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1960 (9) TMI 106
... ... ... ... ..... he affirmative and in favour of the assessee. The assessee will get his costs ; counsel's fee ₹ 250. Along with this reference two writ petitions filed by the assessee have been heard. In W.P. No. 502 of 1959 the assessee seeks for a suitable writ to stay the collection of the income-tax arrears for the assessment year 1956-57. It may be mentioned that the question referred to us relates to the assessment year 1956-57. In W.P. No. 503 of 1959 a similar relief has been prayed for 1957-58. It, however, appears that in respect of the assessment year 1957-58, to which W.P. No. 503 of 1959 relates, an appeal is pending disposal with the Appellate Tribunal. The grounds upon which the reliefs in these two writs have been rested are the very same as those that have been dealt with in the referred case, in which we have answered the question in favour of the assessee. These petitions accordingly serve no further purpose and are dismissed. There will be no order as to costs.
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1960 (9) TMI 105
... ... ... ... ..... eld in suspense, by this method of debiting it to the debtor's account and then crediting it. In National Petroleum Co. v. Commissioner of Income-tax 1945 13 ITR 336, no doubt the court observed that they were not really concerned with the method according to which the assessee keeps his books of account or what view he took of the particular payment in the case. It is however difficult to ignore the effect of section 13 of the Income-tax Act. It would therefore appear that the assessee would be entitled to deduct the expenses in question, even though they were expenses of previous years, because for the purposes of calculation of income-tax they could be considered to be expenses incurred in the accounting year on the basis of the regularly employed method of the assessee's accounting on the basis of which income, profits and gains are required to be computed under section 13 of the Income-tax Act. The answer to the question raised must therefore be in the negative.
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1960 (9) TMI 104
... ... ... ... ..... t repairs and the expenditure incurred was revenue expenditure. Another case to which our attention was drawn is Bullcroft Main Collieries Ltd. v. OGrady. In this case the chimney owned by a colliery company had become unsafe and even dangerous. The company built a larger chimney on an adjacent site. The expenditure incurred on building the new chimney was held to be capital expenditure. That case, however, has no similarity to the case before us. In that case the old chimney but the entire furnace was a new one and at a different place. This was, therefore, clearly a new asset and an addition to the other capital assets owned by the company. In the present case, I am inclined to the view that the expenditure incurred on renewing the bodies was comparatively small and must be said to fall within the definition to current repairs. I would, therefore, answer the question referred to us in the affirmative. The respondent will be allowed his costs which we assess at ₹ 200.
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1960 (9) TMI 103
... ... ... ... ..... 33A(2). An order of assessment cannot be revised by the Commissioner, if an appeal has been preferred against that order to the Tribunal. That remains unaffected by the scope of the appeal preferred to the Tribunal, whether it is restricted by the assessee of his own choice or whether it is restricted by the Tribunal. The relief permissible or granted in the appeal to the Tribunal can have no bearing in determining the scope of the statutory expression " order " in clause (c) so long as it is the order of assessment that has been appealed against The grant of the relief asked for by the petitioner was beyond the scope of the revisional jurisdiction of the Commissioner that the petitioner invoked in this case. If the petitions are liable to be dismissed on that ground, the orders of the Commissioner dated September 28, 1955, cannot be set aside, even though the Commissioner proceeded on an erroneous basis in dismissing the petitions (7) The petitions are dismissed.
