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1953 (3) TMI 37
... ... ... ... ..... o future interest at the rate allowed for one year and six months period, beginning from 9th March, 1943, and ending with 12th September, 1944. The appeal is therefore allowed to the extent indicated above. The decree of the High Court will be modified and plaintiff will be entitled to damages in the sum of ₹ 93,000 on the 3,000 Indian Iron shares. The decree given to the plaintiff in respect of' ₹ 6,762-8-0 is set aside over and above the' decree for ₹ 9,100 in his favour set aside by the High Court. In the calculation of future interest the plaintiff will not be allowed interest from 9th March, 1943, to 12th September, 1944. In the result the decree given to the plaintiff in the sum of ₹ 61,787 is reduced to ₹ 42,175. He will get interest at six per cent. per annum from 5th April, 1937, until payment or realization except for a period of one year and six months. Plaintiff will get proportionate costs throughout. Appeal allowed in part.
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1953 (3) TMI 36
... ... ... ... ..... ted between them " in the language of article 64 of the Limitation Act. The same happened in the present case. The acknowledgment which forms the basis of the suit was made in the ledger of the plaintiffs in which earlier mutual accounts had been entered and truly speaking, the suit was not based merely on this acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable. o p /o p Mr. Bindra drew our attention to a decision of the Allahabad High Court in Ghulam Murtuza v. Fasihunnissa((1935) I.L.R. 57 All- 434.) , wherein it was held that even if an acknowledgment implies a promise to pay it cannot be made the basis of suit and treated as giving rise to a fresh cause of action. We have examined the decision and we are satisfied that it does not lay down good law. o p /o p For the reasons stated above this appeal has no merits and we accordingly dismiss it with costs. o p /o p Appeal dismissed’. o p /o p
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1953 (3) TMI 35
... ... ... ... ..... we have not permitted Mr. Palkhivala to advance the argument that ₹ 19 lacs did not constitute the income of the assessee company but constituted the income of someone else and this income was gifted or transferred to the assessee company. We will reformulate the question to read as follows "Whether there were materials to justify the finding of the Tribunal that the transaction of purchase and sale of 13,74,000 shares was an adventure in the nature of trade?" and having reformulated the question we answer it in the affirmative. There is a notice of motion taken out by the assessee company asking us to raise further questions. In our opinion the questions either do not arise out of the findings of the Commission or they are already dealt with in the question which we have considered on this reference and answered. The result is that the assessee company must pay the costs of the reference and the costs of the notice of motion. Reference answered accordingly.
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1953 (3) TMI 34
... ... ... ... ..... nterpretation is that the President or the third Member to whom the case is referred may only agree with the quantum of assessment taken by one or other of the two differing members and it is not open to him to take a third view as regards quantum of assessment. For these reasons we think that the opinion of the President in this case is not legally valid and that the assessment cannot be legally completed in accordance with the direction contained in the order of the President of the Appellate Tribunal. The two questions formulated in the statement of the case must be answered to the above effect. The result therefore is that the reference under Section 5A(7) to the President of the Tribunal is incompetent and the case must now go back to the Income-tax Appellate Tribunal for being dealt with and disposed of in accordance with law. In the special circumstances of this case we do not propose to make any order as to the costs of this reference. Reference answered accordingly.
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1953 (3) TMI 33
... ... ... ... ..... e, has merged in the order of the Income-tax Appellate Tribunal which is the final order and which must be followed and obeyed by the Income-tax Officer. Since the order of the Income-tax Appellate Tribunal is a proper and legal order, there is hardly any point in the High Court answering the question whether the Appellate Assistant Commissioner had or had not the authority to make the order of remand under Section 31(3)(d). For the reasons expressed, we think that the question has become purely academic, and, according to the established authorities, the High Court is not bound to give an answer to a question of such character--see, for instance, the decision of the Privy Council in Sir Rajendra Narayan Bhanja Deo v. Commissioner of Income-tax, Bihar and Orissa . We do not, therefore, propose to furnish any answer to either of the two questions formulated by the Income-tax Appellate Tribunal. There will not be any order as to costs of this reference. Reference not answered.
