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Case Laws
Showing 141 to 160 of 612 Records
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1960 (10) TMI 101 - KERALA HIGH COURT
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... ... ..... her the decision of the court below dismissing the suit is proper. The suit was dismissed while Act 5 of 1954 (Madras) was in force and that was the proper thing to do in the circumstances. 11. The last submission made on behalf of the appellant was that a fresh suit on the same cause of action was competent, that he had time till 7-2-1956 to institute such a suit and that if the period of pendency of this appeal which was filed on 2-3-1955 is excluded a fresh suit would still be in time. The question whether the period of pendency of this appeal can be excluded under Section 14 of the Limitation Act is not a matter which we arc called upon to decide in this appeal as the question wilt properly arise if and when the plaintiff institutes a fresh suit. 12. In the result, the decree of the court below is confirmed and the appeal is dismissed, aS the appeal fails on a question of law on which there was difference of opinion, we direct both sides to bear their costs in this court.
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1960 (10) TMI 100 - KERALA HIGH COURT
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... ... ..... st conscientiously reach a conclusion which it deems such evidence to justify. It follows that 'the appellant would only succeed should he establish that the order challenged was without any directing of the mind to the evidence by the deciding functionary, and that is not the ease. The argument, therefore, that every evidence must be collected by the dismissing authority, in our opinion, has no force. 4. The next argument of the appellant's learned Advocate is that retrospective dismissal and suspension cannot be ordered. We think the error is not such as cannot be obliterated by the appellate authority; and, in this case, the appellant has filed an appeal before the Government. We would not prejudice the fair hearing of that appeal by any observation in the writ petition, but it is clear that the error is not of jurisdiction, or of such far reaching effect, as to justify exercise of power under Article 226. In these circumstances, the appeal is dismissed with costs.
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1960 (10) TMI 99 - PUNJAB AND HARYANA HIGH COURT
Business connection - profits or gains accrued or arose or could be deemed to have accrued or arisen to the non-resident on account of the business connection of the non-resident with the assessee - Relationship between the assessee and the non-resident fell within the meaning of the expression 'business connection' as used in section 42(1) of the Indian Income-tax Act - Held that:- These observations fully apply to the facts of the present cases, as I have already said. Here also the alleged agent is nothing more than a free-lance broker. He has not been appointed by the non-resident companies. He is not bound to canvass business for them. Whatever orders he canvasses are at his sweet will and if those orders are ultimately carried out, the non-resident companies give him a certain amount of commission, which varies from 1˝ per cent. to 2˝per cent. As a matter of fact, the entire sale transaction is completed outside the taxable territories. The only part of the transaction which takes place in the taxable territories is the canvassing by the alleged assessee agent for the goods of the non-resident companies. Such a connection, which is of a very loose nature and has no firm basis, cannot, in our opinion, be held to be “business connection” within the meaning of section 42(1) of the Act.
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1960 (10) TMI 98 - MADRAS HIGH COURT
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... ... ..... Rajagopalan, J.-In Ramaswami Aiyangar v. Commissioner of Income-tax 1960 40 ITR 377 (Mad.) a Bench of this court held that in appropriate cases there can be a direction to refund to the successful assessee the initial deposit of ₹ 100 for each of the cases referred. The learned counsel for the department pointed out that the present case, where a similar request has been preferred, can be distinguished on facts from Ramaswami Aiyangar's case (supra). In the present case, the department went back upon their earlier decision in other assessment years not to treat the income as assessable income and assessed the assessee fund with reference to eight years to which the consolidated reference related. In view of the special circumstances of this case we think this is a fit case where the institution fee of ₹ 100 for each of the references should be ordered to be refunded to the assessee, as part of the costs to which as successful assessee, it will be entitled to.
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1960 (10) TMI 97 - SUPREME COURT
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... ... ..... the record we do not think it necessary to consider whether the additional evidence should be allowed to be adduced. It is not disputed that if the Kalambandis on which the appellant's right is based are rules or regulations having the force of law the impugned executive order issued by respondent 1 would be invalid. The right guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order. In fact on this point there has never been a dispute between the parties in the present proceedings. That is why the only point Of controversy between the parties was whether the Kalambandis in question amount to an existing law or not. Since we have answered this question in favour of the appellant we must allow the appeal, set aside the order passed by the High Court and direct that a proper writ or order should be issued in favour of the appellant as prayed for by him. The appellant would be entitled to his costs throughout. Appeal allowed.
