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1955 (2) TMI 31
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... ... ..... d this was brought out in cross-examination. Sital Pershad P. W. 5 deposed that prices had gone up and were Rs. 60/-per sq. yard for a three-sided plot and Rs. 45/-for a two-sided plot, and this was in January 1947. Wazir Chand plaintiff as P. W. 6 stated that prices had gone up and that in March 1947 the defendants wanted Rs. 5/- per sq. yard more and were prepared to sell the property, and this was brought out in cross-examination. In this view of the evidence the learned Judge came to the conclusion that Rs. 10/- per sq. yard would be a fair compensation and in my opinion this is fully justified by the evidence on the record. 13. Rupees 270/- have been awarded as interest for the draft which was kept by the defendants from 5-1-1947 to 18-7-1947 by way of damages. That, in the circumstances of this case, has been rightly awarded. 14. I would therefore dismiss this appeal of Amba Lal and the respondents will have their costs in this Court and in the Court below. 15. I agree.
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1955 (2) TMI 30
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... ... ..... mewhat more broadly the word "appeal" includes an application in revision. "Appeal" has been defined in Wharton's Law Laxicon as "the removal of a cause from an inferior to a superior Court for the purpose of testing the soundness of the decision of the inferior court" and the expression "appellate jurisdiction" has been defined by the same authority as the power of superior court to review the decision of an inferior court. With due deference I entirely agree with the observations of the learned Judge and find that there is no force in the arguments advanced by the Learned Counsel for the appellants. 15. Undoubtedly, the office of the Custodian General is located in New Delhi where he ordinarily resides. In my opinion, therefore, we have no power to issue writs etc. prayed for by the appellants to him. For these reasons the appeals must fail and they are hereby dismissed. There is no order as to costs. G.L. Chopra, J. 16. I agree.
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1955 (2) TMI 29
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... ... ..... roll records the payment, and there is in acknowledgment thereof a thumb-impression as against his name. If what appears on the face of the roll is true - and whether it is true or not is not a matter relevant at the stage of sanction - then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under section 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed. 20. In this view, there is no need to consider whether on the evidence, the offence of criminal misappropriation or forgery has been brought home to the appellant or not. 21. The appeal is accordingly allowed, and the convictions and sentences passed on the appellant are set aside. Fine, if paid, will be refunded.
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1955 (2) TMI 28
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... ... ..... on reserve or to any other reserve. The only factor to be taken into consideration is the profits of the relevant year and those profits are as shown in the profit and loss account in which profit and loss account depreciation is a permissible deduction in order to arrive at the real net profits earned by the assessee. Therefore, in our opinion, the net profits which were earned by the assessee company, which were the real net profits from the commercial point of view, was the amount shown by the assessee company in the profit and loss account, subject to certain adjustments made by the income-tax authorities but not with the addition of the sum of ₹ 15,608 which constituted a notional or artificial income which was undoubtedly liable to tax but which can in no view of the case be looked upon from the commercial point of view as constituting the profits of the assessee company for the year in question. We, therefore, answer the question submitted to us in the negative.
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1955 (2) TMI 27
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... ... ..... tion to income. But from this it does not follow that every activity by a coparcener or even by a karta, which activity may result in profit, becomes the affair of the Hindu undivided family The Advocate-General relied on a decision of the Madras High Court reported in Commissioner of Income-tax v. Erin Estate 1951 20 ITR 412 and the only relevant passage is at page 420 where the learned Judge of the High Court points out that the affairs referred to in section 4A(b) are affairs which have some relation to the business whose income, profits and gains are sought to be taxed and not the private or domestic affairs of the individual partners having no relation to the firm's business. With respect, we agree with that view, but as we have pointed out in this particular case the affair is the affair of the coparcener and not of the joint family. The result is that we must agree with the view taken by the Tribunal and we must answer the question submitted to us in the negative.
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1955 (2) TMI 26
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... ... ..... l for forwarding the sale proceeds which he had already realised. It is not suggested by Mr. Kolah that with regard to the remittances made before the receipt of the sale proceeds the agent is not liable. What he says is that he is not liable on the receipt basis under section 4(1)(a) although he may be liable on the accrual basis under section 4(1)(c), and it is clear that on accrual basis those profits will have to be apportioned according to the principles now well settled. Two questions have been submitted to us by the Tribunal. With regard to the first question Mr. Kolah gives up his contention and therefore that question must be answered in the affirmative. With regard to question No. 2, our answer will be "Yes" to the extent that the remittances were made after the sale proceeds were received by the assessee company. The assessee to get 3/4ths of the costs of the reference. The notice of motion dismissed. No order as to costs. Reference answered accordingly.
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1955 (2) TMI 25
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... ... ..... ent did not bring about the necessary result which was intended by the framers of that document, The Tribunal has also relied on the fact that although this memorandum was executed on the nth of September, 1946, the partition having taken place on the 1st of January, 1946, it was only in April, 1948, that separate returns were filed in the name of the coparceners. Now, Mr. Palkhivala says that inasmuch as no returns were made after 1946 this factor is not of much importance. But whether it is of importance or not, it is a factor which the Tribunal has taken into consideration in adjudicating upon the question of the partition of the joint family assets, and this factor has weighed with the Tribunal in the view that it took that this particular asset continued to be the asset of the joint Hindu family. In our opinion there were materials before the Tribunal to justify the conclusion it came to. The result is that we must answer the question submitted to us in the affirmative.
