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1955 (1) TMI 48
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... ... ..... 0 TLR 488 (B) it is observed by the King's Bench Division that if an application is made under Section 32 of the Com-panics (Consolidation) Act, 1908, by summons or motion for the rectification of the register, and if there is some question in dispute requiring investigation, the practice of the Court is for the Judge not to make an order for rectification but to make an order dismissing the summons or motion and leaving it open to the applicant to bring an action. A similar view has been expressed by the Chancery Court in 'In re, Ruby Consolidated Mining Co.', (1874) 9 Ch A 664 (C). The same legal principle has been applied by the Indian Courts -- see -- 'Ramesh Chandra v. Jogilal Mohan', AIR 1920 Cal 789 (D) and -- 'Mohideen Pichai v. Tinnevelly Mills Co. Ltd.', AIR 1928 Mad 571 (E). 3. For these reasons, I hold that the application filed by Sri Devakumar Mishra under Section 38 of the Companies Act should be dismissed; hearing fee ₹ 100/-.
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1955 (1) TMI 47
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... ... ..... he decision of a Full Bench of the Madras High Court in -'Venkata Rao v. Satyanarayanamurty' AIR 1943 Mad 698 (FB) (A) on which the learned Single Judge relied, and with which I respectfully agree. Order 41, Rule 22, Code of Civil Procedure permits a Respondent to support the decree appealed from on any of the grounds decided against him in the Court below. When a Respondent accepting the decision of the Court below, resists the Appellant's further claim by saying that the decree of the Court below should not be disturbed as it erred in favour of the Appellant the Respondent really supports the decree in his favour to the extent to which the Court, below had disallowed the claim of the Appellant. 4. For the above reasons the decision of the learned Single Judge must be set aside and Civil Second Appeal No. 62 of 1949 preferred by the Plaintiffs must be heard by a Single Judge on the grounds raised in the appeal. There would be no border as to costs in this appeal.
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1955 (1) TMI 46
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... ... ..... bed as one of speculation like a bet or buying a ticket in a lottery. It is clear case of laying out money with a view to reap a profit. This material element has been found by the Tribunal. It is in no sense an investment because as shown above, it could not yield a regular and periodical return. That being so, we are of the opinion that there was evidence before the Tribunal on which they could arrive at the conclusion which they reached. They learned counsel for the assessee has drawn our attention, however, to a case reported in -- 'Gangaraju v. Commissioner of Income Tax', AIR 1935 Mad 387 (E). It is true that the facts of that particular case are very near to the facts of the present case. But we are satisfied that their Lordships did not intend to lay down any rule of law in deciding that case. The question therefore, referred to us is answered in the negative. The assessee will pay the costs of Commissioner which we fix at ₹ 250/-. 6. Answer in negative.
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1955 (1) TMI 45
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... ... ..... the issue with regard to the question as to whether the scheme promoted by the petitioners was a lottery or not. 54. With regard to the costs of the appeal, various points were agitated and it is true that the petitioners have succeeded in getting the order of the trial Court confirming and getting the order they sought against the State of Bombay. But it is equally true that on some important questions the State of Bombay has succeeded. Mr. Manekshaw is right that it is difficult to apportion time between various arguments advanced by counsel. If the appellant has succeeded on some of his contentions it is not unusual for the Court of appeal to apportion costs of the appeal. We think, in our opinion, that the fairest order to make with regard to costs of the appeal would be that the State of Bombay should pay to the petitioners three-fourths of the costs of the appeal. 55. Liberty to the respondents' attorneys to withdraw the sum deposited in Court for security of costs.
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1955 (1) TMI 44
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... ... ..... n (2) of section 14 have to be included because of the specific provision to that effect in clause (a) of sub-section (1) of section 16 and, a fortiori, the losses in respect of the business referred to in clause (c) of sub-section (1) of section 14 must also be deducted. This inclusion or deduction affects the calculation of the tax under section 17 which, in effect, merely determines the rate of tax payable on the income, in respect of which the tax is payable under sub-section (1) of section 10, as qualified by clause (c) of sub-section (2) of section 14. Hence our view expressed by My Lord the Chief Justice that, in this case, there is no reason why the Income-tax Officer should, in making a computation for tax purposes, take into account losses incurred at Jaipur though it would be fair that, when the profits have to be taken into account for tax purposes, the losses in an Indian State should also be taken into account for those purposes. Reference answered accordingly.
