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Showing 1 to 19 of 19 Records
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1953 (7) TMI 19
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... ... ..... , we are satisfied that "Mahimai" cannot be claimed as a trade allowance. It is a deduction made out of the price payable to the seller and is intended to be utilised for purposes of charity. It has nothing to do with the transaction as such and is really a contribution levied at the time of the transaction for a purpose unconnected with it. It cannot therefore be properly regarded as a trade allowance, and bylaw 25 (b) is perfectly valid. 41. To sum up Section 5(47(a) of the Act is void to the extent that it confers on the Collector power to refuse licence at his own discretion. Rule 37 is void in so far as it prohibits persons whose names have not yet been registered as buyer and Seller from carrying on business in the notified area. Subject to this, the Impugned Act and the rules must be upheld under Article 19(6) of the Constitution as a valid piece of marketing legislation. 42. In the result, these applications are dismissed. There will be no order as to costs.
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1953 (7) TMI 18
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... ... ..... h as they have to make members of the public pay out of their earnings an onerous levy, raised at rates which are perhaps the highest in the world. Attentions from the officers of the Income-tax Depart ment cannot therefore be welcome to the public, but such unwelcomeness is inherent in the nature of the duties they have to perform and for it they are not responsible. But to such unwelcomeness they ought not to add harassment by the methods followed by them in dealing with the cases in their charge. I am making these observations in the hope that they will receive the attention of the Commissioner of Income-tax, so that he may keep a watch over his Refund Circles and over other Departments, if any, which may require such a watch. So far as the present case is concerned, we shall express our displeasure at the manner in which the officers of the Department handled the proceedings by refusing the Commissioner the costs of the reference, although he succeeds. Lahiri, J.-I agree.
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1953 (7) TMI 17
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... ... ..... or the existence of an instrument of partnership operative at the time of the application or relating to the accounting period. Section 26A does not refer in terms to renewal of registration. It follows that every renewal of registration is in effect a registration under that section". The sections of the Income-tax Act show that for the purpose of registration it is necessary that the firm should be constituted by an instrument of partnership and in my opinion the Rules read with Sections 26 and 28 of the Act indicate that such a firm as is constituted under an instrument of partnership should have been in existence during the account period and should not come into existence during the assessment year, and if it was not in existence during the account period it cannot be registered so as to affect the liabilities of the partners for income-tax accruing during the account period. I would therefore answer the question referred to us in the negative. Falshaw, J.-I agree.
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1953 (7) TMI 16
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... ... ..... ot be proper to interfere under the special powers under the Constitution. The order of the Gram Panchayat offends against the canons of natural justice and even though the impugned order is void to the extent that it reduced the amount of fine, interference with it under the Constitution would not be justified as it has rectified, even if partially, the manifest injustice that the Gram Panchayat had done to the Society. 13. Consistently with the above, we cannot also maintain the fine of ₹ 5 that has not been remitted by the Sub-Divisional Officer. We accordingly set aside both the orders of the Gram Panchayat, dated the 10th November 1950, imposing the fine of ₹ 50, and the order of the Sub-Divisional Officer, dated the 9th December 1951, so far as it maintained the fine to the extent of ₹ 5. In the circumstances of the case, we order that the parties do bear their own costs of the present proceedings. The amount of security be refunded to the petitioner.
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1953 (7) TMI 15
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... ... ..... 1) for such cases does not depend upon the income-tax or super-tax payable by the person in default, but depends upon the tax, if any, which could have been avoided if the income returned had been accepted as the correct income. That language does not contain any reference to any income-tax payable by any particular person or the persons concerned but refers only to the amount of the income returned and the tax payable on it as a matter of computation. Fort the reasons I have given above, it appears to me that it is not correct to say that under the concluding paragraph of Section 28(1) a registered firm cannot be charged to a penalty, because of the fact that, as a firm, it is not assessed to income-tax or super-tax and because no such tax is payable by it. The question referred must, therefore, be answered in the affirmative. The Commissioner of Income-tax will have his costs of this reference. Certified for two Counsel. LAHIRI, J.--I agree. Reference answered accordingly.