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1955 (2) TMI 24
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... ... ..... ved was exempt on the ground that it was spent for charitable purposes. In our opinion, therefore the Tribunal was right when it came to the conclusion that the surplus in the hands of the assessee company was liable to tax as its income. 9. We would therefore answer the question submitted to us in the affirmative 10. On the question of costs, Mr. Pandit urges that the Income-tax authorities assessed the assessee under Section 10 on the ground that the surplus constituted income from business. The Tribunal has taken the view that Section 10 has no application, but the assessee is liable to be taxed under Section 12 as income from other sources. We do not understand what difference does it make whether the assessee is liable to pay tax under Section 10 or under Section 12, and the only question that has been referred to us is whether this constitutes income which is liable to be taxed. In our opinion the assessee must pay the costs of the reference. 11. Answer in affirmative.
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1955 (2) TMI 23
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... ... ..... the accumulated profits which are capitalised do not come within the ambit of sub-clause (c). In view of this it is clear that the sum of ₹ 62,400 are not accumulated profits for the purpose of sub-clause (c). They ceased to be accumulated profits when they were transferred to the capital account. They were appropriated to capital and they constituted the capital of the company and were no longer profits which were capable of being distributed as dividends. The third question which has been raised raises a much larger issue. Fortunately it is not necessary to decide that issue on this reference because Mr. Palkhivala who appears for the assessee does not contest that question and accepts the contention of the Department for the purpose of this reference. In view of that concession made by the assessee, it is unnecessary to decide that question. The result is that we must answer question No. 1 1943 to 1948. Question No. 2 in the negative. Question No. 3 does not arise.
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1955 (2) TMI 22
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... ... ..... nt of Defendant 11 that the record of delivery was brought into existence as the result of fraud, and that there had been no real delivery. The contention that the order on Defendant 11's application was passed without notice to Defendant 10 and is not binding on her is also unsustainable, for Defendant 11 was the karanavan of the sub-tarwad of Defendants 10 and 11 and he filled the petition to cancel the first delivery on behalf of the said sub-tarwad. There is no allegation that Defendant 11 was acting in fraud of the sub-tarwad in the proceedings on the petition filed by him. Defendant 10 is also now purporting to act on behalf of the same sub-tarwad. In the circumstances, the order cancelling the first delivery is binding on Defendant 10 as well, and since the first delivery has been cancelled it was competent for the Court to order a second delivery. No other ground was urged in this Court. The second appeal, therefore, fails and is accordingly dismissed with costs.
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1955 (2) TMI 21
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... ... ..... me barred appeal can be treated as cross-objections. In this case -- 'Bawa Singh v. Thakar Singh' AIR 1922 Lah 423 (C), was followed. AIR 1925 Lah 57 (B) was followed by Hilton J- in -- 'Mihan Singh v. Tilak Ram' AIR 1934 Lab 273 (C). We are therefore of the opinion that this-memorandum of appeal can be treated as cross-objections and should he. allowed to be so treated in the present proceedings. 3. It is contended on behalf of the respondent. (the appellant in Regular First Appeal No. 11-D of 1954) that the case does not fall under Order 44, Rule 1 Civil P. C, After perusing the judgment & decree we are of the opinion that this objection is not sustain- able, and I would therefore allow the memorandum of appeal to be treated as cross-objections and as the cross-objector has been found to be a pauper, leave is given to file cross-objections in 'forma pauperis'. There will be no order as to costs in these proceedings. Bishan Narain, J. 4. I agree.
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1955 (2) TMI 20
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... ... ..... long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section I of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents. We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs throughout. Appeal allowed.
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1955 (2) TMI 19
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... ... ..... ent may, if it thinks fit". Therefore, if it chooses not to comply with the request, the person against whom the request is made cannot insist that it should. The right is not his; and the fact that a request has been made does not fetter the discretion of Government to choose the less cumbrous procedure of the Foreigners Act when a foreigner is concerned, provided always, that in that event the person concerned leaves India a free man. If no choice had been left to the Government, the position would have been different but as Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers. This line of attack oil the good faith of Government falls to the ground. The remaining grounds about want of good faith that were raised in the petition were not seriously pressed and as they are of no substance we need not discuss them. The petition fails and is dismissed. Petition dismissed.
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1955 (2) TMI 18
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... ... ..... profit making is of plying ships and getting passengers or cargo to be carried by those ships. Neither shipping company would have any passengers or cargo unless their ships were in a fit condition and they can only be in a fit condition provided they are properly repaired from time to time. Therefore even from that point of view in our opinion the activity of the non-resident is a business activity and as that business activity is with the resident it would be true to say that the non-resident carries on business with the resident. In our opinion, therefore, the Tribunal was in error when it took the view that on the facts of this case section 42(2) had no application. We will therefore answer the question submitted to us in the affirmative. With regard to the quantum, that question must be left to the Tribunal. The quantum will be fixed by the Tribunal in accordance with the provisions of section 42(2). The assessee to pay the costs. Reference answered in the affirmative.
