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1956 (2) TMI 62
... ... ... ... ..... eopened account for the year to 30th June, 1921, or credited in the eighteen months' account to 31st December, 1922, and as, in my opinion, neither of these contentions is admissible, I concur in the motion that the appeal be dismissed." The assessee in the present case was liable to pay ₹ 36,094 as excise duty to the Government of India in the year of account. There was no dispute about that liability. It was also discharged in the year of account. Subsequently there was a total remission of that liability. None the less, it was only a release from the obligations lawfully imposed on the assessee in the year of account. That remission was not in the year of account. Subsequent releases cannot be related back to the year of account itself. Our answer to the question referred to this Court is in the negative and in favour of the assessee. The assessee will be entitled to the costs of this reference. Counsel's fee ₹ 250. Reference answered accordingly.
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1956 (2) TMI 61
... ... ... ... ..... he can take this into consideration in estimating the income from that sources. Having regard to the aforesaid principles, we have no hesitation in accepting the finding of the Tribunal in this case. The Tribunal disbelieved the specific case set up by the assessee to the effect that the income was the sale proceeds of Rajeswaramma's diamond necklace. The Income-tax Officer did not estimate the income from the mica business. But he accepted the account produced by the assessee with some modifications. The Tribunal did not also add this income to the mica business income but treated it as taxable income from an undisclosed source, which they were rightly entitled to do in the circumstances of the case. There was, therefore, sufficient material on which the Tribunal could have come to the conclusion it did. We answer the question in the affirmative. The application will pay the costs of the respondent. Advocate's fee ₹ 250. Reference answered in the affirmative.
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1956 (2) TMI 60
... ... ... ... ..... al." We see no reason to depart from the view that we had then taken. Where, therefore, the assessee offers a reasonable explanation as to the source of a receipt, it cannot be rejected on grounds which are imaginary or irrelevant. 13. In this view, the assessee's explanation could not be rejected on the grounds mentioned by the Appellate Assistant Commissioner, either severally or jointly. Nor was the Income-tax Officer justified in insisting on a rigid proof of the connection of the receipt with any particular source. When an assessee discloses certain sources from which the money could be drawn, it ceases to be referable to an undisclosed source. The same considerations would govern the order of the Tribunal which has not relied upon any reasons of its own in rejecting the assessee's explanation. 14. We accordingly answer each of the questions in the negative. Costs shall be borne by the Department. Hearing fee ₹ 100. Reference answered in the negative.
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1956 (2) TMI 59
... ... ... ... ..... er the extended period of limitation of eight years would apply to the assessee when the period of limitation applicable to the assessee had expired before the amended section 34 came into force on 30th March, 1948. Our answer to question No. 1 is in the negative and in favour of the assessee. In view of our answer to question No. 1, it may not be necessary to record an answer to the second of the question referred to this Court. Should, however, an answer be necessary, we would confirm the view taken by the Tribunal, that though the bank drafts had been taken in the name of an agent, since the monies were admittedly received by the assessee from her husband through the agent, Yahiya Maricair, they constituted "remittances" from the husband within the meaning of section 4(2) of the Income-tax Act. Since the assessee has succeeded on the first question she will be entitled to the costs of this reference. Counsel's fee ₹ 250. Reference answered accordingly.
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1956 (2) TMI 58
... ... ... ... ..... e that the assessee should be in default, either within the ordinary meaning of that expression or as that expression has been defined by section 45 of the Act. We are unable to read the provisions of the latter part of section 45 and the provisions to that into section 49E of the Act to define the scope of the expression in section 49E "that amount .....if any, remaining payable by the person to whom the refund is due." The Income-tax Officer acted well within his jurisdiction when he exercised the discretion vested in him by section 49E of the Act to adjust ₹ 20,635-15-0 out of the amount refundable to the petitioner towards the arrears payable by the petitioner out of the tax to which he had been assessed in 1940-41 and 1941-42. As the respondent has not failed to discharge any statutory duty imposed upon him, the writ of prohibition asked for by the petitioner cannot issue. The rule is discharged. This petition is dismissed with costs. Petition dismissed.