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1953 (7) TMI 14
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... ... ..... nted out in the Privy Council case - AIR 1936 P. C. 91 (L). This ruling in" my opinion, does not help the contention of the learned advocate for the Appellant. The same principle has been decided in the other cases cited on behalf of the learned advocate for the Appellant and so I do not wish to discuss them in detail. 23. Thus, after giving a careful consideration to the authorities cited on behalf of the parties, and going through the entire record, I am of the opinion that the Plaintiff has failed to establish that the Defendant owned a house at Rangampet, and that he intended to transfer the same. Therefore the document could not be registered at Shorapur and the Sub-Registrar, Shorapur, was not competent to register the same. In the result, the registration of the document would be invalid and the Plaintiff would not acquire any title. The appellate court has come to the same conclusion and I see no reason to differ. This appeal is, therefore, dismissed with costs.
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1953 (7) TMI 13
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... ... ..... the date of the order of the winding up. 38. I am of the opinion therefore that an order under Section 221 for winding up under the supervision of the Court is an order for winding up under Section 45F, Banking Companies Act and that being so the plaintiff bank is entitled to deduct one year in computing the period of limitation. The suit filed on 4-8-1950 would not therefore be barred by time. 39. As I have held that because of the provisions of Section 45-F, Indian Companies Act the suit brought by the Bank is within limitation, it is not necessary to discuss whether the suit falls under Article 85, Limitation Act. 40. In the result I would hold that the suit when filed was within time and it is not necessary to discuss the other question raised, as to whether Section 45A, Banking Companies Act prohibits the institution of a suit in a Court other than the High Court. As the point is rather a novel one, I would leave the parties to bear their own costs of these proceedings.
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1953 (7) TMI 12
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... ... ..... extract Shahabad stones it is impossible to say that there is a sale of so many stones. It would be opposed to common sense to say that the acquisition of a right to extract stones is a sale of stones as raw material. It is only in case of the purchase or acquisition of goods which form the stock-in-trade, circulating and floating capital of the business, that such expenditure could be regarded as a necessary deduction for assessing the profits of the business. On the facts of this case, it is abundantly clear that there is no manufacturing business and the money expended for the acquisition of the right to extract the Shahabad stones would be held to be capital expenditure. Our reply, therefore, to the question referred to us is that the lease money paid by the assessee company to Nawab Mehdi Jung Bahadur and to Government is capital expenditure and not revenue expenditure. We do not wish to pass any order as regards the costs of this Court. Reference answered accordingly.
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1953 (7) TMI 11
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... ... ..... principal and interest of the original mortgage..... To give security for a debt is not to pay a debt. If the assessees had received payment in kind of the amount outstanding on the original mortgage, in the shape, say, of realizable shares or bonds, the case would have been different, but they merely received further and better security for their debt. It is, in their Lordships' view, quite immaterial that the assessees discharged the original mortgage and all liability under it, for that was merely an incident in the transaction whereby the new security was substituted for the old." It appears to us that both on the language of the relevant section, and on authority, the Appellate Tribunal was right in interpreting the word "payment" in Section 24(4) as actual payment and not a notional payment. The answer to the reference is, therefore, in the negative. The assessee will have his costs. Advocate's fee ₹ 100. Reference answered in the negative.
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1953 (7) TMI 10
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... ... ..... be appealable. Now when the Legislature by section 12 of the Finance Act I of 1953 has expressly made all orders under section 30 of the Act appealable in the same way as orders under section 31, this question in view of the amendment has become only one of academic importance, but as there may be appeals which were filed before the amendment was made, pending now, I express my views on that question also. For the reasons stated above in the circumstances of the present case, the order of the Appellate Assistant Commissioner refusing to condone the delay was not an order falling under section 30(2) but one under section 31 and the appeal to the Tribunal against that order was competent. The answer, therefore, to the first part of the second question is in the negative and to the second part also in the negative. In the circumstances of this case no order is made as to costs. CHOWDHURY, J.--I agree with the opinion passed by my learned brother. Reference answered accordingly.
