Advanced Search Options
Case Laws
Showing 41 to 56 of 56 Records
-
1958 (4) TMI 61
Whether the contract of the petitioners with the Government for construction was one and indivisible, or whether it was a combination of an agreement for sale of materials and an agreement for work and labour?
Held that:- The petitioners, however, are entitled to succeed on the ground that the impugned provisions are not within the authority conferred by Entry 48, and a writ of prohibition should accordingly issue restraining the respondents from taking proceedings for assessment of tax in respect of materials supplied by the petitioners in construction contracts. Appeal allowed.
-
1958 (4) TMI 57
Whether sales of coarse and medium cloth are liable to be taxed under the principal Act as amended by Hyderabad Act XXVII of 1952 (the amended Act being hereafter referred to as the principal Act) in view of Article 286(3) of the Constitution and certain other enactments to which reference will be presently made, declaring these varieties of cloth to be essential goods?
Held that:- A transfer of goods which under the explanation is not to be regarded as a sale within the meaning of the Act is a transfer of goods which cannot be taxed under an Act of a State Legislature passed after the Parliamentary Act declaring these goods to be essential for the life of the community. The Parliamentary Act declaring goods to be essential on which learned Advocate for the appellants relied for his present argument was Act LII of 1952. But after this Act, no Act was passed by the Hyderabad Legislature purporting to tax any sales of goods declared essential by Act LII of 1952. Therefore, it cannot be said that the transfers of coarse and medium cloth are not sales within the meaning of the principal Act. Appeal dismissed.
-
1958 (4) TMI 52
Whether under the Hyderabad General Sales Tax Act, 1950, a dealer as defined in it, purchasing ground-nuts from an agriculturist is liable to pay tax on the purchase, it being conceded that the petitioner is such a dealer?
Held that:- Any Act of Parliament declaring certain goods to be essential for its own purposes, as Act XXIV of 1946 does, is not an Act within the contemplation of Article 286(3). The Parliamentary Act, there contemplation, has to be passed in exercise of the powers contained in it and must clearly be referable to it. In fact such an Act was later passed by Parliament. That was "The Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, LII of 1952, which came into force on August 9, 1952. Its preamble states it to be an Act to declare in pursuance of clause(3) of Article 286 of the Constitution, certain goods to be essential for the life of the community and section 3 sets out substantially the provisions of that clause of Article 286 of the Constitution. It cannot therefore be contended that in view of Article 286(3) no tax can be levied on the sale of a commodity declared essential by Act XXIV of 1946. We may add that Act LII of 1952 is not available to the appellant either, for it had not been passed at the date when the levy of the tax objected to in this case was made. Appeal dismissed.
-
1958 (4) TMI 48
Whether the Provincial Legislature had authority under Entry 48 of List II, Schedule VII, of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires?
Held that:- On our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List II in the Seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works. It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the Sales Tax Authorities from deciding whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category. Appeal allowed.
-
1958 (4) TMI 42
Whether the provisions of the Madras General Sales Tax Act are ultra vires, in so far as they seek to impose a tax on the supply of materials in execution of works contract treating it as a sale of goods by the contractor?
Held that:- A law therefore prohibiting any dealing in intoxicating liquor, whether by way of sale or barter or gift, will be intra vires the powers conferred by the opening words without resort to the words "sale and purchase". Entry 49 in List II is "Cesses on the entry of goods into a local area for consumption, use or sale therein". It is argued that the word "sale" here cannot be limited to transfers for money or for even consideration. The answer to this is that the words "for consumption, use or sale therein" are a composite expression meaning octroi duties, and have a precise legal connotation, and the use of the words "sale therein" can throw no light on the meaning of that word in Entry 48. We are of opinion that the provisions in the Government of India Act, 1935, relied on for the appellant are too inconclusive to support the inference that "sale" in Entry 48 was intended to be used in a sense different from that in the Sale of Goods Act.
"Sale" in Entry 48 must be con- strued as having the same meaning which it has in the Sale of Goods Act, 1930.