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1960 (9) TMI 102
... ... ... ... ..... n in a better and more scientific way. During the arguments before us we were referred to passages in paragraphs 1277 and 1278 at pages 438 following, in Gunn's Commonwealth Income Tax Law and Practice, 4th edition. The reports of the cases on which those passages were based are not available, and that handicaps us. The details of the cases are, however, instructive and help us to keep in view the distinction between expenditure incurred, for example, in launching on a profession or adding to it, and expenditure incurred on gaining income from an existing profession practice. The latter is not expenditure of a capital nature, and the doctrine of enduring benefit cannot apply to such an expenditure. It is in that class that the assessee's claim fell. It was not an expenditure of a capital nature. We answer the question 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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1960 (9) TMI 101
... ... ... ... ..... on the question whether, when the Constitution confers on an authority power to make laws in respect of a specific subject-matter, the said authority can deal with the same subject-matter without making such a law in its administrative capacity. I would, therefore, prefer not to express my opinion on this question. But I agree with the other two reasons given by my learned brother, namely, (1) if the respondents' contentions were to prevail, the order of appointment would itself be bad, with the result that, the Siem would Dot have any right to the office; (2) on October 16, 1959, an Act, known as the United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act (No. 11 of 1959), was passed and, therefore, there is now a valid law empowering the District Council to remove a Siem; and, as the enquiry in question is only at its initial stage, it can hereafter be validly conducted under the provisions of the said Act. Appeal allowed,
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1960 (9) TMI 100
... ... ... ... ..... in Senairam Doongarmall v. Commissioner of Income-tax 1956 29 I.T.R. 122. In that case certain buildings on a tea estate were requisitioned under the Defence of India Rules under which the owner of the requisitioned premises was entitled to compensation. By reason of the acquisition the assessee could not carry on his tea compensation, and it was held that it cannot be agricultural income, because the compensation was paid by virtue of the legal liability for the payment of such compensation arising from the requisition of property. The principle of this decision directly applies to the facts of this case. We hold, therefore, that the amount of ₹ 11,621-5-7 received by the assessee in the circumstances of this case is not "agricultural income" within the meaning of section 2(1)(a) or section 2(1)(b)(i) of the Act. The question is answered accordingly. The Income-tax Department will have its costs. Advocate's fee ₹ 250. Question answered accordingly.
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1960 (9) TMI 99
... ... ... ... ..... erely as an inference from the fact that the assessee family could not explain how the persons in whose names the deposits appeared came to have those amounts. Mere relationship of those persons to the assessee family is no reason for assuming that the deposits belonged to the family and not to those persons. The onus lay on the Department to establish as a fact that the persons in whose names the deposits were made were not the real owners of the money but that they belonged to the assessee family. Learned counsel for the Department has not been able to point out any material on which such a finding could be sustained. We, therefore, answer the first question referred to us in the negative. In view of our answer to the first question the second question does not arise and it is not necessary to answer it. The assessee will have its costs which we assess at ₹ 200. Fee of learned counsel for the Department is fixed at the same amount. Reference answered in the negative.
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1960 (9) TMI 98
... ... ... ... ..... authorised agent was executed, the transfer cannot be regarded as valid. The assessee has not taken up the stand of a transfer of a chose in action before the Income-tax Tribunal and the Appellate Tribunal did not, therefore, go into this aspect to the question. This point has urged independent of the question that has been referred to us and we need not, therefore, examine it. Our answer to the first question is that in spite of the fact of there being only a cash balance of ₹ 603 in the account books of the assessee firm, the debit entry of rupees one lakh made to the account of Kishan Chand and the credit entries of ₹ 60,000 and ₹ 40,000 made to the accounts of Shri Mayaram and Shrimati Jasodha Bai may operate as valid gifts. The answer to the first question being in the affirmative, we are not called upon to return any answer to the second question. Let the reference be answered accordingly. We make no order as to costs. Reference answered accordingly.
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1960 (9) TMI 97
... ... ... ... ..... company is an object which empowers the company to spend its profits on charitable objects. This object is wholly irrelevant to the question that has been raised in this case. The amounts claimed to be exempted were not parts of the assessee's profits; nor does the company contend that the amounts cannot be taxed because they have been spent on charity by the assessee out of its own profits. As mentioned above, the dispute relates to the initial character of the receipt itself and is as to whether the amount paid by the trading members earmarked for charity was the assessee's income at all. We are, therefore, of opinion that the question referred to this court should be answered in the negative and that the sums of ₹ 26,903 and ₹ 6,040 in question were not income of the assessee. The assessee is entitled to its costs which we assess at ₹ 300. We fix the fee of learned counsel for the Department at the same amount. Question answered in the negative.