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1953 (7) TMI 9
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... ... ..... were made and in default of such payment, the amounts may be recovered as if they were arrears of land revenue . Rule 8, sub-rule (8)(ii), enacts that, (ii) He shall pay in full the amount or amounts collected by him by way of tax or taxes to the Government on or before the 1st May of the year succeeding that in which such collection is made . The Notice (Exhibit A) is in a form prepared under the said rule 8. The liability to pay the State the tax collected by the petitioner is thus obvious and it is gratifying to note that the learned counsel for the petitioner did not find his way to disputing that liability. The result is that the petition is one that was presented on a misapprehension as to the import of the notice served on the petitioner. (1) 1953 4 S.T.C. 205 A.I.R. 1953 S.C. 333. Had the notice been properly understood this petition would not have been filed. The original petition is dismissed with costs and advocate s fee which I fix at Rs. 50. Petition dismissed.
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1953 (7) TMI 8
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... ... ..... Travancore-Cochin v. Bombay Co. Ltd.(1) Mr. Balakrishna Iyer, learned Government Pleader, submits that in veiw of the aforesaid decision and in view of the circumstance that all the facts necessary to apply the law as laid down therein may not have been ascertained before the levy was made and in view further of the fact that even according to the petitioners, they were acting only as agents of a known principal, namely, the State, whether the refund claimed should be allowed even if the initial levy was unjustified, are matters which should be considered by the State afresh and to enable the Government to do so and to adjust the rights of parties according to the law, the orders complained of may be vacated and the case sent back to the Sales Tax Officer concerned. The impugned orders are accordingly vacated, and the papers sent to the 1st respondent for the aforesaid purpose. There will be no order for costs in this application under the circumstances. Ordered accordingly.
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1953 (7) TMI 7
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... ... ..... hority, that is the Deputy Commercial Tax Officer, who, under the Government order is the assessing authority in respect of incomes over Rs. 20,000- then the offence has been committed. There is no need for the Assistant Commercial Tax Officer or the Deputy Commercial Tax Officer to wait for the assessee to exhaust all his remedies. That would only mean an enormous delay in the collection of taxes to prevent which, this provision has been introduced. The view of the learned Sub-Divisional Magistrate that the complaint is premature is not correct and the acquittal of the respondent is therefore set aside. It is represented by the learned Assistant Public Prosecutor that only a sum of Rs. 704 is still due out of the tax assessed on the respondent. The respondent is therefore con- victed and sentenced under Section 15 (b) to a fine of Rs. 10 plus a sum of Rs. 704 being the tax due to Government. The appeal is therefore allowed. Time for payment of tax six weeks. Appeal allowed.
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1953 (7) TMI 6
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... ... ..... ment, whether it was put forward so very clearly before the Assessing Officer or not. If the sales were out- side the State so as to bring the case within the ambit of clause (a) of Article 286 (1) or even if the sales were not outside the State but within, nevertheless for the purpose of consumption in another State in India so as to bring the case within the ambit of the Explanation to Article 286 (1), the sales would be immune from assessment to sales tax. If however the facts are such as to bring the case within the ambit of clause (2) of Article 286, then the sales are liable to tax. 2.. The facts of the case have not been ascertained and this Court is not therefore in a position to say under which category the case falls. 3.. In the result the order sought to be quashed has to be quashed. The case will go back to the Sales Tax Officer concerned who will deal with it in accordance with law. There will be no order for costs in this original petition. Application allowed.
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1953 (7) TMI 5
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... ... ..... r is one who makes a bargain for another, and receives a commission for so doing. Properly speaking, a broker is a mere negotiator between the other parties, and lie never acts in his own Dame, but in the names of those who employ him. When he is employed to buy or sell goods, he is not entrusted with the custody or possession of them and lie is not authorised to buy or to sell them in his own name (S. 28). So, a broker has ordinarily no authority Virtute Officii, to receive payment for property sold by him (S. 109) . Fairlie v. Fenton(11), per Cleasby, B., at page 172. The conclusion of the learned Sub-divisional Magistrate in all these cases is correct and hence these appeals are dismissed. Appeals dismissed. (1) A.I.R. 1951 Bom. 105. (7) 2 B. and Ald. 143. (2) A.I.R. 1951 Cal. 78. (8) 1927 A.C. 487. (3) (1948) 2 M.L.J. 546. (9) (1883) 2 Ch. D. 31. (4) A.I.R. 1942 All. 302. (10) (1846) 16 M. and W. 174. (5) A.I.R. 1945 Nag. 8. (11) (1870) L.R. 5 Exch. 169. (6) 4 Bing. 306.
