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Case Laws
Showing 21 to 40 of 40 Records
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1955 (4) TMI 38
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... ... ..... the ground that the Rajpramukh had no legislative competence to enact it, or that the procedure prescribed in article 212-A for enactment of laws had not been followed. The Act is, in substance, one for acquisition of property, and is within the legislative competence of the State, and it is protected by article 31-A. But the notification is bad as regards properties comprised in Petitions Nos. 392 and 488 of 1954, as izaras are not within the impugned Act. The properties mentioned in Petition No. 36 of 1955 are dedicated for religious services, and are exempt under section 20 of the Act. Appropriate writs will issue in these three petitions. In Petition No. 468 of 1954 the right of the petitioner to claim exemption under section 20 for the village of Jorpura on the ground that it is dedicated for worship of the Deity is reserved, and the petition is otherwise dismissed. All the other petitions will stand dismissed. The parties will bear their own costs in all the petitions.
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1955 (4) TMI 37
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... ... ..... d had not paid advance tax. Therefore the alternatives which the learned Chief Justice was considering must be alternatives which must connect the incurring of the expenditure with the carrying on of the business. If an assessee has no option except to incur an expenditure in order to make the earning of an income possible, then undoubtedly the exercise of that option is compulsory and any expenditure incurred by reason of the exercise of that option would come within the ambit of section 12(2). But where the option has no connection with the carrying on of the business or the earning of the income and the option depends upon personal considerations or upon motives of the assessee, that expenditure cannot possibly come within the ambit of section 12(2). In our opinion therefore the Tribunal was right in the view that it took and the answer we proceed to give to the question submitted to us is in the negative. The assessee to pay the costs. Reference answered in the negative.
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1955 (4) TMI 36
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... ... ..... rt held, on similar facts, that the members of an undivided family being entitled to maintenance had a charge upon an estate, and that the amount payable to them is not income in the hands of the assessee liable to be taxed. This question is accordingly answered in favour of the Department. 23. The last question that now remains to be answered is whether the assessee is entitled to the disallowance of ₹ 65,500 paid as damages to Mr. Gagger. (Vide paragraph 19 of the referring order at page II of the paper book). Learned counsel did not seriously contest the correctness of the view taken by the Tribunal on this question and we would answer this question in the negative and hold that the assessee is not entitled to claim any deduction of this amount. 24. In the result, the petitioner succeeds only on the first question of law referred to us, and fails on the other questions. We would therefore make no order as to costs. MISRA, J.--I agree. Reference answered accordingly.
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1955 (4) TMI 35
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... ... ..... TO 77 AND 85 OF 1955. Mukherjea, C.J. 24. These 8 petitions under article 32 of the Constitution raise identically the same points for consideration as are involved in Petition No. 652 of 1954 just disposed of. The petitioners in these cases also purport to be printers, publishers and sellers of text-books for various classes in the schools of Punjab and they complain of infraction of their fundamental rights under article 19(1)(g) of the Constitution by reason of the various notifications issued by the State of Punjab in pursuance of their policy of nationalisation of text books. The learned counsel appearing in these cases have adopted in their entirely the arguments that have been advanced by Mr. Pathak in Petition No. 652 of 1954 and no fresh or additional argument has been put forward by any one of them. This being the position the decision in Petition No. 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs.
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1955 (4) TMI 34
Whether in the circumstances of the present case the Registrar had exercised his discretion properly in inserting in the register a disclaimer of the word "Shree"?