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1955 (1) TMI 43
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... ... ..... as practicable after the licence was terminated. There was no waste contemplated and no damage to capital was suffered. The inference must, therefore, be drawn that the amount described as "premium" is really a fee paid by the licensee for the privilege of prospecting for bauxite in the lands owned by the assessee. To put it differently, the amount of so called premium is in substance an advance payment of fee by the licensee. The amounts is in reality the profits derived by the assessee from the use and exploitation of his property. In my opinion, the amounts received by the assessee in respect of prospecting licences are stamped with the character of income. The argument of Mr. Mazumdar to the contrary must be rejected as unsound. For these reasons, in addition to those stated by my learned brother, I agree that the question referred to the High Court must be answered in favour of the Income-tax Department and against the assessee. Reference answered accordingly.
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1955 (1) TMI 42
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... ... ..... K.N. & Co., and, therefore, in the application for registration under section 26A the names and the shares of the individual partners of the smaller firm M. K. N. & Sons ought to have been specified. Since the assessee had omitted to specify these particulars, the requirements of section 26A were not fulfilled and the Income-tax authorities were justified in refusing registration to the firm of M.K.N. & Co. That is the ratio decidendi of this case, but it has no Application to the material facts of the present case. For the reasons I have already expressed, I hold that in the circumstances of this case the assessee firm constituted under the deed of partnership dated the 15th of September, 1944, was registrable under section 26A of the Income-tax Act for the assessment years 1945-46, 1946-47, 1947-48 and 1948-49. I would accordingly answer the question referred to the High Court in favour of the assessee and against the Income-tax Department. Banerji, J.-I agree.
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1955 (1) TMI 41
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... ... ..... ty leviable under section 28(1)(c) is to relate to the actual tax assessed on the income as finally estimated which, as shown above, need not be confined to the income shown to have been concealed. We are not now concerned with the legality of the actual assessment. Once an assessment under section 23(3) has become final, the basis of the levy of the penalty is finally settled. In this case there is a clear finding by the Appellate Tribunal that there was concealment of particulars in regard to the two wagon-loads referred to above. The finding by itself is, in our opinions sufficient to justify the levy of penalty and the penalty is to be computed with reference to the tax actually paid and the tax that might have been payable if the assessee's original return had been accepted as correct. We have therefore no doubt that the answer to the question referred to us should be in the affirmative. The assessee will bear the costs of this reference which we fix at ₹ 250.
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1955 (1) TMI 40
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... ... ..... o p /o p 12. This appeal and the memorandum of objections having been set down for being mentioned this day the Court further delivered the following judgment o p /o p pjudge K. Subba Rao /pjudge , C.J. o p /o p This appeal is posted today for being mentioned. Mr. Seshachalapathy contends that his client i.e., the 19th defendant has a special plea, namely, that the items purchased by him were not covered by the settlement deed. It is true that he raised that plea in the written statement; but the judgment does not disclose that he has pressed that at the time of the disposal of the suit. He says that it might have been due to the fact that the learned Judge disposed of the suit on other grounds in his favour, and he further contends that question is also covered by issue 4. We do not propose to express any view. He may take this plea before the learned Judge and, if he is satisfied that issue 4 covers the question raised he may also give a finding on that question. o p /o p
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1955 (1) TMI 39
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... ... ..... angli. The profits accrued to the non-residents because of the result of the speculative transaction at Sangli. (16) There is no evidence that it was a term of the contract that the profits due to the non-residents should be paid at Kurnool. There is not even any material to show that the amounts in question were received by the non-residents at Kurnool, though it appears that on some occassions the amounts were remitted by Demand Drafts on the Central Bank of India, Kurnool to Sangli. On the aforesaid facts, we have no hesitation to hold that the profits due to the non-residents did not arise or accrue in British India. If the non-residents are not liable to tax in respect of the profits of the transactions in question, it follows that the residents also are not liable under S. 18 (3-A) of the Act. (17) In the result, we answer both the questions in the negative. The respondents will pay the costs of the petition which we will fix at ₹ 250/-. (18) Answers in negative.