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1960 (9) TMI 96
... ... ... ... ..... either any existing office of Commissioner, nor the Additional Munsif had power to appoint Sri Raghubir Pershad as Commissioner for the purpose of seizing the plaintiff’s account books and therefore this Explanation does not apply to the appointment of Sri Raghubir Pershad as Commissioner. It follows, there. fore, that Sri Raghubir Persbad cannot be held to be a public servant. We therefore accept the contention for the appellants and hold that Sri Raghubir Pershad was not a public servant and that therefore the appellants did not commit any offence under s. 165-A of the Indian Penal Code by their offering him money in order to have an opportunity to tamper with the books of account which were in his custody. We therefore allow the appeal, set aside the order of the Court below and acquit the appellants of the offence under s. 165-A and direct that the fine, if paid, be refunded. The appellants are on bail and therefore the bail bonds will be cancelled. Appeal allowed.
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1960 (9) TMI 95
... ... ... ... ..... gin between that price and the eventual sale price leading to a larger profits in his hands being brought to tax. It was no doubt open to him to have valued the goods at the market price because on the dissolution of the partnership when accounts were settled between the parties he had to pay the difference to his partner, Anantharam, on the basis of the market price on the date of the dissolution. That he failed to record the value in his individual accounts at the price at which they had to be dealt with on the dissolution of the partnership is not a factor that can affect the conclusion as to the principle on which the closing stock has to be valued in the case of a dissolved partnership in order to arrive at the true position of the profits of the partnership. We accordingly answer the question referred to us in the affirmative and against the assessee. The assessee will pay the costs of the Department; counsel's fee ₹ 250. Question answered in the affirmative.
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1960 (9) TMI 94
whether the impugned Act [Assam Taxation (on Goods Carried by Roads or Inland Waterways) Act, (Assam Act XIII of 1954)] infringes the provision of Part XIII of the Constitution, with particular reference Art. 301?
Held that:- On a careful review of the various Articles, in my judgment, by Part XIII, restrictions have been imposed upon the legislative power granted by Arts. 245, 246 and 248 and the lists in the seventh schedule to the Parliament and the State Legislatures and those restrictions include burdens of the nature of taxation. Therefore, the power to tax commercial intercourse vested by the legislative lists in the Parliament or the State Legislatures, is circumscribed by Part XIII of the Constitution and if the exercise of the power does not conform to the requirements of Part XIII, it would be regarded as invalid.
The Assam Taxation (on Goods carried by Roads or Inland Waters) Act, 1954, must be regarded a infringe the guarantee of freedom of trade and commerce under Art. 301, because the Bill moved in the Assembly had not received the assent of the President as required under Art. 304(b) proviso, and the Act has not been validated by the assent of the President under Art. 255(c). Appeal allowed.
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1960 (9) TMI 93
... ... ... ... ..... ments, such as shirts, suits, pyjamas or for sarees, dhoties, roomals etc. or for purposes of towels and napkins or for any other purpose. In each case the units must vary. Further they may be sold wholesale or in retail or even on unit basis. There is nothing in the provision which affects the exemption by reason of the mode of sale in which it is effected. Whether they are sold one way or the other, so long as it is handloom cloth and costs less than Rs. 3 per yard, it is within the letter and spirit of the provision. In this premisess, it is manifest that the Appellate Tribunal was in error in construing the provision in the manner it did. The error being of law apparent on the face of the record, the orders are liable to be quashed. The petitions are therefore allowed. The cases will now go back to the Appellate Tribunal for decision as to the rate at which the cloth was sold and for disposal of the appeals in accordance with law. No order as to costs. Petitions allowed.
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1960 (9) TMI 92
... ... ... ... ..... on of the warrant in the Civil Court can be allowed. There cannot be any doubt that it can be, in view of section 19(h) of the General Sales Tax Act which provides that the tax so specified shall be recoverable as if it were a fine under the Code of Criminal Procedure for the time being in force . Section 386(1)(b) enables realisation of fine by execution according to civil processes and any sum which the statute declares can be recovered as if it were a fine can also be realised in the same manner. In these circumstances the Court below rightly overruled the objections raised by the appellants. 5.. As regards the second point raised in the Court below, namely, that the properties sought to be attached did not belong to the appellants, this would properly arise only after attachment is levied and claims, if any, are preferred by others. No other point arises in this appeal. We therefore confirm the order of the Court below and dismiss the appeal with costs. Appeal dismissed.