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1956 (2) TMI 57
... ... ... ... ..... issa under section 3. In view of this, it is not necessary to examine any other points. The learned Judges of the High Court differed on the remaining points and so those points were referred to a third Judge. But on the definition of " intermediary " there was no difference of opinion. Both the Chief Justice and Narasimham J. agreed that the petitioners were " intermediaries. " We disagree for the reasons we have given above. The result is that, in our opinion, all three appeals should be allowed and that the decision of the High Court should be set aside and a nwndamus issued to the State of Orissa directing that State not to give effect to.the provisions of the Orissa Estates Abolition Act of 1951 and not to take possession of the several estates of the three petitioners under that Act. The costs of the petitions here and in the High Court should, in our opinion, be paid by the State of Orissa. Appeals Nos. 167 and 168 allowed. Appeal No. 169 dismissed
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1956 (2) TMI 56
... ... ... ... ..... ed above clearly indicate that the status of the plaintiff was the foundation of his claim to the river beds and was consequently directly and substantially in issue in that litigation and was understood to be so by the -parties themselves. On the second ground the terms of the compromise speak for themselves. It is quite clear that the concessions made by one party were the consideration for those made by the other party and, therefore, it was not necessary to adduce any further evidence, assuming that any evidence was admissible for the purpose. In our judgment, the finding of the High Court on this issue was clearly erroneous. Each of the conclusions we have arrived at on the first two points is quite sufficient, by itself, to enable us to dispose of this appeal and it is not necessary for us to deal with or express any opinion on the other three points canvassed before us. The result, therefore, is that this appeal should be dismissed with costs and we order accordingly.
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1956 (2) TMI 55
... ... ... ... ..... not appear from the company's books and could not therefore have been available for the payment of dividends. Among common men, such an attitude, would be regarded as bellowing hot and cold or playing fast and loose. It is regrettable that the books of the company have been withheld and the manner in which the funds, out of which the dividends are said to have been distributed, were made up is not disclosed. The company is a private limited company and it is difficult to believe that its books are beyond the control of the assessee. It is unnecessary to purse this aspect of the case further in view of the assessee's noncompliance with section 49B of the Act and his omission to include the dividend in his total income. The answer to the question referred is that the assessee is not entitled to the refund of tax in respect of the dividend. The assessee will pay the costs of the Commissioner of Income-tax; advocate's fee ₹ 250. Reference answered accordingly.
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1956 (2) TMI 54
... ... ... ... ..... to use their plants or machineries that they would have to be repaired constantly from time to time. It is impossible to say with regard to any particular asset when the need for repairs would arise. It would depend upon various circumstances, and in this case it so happens that the particular parts that were used by the assessee for 60 years were such parts that the need to repair them did not arise earlier. It might have been due to the quality of the parts themselves or to the care with which the parts were used by the assessee, but the fact remains that they had not to be repaired till after the passage of 60 years. In our opinion, therefore, this was an expenditure which the assessee company could claim as a permissible deduction under section 10(2)(v) of the Act. We will therefore answer question (1) in the affirmative. We express no opinion on question (2) and therefore we will say that it does not arise. Commissioner to pay the costs. Reference answered accordingly.
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1956 (2) TMI 53
... ... ... ... ..... business or trade in grains. The learned Advocate for the Department was unable to show that there was any material upon which the Sales Tax Officer could have come to the conclusion that the assessee was engaged in the business of selling or supplying grain. In this view of the matter, the turnover on gunny bags is not liable for sales tax. For these reasons, we think that the turnover on bags in which grain was supplied to the grain shops for the following years, viz., 1950-51 Rs. 23,710 1951-52 Rs. 23,360 1952-53 Rs. 3,703-12-0 and 1953-54 Rs. 11,612, is not liable to sales tax. Consequently, we partly allow the petition and quash the assessment order by the issue of a certiorari in so far as it pertains to the aforesaid assessments and direct the Sales Tax Officer for the refund of the tax collected by the Department in respect of the aforesaid assessments. Having regard to the particular circumstances of the case each party will bear his own costs. Ordered accordingly.
