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1950 (4) TMI 26
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... ... ..... her features in the evidence of both the Plaintiff and the sixth Defendant, which at one stage inclined me to issue sanction for the prosecution of both of them under Section 476, Code of Criminal Procedure. Taking everything into consideration, the best course will be, in the circumstances, not to make any order for costs in this suit. 27. There will, therefore, be judgment for the Plaintiff in terms of prayer (a) of the plaint, with this variation that the decree for possession will be jointly in favour of the Plaintiff and the sixth Defendant as against Defendants 1 to 5. As no issue about mesne profits has been raised by the Plaintiff and as there is no evidence on the question, there will be no order in respect of prayer (c) of the plaint. There will be no order for costs of this suit. Defendants 1 to 5, having regard to acute shortage of accommodation in Calcutta, will have time till the February 7, 1951 to vacate No. 5, Brindaban Mallik First Lane, under this judgment.
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1950 (4) TMI 25
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... ... ..... g of the concern or concerns or look into such other facts and circumstances as would lead to a reasonable inference that the main purpose behind the reconstitution of the firm was to evade payment of the Excess Profits Tax. In the facts and circumstances of this case it being admitted, or at least not challenged, that there was a partition in August 1940 between Umrao Singh and his sons and that Umrao Singh was not given any share in Firm Shimbhumal Raghubirsaran though he was a shareholder in the other Firm Gangasahai Umraosingh, the splitting up of the business into two units became inevitable. 7. Our answer to this reference, therefore, is that there was no material before the Appellate Tribunal to justify the opinion that the main purpose for which the transaction in question was effected was the avoidance of payment of the excess profits tax. In the circumstances of the case the assessee firm is entitled to coats of this reference, which we assess at ₹ 400/- only.
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1950 (4) TMI 24
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... ... ..... tedious marshalling of the relevant considerations, I have come to the decision that the contention of the learned Advocates who appeared before us should not prevail. I cannot, however, take leave of the case without expressing, my regret that so much time has had to be spent in unravelling a tangle which could easily have been straightened out by the Legislature & I hope that an early opportunity will be taken of placing the original jurisdiction of the three Cts. which are functioning within the City of Madras on an easily workable basis, so as to avoid overlapping & confusion. 38. As I was about to deliver my judgment the recent decision of the Bombay H. C. in Narottamdas Jetkabai v. Aloysious Pinto Phillips, C. S. No. 240 of 1950, holding that the provisions of Section 4, Bombay City Civil Courts Act, 1948, were ultra vires the Provincial Legislature was placed before me. I respectfully but firmly dissent from the opinion of the learned Judges in the case cited.
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1950 (4) TMI 23
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... ... ..... effected by the firm in the account year 1942-43 but by the two limited companies controlled and managed by two of the individual partners of the firm. No part of the managing agency commission arose or accrued to the firm in any Indian State and therefore the exemption from tax granted by Section 14, sub-section (2), clause (c), of the Act is not attracted. 57. I would answer the question referred to us in Referred Case No. 76 of 1946, Referred Case No. 32 of 1947 and Referred Case No. 56 of 1947 in the negative and against the assessee. I would answer the two questions referred to us in Referred Case No. 78 of 1946 in the affirmative and against the assessee. Though I differ from my learned brother in the answer to the second question referred to us in Referred Case No. 76 of 1946 and the only question referred to us in Referred Case No. 32 of 1947, his opinion, which happens to agree with that of the Appellate Tribunal, prevails under Section 66A(1) of the Income-tax Act.
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1950 (4) TMI 22
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... ... ..... royalty. It was therefore not a casual receipt and was an income from other sources taxable under Section 12. 24. We are therefore of the opinion that in the circumstances of this case the sum in question was received by the assessee as a solatium for the surrender of the agreement dated 9th May, 1940, and was a capital receipt and was not liable to assessment. We therefore answer the first question in the negative. 25. In view of this answer it is not necessary for the purpose of this assessment to answer the second question. Unless the sum in question is an income from business, it is not liable to excess profits tax. 26. The assessee thus succeeds and is entitled to the costs of this reference from the Commissioner. We assess counsel's fee at ₹ 300 for the assessee and ₹ 100 for the Commissioner, who will pay all the costs of the reference to the assessee. A copy of this judgment be sent to the Appellate Tribunal under Section 66(5) of the Income-tax Act.
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1950 (4) TMI 21
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... ... ..... at this conclusion as otherwise we would be introducing complications and anomalies in the working of Section 53A, T. P. Act. One member of the family who was put in possession of his share would be liable to resist the suit for partition and another who did not take possession of his share would have to submit to a decree for partition In a suit for a general partition there would he a decree for partition in regard to same properties and some parties, leaving out those sharers who secured possession of the properties under an invalid partition. It may be that a decree would have to be pass-ed even in their favour in regard to properties not divided. The working out of equities and equalization of sharers would involve insoluble complications. We, therefore, hold that a partition is not a transfer within the meaning of Section 53A, T. P. Act, and therefore, the defendant could not invoke the doctrine to support his case. 11. In the result the appeal is dismissed with costs.
