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1952 (3) TMI 60
... ... ... ... ..... ary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for the giving him a declaratory relief under the provision of section 92, Civil Procedure Code. The finding as to the existence of the public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. The result is that in our opinion the decision of the High Court should stand, but....... + More
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1952 (3) TMI 59
... ... ... ... ..... e. It is further alleged that Sri Mistry was not produced before a Magistrate within twenty four hours of his arrest; but is still kept in detention in the Speaker's custody at Lucknow. The Attorney - General admits before us that this allegation is well-founded, that is to say, that since his arrest on the 11th March, Sri Mistry has not been produced before a Magistrate; but is still detained in custody. This is a clear breach of the provisions of Article 22(2) of the Constitution of India which is quite peremptory in....... + More
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1952 (3) TMI 58
... ... ... ... ..... ore be taken not to be based on the interpretation of the statue but on the ground of the rule being salutary and the principle being just. With very great respect I would say that this is no reason for continuing the plain words of the statue in any different way. There appear to be a reason why the ways used in section are within one year from the date of the order. The period given is fairly long and that appears to me to be the reason why the legislature did not think it necessary to make the addition which they have m....... + More
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1952 (3) TMI 57
... ... ... ... ..... er hand it is found that the sons are liable for this debt, the other question for consideration would be whether there was any proper arrangement made at the time of the partition for payment of the debts of the father. The court below will decide these questions in the light of the principles which we have indicated above and will dispose of the case in accordance with law. In the event of the appellants being held liable for payment of the decretal debt, it would be open to the executing court to make an order that the ....... + More
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1952 (3) TMI 56
... ... ... ... ..... question is. In our opinion that was not the proper attitudes for the Tribunal to take. The law and procedure are perfectly clear. It is open to the assessee to apply the Tribunal to refer the questions of law to us. If the Tribunal refuses then the assessee comes before us and we, if we think it a fit case, frame the questions, as we are entitled to, and ask the Tribunal to make a statement of the case with regard to the questions which we have framed and it is for us to answer those questions after perusing the statement....... + More
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1952 (3) TMI 55
... ... ... ... ..... nto existence and this oral partnership was followed by a partnership deed executed after the accounting period the partnership cannot be registered as having taken place before and during the accounting year. The partnership is not in such cases entitled to registration under section 26A. We accordingly answer the reference in these terms. The respondent will pay costs which we assess at Rs, 150. Kapur, J.-I agree.
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1952 (3) TMI 54
... ... ... ... ..... and as according to the definition of partner in the Indian Income-tax Act even a minor is treated as a partner for the purpose of the Act the six adults may be treated as having entered into a valid partnership and the minor as having been admitted to the benefits of the partnership. As he is also a partner according to the definition of the Income-tax Act there is no valid objection for registering the partnership under Section 26A of the Income-tax Act. As already stated, the subsequent deed of 24th March, 1948, could n....... + More
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1952 (3) TMI 53
... ... ... ... ..... the effect of carrying forward the loss after allowing the department to set off the sum of ₹ 22,440 would be to reduce the amount of loss that could be carried forward, and in the succeeding year if the assessee earned profits which exceeded the loss that is carried forward, the result would be in effect to subject the sum of ₹ 22,440 to double taxation for, by allowing a set-off in the accounting year, the loss was reduced, and the effect of reducing the loss was to increase the profits in the succeeding year....... + More
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1952 (3) TMI 52
... ... ... ... ..... . Hussan 1939 2 K.B. 61, and Krishna Hydraulic Press Ltd. v. Commissioner of Income-tax, Bengal 1943 11 ITR 504 , in support of his contention that the amendment is not retrospective and cannot apply to the assessments in question. It is not necessary to deal with these cases in any detail for the purpose of this case. It may be sufficient to point out that they support the argument put forward by Mr. Mitra against the retrospectivity of the amendment of Section 34 as made in September, 1948. In my view this petition must ....... + More
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1952 (3) TMI 51
... ... ... ... ..... ments entered into between several persons, some of whom are by law incompetent to contract, are not wholly null and void, but are only in some respects less effective than if all the parties to them were competent . See also Jafferali v. Standard Bank AIR 1928 PC 135. which to some extent supports our conclusion. The fact therefore that the minor was included in the contract would not make the partnership as between the two adults invalid and the minor may be deemed to have been admitted to the benefits of the partnership....... + More
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1952 (3) TMI 50
