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Case Laws
Showing 41 to 59 of 59 Records
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1957 (2) TMI 54
Whether the filing of an appeal is governed by the law obtaining at the date of the institution of a suit or by the law that may prevail at the date of the decision of it, or at the date of the filing of the appeal ?
Held that:- The present petition falls within Art. 133, and the. appeal must be held to be incompetent for failure to satisfy the requirements of Art. 133 (1) (a)
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1957 (2) TMI 53
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... ... ..... The issue of such memos by itself is of very little value when there is no evidence to show that the customer in fact first purchased paper from the assessee and that when the property in the paper passed to him, a contract for the printing work was entered into between the customer and the assessee. The assessee made no attempt before the taxing authorities to prove by the evidence aliunde that the customers in fact entered into two transactions with him, one for the purchase of paper, and that this was followed by a contract for printing. In the absence of such evidence it is not open to the assessee to assail the finding of fact arrived at by the taxing authorities that the supply of paper and the printing was but one transaction. 7.. For all these reasons, I would answer questions Nos. (1), (2), (3) and (5) in the affirmative and question No. (4) in the negative. There will be no order as to costs of this reference. SAMVATSAR, J.-I agree. Reference answered accordingly.
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1957 (2) TMI 52
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... ... ..... form of action when goods contracted for had not been produced. 5.. In this connection it would be useful to refer to the decision of the High Court of Australia in Federal Commissioner of Taxation v. Riley53 C.L.R. 69., where on the definition of manufacture , in the Australian Statute, which includes production it was held that photographs taken of and supplied to clients for a price in the course of a photographer s business, were goods manufactured , and that having regard to the whole of what is done in the production of a photograph, it could not be regarded as being in the nature of an artistic service of a personal character. The decision is of considerable help in answering the question referred to here. 6.. For all these reasons, I would answer both the parts of the question stated by the Commissioner for the opinion of this Court in the affirmative. Parties shall bear their own costs of this reference. SAMVATSAR, J.- I agree. Reference answered in the affirmative.
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1957 (2) TMI 51
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... ... ..... s to be made between those commodities in which there are various articles joined together each performing an integral function to produce a particular result or a finished product, and commodities sold in tins in which there is no connection between the commodity and the container except to make for convenience for carriage or transport. We do not think that the Madras cases have any bearing on this matter and can easily be distinguished. As to the argument that assessment was not completed within three years, we say that it was. The collection of the tax after assessment is not a part of assessment as such. 18.. For the reasons stated above, we think that this petition should fail. It is dismissed. In view of the fact that the department was remiss in not charging the tax in the first instance and also in not serving the order betimes or replying to the notices sent by the petitioner, we think that the costs of this petition should be borne as incurred. Petition dismissed.
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1957 (2) TMI 50
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... ... ..... iscussion. 32.. As I have held in favour of the petitioner on the first question I do not propose to go into the other question raised by him on the alternative assumption. 33.. The result is that the petition is allowed and the petitioner is held not liable to pay tax or to obtain licence and to pay registration fees in respect of the assessment years 1951-52, 1952-53 and 1953-54. 34.. Orders passed by the Sales Tax Officer imposing penalty and ordering recovery of tax and registration fees in respect of the same are hereby quashed. 35.. The petitioner is further held not liable to pay sales tax in respect of the assessment year 1954-55 so long as his sales of imported cycle parts do not exceed Rs. 5,000 and a writ of prohibition shall issue preventing the Sales Tax Officer from recovering tax and imposing penalty so long as that contingency does not occur. That under the circumstances of the case the parties do bear their own costs. SAMVATSAR, J.-I agree. Petition allowed.
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1957 (2) TMI 49
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... ... ..... shall be the amount for which the goods are sold by the dealer. The amount for which the goods are sold by the plaintiff would undoubtedly include the freight, because the freight which he paid goes into the sale price which he charges for the goods when he sells them to his customers at Tirunelveli. But what is important to remember is that in respect of the sales which he effects at Tirunelveli he does not pay any freight, and there being no question of freight in connection with sales effected by him, it is clear that he is not entitled to claim the exemption in regard to the freight which he paid for the purpose of his purchase though it is taken into account for fixing the cost price. In a case like this, we are concerned only with what happens at the sale point, where there was no freight at all. In this view, the appeal is allowed, and the suit will stand dismissed, but, in the circumstances without costs in all the Courts. Leave to appeal is granted. Appeal allowed.