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1960 (10) TMI 96 - MADHYA PRADESH HIGH COURT
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... ... ..... and did not apply to super-tax and that the assessee in that case (who was similarly placed as the assessee here in so far as the income from dividends was concerned) was liable to pay super-tax at the concessional rates mentioned in the Taxation Concessions Order, 1950. For these reasons, our answer to the first question is that the previous year in respect of the managing and selling agency source of income is the financial year ending on March 31, 1950, as chosen by the assessee. With regard to the third question, the answer is that the tax payable on the entire dividend income included in the total income after excluding the proportion of non-taxable dividend under paragraph 12 of the Taxation Concessions Order, 1950, would be at the concessional rates under the said Order and the assessee is liable to pay super-tax at the concessional rates mentioned in the Taxation Concessions Order, 1950, on the entire dividend income. The assessee shall have costs of this reference.
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1960 (10) TMI 95 - ALLAHABAD HIGH COURT
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... ... ..... action, though for the purpose of deciding whether a receipt is a capital receipt or a revenue income, one might consider the substance. In Bankey Lal Vaidya v. Commissioner of Income-tax 1965 55 ITR 400 , to which I was party, it was decided that when one partner on the dissolution of a partnership takes up the entire business and pays the retiring partner the price of his share, the price received by the latter is not a capital gain. My answer to question No. 3 is, therefore, in the negative and in the assessee's favour. Thus my answers to the three questions are (1)-Yes. (2)-Yes. (3)-N o. A copy of this judgment should be sent to the Income-tax Appellate Tribunal as required by section 66(5) under the seal of the court and the signature of the Registrar. Since the ultimate result is in favour of the Commissioner, he should get his costs of the reference, which should be assessed at ₹ 1,000 from the assessee. Counsel's fee should be assessed at ₹ 1,000.
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1960 (10) TMI 94 - ANDHRA PRADESH HIGH COURT
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... ... ..... the word "individual" in a narrow sense to distinguish it from a Hindu undivided family. In considering this question, one has to remember that under the Act a Hindu undivided family as a unit and also an individual as a unit are liable to be taxed and the word "individual" is used in the section in its narrower connotation. Therefore, that does not furnish any index to the interpretation of item 86 in List I of the Seventh Schedule. For these reasons, we uphold the validity of section 3 of the Act in its relation to Hindu undivided families and the Wealth-tax Officers are authorised to initiate proceedings in assessing the capital assets of Hindu undivided families. No exception could, therefore, be taken to the action taken by the Wealth-tax Officer, Eluru, and the orders in question could not be successfully impeached. In the result, the writ petitions are dismissed with costs in W.P. No. 20 of 1959. Advocate's fee ₹ 100. Petitions dismissed.
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1960 (10) TMI 93 - ALLAHABAD HIGH COURT
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... ... ..... which is deductible for income-tax purposes is one which is towards a liability actually existing at the time, but the putting aside of money which may become expenditure on the happening of an event is not expenditure." Adopting the argument with respect it may be said that the loss deductible for income-tax purposes in one actually existing at the time and debiting an amount which may in whole or in part be subsequently found to be due as a result of an arbitration agreed to between the parties is not a loss. BY THE COURT.--Our answer to the question referred is that the loss amounting to ₹ 14,994 was a loss pertaining to the assessment year 1946-47 and the relevant chargeable accounting period. The assessee will have his costs which we assess at ₹ 200. Fee of the learned counsel for the Department is fixed at the same amount. MOOTHAM, C.J.--Judgment pronounced by me today under Chapter VII, rule 1(2), of the rules of Court. Reference answered accordingly.
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1960 (10) TMI 92 - MADHYA PRADESH HIGH COURT
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... ... ..... ular source. The determination of the tax payable is with regard to the tax payable on the total income and not on the income, profits and gains from any particular source. For these reasons, we are of the opinion that the assessee family could not be said to have been assessed within the meaning of the proviso to clause (a) of section 2(11)(i) in respect of a source of income in non taxable territories which was included in the earlier Diwali account years for the purpose of determining the assessee's total world income and the average rate of tax applicable to its total world income. The answer to the question referred must, therefore, be that the assessee is entitled to take the year ending on March 31, 1950, as the Previous year for the purpose of the assessment year 1950-51 in respect of the source of income specified in the question. The assessee shall get the costs of this reference. Counsel's fee is fixed at ₹ 250. Questions answered in the affirmative.