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1955 (2) TMI 17
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... ... ..... ere no specific contract exists as to the place where the payment of the debt is to be made, it is clear that it is the duty of the debtor to make the payment where the creditor is", and in this case the cheques were received at Secunderabad. The receipts acknowledging discharge of the debt were sent by the assessee from Secunderabad immediately on receipt of the cheque and the amount of the cheque was drawn from the banker at Secunderabad, and as there is no specific or implied request by the assessee to send the cheques by post, the decision in the case of Commissioner of Income-tax, Bombay v. Ogale Glass Works Ltd. 1954 25 I.T.R. 529, does not apply to the facts of this case. I am, therefore, of opinion that the income of the assessee was not received in British India and the question referred by the Tribunal is accordingly answered in the negative. The assessee is entitled to his costs. Hearing fee ₹ 200. MISRA, J.--I agree. Reference answered in the negative.
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1955 (2) TMI 16
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... ... ..... "lagas" recovered and said that "as all the taxing departments have failed to find any specific service, we do not understand how on this reference we can find that any specific service is rendered by the Association and decide the question in favour of the Commissioner." The question as to whether in any particular case "specific services" are being rendered for the collection made and whether that remuneration is definitely related to those services must depend on the facts and circumstances alleged and proved, and on the facts and circumstances of the case before us we have no doubt that the conclusion to be reached is the one that we have indicated in the preceding paragraphs of this judgment. 8. It follows that the question referred has to be answered in the affirmative and we answer it accordingly. The Department will have the costs of this reference from the assessee, advocate's fee ₹ 100. Reference answered in the affirmative.
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1955 (2) TMI 15
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... ... ..... in finding that the suit is maintainable even without a notice under section 80 of the Code of Civil Procedure. So far as the other point of Mr. Bahadur is concerned, namely, whether the certificate was void and illegal, I do not propose to answer that question because it is not at all necessary for the purpose of deciding this suit. In view of my decision that the plaintiff has been able to prove that the land in suit is her exclusive property and is not liable to attachment or sale execution of a certificate for the dues of the Income-tax Department against her deceased husband, I find it absolutely unnecessary to hold whether the certificate proceeding was otherwise void or illegal. That matter must, therefore, be left undecided. In the circumstances mentioned above, the appeal is allowed, the judgment and decree of the Court below are set aside and the suit is decreed. The plaintiff-appellant will be entitled to her costs throughout. JAMUAR, J.--I agree. Appeal Allowed.
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1955 (2) TMI 14
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... ... ..... final court of appeal found that the assessee had not shown that there was immediate personal exertion on the part of the assessee in the production of the income in question. It was not shown that the assessee was having direct personal control over operations with regard to the forests, or that but for his personal exertion the amount of the income would not have been as much as it was found to be. Under those circumstances, the Income-tax Department was justified in holding that the assessee had failed to establish the ingredients which would unable him to claim the benefit of "earned income" under clause (c) of section 2(6AA) of the Act. 9. For the reasons stated above, we answer the question in the negative; but as there was a question of law on which there was no previous authoritative decision of any Court, we think that in the circumstances of the case we should not make any order a to costs. BALAKRISHNA RAO, J.--I agree. Reference answered in the negative.
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1955 (2) TMI 13
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... ... ..... the department can rebut the prima facie inference by drawing attention to circumstances or by leading some evidence to suggest that the position taken up by the assessee was not correct. In this case there is no evidence whatsoever on the record except the fact that the assessee wrote off this amount in the year of account. In the absence of any evidence we are entitled to presume that the amount became irrecoverable when the assessee wrote it off in its books of account. Therefore, in our opinion, not only is the assessee entitled to claim this amount of ₹ 32,000 as a trading loss but is also entitled to claim this amount in the assessment year, viz., 1947-48. We will, therefore, reframe the question in the following way "Whether the assessee was entitled to claim a sum of ₹ 32,000 as a permissible allowance under the circumstances of the case?" and answer it in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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1955 (2) TMI 12
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... ... ..... ed to the assessee as his income. The broad fact, however, is that the assessee has prima facie made out a case which the taxing authorities have no material or information to rebut. In these circumstances, the source of the receipt should be deemed to be established, and consequently the money was not liable to be treated as the assessee's income merely because he could not explain satisfactorily how his wife made the saving and why she did not deposit it in the bank at any earlier date. In Narayandas Kedarnath v. Commissioner of Income-tax, Central(1), the assessee firm was held to have discharged its burden when it proved the source of the moneys even though it was unable to explain how the partners got them in their native place. The same reasoning is applicable to the instant case. Our answer to the question is, therefore, in the negative. 15. The reference is answered accordingly with costs on the Department. Hearing fee ₹ 100. Reference answered accordingly.
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