Advocate's fee ₹ 200. Petition allowed.
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1955 (12) TMI 34
... ... ... ... ..... id notification. This latter notification cannot be said to have the effect of the imposition of any new tax. On the other hand, the notification merely removed the ban that had been placed on the levy of the tax which the statute had already imposed under sub-section (1) of section 3. The power of removing such a ban is co-extensive with the power granted by section 6(1) to impose the ban by publishing a notification granting the exemption contemplated by that section. This position is made clear by section 20 of the General Clauses Act. There is, therefore, no force or substance in the contention urged on behalf of the appellant-petitioner that the second notification issued by Government on 18th July, 1951, is ultra vires the powers of Government under section 6(1) of the Sales Tax Act. The order passed by the learned judge repelling such a contention and dismissing the O.P., has only to be affirmed. 4.. In the result this appeal is dismissed with costs. Appeal dismissed.
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1955 (12) TMI 33
... ... ... ... ..... esaid orders and notices but if it is necessary, these orders and notices are deemed to have been and are hereby quashed by the issue of writ of certiorari. It follows from our decision that as the applicant is not liable to pay tax as a dealer other than the tax payable as a sales manager on behalf of the Associated Cement Companies Ltd., the demand by the department for payment of sales tax on the applicant as a dealer under the circumstances is illegal and respondents 1 and 2 are directed not to demand from the applicant any sales tax on account of sale of cement by the applicant which he makes on behalf of the Associated Cement Companies Ltd., in pursuance of the agreement dated 21st April, 1954, or to demand from the applicant any amounts collected by him from the customers conditionally during the period when the liability to tax has been contested and which are refundable to customers. The application is allowed with costs which we fix at Rs. 100. Application allowed.
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