Held that:- Considering all the circumstances we are not of opinion that the Registrar had gone so wrong as to have made it necessary for the High Court to interfere with his discretion. If it were to be regarded as a matter of exercise of discretion by the High Court as to whether a disclaimer should be imposed or not, it is quite clear that the attention of the High Court was not drawn to an important consideration, namely, the strong possibility of the respondent company claiming a statutory right to the word "Shree" by virtue of the registration of its trade mark and subject others to infringement actions only on the strength of the registration and without proof of facts which it would have otherwise to establish in order to succeed in a passing off action or a prosecution under the Indian Penal Code and, therefore, the High Court cannot be said to have properly exercised its discretion. The result, therefore, is that this appeal must be allowed
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1955 (4) TMI 33
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... ... ..... given against the entry itself. He also referred to certain other entries to show that wherever any restric- tion on exemption was laid down, it was clearly indicated in the entry itself. On the other hand, the departmental representative argued that in the entries referred to by the counsel for the petitioners, the articles mentioned were of an allied nature which was not the case with pan and betel nuts and as such betel nuts could be treated exempt only when they were used in pans. There is much force in the arguments of the counsel for the peti- tioners. The mere fact that pan and betel nuts are mentioned in one entry does not mean that they should be exempted only when they are sold together or are sold by panwalas and not when sold by grocers. I, therefore, hold that betel nuts are exempt from sales tax whether sold with Pans or separately irrespective of the fact whether they are sold by panwalas or by grocers. Accordingly, the petition is accepted. Petition accepted.
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1955 (4) TMI 32
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... ... ..... to tax such transactions of sale. Clause (2) of Article 286 will not be of any help to the Department. The President s Order under the proviso to that clause would save only those classes of sales in the course of inter-State trade or commerce which do not come within the scope of clause (1) of that Article see the recent decision of the Allahabad High Court reported in Kanpur Oil Mills v. Judge (Appeals) Sales Tax, Kanpur Range(3) . Hence, it must be held that for the period after the commencement of the Constitution the petitioner (1) 1953 4 S.T.C. 188 1953 S.C.J. 369. (3) 1955 6 S.T.C. 77. (2) 1953 4 S.T.C. 133 A.I.R. 1953 S.C. 252. was not liable to pay sales tax by virtue of clause (1) of Article 286 of the Constitution. 13.. The net result is that the assessment for the entire period must be held to be invalid. The prayer of the petitioner is therefore allowed and the assessment order cancelled. He should get costs of Rs. 150. PANIGRAHI, C.J.-I agree. Petition allowed.
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1955 (4) TMI 31
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... ... ..... a single point for fixing tax liability in respect of such series of transactions, the imposition of the tax by sub-rule (3) would be invalid as contravening the specific direction in section 5(vi). There has been no satisfactory answer to this objection and we hold that on this ground also no tax can be levied on sales by licensed tanners, when they have not paid tax on their purchases because such purchases are not subject to taxation under the Madras General Sales Tax Act. It follows that the sale turnover of the assessee was not liable to tax under the provisions of the Madras General Sales Tax Act. This revision petition succeeds and the order of the Tribunal against the assessees is set aside. The assessees are entitled to their costs. Counsel s fee Rs. 100. There is no dispute that the assessee is liable to tax on a turnover of Rs. 2,118-5-9 which represented sales of tannery refuse. The tax is payable on this item. Petition allowed. (1) (1878) 3 App. Cas. 473 at 478.
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1955 (4) TMI 30
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... ... ..... view of these facts and circumstances, I accept the conten- tion put forward on behalf of the petitioner that the assessment order in question was passed without having given an opportunity of being heard to the petitioner. This opportunity the Sales Tax Officer was bound to give to the petitioner under the mandatory provisions of the proviso to sub-section (3) of section 7 of the Act. The Sales Tax Officer therefore acted illegally in the exercise of his jurisdiction in passing the impugned order since the order was passed in violation of the principles of natural justice embodied in the said proviso. The petitioner is there- fore entitled to a writ of certiorari for quashing that order. The Sales Tax Officer will no doubt make the assessment afresh in accordance with the provisions of the law. The petition is allowed with costs. Let a writ in the nature of certiorari issue quashing the order in question of the Sales Tax Officer dated 15th November, 1954. Petition allowed.
