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Case Laws
Showing 1 to 20 of 38 Records
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1951 (9) TMI 60
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... ... ..... mad v. Mathra Datt & Co. AIR 1936 Lah 1021. In reply to this argument Mr. Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly. 8. The parties will bear their own costa throughout.
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1951 (9) TMI 59
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... ... ..... ers (a) to sell to such person or persons such quantities of such description of cloth or yarn as the Textile Commissioner may specify; (b) Not to sell or deliver any cloth or yam of a specified description except to such person or persons and subject to such conditions as the Textile Commissioner may specify. 3. The Textile Commissioner may issue such further instructions as he thinks fit in order to carry out the provisions of Sub-clause (1) or any direction under Sub-clause (2). 4. Every manufacturer or dealer, to whom a direction or instruction is issued under this clause, shall comply with any such direction or instruction." 46. We are of opinion that neither the reasoning nor the conclusion in the judgments just delivered is in any way affected by this substitution. 47. We certify that the case involves a substantial question of law as to the interpretation of the Constitution and in particular Article 14 and Article 19(1)(f) and (g) read with Article 19(5) and (6)
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1951 (9) TMI 58
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... ... ..... nal terms of settlement such allegations were withdrawn. Having held that as between defendant Vyas and Pran Ballav Saha and plaintiff Ratan Bala Dassi there was free and voluntary consent, the withdrawal of such allegations must go to show that these allegations were in any event not substantial. 41. The costs including reserved costs of the respective parties appearing in this suit and all costs thrown away in the other suit No. 4156 of 1948 will come out of the estate but having regard to value of the estate I do not certify it for two counsel. 42. I would only wish to add the great assistance that I received from all counsel appearing and the very reasonable attitude they took throughout the proceedings with a view to minimise the costs and they all ultimately expressed their anxiety to have a scheme for composing litigation and this Court would expect that the original trustees under the Will in having this opportunity to serve the estate will not abuse such opportunity.
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1951 (9) TMI 57
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... ... ..... n properly made to them is quashed by this Court by a writ of 'certiorari' on any ground which does not deal with the merits of the case, it is not only permissible, but it is also incumbent on the inferior tribunal to take up the application and rehear the same. The learned Advocate General appearing for the State very properly admitted this position and stated that the Government was prepared to deal with the application before them in the light of the judgment of this Court. In these circumstances it is not necessary to grant a mandamus' as pointed out by Lord Goddard, C.J., in his recent judgment in 'REX v. NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL', 1951 1 K B 711 . The learned Chief Justice says "Once the order is abashed it follows that the applicant will be able to go back to the appeal tribunal." In this case, once the order of the Government is quashed the applicant will be able to go back to the Government acting under Section 64-A .
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1951 (9) TMI 56
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... ... ..... e waited tilt the expiry of the Court hours on that day. 12. I would, therefore, allow this revision, set aside the orders dated 25-11-48 and 10-12-4S passed by the lower Court and direct the petitioner to pay the costs of Rs, 100/- (one hundred) to the opposite party on or before the 31st October 1951. If such payment is made on or before the aforesaid date, Title Suit No. 46 of 1944 may be restored and heard by the Subordinate Judge in accordance with law. If, however, the said sum is not paid by that date, Misc. Case No. 14 of 1948 shall stand automatically dismissed with costs and no express order either of the Subordinate Judge or of this Court to that effect shall be necessary. In the circumstances of this case, both parties will bear their own costs of this revision except when the costs of ₹ 100/- be not paid on or before the 31st October 1951, in which event this revision shall stand dismissed with costs and hearing fee of one gold Mohur. Ray, C.J. 13. I agree.