In a building contract, the agreement between the parties is that the contractor should construct a building according to the specifications contained in the agreement, and in consideration therefor receive payment as provided therein, and as will presently be shown there is in such an agreement neither a contract to sell the materials used in the construction, nor does property pass therein as movables. It is therefore impossible to maintain that there is implicit in a building contract a sale of materials as understood in law. Appeal dismissed.
-
1958 (4) TMI 25
Bills of exchange and promissory notes ... ... ... ... ..... in a separate action. Hence there is a danger of their being made liable to pay over again the same debt. This objection had not been taken in the courts below. If that objection had been taken in the trial court, the company could have been impleaded as a party. All the same to protect the interests of defendants Nos. 1 to 3, I direct that the plaintiff, before drawing the amount decreed in the suit, shall execute an indemnity bond in favour of defendants Nos. 1 to 3 guaranteeing to indemnify them in the event of the Universal Commercial and Engineering Co. Ltd. obtaining any decree against them on the suit transaction. This should be sufficient to protect the legitimate interests of defendants Nos. 1 to 3. In the result, the judgment and decree of the first appellate court is set aside and the decree of the trial court is modified by granting a decree for Rs. 600 and interest. The parties shall pay and receive costs according to their success in the case in all the courts.
-
1958 (4) TMI 17
Powers of court to grant relief in certain cases
... ... ... ... ..... b) is concerned, Mr. Bhagwati relies on section 614 of the Companies Act and says that it is upon that section that that prayer is based. In my view, section 614 does not apply to prayer (b) such as it is framed, for that section contemplates an application by a member or a creditor of the company or by the Registrar of the Companies for an order directing the company or any officer thereof to make good the default in filing or registering or delivering or sending to the Registrar any return, account or other document etc. Obviously section 614 can have no application to extend the time for filing the balance-sheet and the profit and loss account in question with the Registrar of Companies. It is not, therefore, possible to grant prayer (b). The point of construction being of a somewhat important nature, the Registrar was justified in appearing and putting his point of view before the court. The fair order, therefore, of costs would be that each party will bear his own costs.
-
1958 (4) TMI 9
Whether on the evidence adduced by the appellant it could be said that the notes were part of the assets received by him from his father?
Held that:- Having come to the conclusion that the books of account of Ratangarh could not be accepted, the Tribunal went on to observe that from 1926 to 1945 the only source of income of the appellant and his father was interest earned on moneys deposited in bank. It came to that conclusion apparently because the books of account produced did not disclose any other source of income. The Tribunal also found that about 1945 the appellant had in his bank a sum of about ₹ 8 lakhs to 10 lakhs and that being so, in view of the only source of income mentioned earlier, it was impossible to believe that he had another seven lakhs of rupees in notes in December, 1945, as alleged by him. The Tribunal then held that in these circumstances, the appellant's uninvested cash was likely to be between ₹ 1,50,000 and ₹ 2,00,000 out of which a sum of ₹ 1,40,000 at the most could have been in high denomination notes. In this view of the matter the Tribunal held that out of the high denomination notes of the total value of ₹ 2,68,000 encashed by the appellant in January 1946, notes worth ₹ 1,40,000 could have been his capital assets and the balance of ₹ 1,28,000 must have been his undisclosed income. The Tribunal therefore directed that the appellant must pay tax on the sum of ₹ 1,28,000. The learned counsel for the appellant criticised this part of the Tribunal's judgment as based on mere speculation. We cannot help feeling that this criticism may be partly justified but we do not appreciate how it assists the appellant. It does not, in our view, in any way affect the Tribunal's finding on the question as to whether the appellant had proved that the notes had devolved on him on his father's death. The Tribunal in this part of the judgment was really making a concession to the appellant and gave a benefit to him to which he was strictly not entitled in view of the Tribunal's findings on the evidence led by the appellant. We are unable to hold that the Tribunal's judgment is liable ; to be set aside because it held that the whole of ₹ 2,68,000 was not taxable. Appeal dismissed.