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1957 (2) TMI 48
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... ... ..... he time of hearing the appeal, and should technical difficulties arise, they can be adjusted by directing necessary amendments. The jurisdiction to make just orders being there, whether it should be exercised in the particular circumstances is a matter of discretion. Therefore, the proposition relied on by the Tribunal is no authority for the view that it has taken. Evidently, the appellant in the case before the Tribunal was invoking the power of passing just orders and the Tribunal has erred in rejecting the petitions on the ground of absence of jurisdiction. Of course, the Appellate Tribunal has the discretion to disallow the amendments, but the merits of the two petitions have not yet been gone into. We, therefore, answer the question formulated earlier in this judgment in the affirmative, allow the revision and the Appellate Tribunal should decide the merits of the remaining two petitions. In the circumstances of the case, we make no order as to costs. Revision allowed.
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1957 (2) TMI 47
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... ... ..... ed can be said to be a partner is to see whether he can successfully bring a suit for dissolution of partnership and for accounts in his own name. It is well-settled that if the manager of a joint family enters into a partnership with another firm or with any other individual, the whole family would not become a partner in the partnership thus created. Simply because the son is acting on behalf of his father and helping him in the management of the affairs of the partnership, he can by no stretch of imagination be said to have become a partner in any sense of the term. In this state of affairs, I find force in the contention raised on behalf of the petitioners. The learned Public Prosecutor frankly conceded that the position taken by the lower Court was unsustainable in law. I, therefore, allow the revision petition, set aside the conviction and sentence passed on the petitioners and acquit them. The fine if paid by the petitioners will be refunded to them. Petition allowed.
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1957 (2) TMI 46
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... ... ..... intention of the Act, nor do its provisions justify such an interpretation. The Act was only intended to bring within the ambit of its provisions business activities of selling and supplying goods and none other. We are unable to hold that the petitioner when he cultivated his fields and sold the produce therefrom was carrying on such business. Therefore he was not a dealer under the Sales Tax Act and could not become liable to pay sales tax so far as his turnover from agriculture was concerned. 18.. For these reasons, we allow the petitions, quash the orders of the Sales Tax Authorities in all the three cases and hold that the in- come derived from the two accounts entitled the Belgaon Kheti account and the cotton and grain account from Kheti cannot be included in the petitioner s taxable turnover. The respondents shall bear the petitioner s costs. Counsel s fee Rs. 50. The petitioner is entitled to the refund of the outstanding amounts of his securities. Petitions allowed.
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1957 (2) TMI 45
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... ... ..... State sales which are covered by the Supreme Court decision. 14.. Before the Income-tax Authorities a technical objection was taken on the ground that the applications for refund were not filed before the appropriate authority, namely, the Collector of Agricultural Income-tax. This point was not seriously pressed before me and hence it is unnecessary to discuss it at length. It is sufficient to say that by virtue of the delegations made under the Act the Sales Tax Officer at Sambalpur is authorised to receive the applications for refund even though he may not have the jurisdiction to pass orders on those applications as the amount of refund exceeds his pecuniary jurisdiction. 15.. I would, therefore, reject the claim for refund in O.J.C. Nos. 184 and 185 of 1955 as time-barred. I would allow the claim for refund in O.J.C. Nos. 186 of 1955, 187 of 1955 and 188 of 1955. Both parties will bear their own costs of these applications. DAS, J.-I agree. Applications partly allowed.
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1957 (2) TMI 44
Whether the 1st respondent, the State of Uttar Pradesh, illegally and unauthorisedly levied sales tax on the 2nd petitioner-firm, under the Uttar Pradesh Sales Tax Act (U.P. Act XV of 1948) with regard to the cloth manufactured by the 2nd petitioner, with a view to exporting such cloth outside the territories of India, by customers of the 2nd petitioner called "indentors"?
Held that:- There is a vast difference between prepared cashew-nuts and printed cloth and the observations there can, by no stretch of imagination, have any application to this case. We are of the view that the words "such cloth or yarn" would mean the cloth or yarn manufactured in U.P. and sold. It has nothing to do with the transformation by printing and designs on the cloth. The cloth exported is the same as the cloth sold with this variation or difference that the colour has changed by printing and processing. In the view which we take that the cloth exported is the same as the cloth sold by the petitioners, there can be no question about the exemption clause not applying to it and if the exemption applies, then the tax has been levied without jurisdiction. The disputed levy of sales tax for the year 1953-54 is not according to law and to that extent the levy of tax is hereby quashed. Appeal dismissed.