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1951 (9) TMI 55
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... ... ..... ly commenced and that prosecution is in respect of the same offence by reason of which the Transport Authority proposes to take drastic action against the accused in the criminal case, then, it is desirable that the Transport Authority should await the decision of the criminal Court. This procedure would avoid the spectacle of two departments of the Government proceeding on contradictory lines to the annoyance and hardship of the citizen. 7. In the case before us, the order of the Regional Transport Officer cannot be sustained, especially as it was long after the order of the Magistrate discharging the petitioner. In any event, there is no justification for the Regional Transport Authority to disregard the order of the Magistrate in disposing of the application of the petitioner. The orders of both the Regional Transport Officer and the Regional Transport Authority are hereby quashed. The petitioner will be entitled to the costs of this petition which we fix at ₹ 150/-.
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1951 (9) TMI 54
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... ... ..... have to give the widest meaning to the entries in the legislative lists, it is possible that a subject of legislation may well fall within the scope of more than one entry, and it does not appear to me to be at all necessary to interpret the entries in the legislative lists as being mutually exclusive, A capital gain, in one sense, may be comprehended in the capital value of an asset; and may, looked at from the point of view of profit or gain, still be "income,' I do not, therefore, think that it would be correct to place a narrow interpretation on Entry 54 because the subject of legislation may conceivably fall within Entry 55. For myself, I do not consider it necessary, in the view that I have taken, to consider whether this legislation falls under Entry 65. 23. The result is that I agree with the answer suggested for the question referred to us, but for the reasons which I have stated. Per Curiam 24. No order as to costs of this reference. Answer in the negative.
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1951 (9) TMI 53
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... ... ..... Appellate Tribunal discloses, that the question was raised before it. In the present case a perusal of the order of the Appellate Tribunal discloses that the only question that was argued was with reference to the place of accrual of the profits, whether they were wholly in a Native State or they accrued in British India. The question of apportionment was not raised before the Appellate Tribunal, not to speak of the Appellate Assistant Commissioner. In these circumstances it is impossible to hold that it is a question which arises out of the order of the Appellate Tribunal and which is covered by the questions that are actually referred to us. It will be wholly inconvenient to allow such a question to be raised for the first time before us without an investigation of the facts and also without an apportionment of the profits by the department. In these circumstances we must answer the questions referred to us by the Tribunal in favour of the assessee and in the affirmative.
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1951 (9) TMI 52
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... ... ..... he end of the calendar year. Therefore, this is a clear case of the assignment by E.D. Sassoon & Co. Ltd., of part of the income which they had already earned by working as managing agents for 11 months. When the income did accrue and was paid to Agarwal & Co., the question then fell to be determined as to how the income should be apportioned between the two managing agents; one who had worked for 11 months, and the other who had worked or 1 month. But, in my opinion, it is wholly erroneous to say that the income was brought about or was earned only by Agarwal & Co., and that E.D. Sassoon & Co. Ltd., had nothing whatever to do with the production of that income. 7. We would, therefore, answer the question submitted to us in both the questions raised in the two references, which are identical, in the affirmative. 8. In Reference No. 24, the Commissioner to pay the costs; and in Reference No. 27, the assessee to pay the costs. 9. Reference answered accordingly.
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1951 (9) TMI 51
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... ... ..... ticular label, whether, it was a capital receipt or whether it was casual receipt so long as it is not a profit or gain from the business which the assessee carried on, but was outside it. If the department claims to exercise the right of taxing the particular receipt, it must be established that the receipt in question is income, profit or gain falling under any of the heads of income mentioned in Section 6 of the Act. If it does not fall under any of these heads, the receipt is not taxable and would not be a revenue receipt, for the purpose of income-tax., It may be casual receipt, or capital receipt. It is unnecessary to express any opinion on the question whether it falls under the one head or the other so long as it is not income profit or gain which is taxable under Section 10(1) of the Income-tax Act. For these reasons, we agree with the view taken by the Appellate Tribunal and answer the question referred to us in the negative and against the Income-tax Commissioner.