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1953 (3) TMI 32
... ... ... ... ..... atter. In our opinion the Tribunal has dealt with this question, the contention was raised by the assessee company that they came under the second proviso to Section (6)(1), and all the facts necessary to decide this question are before us in the statement of the case submitted by the Tribunal. The result therefore is that the first question as reframed will read as follows Whether the Appellate Assistant Commissioner had jurisdiction to allow the assessee company to raise the additional ground of appeal referred to in the letter dated 23rd September, 1949?" We answer it in the affirmative. The second question will read "Whether the Appellate Tribunal had jurisdiction to allow the assessee company to raise the ground of appeal before it in the appeals filed by it?" We answer it in the affirmative. With regard to question 3(a) our answer is in the affirmative. The rest of the questions do not arise. Commissioner to pay the costs. Reference answered accordingly.
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1953 (3) TMI 31
... ... ... ... ..... to income." Mr. Kolah says that it is not any business that the company does which has got to be considered, but the affairs of the company in the sense in which Mr. Justice Fazl Ali has explained that expression. With respect, that is perfectly correct. In order to determine the head and brain of the company we are not to concern ourselves with any other work that the company does except its business which yields profits, and in this particular case we have got to consider where the head and brain of the company is with regard to the stevedoring business in Ceylon which has yielded the income. But even applying that test, as already pointed out, we do come to the conclusion that the head and brain of the company with regard to this particular business or with regard to its affairs was in Bombay and not in Ceylon. The question, therefore, which has been submitted to us must be answered in the affirmative. Assessee to pay the costs. Reference answered in the affirmative.
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1953 (3) TMI 30
... ... ... ... ..... nce in the accounting year and the profits of which are under assessment. If during the relevant period there was, in fact, no business either because it was discontinued or for some other reason it had ceased to exist, the question of computation of its income after deducting the expenses cannot arise. In the case before us, by reason of the Sugar Control Order and the notification issued thereunder, the assessee could not do any selling agency business in sugar. By merely maintaining an office at Kanpur it cannot be said that he was carrying on business the expenses of which he was entitled to deduct. There being, therefore, no business, there could be no question of computation of its income and no question of any deduction of expenses incurred wholly or exclusively for such business arises. In this view of the matter, our answer to the question must be in the negative. The Department is entitled to its costs which we assess at ₹ 400. Reference answered accordingly.
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1953 (3) TMI 29
... ... ... ... ..... fficer is not merged in the order of the Appellate Assistant Commissioner, but once the order is merged, the Commissioner cannot deal with the assessment of the assessee at all. On appeal the power to deal with the assessment is given to the Appellate Assistant Commissioner, and further the power is given to the Appellate Tribunal in appeal from the order of the Appellate Assistant Commissioner. The Commissioner completely goes out of the picture once the Appellate Assistant Commissioner has passed an order in appeal from the decision of the Income-tax Officer. In our opinion, therefore, though perhaps not for the same reason as stated in the judgment of the Tribunal, the Tribunal was right in the conclusion it came to that the Commissioner was not competent to pass an order under Section 33-B when an appeal against the order of the Income-tax Officer had been decided by the Appellate Assistant Commissioner. We, therefore, answer the question submitted to us in the negative.
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1953 (3) TMI 28
... ... ... ... ..... e statute-book or whether that section also would have become a dead-letter with respect to the pre-1947 years. Speaking for myself, I am unable to find any substance in Mr. Mitra's argument and unable to see what practical bearing it has on the question as to whether the new section does or does not, as a part of the municipal law of India, operate retrospectively. 32. A point was taken by Mr. Meyer that the present case was altogether outside the scope of Article 226, In view of the conclusion I have arrived at on the merits, I would prefer to reserve that question for decision on a future occasion. 33. On a consideration of Section 34, Income-tax Act, as introduced by Act 48 of 1948, I am of opinion that the view taken of it by Bose J. was not right. The appeal is accordingly allowed, the judgment and the order of Bqse J. are set aside and the respondent's application dismissed with costs here and below. 34. Certified for two Counsel. A. K. Sarkar, J. 35. I agree.