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1960 (10) TMI 91 - SUPREME COURT
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... ... ..... re the Act was passed. The verb "has been" is in the present perfect tense, and may mean either " shall have been " or " shall be ". Looking, however, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended. The verb " has been " describes past actions, and, to borrow the language of Fry, L.J., in Ex Parte Pratt 1884 12 Q.B- 334, " is used to express a hypothesis, without regard to time ". An externment order, however, to satisfy the requirements of s. 57 of the Bombay Police Act, must be made bona fide, taking into account a conviction which is sufficiently proximate in time. Since no absolute rule can be laid down, each case must depend on its own facts. In the result, we set aside the acquittal, and remit the case to the High Court for disposal on the other points urged before it and in the light of observations made here by us. Appeal allowed.
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1960 (10) TMI 90 - MADRAS HIGH COURT
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... ... ..... once but in effect such deduction is effected only once in ascertaining the taxable profits of the composite business. Even once the principle is settled that only that portion of the profits and gains derived from the industrial undertaking is eligible for the exemption to the maximum limit provided in the section, the procedure adopted is in conformity with the section. What the assessee demanded of the Department was that the entire sum of ₹ 1,95,979 (that is the total profits of ₹ 4,44,462 minus the unabsorbed depreciation of ₹ 2,48,483), being less than six per cent. of the capital employed in the industrial undertaking should be exempted from tax. That point we have already decided against the assessee. It follows that the exemption granted to the limit of ₹ 4,715 alone is in order. Question (2) is also answered against the assessee. The assessee will pay the costs of the Department. Counsel's fee ₹ 250. Reference answered accordingly.
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1960 (10) TMI 89 - SUPREME COURT
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... ... ..... ces, it cannot be said that at the time the plaint was filed it was defective because the Power of Attorney in favour of Dunderdale was not a Power of Attorney on behalf of the firm and its partners. As the High Court has pointed out, there is on the record now Powers of Attorney on behalf of all the partners of the firm. It seems to us that the Division Bench of the High Court took a correct view in holding that the plaint was not a nullity. It was a case of a suit instituted by all the partners of a firm who were misdescribed as Manilal & Sons, a firm carrying on business at No. 11A Malacca Street, Singapore and., accordingly the learned Judges rightly allowed the plaint to be amended on terms and conditions stated in their order. It follows therefore that the High Court was also right in setting aside the decree of P. B. Mukherjea, J., dismissing the suit. These appeals accordingly fail and must be dismissed but, in the circumstances, without costs. Appeals dismissed.
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1960 (10) TMI 88 - ANDHRA HIGH COURT
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... ... ..... fresh on the same grounds is not substantial. It is consequently rejected. 14. It is lastly urged that if the matter is sent back to the same Assistant Collector, the appellant is not likely to obtain justice at his hands. We are not persuaded that there is any force in this contention. It is nowhere suggested that this officer was in any way biased against the appellant. No such imputation was made at any time. If the appellant is able to satisfy him that his action was justified, not being a violation of any of the rules, the officer would not penalise the appellant. Further, the same officer may not he there now, he might have been transferred to some Other place. Even otherwise, if there is any foundation for the complaint of bias, he could move the Collector to send the matter to some other officer if the provisions of law permit such a course. 15. In the result, the order under appeal is affirmed and the appeal is dismissed with costs. Advocate's fee ₹ 100/-.
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1960 (10) TMI 87 - SUPREME COURT
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... ... ..... clear whether the opportunity to be heard which is provided for by s. 4(2) would include an opportunity to the person concerned to lead evidence. Such an opportunity has, however, been provided by s. 59(1) of the Bombay Act of 1951. As we have already mentioned there can be no doubt that the purpose and object of the Act are above reproach and that it is the duty of the State Legislature to ensure that public peace and tranquillity is not disturbed by the prejudicial activities of criminals and undesirable characters in society. That, however, cannot help the appellants’ case because, as we have indicated, the infirmities in the operative sections of the Act are so serious that it would be impossible to hold that the Act is saved under Art. 19(5) of the Constitution. There is no doubt that if the operative sections are invalid the whole Act must fall. In the result the order passed by the High Court is confirmed and the appeal is dismissed with costs. Appeal dismissed.