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1953 (7) TMI 4
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... ... ..... thing done by the dealer in respect of the goods sold. The dealer did nothing to the goods sold in order to enable him to earn the tax that is levied upon the sale. It is an obligation imposed by the State upon transactions of sale which liability is to be borne by, the purchaser and the amount is to be collected by the seller not because he is entitled to it in his capacity as seller but because an obligation has been enjoined upon him to make the collection under the statute. In no view of the matter can it be said that the dealer is liable to further sales tax upon the collections made. The result is that the order complained of is ultra vires the powers of the authorities and it is hereby vacated and it is declared that the sales tax collected by the petitioner is immune from levy of sales tax. The respondents will pay the costs of the petitioner with Counsel s fee which I fix at Rs. 50 in view of the fact that the amount involved is only about Rs. 950. Petition allowed.
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1953 (7) TMI 3
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... ... ..... ained above. Thus the present constitutional position seems to be that where any transaction of sale involves inter-State elements only that State where the goods are actually delivered for the purpose of consumption would be entitled to tax that transaction. No other States will have that power. If, therefore, the State of Orissa wishes to tax a transaction of sale involving inter-State elements they will have to show that the delivery also took place in Orissa for the purpose of consumption. On the admitted position their power of taxing this transaction does not exist. It is therefore unnecessary to consider whether this transaction is liable to taxation either in Manbhum or in Raipur. I would therefore allow the petition and set aside the order of the Sales Tax Authorities directing the petitioner to pay sales tax in respect of the aforesaid sales. The peti- tioner is entitled to costs. Hearing fee is assessed at five gold mohurs. MOHAPATRA, J.-I agree. Petition allowed.
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1953 (7) TMI 2
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... ... ..... with Messrs. Louis Dreyfus and Co. and Rally Brothers etc., they assigned those contracts to third parties who sold the goods directly to Messrs. Louis Dreyfus and Co. and Rally Brothers. In (1) (1952) I.L.R. 1952 Mad. 571 3 S.T.C. 121. short, the contention is that there was a novatio and the plaintiffs were out of the picture. The argument appears to be plausible but there is no documentary evidence, except the oral evidence of P. W. 1, to show that there was any such assignment with the consent, and to the knowledge, of Louis Dreyfus and Co. and Rally Brothers. None of the alleged assignees were examined nor were their account books produced. In the circumstances, the learned Judge had no option but to hold that the plaintiffs failed to establish that there was any novatio as pleaded by them. On the materials placed before us we are not in a position to disturb the finding of the learned Judge. In the result the appeal fails and is dismissed with costs. Appeal dismissed.
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1953 (7) TMI 1
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... ... ..... he statute, the petitioner was fully covered, if he had resold the articles instead of using them. He has, in fact, resold the articles, but outside Orissa. This lacuna in the legislation has been covered specifically by introduction of the words in Orissa in this item. But, before that, the lacuna exists. It cannot, therefore, be said that the petitioner used the goods contrary to the purposes specified in the certificate of registration. The dealer is, therefore, not liable for tax- ation on this turnover under the proviso to item (ii) of clause (a) of clause (2) of Section 5 of the Act. The transaction of sale being with a jute mill outside Orissa directly, this item of sale is covered by Article 286 (1) (a) of the Constitution of India, and will be exempted. Petition allowed. The transactions under issue are allowable as rebate from the turnover for the periods ending 30th June, 1951, and 30th September, 1951. Assessment will be correct- ed accordingly. Petition allowed.
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