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1956 (2) TMI 52
... ... ... ... ..... e, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as may be prescribed. The position therefore now is that whereas under the Notification the proceeds of certain sales have not to be included in the dealer s turnover, the amended sub-section (1) requires that they be included although they will not be liable to tax. It is however conceded that whether the Notification be in its present form or be couched in the same terms as sub-section (1) of the Act the liability of the petitioner to tax would not be affected in other words the petitioner is not prejudiced by the discrepancy which now exists between the Notification and the section, and we accordingly see no sufficient reason to accede to the petitioner s prayer that the Notification be quashed. In the result therefore this petition is dismissed with costs, which we assess at Rs. 300. Petition dismissed.
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1956 (2) TMI 51
... ... ... ... ..... chants in the City of Bombay, paid the price of the groundnuts at Bombay and took delivery of the goods at Marmagoa after weighing and approving them. Since the facts are as stated above, the principle enunciated in the case just cited will apply to the present case. There is no doubt whatever that there would not be different kinds of contracts for the plaintiff with regard to the same sellers whose agents procure goods in the districts of the Madras Presidency. That being the case Since reported in 1956 7 S.T.C. 708. and especially since the learned City Civil Judge was of opinion that even if the delivery was at Bombay and payment of the go per cent. and the weighment and inspection was at Marmagoa, still the sale takes place in Madras, we feel that his conclusion is opposed to the decision just mentioned. Following the decision in O.S.A. Nos. 62 of 1951 and 54 of 1953 we allow the appeal and decree the plaintiff s suit as prayed for with costs throughout. Appeal allowed.
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1956 (2) TMI 50
... ... ... ... ..... ates. There is no ambiguity or doubt as regards the latter, and Exhibit P. 14(c) clearly envisages the arthia, as a seller in relation to the trader. Further, having regard to clauses 12 and 13 of Exhibit P. 14(a), there could be no contractual relationship between constituent and the assessee. In the face of these, we are clearly of the opinion that for the present pur- poses there is no essential difference between the direct purchases from the Bombay merchants and these purchases through the arthias, and that in the latter case also the property in the goods did not pass to the assessees in the State of Madras. The assessees are, therefore, entitled to succeed in both the suits, with the result that O.S.A. No. 62 of 1951 fails and has to be dismissed, while O.S.A. No. 54 of 1953 succeeds and has to be allowed. The assessees are entitled to their costs in both the appeals, as well as before the trial Judge. O.S.A. No. 62 of 1951 dismissed and O.S.A. No. 54 of 1953 allowed.
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1956 (2) TMI 49
... ... ... ... ..... r sea , was explained in this decision as The phrase integrated activities was used in the previous decision to denote that such a sale (i.e., a sale which occasions the export) (1) 1953 4 S.T.C. 205 A.I.R. 1953 S.C. 333. (2) 1952 3 S.T.C. 434 A.I.R. 1952 S.C. 366. cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction . It is in that sense that the two activities-the sale and the export-were said to be integrated . 9.. In this case, however, we do not think it necessary to further discuss the exact meaning of the words in the course of inter-State trade or commerce as there is a signal lack of materials to come to the conclusion that the transactions in question were in the course of inter-State trade or commerce. 10.. This petition therefore is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100 (Rupees one hundred). PANIGRAHI, C.J.-I agree. Petitions dismissed.
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1956 (2) TMI 48
... ... ... ... ..... question, provision is made for the purchasers to sit and consume the articles. The inclusion of food and drink in the proviso further reinforces the view that what is supplied or sold is intended for consumption at the place, since drink at any rate is not ordinarily intended to be taken home. Taking the language of the clause articles of food and drink sold in a holel, boarding house or restaurant , the irresistible inference that could be come to is that the articles of food and drink are intended ordinarily to be consumed at the place, which cannot be the case in the case of a street-stall as in the present case, where the sweet-stall is situated on one side with a separate entrance from the street. The fact therefore of the sweet-stall being a part of the business of the hotel or the restaurant is not material in considering as to whether the proviso would apply to the present case. In the result, the appeal fails and is dismissed with costs. No leave. Appeal dismissed.