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1951 (9) TMI 50
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... ... ..... d out, it is immaterial whether the cheque was posted in Delhi by the Government or not. The posting of the cheque would become material provided there was a request by the assessee company to the Government to send the cheque by post. As there is no such request found in the statement of the case, we do not think that there is any substance in Mr. Joshi's contention that the cheque was given to the assessee company in Delhi and not in the Aundh State. Mr. Joshi wanted a remand to the Tribunal for determining whether the cheques were posted in Delhi. We do not think a remand is necessary, because, as I have pointed out, even assuming that fact in favour of Mr. Joshi, in our opinion the result can only be in favour of the assessee. Therefore, it is unnecessary to have this fact determined by the Tribunal. We, therefore, answer the question submitted to us in the negative. The Commissioner to pay the costs, including the costs of the remand. Reference answered accordingly.
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1951 (9) TMI 49
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... ... ..... t allow it to be raised, for the first time, in second appeal. In our opinion, the Court below, on the materials before it, was justified in taking accounts on the basis of the commission being at the rate of ₹ 2-8-0 per score of goats. No other point was urged. 20. The result, therefore, is that we modify the decree of the Courts below. The decree for the amount found due by the lower Court will stand in favour of the defendants against the assets of Abdul Shakoor in the hands of the plaintiffs-appellants 1 to 5 namely, Sm. Sughra, Sm. Kubra, Sm. Zaibunnissa, Sm. Noorunissa, and Sm. Munnan. A decree for the same sum against plaintiffs-appellants, Ghulam Sabir, Ghulam Ghaus and Ghulam Shakir shall be confined to the assets of the firm Abdul Shakoor Wali Mohammad, if any, in their hands. In other respects the decree of the Courts below will stand. 21. In view of the partial success and failure of the parties we direct the costs of this appeal to be borne by the parties.
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1951 (9) TMI 48
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... ... ..... on on the fundamental rights mentioned in Article 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.' 6. There can be no doubt that the notification S.R.O. No. 388 has the effect of preventing most of the merchants from carrying on any business and must result in the extinction of their trade and all this for no demonstrable advantage to the public. We are accordingly of opinion that this notification must be declared to be unconstitutional and void. 7. In the result C.M.P. No. 5917 of 1951 will be ordered with costs and C.M.P. No. 5974 of 1951 will be dismissed with costs, advocate's fee ₹ 250 in each. 8. We certify that the case involves a substantial question of law as to the interpretation of the Constitution and in particular Article 14 and Article 19(1)(f) and (g) read with Article 19(5) and (6).
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1951 (9) TMI 47
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... ... ..... ion does not admit of any serious doubt. It is not a case where any fresh capital was put into the partnership with a view to increase its profits. The assessee purchased for his exclusive benefit the interest of Palaniappa Chettiar, one of the partners who owned a five anna interest in the partnership. For acquiring that asset which was a profit yielding one he had to expend this amount. It is in the nature of capital expenditure for acquiring a profit-yielding asset. In such circumstances it is impossible to accept the contention strenuously pressed on behalf of the assessee by Mr. Subbaraya Ayyar, his learned advocate, that it is really in the nature of a revenue expenditure. We think that the view taken by the Revenue Authorities is correct and that the question referred to us must be answered in the affirmative and against the assessee. The assessee should pay the costs of the Commissioner of Income-tax which we fix at ₹ 250. Reference answered in the affirmative.
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1951 (9) TMI 46
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... ... ..... y inference warranted under the provisions of the Civil P. C. would be that the learned Judge who passed the Judgment and decree did not think it fit or proper to award interest on the unpaid purchase money. However, that be, in so far as the decree is not at variance with the Judgment and in so far as the learned counsel for the petitioner has not approached the Court by way of a review or even by way of an appeal to set right the omission to give him the interest which he was entitled to under the statute, I do not think the defect could be remedied by means of an application under Sections 151 and 152 C.P.C. In these circumstances I must hold that what the learned Subordinate Judge has done is the right thing and there is no error of law or jurisdiction in the order that has been passed by the learned Subordinate Judge rejecting the application of the petitioner. This petition is therefore dismissed. In the circumstances I do not think there need be any order as to costs.