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1955 (1) TMI 38
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... ... ..... pressly lay down any basis for classification does by implication in its various provisions lay down a line of classification of offenders who are to be prosecuted under that Act, It is the case of those public servants alleged or suspected to be corrupt who cannot be brought within the law by available evidence and who can only be brought to justice by certain rules of presumption which was intended to be met by this Act. Thus, there is an implied basis of classification so that no question of discrimination really arises. 10. In the result, we do not think there is any substance in any of these points of law and as already found the appellant has been rightly convicted under Section 409, Penal Code. The sentence also, in our opinion, is not unduly severe in the circumstances of this case. 11. The conviction and the sentence therefore are affirmed and the appeal dismissed. The appellant will now surrender to his bail forthwith and serve out the sentence. Sen J. 12. I agree.
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1955 (1) TMI 37
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... ... ..... came to be disposed of, the instalments due up to that date were completely paid and, if necessary, would have excused the delay in filing the appeal. In the view we expressed, viz., that the word "tax" in the proviso means the tax due, no question of jurisdiction arises, for the entire tax due was paid. If at all, there was irregularity in the exercise of jurisdiction, which, if pointed out in time, could have been rectified. The IT authorities, not having raised that objection and allowed the appeal to be disposed of on merits, it is not open to them to contend for the first time before the Tribunal that the appeal should have been dismissed on the ground that it was filed after the prescribed time. In this view also, the appeal before the Asst. Commissioner was maintainable. (7.) IN the result, we answer the first question in the negative and the second question in the affirmative. The respondent will pay the costs of the assessee which is fixed at ₹ 250.
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1955 (1) TMI 36
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... ... ..... rded. Any contract between the assessee firm and its employees does not take away the right of the Excess Profits Tax Officer to consider the question of the reasonableness of the payment under Section 10 (2) (x), Income-tax Act or Rule 12, Schedule I, Excess Profits Tax Act, but the mere fact that it was a voluntary payment does not by itself make it either unreasonable or unnecessary. The decision has to be made by the Excess Profits Tax Officer with reference to all the facts and circumstances and in accordance with the exigencies of the business. He must take note of all such other matters as businessmen would generally take into consideration in coming to the conclusion whether a particular bonus or commission should or should not be paid having regard to the requirements of the business and the services rendered by the employees. That is our answer to the second question. 39. The assessee should get its costs of this reference which we assess at a sum of ₹ 500/-.
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1955 (1) TMI 35
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... ... ..... ants in Mahboob's suit. As the suit is one for distribution or partition of the personal estate of the late Nawab, each one of the parties to it, whether a plaintiff or a defendant, is entitled in law to pray for determination of his or her claim to a share in the properties. Thus Quadiran Bibi will be at liberty to raise the question of the validity of her marriage with the late Nawab and the legitimacy of her children in the written statement filed or to be filed on behalf of herself or her children and these questions will be decided by the Court and a comprehensive decree for distribution of the 'matrooka' left by the Nawab will be passed by it granting reliefs to the several parties in accordance with the findings which the court might arrive at. 26. Subject to the directions mentioned above, the appeals will be allowed and the execution proceedings will stand dismissed. There will be no order for costs in favour of any of the parties to the present appeals.
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1955 (1) TMI 34
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... ... ..... t of appeal is not conferred against the order of the Income-tax Officer under section 18A any wrong order of his made under the rules cannot be corrected or otherwise modified. But the rules were only made on 14th December, 1953, i.e., long after the order imposing penal interest was made in the instant case. Further, as we have already stated, such considerations cannot override the express provisions of the statute. A similar question was raised in Deo Sharma v. Commissioner of Income-tax, U.P. wherein the learned Judges held that no appeal lies under section 30(1) against an order of an Income-tax Officer under section 18A(6) of the Act. It is true that there is no discussion of the point raised in the judgment but we respectfully agree with the conclusion of the learned Judges. We, therefore, answer in the negative the question propounded for our decision. The petitioner will pay the respondent's costs which we fix at ₹ 250. Reference answered in the negative.