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1955 (4) TMI 29
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... ... ..... form of language would have been used if the intention had been that the varia- tions in rate prior to the enactment of this provision of law were also to be taken into account when applying this provision so as to re-open assessment previously made. Absence of the words has been and the use of the word is are indications that this sub-section is to be applied when a variation is brought about subsequent to this provision of law. Consequently, in our opinion, section 7-B(2) is not applicable to the case before us and must be ignored. For the reasons given above, our answer to the question, that was referred to us and which has been re-framed by us, is that the appli- cant company is liable to pay tax for the assessment year 1948-49 on the turnover of the previous year in respect of sales of non-edible oils at the flate rate of 3 pies per rupee. The applicant company shall be entitled to its costs from the Department which we assess at Rs. 500. Reference answered accordingly.
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1955 (4) TMI 28
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... ... ..... opinion that the expression record would include not merely the assessment order but the entire assessment file and in the intermediate cases also if from a perusal of the record or the assessment files the revising authority can find that the turnover was before the assessing officer it is com- petent for it to pronounce upon the legality or propriety of the assessment order under rule 14(2). We are of the opinion that the construction which we have placed upon the relative content of rules 14(2) and 17(1) gives proper effect to both the provisions and assigns to each the role which it was designed to accomplish. In the light of the above discussion, our answers to the reference are as follows (1) Rule 14(2) is intra vires the rule-making power of the Provincial Government under section 19 of the Act. (2) The revi- sional powers under rule 14(2) cannot be exercised in cases to which rule 17 applies. (3) Rule 17 applies only to cases of escaped turnover as described earlier.
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1955 (4) TMI 27
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... ... ..... d that the dominant (1) 46 L. Ed. 679. (2) 84 L. Ed. 1124. motive of the legislature in placing the Act on the statute book was to raise revenue, more particularly because, in the Act, the charging section is general in its scope. A secondary and subordinate intention also appears, namely, that certain specified persons or institutions and such other persons as may be notified by the Government be exempted from taxation but the two portions of the Act are not so interdependent that it could be said that if the exemptions are eliminated, the legis- lature would still have not passed the main enactment. We think that the exempted clauses can be separated from the rest of the Act which can be given effect to and all that will happen will be merely that a few exempted persons would be liable to pay the tax. No other point was urged before us in arguments. In the result, we dismiss this petition but, in the circumstances of the case, make no order as to costs. Petition dismissed.
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1955 (4) TMI 26
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... ... ..... ere, however, it can be held that the zamindar himself through his servants or agents, prepares the sleepers and sells them for profit to various railways he may be held to be a dealer carrying on such business. The petitioner does not challenge his liability to pay sales tax in respect of such business and it is admitted that he has obtained a dealer s certificate for the timber business which he carries on in a depot where timber and other forest produce of the estate are sold under the superintendence of his Chief Forest Officer. But the present transaction has nothing to do with that timber business. I would, therefore, agree with my Lord that the petitioner is not a dealer under clause (c) of section 2 of the Orissa Sales Tax Act. As this answer is sufficient for the disposal of this reference, I would reserve my opinion on the question whether the royalty pay- able under the agreement with Messrs. Dear and Co. Ltd., is sale price or not. Reference answered accordingly.
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1955 (4) TMI 25
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... ... ..... ecessary to consider the further contention raised on be- half of the petitioners that as in the present case the transfer of property was effected only by the delivery of the bills of lading when the goods represented by them were already on the high seas, the transaction was clearly a sale in the course of export specifically referred to by the Supreme Court in the Second Travancore case(2). In the result, the petitioners contention that the turnover totalling Rs. 5,07,753-9-0 being the sale price involved in the three contracts dealt with above was entitled to the constitutional exemption under Article 286(1)(b) of the Constitution was well-founded and the inclusion of this in their turnover was erroneous. The order of the Sales Tax Appellate Tribunal including this turnover in the assessment of the assessees is set aside. The petition is accordingly allowed with costs. Counsel s fee Rs. 100. Petition allowed. (1) 1955 27 I.T.R. 128 1955 S.C.J. 185. (2) 1953 4 S.T.C. 205.