... ... ... ... ..... tion 24(2). The Tribunal has taken the view that the loss cannot be so set off. Here also, with respect to the Tribunal, it is difficult to understand why Section 24(2) does not apply to the case of the assessee. Turning to Section 42(1), once the statutory agent is assessed to tax in respect of the income of the foreign principal, the statutory agent is to be deemed to be for all the purposes of this Act the assessee in respect of such income-tax. One of the purposes of the Act is to allow the assessee a set-off under Sec....... + More
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1952 (3) TMI 49
... ... ... ... ..... uestion would only have been relevant if we had come to the conclusion that the document constituted a partnership in law. Then undoubtedly subsequent conduct would have been relevant to find out whether the partnership was acted upon in order to determine whether the partnership was a genuine partnership. In our opinion the question of the subsequent conduct of the parties to the document does not arise. Although four questions have been framed by the Tribunal as directed by us, on a consideration of the matter and on a c....... + More
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1952 (3) TMI 48
... ... ... ... ..... the profits of a different head or heads under Section 24(1) and if the loss exceeded the profits in the year leaving a balance, then alone it could be carried forward under Section 24(2), seems plausible. But it is unnecessary to express a final opinion on this question. It is no doubt true, as pointed out by the Appellate Tribunal, there is a lacuna in the Act in not making it compulsory upon the Income-tax authorities to assess the loss of an assessee in a particular year when he has no assessable income to enable him t....... + More
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1952 (3) TMI 47
... ... ... ... ..... the limitation which they did. As their Lordships could have refused to hear the appellant on a point which was concluded by concurrent findings of the two Courts at the time of the hearing of the appeal, so it was hardly necessary for them to impose the limitation while granting special leave. 82. The Full Bench decisions of this Court in Nathu Lal v. Raghubir Singh, 54 ALL. 146 (S. B.) and Jaggo Bai v. Harihar Prasad Singh I. L. R. (1941) ALL. 180 (F. B.) lay down the correct law and these decisions fully support the app....... + More
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1952 (3) TMI 46
... ... ... ... ..... to a set-off in respect of the fixed deposit amounts under Exts. B and B-1, though they had not matured by the date of the application for winding up and though the factum of adjustment pleaded by him is found not to have been proved. 17. Having regard to the letter, Ext. A dated 18-9-1945, interest payable on the fixed deposit amounts would be 7 per cent, as from the date of that letter, but no interest will run from the date of the application for winding up. 18. In the result, therefore, the plaintiff will have a decree....... + More
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1952 (3) TMI 45
... ... ... ... ..... ury. On the facts I must hold that the plaintiff had acquiesced in the construction of the structures and is now not entitled to the discretionary remedy of a mandatory injunction. The two Courts below refused to exercise their discretion in her favour and I do not think I am justified in taking a different view on the facts found. 6 The learned Subordinate Judge valued the site in the sum of ₹ 200 and directed that amount to be paid to the plaintiff and gave a declaration that the defendant will have full rights in ....... + More
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1952 (3) TMI 44
... ... ... ... ..... the estimated income of ₹ 25,000. This grievance was not made in the application for reference nor in this application under Section 66(2). This ground was evidently not argued before the Tribunal. At the conclusion of the hearing before us the assessee filed an affidavit of the pleader who appeared before the Tribunal along with the Solicitor who argued the case. In the affidavit the grounds raised in the memorandum of appeal to the Tribunal have been reproduced, but it is not stated that these grounds were pressed........ + More
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1952 (3) TMI 43
... ... ... ... ..... ome is land. Until a dividend is declared, there is nothing that the shareholder can get. The dividend is conditional upon a declaration being made in that behalf by the general body, and although the dividend ultimately may come out of profits--and indeed a dividend cannot be declared without profits being made--the immediate and effective source of that dividend cannot be taken to be land which is the remote or ultimate source of that income, and not the immediate and effective source. I agree, therefore, respectfully, w....... + More
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1952 (3) TMI 42
... ... ... ... ..... e proceeded upon the peculiar custom or usage which obtained among the Nattukottai Nagarathars and is not a justification for extending that principle to other cases. This point was considered in Commissioner of Income-tax, Madras v. Subramanya Pillai 1950 18 I.T.R. 85 by this Court and the case in Commissioner of Income-tax, Madras v. Ramaswami Chettiar 1946 14 I.T.R. 236 was distinguished. The loss in such a case is totally outside the scope and purpose of the business of the assessee and the claim cannot be sustained. T....... + More
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1952 (3) TMI 41
... ... ... ... ..... n by the assessee. Therefore, we must answer the first question in the affirmative. With regard to the second question, viz., If the answer to the first question be in the affirmative whether on a true interpretation of Section 10(2)(xi) of the Indian Income-tax Act, it is open to an Income-tax Officer to disallow a claim under that section on the ground that the loan had become irrecoverable in a year of account earlier than that in which it was written off , we should have thought that there was no doubt as to what the a....... + More