-
1958 (4) TMI 8
Whether the appellant is liable under section 4(1)(b)(iii) of the Income-tax Act to pay tax on ₹ 1,20,000 remitted by him from Srinagar in Kashmir to British India in the relevant accounting year as his profits accumulated outside British India and brought by him into British India?
Held that:- We find nothing to throw any doubt on the Tribunal's finding that the present contention was raised by the appellant for the first time when the case came back to the Tribunal on the report of the Income-tax Officer. Indeed it is quite clear to us that if this contention had been raised earlier, the remand to that Officer would have been wholly unnecessary and the appellant himself would have pointed this out especially in view of the fact that he was not in a position to show that his profits at Srinagar had not been mixed up with the working funds, to enable him to do which alone the case had been remanded. There is no valid objection to the Tribunal's judgment and we, therefore, dismiss this appeal
-
1958 (4) TMI 7
Did the Income-tax Officer concerned have jurisdiction to issue the notice under section 34 of the Indian Income-tax Act, 1922, and to make a re-assessment order pursuant to such notice ?
Held that:- We hold that the saving provisions save section 34 of the Indian Income-tax Act, 1922, in its entirety, as it was in force in the retroceded area prior to July 1, 1948, and the contention of the respondent that it stood repealed from that date is not correct. As to the period of limitation, it would be the period laid down in section 34 of the Indian Income-tax Act as it was in force in the retroceded area prior to July 1, 1948. The result, therefore, is that these appeals succeed and the judgment and order of the High Court of Mysore dated March 22, 1955, are set aside and the writ petitions filed by the respondent assessee are dismissed. Appeal allowed.
-
1958 (4) TMI 6
Whether even apart from article VI of the Covenant, the impugned Ordinance No. 1 of S. 2005 is bad in so far as it annuls rights granted by the Ruler of Jind under the agreement dated April 1, 1938?
Held that:- It was argued that article VI of the Covenant would at least be valuable evidence from which affirmance of those rights could be inferred. That is so ; but that inference must relate to act or conduct of the new State, and that can only be after its formation on August 20, 1948. If there were any acts of the new State which were equivocal in character, it would have been possible to hold in the light of article VI of the Covenant that its intention was to affirm the concessions in clause (23) of exhibit A. But the act of the new sovereign immediately after he became in titulo was the application of the Patiala State laws including the Patiala Income-tax Act to the territories of Jind involving negation of those rights. It was said that the levy of income-tax for 1948-1949 was made in accordance with exhibit A, but that relates to a period anterior to the formation of the new State and is within the saving enacted in the proviso to section 3 of the Ordinance. The appellant has failed to substantiate his plea that there has been affirmance of clause (23) of exhibit A by the Patiala State Union, and this point also must be found against it. Appeal dismissed.
-
1958 (4) TMI 5
Whether exhibit VIII fulfilled the requirements of section 44 of the Cochin Act and section 47 of the Travancore Act?
Held that:- Having regard to these considerations, we find no difficulty in holding that a reassessment proceeding under section 44, Cochin Act, or section 47, Travancore Act, is a proceeding which comes under cl. (e) of the recommendations of the Committee, and must be disposed of under the pre-existing State law. Section 13(1) of the Finance Act, 1950, gives effect to that recommendation. There is, therefore, nothing in the recommendations which would restrict the meaning of the expression " levy, assessment and collection of income-tax " in section 13(1) of the Finance Act ; nor do they bring section 13(1) into conflict with articles 278 and 295 of the Constitution. The Travancore-Cochin appeals (Civil Appeals 143 to 145 of 1954) are dismissed
There is, indeed, a distinction between an original or normal assessment under section 23 and a re-assessment under section 34 ; but we have shown that the word "assessment" has been used in more than one sense in income-tax law, and so far as section 13(1) of the Finance Act, 1950, is concerned, there is no doubt that the expression "levy, assessment and collection of income-tax" has been used in a comprehensive sense so as to include the whole procedure for imposing liability upon the taxpayer. The Mysore appeals (Civil Appeals 27 to 30 of 1956 and Civil Appeals 161 to 164 of 1956) are allowed
-
1958 (4) TMI 4
Whether an order which was proper and valid when it was made can be said to disclose a mistake apparent from the record if the said order would be erroneous in view of a subsequent amendment made by the Amendment Act when the Amendment Act is intended to operate retrospectively ?