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1960 (9) TMI 91
... ... ... ... ..... ter which requires investigation. It is open to the appellant to raise such an objection before the authorities concerned. There is an insurmountable difficulty in the way of the appellant getting any relief in this regard. Indisputably, the whole of the tax due by the appellant has been paid in which case, there is no question of continuing attachment proceedings. If that were so, we fail to see how any relief could be granted in the writ petition. His only remedy, if any, is to resort to Civil Courts for recovery of the amount paid by him. As regards the prayer for the issue of a writ of mandamus to say the least, it is a curious one. Having issued the cheque the appellant wants a mandate from this Court to prevent the payee from cashing the cheque. Comment is unnecessary on this. Further, we are also told that the cheque was cashed long before the petition was filed. For these reasons, we feel that this appeal is devoid of merits and has to be dismissed. Appeal dismissed.
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1960 (9) TMI 90
... ... ... ... ..... in the intrinsic quality between a right of appeal and a right of revision to a tribunal. In either case there is a question of interference with an existing vested right, and the principle of the Supreme Court decision in Messrs Hoosein Kasam Dada (India) Ltd. v. The State of Madhya PradeshA.I.R. 1953 S.C. 221 4 S.T.C. 114. applies as much to a vested right of appeal as to a vested right of revision given to a superior taxing authority. For these reasons we hold that the Commissioner of Sales Tax had authority to revise the order of the Assistant Superintendent of Sales Tax, dated the 8th of August, 1949, in respect of the quarter ending the 31st of March, 1949, and that the amended section 24(4) of the statute does not apply to this case. We accordingly answer the question of law referred by the Board of Revenue against the assessee and in favour of the State of Bihar. The assessee must pay the costs of this reference. Hearing fee, Rs. 250. Reference answered accordingly.
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1960 (9) TMI 89
... ... ... ... ..... is no sale of the pressed cotton, there is an implied contract for the sale of the packing materials as such. 14. For these reasons we are of the opinion that the decision in Jaikishan Gopikishan v. Commissioner of Sales Tax 1957 8 S.T.C. 286. in no way runs counter to the principles laid down by the Supreme Court in State of Madras v. Gannon Dunkerley and Co. 1958 9 S.T.C. 353 A.I.R. 1958 S.C. 560., and Banarsi Das v. State of Madhya Pradesh 1958 9 S.T.C. 388 A.I.R. 1958 S.C. 909. As we have said before, the question whether on the application of the principles laid down in the Supreme Court cases and in Jaikishan Gopikishan v. Commissioner of Sales Tax 1957 8 S.T.C. 286. to the facts of the present case there was a sale of the packing material must now be considered by the appellate authority. The result is that this petition is dismissed. There will be no order as to costs. The outstanding amount of security deposit shall be refunded to the petitioner. Petition dismissed.
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1960 (9) TMI 88
... ... ... ... ..... ing bricks and steel. The learned Chief Justice no doubt left open the question whether the profit-making motive was an essential ingredient in order that an activity should constitute a business. But he emphasised the fact that there was absence of any intention on the part of the society to sell the goods at the time when the bricks were manufactured or steel was imported and that the question with regard to the profit-motive would only fall to be determined in a case where the assessee either buys or manufactures goods with intention of selling them and sells them without making any profit. 7.. For these reasons, our answer to the first two questions is in the negative. The third question, which is not very intelligible, does not call for any answer when there is no finding that the assessee bought the steel and cement with the intention of trading in them with a view to earn profit. 8.. There will be no order as to costs of this reference. Reference answered accordingly.
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1960 (9) TMI 87
... ... ... ... ..... High Court as provided under the Act. He has therefore contended that the petitioner is not entitled to proceed with this petition. It appears to me that in spite of the Sales Tax Act providing for a complete code and scheme for disposal of all matters arising under the Act in accordance with the provisions of the Act where a citizen is about to be deprived of his property without any authority of law and where fundamental rights guaranteed to him under Article 19 of the Constitution are about to be defeated it is appropriate that the Court should give relief under Article 226 of the Constitution. The result therefore will be that the impugned order dated 3rd November, 1958, and the notice of demand dated 11th March, 1959, are quashed and the respondents are directed not to proceed to recover any amount from the petitioner in respect of arrears of sales tax dues as mentioned in the petition. The respondents will pay costs of the petition to the petitioner. Petition allowed.
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