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1953 (3) TMI 27
... ... ... ... ..... rights in the managing agency commission by resigning as managing agents. The consideration remained the same, the result as far as the assessee company was concerned was the same, but the legal position that emerged was entirely different from the legal position that would have arisen if the first contract had stood. We are unable to accept the view taken by the Tribunal that the assessee company transferred the managing agency to the managed companies and that therefore there was a transfer which resulted in capital gains to the assessee company. It is difficult to understand how by resigning the managing agency the assessee company transferred the agency to the two companies. Sir Nusserwanji himself has not attempted to support this view which has been given expression to by the Tribunal in its order. 11. In our opinion, therefore, the answer which we must give to the question submitted to us is in the negative. The Commissioner must pay the costs. 12. Reference answered.
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1953 (3) TMI 26
... ... ... ... ..... ) and that therefore the best judgment assessment passed by the Income-tax Officer was not a proper assessment. The sufficient cause urged by the assessee company was that it was not liable as the successor of Manekial Chunilal to pay the tax on the escaped income of Manekial Chunilal. It is because of this that the Tribunal has raised the question in the from in which it has done. The question framed by the Tribunal is obviously not appropriate because the question as framed by the Tribunal suggests as if any authority had held that the assessee company was prevented by sufficient cause from complying with the terms of the notice issued under Section 22(4). In fact what was held was that he was not so prevented. Therefore, we will insert the word "not" before the word "prevented", and after re-framing the question answer it in the affirmative. The assessee to pay the costs. Notice of motion dismissed. No order as to costs. Reference answered accordingly.
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1953 (3) TMI 25
... ... ... ... ..... of Section 25(3) of the Act. I have already held in the present case that there was succession within the meaning of Section 25(4) to the assessee firm. For the purpose of assessment, there is a well marked distinction between discontinuance and succession--a distinction which is recognised in the English Law of Income-tax and adopted and provided for in the Indian Income-tax Act. The conception of succession therefore excludes the conception of discontinuance. I would reject the argument of Mr. Dutt that in the present case there is discontinuance within the meaning of Section 25(3) of the Act. For the reasons expressed I think that in the facts and circumstances of the case the assessee firm is entitled to relief under sub-section (4) of Section 25 of the Income-tax Act. The question is accordingly answered in favour of the assessee. The Income-tax Department must pay the cost of the reference. Hearing fee ₹ 250. RAI, J.―I agree. Reference answered accordingly.
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1953 (3) TMI 24
... ... ... ... ..... he rights of the citizens regarding the construction of buildings were being affected was not very happy. It has certainly led three judges to think that the intention of the legislature was not brought out by the language. People who are not lawyers may well be misled into thinking that the notification issued under the ordinance has terminated with its repeal and not having been re-issued under the Act, the provisions of which again in clear language provide that it only extends to areas specified in the schedule and which gives power to extend it, that those areas are excluded from the scope of the Act. It would have been much simpler if the legislature made its intention clear by use of simple and unambiguous language. Because of the undertaking given by the learned Attorney- General not to proceed any further in this matter, it is not necessary to set aside the acquittal order of the respondents, which will remain as it stands. A appeal allowed. Acquittal not set aside.
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1953 (3) TMI 23
... ... ... ... ..... ath sentence to.a sentence for life. The denial of this right in the Regulation is discriminatory on the face of it and deprives the petitioner of a valuable right. I concede, however, that this objectionable feature of the Regulation is severable from the other parts. I further agree that the stage for the exercise of that right has not yet arisen, for the appeal of the petitioner is still pending in this court. If the appeal is allowed, or the sentence is reduced, no question of the confirmation of the death sentence by the Nizam will arise. If, however, the appeal is dismissed, it will be open to the petitioner to claim this right. It would not be desirable at this stage to express an opinion whether this right is a substantive right which vests in the petitioner or one relating to a more matter of procedure, as that question will have to be considered and decided when the appropriate stage arrives. I would, therefore, agree in dismissing the petition. Petition dismissed.