Held that:- The High Court of Bombay was in error in coming to the conclusion that the notice issued by the Income-tax Officer calling upon the respondent to pay the sum of ₹ 29,446-9-0 was not warranted by law. The result is the order passed by the High Court issuing a writ against the appellants is set aside and the appeal is allowed
-
1958 (4) TMI 3
Whether on the facts and circumstances of the case the Commissioner of Income-tax acting under section 33B(1) can set aside the orders passed by the Appellate Assistant Commissioner, for the assessment years 1947-48 and 1948-49 ?
Whether on the facts and circumstances of the case the order passed by the Commissioner of Income-tax dated 5th June, 1951, is bad in law as it directs the Income-tax Officer to pass an order in a particular manner ?
Whether on the facts and circumstances of the case orders passed by the Income-tax Officer dated June 21, 1952, are bad in law, as fresh notices as required by sections 22 and 23 of the Income-tax Act were not given by the Income-tax Officer to the assessee ?
Held that:- The High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondent's registration for the year 1949-50. The result is that the view taken by the High Court must be reversed and the first question framed by the Tribunal as well as the additional question framed by the High Court must be answered in favour of the appellant.
It is clear from the order read as a whole that, having cancelled the respondent's registration, the Commissioner wanted to direct the Income-tax Officer to make suitable consequential amendment in regard to the machinery or procedure to be adopted to recover the tax payable by the respondent. In fact it is conceded that, in his subsequent order, the Income-tax Officer has accepted the figure of the taxable income of the respondent as determined by the appellate authority for the relevant years and has proceeded to act under section 23(5)(b) on the basis that the respondent is an unregistered firm. Therefore we cannot hold that the order passed by the Commissioner is bad in law on the ground that "he directed the Income-tax Officer to pass the order in a particular manner". The answer to question No. 2 would accordingly be in the negative.
Question 3 challenges the validity of the procedure adopted by the Income-tax Officer in passing fresh orders against the respondent. This proceeding is clearly subsequent to the impugned order of the Commissioner under section 33B(1) and so we are unable to see how the Tribunal allowed the respondent to raise this contention in appeals which had been filed by the respondent against the Commissioner's order under section 33B(1). Besides, it has been fairly conceded by Mr. Ayyangar before us that, when the Income-tax Officer merely proceeded to adopt a different machinery to recover the tax due from the respondent in consequence of the cancellation of the respondent's registration, there was no occasion or need to issue another notice against the respondent. We must accordingly answer question No. 3 also in the negative - all the questions framed in this case are answered in favour of the appellant - Appeal allowed.
-
1958 (4) TMI 2
Whether the said sum of ₹ 2,02,442-13-9 being part of the amount embezzled by the assessee's munim is allowable as a deduction under the Indian Income-tax Act either under section 10(1) or under the general principles of determining the profit and loss of the assessee or section 10(2)(xv) ?
Held that:- We are of opinion that the loss sustained by the appellant as a result of misappropriation by Chandratan is one which is incidental to the carrying on of his business, and that it should therefore be deducted in computing the profits under section 10(1) of the Act. In this view, the order of the lower court must be set aside and the reference answered in the affirmative. Appeal allowed.
-
1958 (4) TMI 1
Whether the appellant assessee is resident in the taxable territories within the meaning of section 4A(b) of the Income-tax Act?
Held that:- Once it is shown that control and management in the affairs of the firm was exercised by the partners residing in India, it would not be relevant to enquire whether the control and management thus exercised amounted to a substantial part of the control and management of the affairs of the firm. The exercise of the control and management even in part in the taxable territories would be enough to fix the appellant with the character of a resident within section 4A(b). We must accordingly hold that the High Court of Madras was justified in holding that the appellant is a firm resident in the taxable territories. Appeal dismissed.
|