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1957 (2) TMI 36
Winding up – Circumstances in which company may be wound up voluntarily and Power to order winding up subject to supervision
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1957 (2) TMI 35
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... they also complain that the affairs of the company have not been carried on in a spirit of amity among the shareholders, they lay the blame on the shoulders of the petitioner and the second respondent who, according to them, are trying to squeeze them out of the company by means of this winding up order. They have themselves filed applications for the appointment of an inspector for investigating into the affairs of the company and also for the appointment of an administrator for administering the company s affairs. In the above circumstances, if the petitioner and respondents 2 to 5 are carrying on their business as a partnership, there would be every justification for directing a dissolution of the partnership. The fact that they are conducting the business by means of the machinery of a limited company would not make any difference. I have, therefore, come to the conclusion that it is just and equitable to make an order for winding up the company, and I order accordingly.
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1957 (2) TMI 33
Shares warrants and entries in register of members and Power of court to rectify register of members
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1957 (2) TMI 32
Shares – Allotment of ... ... ... ... ..... rs. It may be that the contract contains a number of reciprocal promises some of which have been performed and some of which have not, but that fact alone would not, in my opinion, lead one to the conclusion that the petitioners have not fulfilled the conditions on which alone exemption can be claimed. If the petitioners fail to comply with the terms of the contract it would be open to Phelps and Co., to bring an action against them for specific performance or for recovery of damages. Phelps and Co. has no power to recall the shares which have been allotted by them or to divest the petitioners of the right of ownership which has come to vest in them. For these reasons I would allow the appeal, set aside the order of the learned single Judge and direct the officers concerned to grant a certificate to the petitioners that the conditions prescribed in the notification of 1937 have been fulfilled. I would order accordingly. There will be no order as to costs. Khosla, J.-I agree.
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1957 (2) TMI 16
Forming incorporated company – Mode of and Memorandum of association – Special resolution and confirmation by CLB required for alteration of
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1957 (2) TMI 3
Smuggled goods - Penalty - Confiscation of Indian Currency ... ... ... ... ..... b has been directed to be returned to him. The findings of the Collector are that the Arab who produced the gold had smuggled it into this country and that was the basis upon which the order for confiscation of the gold was made and which I have sustained Rs. 4000 represented the sale price of that gold which by the forfeiture has now become the property of the State. If so the sale becomes avoided and the right to Rs. 4000 ought to re-vest in the petitioner who admittedly parted with it. How the smuggler becomes entitled to Rs. 4000 from the Customs department, when the sale by him of the smuggled gold becomes rescinded by the paramount title of the State by the order of forfeiture, I am not able to follow. This portion of the order is also without jurisdiction and the proper order to have passed was to have directed the return of Rs. 4000 to the petitioner. The rule is accordingly made absolute and the impugned order is set aside. There will however be no order as to costs.
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1957 (2) TMI 2
Demand - Additional duty ... ... ... ... ..... t any such demand had been communicated. Under the circumstances, it is obvious that the demand of the respondents for additional duty under Section 39 is barred by limitation. Therefore, the impugned demands on the petitioner for payment are bad and cannot be allowed to stand. 3.Mr. Mayer has drawn my attention to the fact that in 1951 Section 39 has been amended and the word made has been substituted by the word issued , which completely supports what I have stated above, that is to say, it was not enough at the relevant time to have issued the demand but it had to be served. The rule is accordingly, made absolute and there will be a writ in the nature of a certiorari setting aside or cancelling the letters mentioned in paragraph 1(a) of the prayer to the petition. There will be also a writ in the nature of a mandamus directing the respondents not to give effect to the same and not to take any steps for the realisation of the excess duty. There will be no order as to costs.
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1957 (2) TMI 1
Natural justice ... ... ... ... ..... icial to their view. In the circumstances of the present case I hold that there has been a violation of the principle of natural justice and the order of the Collector of Central Excise, dated the 24th of November, 1953 made under section 167(8) of the Sea Customs Act read with Section 23A of the Foreign Exchange Regulation Act must be held to be an order made without jurisdiction For these reasons, I would in exercise of the authority conf upon the High Court under Articles 226 of the constitution set aside the order of the Collector of Central Excise dated the 24th of November, 1953, and direct that the case should be reheard by the Collector of Central Excise, who after giving an opportunity to the petition to meet the statements made in the report of the Assistant Collector of Kalimpong, deal with the case and make a fresh order in accordance with law. I would accordingly allow this application, but not propose to make order as to costs of the hearing of this application.
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