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1953 (3) TMI 22
... ... ... ... ..... t are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations government is, subject to the qualification mentioned above, as free to make special, contracts of, service with temporary employees, engaged in, works of a temporary nature, as any other employer. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs. Petition dismissed.
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1953 (3) TMI 21
... ... ... ... ..... in a position to answer whether on the facts and circumstances of the case the provisions of Section 23A of the Income-tax Act are applicable to the assessee company, or whether on the facts and circumstances of the case, 1000 shares each held by Bipinchandra, Harischandra and Krishnakumar in the capital of the assessee company are held by members of the public within the meaning of the explanation to the third proviso to Section 23A. We would therefore direct the Tribunal to submit to us a supplementary statement of the case in the light of our judgment. In preparing the supplementary statement of the case the Tribunal will give liberty both to the assessee company and to the Commissioner to lead any further evidence if either of them is so advised, and after considering the materials already on record and any fresh evidence that might be led by either party, they will submit a supplementary statement to enable us to answer the question that has been raised. Case remanded.
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1953 (3) TMI 20
Whether in these circumstances the sale transactions were liable to be taxed under the General Sales Tax Act of Madras?
Whether the sales did take place within the Province of Madras or not?
Held that:- Appeal allowed. The mere fact that the contract for sale was entered into within the Province of Madras does not make the transaction, which was completed admittedly within another Province, where the property in the goods passed, a sale within the Province of Madras according to the provisions of the Madras Sales Tax Act and no tax could be levied upon such a transaction under the provisions of the Act. A contract of sale becomes a sale under the Sale of Goods Act only when the property in the goods is transferred to the buyer under the terms of the contract itself. The presence of the goods within the Province at the time of the contract would undoubtedly make the sale, if subsequently completed, a sale within the Province by reason of the Explanation added by Act XXV of 1947 but as this Explanation was not in operation during the relevant period with which we are concerned, the assessment of sales tax, in our opinion, on the transactions during this period is illegal and not warranted by the provisions of the Act.
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1953 (3) TMI 19
... ... ... ... ..... ct have any application to a case like this, where the tax was merely recoverable as arrears of land revenue, and the claim was not made by the revenue authorities on account of arrears of revenue or on account of demand recoverable as such arrears, and where the tax also had been paid within the 15 days prescribed, and had not become a tax liable to be recovered as arrears of land revenue. So, the only article which can be applied properly to this case is Article 62 of the Limitation Act, which prescribes three years, from the date when the money was received by the defendant, as the period of limita- tion. The jurisdiction of Civil Courts is of course, not ousted. See The Province of Madras v. Satyanarayanamurthi(2). So Article 62 will apply under the Full Bench ruling. The learned Subordinate judge s decision is correct. This appeal deserves to be and is hereby dismissed with costs. Appeal dismissed. (1) (1939) I.L.R. 1939 Mad. 566 F.B. (2) 1951 2 M.L.J. 340 2 S.T.C. 141.
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1953 (3) TMI 18
... ... ... ... ..... himself. The question was not investigated naturally because it was not raised in the pleadings. The point Mr. Umamahes- waram now raised is not a pure question of law but one of mixed law and fact, and, on the short ground that the facts do not exist on which the legal contentions can be rested this point also must be decided against him. The last point which Mr. Umamaheswaram raised is that the plaintiff is entitled to bring an action within three years from 18th June, 1949, the date on which the money was collected from him, and that the view taken by the learned Subordinate judge that the action should have been brought within six months by reason of Section 18 of the Madras General Sales Tax Act is wrong. This question, however, does not now arise since on the failure of the other contentions raised by Mr. Umamahes- waram the finding must be that the plaintiff has not been illegally or wrongly taxed. The second appeal fails and is dismissed with costs. Appeal dismissed.
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