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1960 (10) TMI 86 - KERALA HIGH COURT
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... ... ..... ny relation to him, 'that would meet the presumption', as Lord Eldon expressed it. It comes really to this a purchase by one in the name of another with no other circumstances at all proved. Therefore, in my opinion, although the legal personal representative of the lady in this case would be the person entitled to receive the money at law and to give a receipt for it, in equity the money belongs to the legal personal representatives of Mr. Sanderson, who took out the policy." 10. There is no contention in this case--either before the lower court or before us--based on the relationship between the 1st respondent and the deceased Vasudevan Pillai or the possession of the policy by him. In these circumstances it is unnecessary to consider the impact of those factors, if any, on this case. 11. In the light of what is stated above the appeal has to be allowed, and we do so. The appellants, will receive their costs from the 1st respondent here and in the court below.
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1960 (10) TMI 85 - MADRAS HIGH COURT
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... ... ..... hat a suit for a refund would have been permissible, constituted only obiter dicta. Even as obiter dicta we are unable to accept the correct principle was laid down there. As we pointed out the Supreme Court certainly did not differ from the Privy Council, which explained the position with reference to section 67 of the Indian Income-tax Act in its decision already cited. The principle laid down in Raleigh Investment and Co. v. Governor-General in Council 1947 15 I.T.R. 332 A.I.R. 1947 P.C. 78. applies in enforcing the ban enacted by section 18-A of the Madras General Sales Tax Act. In view of what we have said above, that the plaintiffs suit was barred by section 18-A of the Act, it is not necessary for us to pronounce any concluded opinion of ours on the question raised by learned counsel for the appellants, that it is not Article 62, but Article 96 of the Limitation Act that should govern the plaintiffs case. The appeal fails and is dismissed with costs. Appeal dismissed.
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1960 (10) TMI 84 - KERALA HIGH COURT
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... ... ..... rder must show the authority having discharged it, and, in the cases before us, we are satisfied that the two orders do not show that to have been done. They are vitiated because they do not give the basis for the best judgment assessments, and appear to be arbitrary. It may be that the officer has his reasons, but then the order does not disclose any reason. Therefore, there is error apparent on the face of the record to justify our interfering in these two petitions by vacating the assessments and directing the officer to make fresh assessments according to law. The writ petitioners can submit their accounts for the relevant years, which, we are informed, have now been returned from Maharashtra State, and could not be furnished earlier because they had been sent there for some litigation. The petitions are accordingly allowed with direction for fresh assessments with reasons for the orders, but the petitioners must bear their costs because of failure to submit the returns.
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1960 (10) TMI 83 - MADHYA PRADESH HIGH COURT
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... ... ..... f those contracts. The assessment has been arbitrarily made without any material to support it. From the order of the Commissioner (Ex. P-3) it seems that the figure for the volume of business was arrived at after considering all the eight contracts. The return and the orders Ex. P-1, Ex. P-2 and Ex. P-3 do not disclose that there was any justification for this assumption. 10.. Accordingly, the assessment proceedings were held contrary to the fundamental principles laid down in Dhakeswari Cotton Mills case 1954 26 I.T.R. 775 A.I.R. 1955 S.C. 65. and the assessment is, therefore, liable to be set aside. We order that a writ of certiorari shall issue quashing the assessment made by the Sales Tax Authorities in this case. It shall be open to them to proceed again to assess the petitioner in accordance with law. Under the circumstances of this case, we make no order as to costs. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition allowed.
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1960 (10) TMI 82 - KERALA HIGH COURT
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... ... ..... State where the goods be situate and under a covenant of the sale, or should such a movement be incidental to the bargain, nevertheless the sale would be liable to tax under the statute. The majority pronouncement of the Supreme Court on section 3(a) is clear, and the taxing authorities must proceed to assess afresh in the light of the aforesaid observations. Accordingly we allow all these writ petitions, vacate the assessment orders and direct the taxing authorities to proceed afresh in view of the legal position clarified above. Costs will abide the final result. This order will cover all the O.Ps. The collection of the tax as per the provisional assessments has been stayed subject to furnishing of security which has been done. As the provisional assessments have been vacated, it is clear that there is no tax, whose collection can be stayed. Therefore, the stay order becomes unnecessary and the security furnished to get the stay order should be released. Petitions allowed.
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