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1955 (4) TMI 24
Winding up – Application for ... ... ... ... ..... petition because (1) he was present in and took part in the proceedings of the general meeting held on 12th April, 1953, when the resolution for voluntary winding up was unanimously adopted, and (2) he, as one of the liquidators, was a party to the reply submitted on behalf of the company opposing S. Santokh Singh s application under section 221 of the Companies Act. The validity and enforceability of the resolution dated 12th April, 1953, is being challenged in the petition, and the application of S. Santokh Singh is pending decision along with this petition. It would, therefore, be premature to express any opinion on either of the points at this stage. Moreover, decision of the issue either way will not finally dispose of the case as Raja Surrindar Singh is only one of the several petitioners. Issue No. 5 can, if pressed, be decided at the time of the final hearing. Preliminary objections having been disposed of, the case shall come up on 29th April for further proceedings.
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1955 (4) TMI 22
Winding up – Liability as contributories of present and past members ... ... ... ... ..... er to give rise to the liability to pay up the value of the shares, and where there has been no valid allotment of shares to the subscriber, liability to pay up the value of the shares does not arise. This certainly appears to support the case of the respondent, but with due respect I find this pronouncement of law of somewhat dubious value since the learned Judge has observed that he nowhere found any authority for the view that no express allotment of shares was necessary in order to give rise to the liability to pay the value of the shares. Quite evidently the English cases cited by the liquidator in this case were not cited before him and they are clear authorities on the point that no allotment of shares is necessary to create liability on the part of a person who has subscribed to the memorandum of association. I accordingly dismiss the objections of Sampuran Singh with costs and order that his name be included in the list of contributories of the company for 50 shares.
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1955 (4) TMI 21
Transfer to Shares – Power to refuse registration and appeal against refusal ... ... ... ... ..... as members, and persons who would be able to pay the calls which should be made, it is reasonable that they would have the power of objecting to the person, and not have introduced among them insolvent persons, or it might be, if you like, disagreeable persons who would throw them into confusion, and therefore the directors have the power of objecting to the person . (italics is ours). This shows that if a person is of such a character as to throw their company into confusion and if he was not a desirable one, then the Board of Directors would certainly be acting in the best interests of the company in refusing to register the shares in his name and such a reason is quite a valid reason. The evidence justifies the finding of the lower court, and it cannot be said that the directors did not act bona fide or that they acted arbitrarily or capriciously. In our opinion no case has been made out for interference in appeal. The appeal, therefore, fails and is dismissed with costs.
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1955 (4) TMI 20
Winding up – Avoidance of certain attachments, executions, etc. and Principles for interpretation of statutes
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1955 (4) TMI 18
Winding up - Liability as contributories of present and post members ... ... ... ... ..... part of the Companies Act does not to my mind suggest that the object of sub-section (1)(vii) was at all what is now claimed, or indeed that it was intended to give any relief of any kind to contributories. On the contrary its object appears to be to impose further hardship on these persons since its effect is that they are not even permitted to rank as creditors of the company in respect of any sums due to them on account of dividends or profits and that sums can only be claimed by them if and when all the debts of the company have been discharged and there remains a surplus available for distribution among the contributories when the stage contemplated by section 192 of the Act is reached. In the circumstances I do not consider that the petitioner can be granted any of the reliefs claimed by him and his name must stand on the list of contributories in category B, i.e., those who represent the estates of deceased persons. However I leave the parties to bear their own costs.
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1955 (4) TMI 1
Whether, on the facts, it can be said that "income chargeable to income-tax has escaped assessment in the relevant year?
Held that:- The Indian Finance Act of 1939 must be assumed even factually to have come into operation on the date specified and the tax must be taken to have become chargeable in that very year, though the actual liability for payment could not arise until proper and valid steps are taken for quantification of the tax. The contention, therefore, of the appellant that the income was not chargeable to tax in the year 1939-40 cannot be accepted.
Thus the income of the assessee chargeable to income-tax escaped assessment in the relevant year 1939-40. Appeal dismissed.
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