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1955 (1) TMI 33
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... ... ..... case before their Lordships over 51 per cent. of the voting power was held by the respondent, a single individual, and consequently the question does not arise. Their Lordships express no opinion upon the questions which would arise when the requisite percentage is not held by a single individual but only by a group, or by overlapping groups, of individuals. The appellant also argued that neither the respondent nor Sverre could be regarded as members of the public as they were directors of the company. It is clear that members of the public within the meaning of the section are shareholders in the company. Their Lordships can find no reason for holding that shareholders cease to be members of the public because they have become directors. For the reasons which they have given their Lordships will humbly advise Her Majesty that the appeal be dismissed. The appellant must pay the respondent the costs of this appeal. Solicitors Charles Russell and Co. Hale, Ringrose and Morrow.
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1955 (1) TMI 32
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... ... ..... ld that in cases of doubt of this nature the criterion should be whether a commodity covered by the exception clauses is identifiable as such under the name in which it appears in the Schedule of exceptions and whether it sells as such in the market. Now there can be no doubt that biscuits are not cakes nor are they pastries or sweetmeats though they are prepared more or less in the same way as cakes and pastries as well as bread. No one will accept biscuits from a dealer when he asks for cakes or pastries and vice versa. The result is that biscuits cannot be held to come under the exception mentioned in item No. 7, viz., cakes, pastries and sweetmeats. In other words, biscuits are like any other kind of cooked food, the sale of which is exempted from sales tax, except when sold in sealed containers. The petition is allowed. The assessment should be revised, leaving out of the taxable turnover the sale of all biscuits except those sold in sealed containers. Petition allowed.
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1955 (1) TMI 31
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... ... ..... e that the sales of only such parts are taxed and that they are shown separately in the books of accounts of watch repairers etc. The petition is allowed in part, viz., that in respect of assessability to tax of charges on account of oiling, cleaning and repairing of watches etc., the assessment should be revised accordingly, the tax being levied only on the sale of spare parts of assessable value. It is regrettable that the learned Additional Commissioner of Com- mercial Taxes who has the same authority as that of the Commissioner himself should go against the law and against the known decisions of the Board of Revenue in such a manner. This has resulted in unnecessary expense and harassment to the party and unnecessary work to all con- cerned, including the Board of Revenue. I trust this sort of thing will not recur in future. A copy of this order should be sent to the Fin- ance (Taxation) Department of the Government of West Bengal for their information. Petition allowed.
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1955 (1) TMI 30
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... ... ..... ate-General has failed to convince me that the rules which provide for an advance provisional assessment and levy are not inconsistent with the provisions of the Act. In this view, it is not necessary to deal with the other alternative ground, namely, that if it be assumed that the Legislature has delegated to the Government the power to make rules even inconsistent with and beyond the provisions of the Act, then such delegation of legislative power is unconstitutional and invalid. It follows from our finding above that the demand from the peti- tioner of the provisional advance tax for the three months was invalid as the rules under which such a demand was made are themselves ultra vires. The petitioner therefore was not guilty of an offence under sec- tion, 15(b) of the Act. I therefore allow the revision petition, and set aside the conviction and sentence against the petitioner. The fine, if paid, will be refunded. Petition allowed. (1) 292 U.S. 86 78 L. Ed. 1141 at 1148.
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1955 (1) TMI 29
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... ... ..... ngalvaraya Chettiar v. Commissioner of Income- tax, Madras(1), S.M.S. Karuppiah Pillai v. Commissioner of Income-tax, Madras(2) and Income Tax Commissioners for City of London v. Gibbs(3). The facts of these cases were very different, but reliance was placed on observations made to the effect that the firm was an entity by itself for purposes of assessment and was distinct from the partners. Those observations have to be read in connection with the facts of those cases. I do not find in any of these cases any observation, which would go to show that an assessment cannot be made after the firm has been dis- solved or that the tax cannot be recovered, after the dissolution of the firm, from the partners who were the partners in the firm during the period for which the tax has been assessed. For the reasons given above, I do not see any force in this petition and dismiss it with costs. Petition dismissed. (1) 1937 5 I.T.R. 70. (3) 1942 10 I.T.R. Suppl. 121. (2) 1941 9 I.T.R. 1.
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