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1950 (4) TMI 20
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... ... ..... rticle 19, and if as it appears to be conceded that a right of being heard need not necessarily be given to a party likely to be affected by reason of restrictions imposed upon his fundamental rights referred to in those clauses, I fail to see why the restriction which imposes upon a person a liability to stay outside a certain limit (which cannot under any circumstances exceed the territory of a State) must be deemed to be unreasonable merely because he has not been given by the statute a right either of making a representation or of being heard either in advance or after the order is passed. On the ground that the restriction involved in an order of externment cannot be said to be unreasonable, I am unable to agree with the order proposed. 25. Per Curiam. The Court directs that respondents 1, 2 and 3 or any servants of respondent 1 be prohibited from taking any action under the order dated 12th December 1949. No order as to costs. Certificate granted under Section 132 (1).
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1950 (4) TMI 19
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... ... ..... lated the application of the new amendment to transactions prior to the date of the commencement of the amending Act. This may be so, but we fail to see how this has any bearing on the question to be decided by us. The other contention of his was that as by the amending Act Section 20(1) a new section was substituted for the old sub-section, the new provision must be deemed to be retrospective in operation. No authority was cited for this extraordinary position. If it was the intention of the Legislature to say that not only that the law should be in future as embodied in the amendment but that the law should be deemed to have always been as laid down by the amendment, then appropriate language would have been used as in other statutes in which such an intention is apparent, e.g. the recent amendment to Section 28, Provincial Insolvency Act. 14. The Courts below were right in holding that the suit was barred by limitation. The second appeal fails and is dismissed with costs.
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1950 (4) TMI 18
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... ... ..... This is all that the learned Judge has done by his order appealed against. 8. Two decisions of the Calcutta High Court in Jogendralal Chowdry v. Atindralal Chowdry, 13 C. L. J. 31 2 I. C. 638 and Bhuban Mohini Debi v. Kiran Bala Debi, 13 C. L. J. 47 9 I. C. 215 were cited to us as well as the decision of the Privy Council in Benoy Krishna v. Satis Chandra, 65 Cal. 720 A.I.R. 1928 P. C. 49 but after all we must come to a conclusion on the facts of the particular case whether the appointment of a receiver is just and convenient. 9. It was finally said that the order giving directions to the receiver was vague If in any respect the directions given are defective, the parties including the appellants are always at liberty to approach the lower Court for further and better directions. 10. There is no reason to interfere with the order of the lower Court. The appeal is there. fore dismissed with the costs of respondent 1. The memorandum of objections is also dismissed with costs.
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1950 (4) TMI 17
Powers of Court to rectify register of members ... ... ... ... ..... the petitioner from the company s register in this case was made under circumstances which are highly suspicious and I have no hesitation in holding that the forfeiture of the prtitioner s shares was invalid and the same must be set aside. The application is accordingly allowed with costs and it is ordered that the petitioner s name be entered in the company s register as a holder of shares No. 130871 to 131570,131671 to 140870 and 145271 to 150870. The necessary intimation shall go to the Registrar of Joint Stock Companies also under section 39 of the Companies Act. The petitioner is also directed to deposit the amount of call money of Rs. 15,500 within 14 days from today either at the registered office of the company or with its bankers, Imperial Bank of India. In default he shall have to bear the consequences according to law. No arguments were addressed regarding the interest on this call money and I have not considered that aspect of the question. Counsel s fee Rs. 250.
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1950 (4) TMI 11
Associations and partnerships exceeding certain numbers – Prohibition of ... ... ... ... ..... y an unlawful association, or whether it was an independent concern It is not correct to say that a private limited company is a partnership. There could therefore be no legal foundation for any claim against the fourth defendant between whom and the plaintiffs there is no privity whatever. The plaintiffs cannot say that the assets belonging to the old partnerships are in the possession of the fourth defendant, unless they affirm the validity of the sale by and on behalf of the old concerns. If the plaintiffs do affirm that transaction, then their only remedy can be in respect of the sale proceeds, namely, Rs. 5,000. But if the plaintiffs say that the assets have not been properly conveyed to the fourth defendant, then, it inevitably follows that the plaintiffs can have no cause of action against the fourth defendant. The courts below were right in dismissing the suit. The second appeal is dismissed with costs. Two sets, one set to respondents 1 and 2 another to respondent 3.
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1950 (4) TMI 10
Winding up – Suits stayed on winding-up order ... ... ... ... ..... ifference. The argument is, strictly speaking, beside the point, because what we have to consider is not so much the case of the suit under Order 21, Rule 63, Civil Procedure Code, as the nature of the claim proceeding itself. As put in the case in Mt. Zamrut v. Peoples Bank 1936 6 Comp. Cas. 430 , which has been relied upon by the lower appellate court in the present case, where the decree-holder it is who has set the law in motion, the position of a claimant who intervenes in execution is analagous to that of a defendant in a suit. I agree with Middleton, J., in that case when he observes It appears to me to be most inequitable that a company in liquidation should institute execution proceedings and rely upon section 171, Companies Act, to debar persons from defending their property in those execution proceedings. I am satisfied that the point taken for the appellant in this case has no merits and must fail. The second appeal is accordingly dismissed with costs. (No leave).
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