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1956 (2) TMI 47
... ... ... ... ..... respect of which the appeal has been preferred. It will thus be clear that though the amended section makes a clear distinction between a first and a second appeal, the original provision is wide enough to embrace both. There will be no difficulty in reading that provision along with the rules under which a second appeal before the Commissioner has been preferred. If the present rules could not be divorced from the provisions of section 22(1), as they stand today, the position may have been different. As, however, they can be read along with the provisions of the old section, there can be no obstacle in the way of the petitioner in preferring a second appeal before the Com- missioner and contending that he is not bound to deposit the tax assessed on him except the amount which he admits to be due. 5.. The petition is accordingly allowed. There will however be no order as to costs. The amount of security deposited by the petitioner shall be refunded to him. Petition allowed.
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1956 (2) TMI 46
... ... ... ... ..... changed. In my opinion, that argument cannot be upheld. It is with the object that a certificate once given should not be immutable, that the Act and the rules contemplate an amendment in respect thereof. Contingencies in section 16 are of course easily understandable, but there might arise many other situations, one of which has arisen in this case, when such amendment would be necessary. The petitioner firm has enjoyed exemptions for a number of years although it was not contemplated by the Statute. I do not think that it is equitable that it should continue to do so any further. In any event, it is not possible for this Court to come to its assistance. For these reasons this application fails and must be dismissed. The rule is discharged. All interim orders vacated. There will be no order as to costs. This is however without prejudice to any other legal proceedings that the petitioner may be entitled to institute for the establishment of his rights. Application dismissed.
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1956 (2) TMI 45
... ... ... ... ..... s led us to the conclusion to which we have arrived. As we have already pointed out, the reason for our decision is not the absence of the profit motive but the absence of any intention on the part of the society to sell the goods at the time when the bricks were manufactured or the steel was imported. The question which the Tribunal has considered with regard to the profit motive would only fall to be determined when we have a case where the assessee either buys or manufactures goods with the intention of selling them and sells them without making profit. Then it will be time to consider whether such an activity would constitute business within the meaning of the Sales Tax Act. The result is that we must uphold the view taken by the Tribunal that the Ahmedabad Education Society cannot be declared to be a dealer within the meaning of section 2(c) of the Sales Tax Act. We answer all the questions in the negative. Applicant to pay the costs. Reference answered in the negative.
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1956 (2) TMI 44
... ... ... ... ..... t the motor transport companies in ques- tion having sold certain buses by reason of isolated transactions, they could not be treated as dealers in buses within the meaning of the Madras General Sales Tax Act, 1939. In the present case, however, the applicants had been already registered as dealers, and we do not think that this decision is of any guidance in the present case. Shri Dalal has further argued that when the motor car in question was pur- chased originally sales tax had to be paid, and that if the sales of it is (1) 3 S.T.D. 78. (2) 1955 6 S.T.C. 136. (3) 1954 5 S.T.C. 128. again subjected to tax there will be double tax. We do not think that there is any substance in this contention, as the car had been used for a number of years before its sale, and it was sold not in its original condition but as a second-hand car. In the result, following our previous decision in the case of Messrs. Login Dawlat Corporation, we dismiss this application. Application dismissed.
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1956 (2) TMI 43
... ... ... ... ..... tice required either under section 11A or under section 15 is a condition precedent to the exercise of the jurisdiction by the Sales Tax Officer and that if the notice is defective the condition pre- cedent is not complied with and the Sales Tax Officer has no jurisdic- tion to assess. In this case the defect in the notice is constituted by the failure on the part of the Officer to give a notice of sufficient dura- tion. Admittedly, the notice is short, it is not of the length of duration required by the rules, and as, in our opinion, that defect is fatal not only to the validity of the notice but to the validity of the assessment itself, the order of assessment passed by the Sales Tax Officer cannot stand. We, therefore, agree that this order of assessment should be quashed, but not, with respect, for the same reasons and on the same grounds as given by the learned judge below. The result is that the appeal must fail and is dismissed. No order as to costs. Appeal dismissed.
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