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1951 (9) TMI 45
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... ... ..... the consideration money. On the contrary, his case was that he paid the entire consideration and came into possession of the entire vended property. It is important to notice that the suit was instituted more than three years after registration of the sale deed. 12. Mr. Misra further contends that the learned Subordinate Judge in view of the provisions of the Indian Arbitration Act, 1940, should not have at all taken into consideration the award of the panches by reason of which the plaintiff is said to have been given possession of the 14 1/2 dhurs out of the vended plot. But that area is not in dispute and, therefore, the question of panchyati is not relevant. Besides, the decision of the learned Judge means no more than that the plaintiff came into possession of the 14 1/2 dhurs by some subsequent amicable arrangement. 13. In my opinion, the decision of the learned Subordinate Judge is right and the appeal must be dismissed with costs. Lakskmikanta Jha, C.J. 14. I agree.
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1951 (9) TMI 44
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... ... ..... y commenced and that prosecution is in respect of the same offence by reason of which the Transport Authority proposes to take drastic action against the accused in the criminal case, then, it is desirable that the Transport Authority should await the decision of the criminal Court. This procedure would avoid the spectacle of two departments of the Government proceeding on contradictory lines to the annoyance and hardship of the citizen. 6. In the case before us, the order of the Regional Transport Officer cannot be sustained, especially as it was long after the order of the Magistrate discharging the petitioner. In any event, there is no justification for the Regional Transport Authority to disregard the order of the Magistrate in disposing of the application of the petitioner. The orders of both the Regional Transport Officer and the Regional Transport Authority are hereby quashed. The petitioner will be entitled to the costs of this petition which we fix at ₹ 150/-.
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1951 (9) TMI 42
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... ... ..... ew that there was no appeal within the meaning of Article 182(2) of the Limitation Act was based on the fact that under the Madras amendment which introduced new sub-section (3) to rule 1 of Order XLI, C.P.C., it was necessary to decide the application under Section 5 of the Limitation Act to excuse the delay before the appeal is admitted. The view therefore taken by the learned Judge in that case can be justified on this ground. But that does not help the contention of Mr. Rama Rao Sahib. We are therefore of opinion that the order of the Appellate Assistant Commissioner rejecting the appeal was one under Section 31 of the Income-tax Act and was appealable to the Appellate Tribunal. The question referred to us must therefore be answered in the affirmative and in favour of the assessee. As the assessee has succeeded in this reference, he is entitled to his costs which we fix at ₹ 250. (To be shared by the respondents between them.) Reference answered in the affirmative.
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1951 (9) TMI 41
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... ... ..... another, and a whole series of them--then each of those engagements could not be considered an employment, but is a mere engagement in the course of exercising a profession." If Mr. Joshi were right then even when a lawyer engaged himself to conduct a case he would cease to be practising a profession and would be employed by his client for the purpose of conducting his case. I hope such a suggestion will never be made that a lawyer ever becomes a servant of his client by thus carrying out his work and ceases to be practising his profession. The result is that we must hold that the assessee's income must be computed under Section 10 and not under Section 7 of the Income- tax Act. We, therefore, answer the questions referred to us in the following manner - Question No. 1 Under Section 10 of the Act. The second and the third questions do not, therefore, arise, and need not be answered. The Commissioner to pay the costs of the reference. Reference answered accordingly.
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1951 (9) TMI 40
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... ... ..... fits as dividends as required by Section 23A (1) of the Indian Income-tax Act ?" 7. Now this question really answers itself and there is no dispute either between the Commissioner and the assessee that the issue of bonus shares can never be regarded as distribution as dividends as required by Section 23A (1). The real question that arises is - "Whether the issue of bonus shares by the assessee company was 'distribution' within the meaning of the second proviso to Section 23A ?" 8. We therefore reframe the question accordingly and having reframed it answer the question in the negative. The second question which relates to the distribution of profits after six months after the annual meeting of the company dated the October 14, 1942, does not arise in view of what we have stated in our judgment. Assesse to pay the costs of the reference. No order on the notice of motion; no order as to the costs of the notice of motion. 9. Reference answered accordingly.
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