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1961 (2) TMI 100
... ... ... ... ..... Mujavar and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court. The trial court has found that the duties of those offices could be performed through deputies. The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted. We do not think that we would be justified in allowing the contesting defendants to argue this question in this appeal. In any event, if the income was being distri....... + More
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1961 (2) TMI 99
... ... ... ... ..... id decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, r. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of s. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which s. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be....... + More
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1961 (2) TMI 98
... ... ... ... ..... ll probability they have not complied with the provisions of section 417 (1) and (2) and that that is the reason why a clear affidavit could not be filed by them. Unfortunately, the complainant did not base his complaint in the instant case upon a breach of the provisions of section 417, sub-section (1) or (2); but he limited himself to a breach of section 419, read with section 420, of the Indian Companies Act. Nothing that has been stated in this order will therefore bar the complainant from any further remedy that he ma....... + More
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1961 (2) TMI 97
... ... ... ... ..... ll probability they have not complied with the provisions of section 417 (1) and (2) and that that is the reason why a clear affidavit could not be filed by them. Unfortunately, the complainant did not base his complaint in the instant case upon a breach of the provisions of section 417, sub-section (1) or (2); but he limited himself to a breach of section 419, read with section 420, of the Indian Companies Act. Nothing that has been stated in this order will therefore bar the complainant from any further remedy that he ma....... + More
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1961 (2) TMI 96
... ... ... ... ..... sessees in the reference under section 66(2) of the Act and came to the conclusion, that even if bringing in Mysore bonds constituted a remittance, it was a remittance of capital. Though that will be enough to give relief was a remittance of capital. Though that will be enough to give relief to the assessee in these proceedings, we propose to answer the reference under section 66(1) of the Act for the sake of completeness. Our answer to the reference under section 66(2) of the Act in R. C. Nos. 17 and 73 of 1957 is that Co....... + More
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1961 (2) TMI 95
... ... ... ... ..... of the statement of reasons submitted by the Income-tax Officer, which I have set out above, for the purpose of obtaining the sanction of the Central Board of Revenue for initiating the proceedings. In that statement not only is there no allegation that the companys income for the years in question had been under-assessed because of any failure on their part to disclose the material facts, but also there is no point taken that the companys original assessments had been made without their filing returns under section 22. I ....... + More
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1961 (2) TMI 94
... ... ... ... ..... ack to the years for which bonus was claimed, we shall refrain from a detailed examination of all the cases cited during the arguments before us. Without a detailed examination, we shall merely mention that Southern Railway Co., of Peru Ltd. v. Owen, to which the learned counsel for the department referred, was considered by the Supreme Court in Indian Molasses Co. v. Commissioner of Income Tax. The relevant passage is at page 79. The learned counsel for the assessee also referred to the criticism of the decision of the Ho....... + More
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1961 (2) TMI 93
... ... ... ... ..... income, profits and gains of any of the partners of the firm; and where the assessee is a registered firm, any loss which cannot be set off against other income, profits and gains of the firm shall be apportioned between the partners of the firm and they alone shall be entitled to have the amount of the loss set off under this section. On the terms of this proviso, in our opinion, it is possible to take a view that where an unregistered firm incurs a loss that loss is not apportioned amongst its partners but remains the lo....... + More
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1961 (2) TMI 92
... ... ... ... ..... ner as the case may be may in lieu of payment of refund, set off the amount to be refunded or any part of that amount against the tax (interest or penalty) if any remaining payable by the person to whom the refund is due. Now to call in aid this section, it has to be proved that refund is found to be due under the provisions of the Act to the person claiming the set off. The expression found to be due clearly means that there must, prior to the date set-off is claimed, be an adjudication whereunder an amount is found due b....... + More
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1961 (2) TMI 91
... ... ... ... ..... not constitute income was what was laid down in the United Service Club v. The Crown 1921 1 ITc 113. But that can be no longer considered good law for application to all cases of subscription to an association in view of what the Supreme Court has stated in Royal Western India Turf Club Ltd's case (supra) The contention of the assessee would appear to be well-founded, that had its income been assessable to tax, it was entitled to set off the net income assessed under section 9 of the Act against the deficiency that was....... + More
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1961 (2) TMI 90
... ... ... ... ..... they desired. It was an order for trial de novo on fresh pleadings and on all issues that may (1)(1933) L.R. 60 I.A. 76. arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this q....... + More
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1961 (2) TMI 89
... ... ... ... ..... ion after that. In the present case the marriage took place on 18th December, 1947, and upon that the transfer became irrevocable from its very inception. It was argued that unless there is an express clause for retransfer or for re-assumption of control over the property in the transfer deed, it is not a revocable transfer. In my view this argument is not sound. If the nature or the terms of the transfer are such that under certain circumstances the property has to revert to the transferor, as for example, upon a failure ....... + More
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1961 (2) TMI 88
... ... ... ... ..... provisions of the Income-tax Act. Therefore, in the circumstances of this case we do not find that failure to serve notice under section 6 of the Public Demands Recovery Act has resulted in any such prejudice to the petitioners as to necessitate any direction that action should be taken under that provision and the proceeding should start from that stage over again. Otherwise it appears to us that the proceedings are in order and the Collector could transfer the certificate for execution and recovery of the amount to the T....... + More
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1961 (2) TMI 87
... ... ... ... ..... ctor or primary rule in statutory construction and it has to be gathered by keeping to the forefront the purpose behind the enactment of a given provision ; further, to ascertain such intent, it is legitimate and, indeed, highly desirable to seek aid from the other relevant provisions of the statute, because it is the statute read as a whole which best discloses the true intent of the lawgiver and the real legislative plan. It is in the circumstances permissible to read sub-section (2) of section 33 along with sub-section ....... + More
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1961 (2) TMI 86
... ... ... ... ..... he original assessment would not be open in what was virtually a reassessment under section 35(1) of the Act. Further, while the order dated September 29, 1955, which was subsequently set aside by the Income-tax Officer himself, showed ex facie that the petitioner was given credit for his share of the tax paid by the firm, the order dated February 19, 1959, did not show it. That order recorded that the assessed tax had already been paid by the assessee, but how the adjustments were carried out was not clear. Even apart fro....... + More
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1961 (2) TMI 85
... ... ... ... ..... ply to negotiable instruments, if the assignment of a Promissory note at a partition to a member of a joint family does not amount to a transfer by art of parties but by operation of law, no document in writing in support of the assignment is required under Section 130 of the Transfer of Property Act. Where property in a promissory note gets transferred by operation of law, the special modes of transfer envisaged in the Negotiable Instrument Act are not required, and a person to whom the property in the negotiable instrume....... + More
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1961 (2) TMI 84
... ... ... ... ..... ld certainly be a suitable sentence. But in this case,; there was a conflict of view even, in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice, that on April 16, 1960, the Central Government made another rule amending rule A-11.05 by inserting the word curd in the definition of butter and the amended definition.reads, butter means the product prepared exclusively from milk, cream or. curd of cow or buffalo.............. + More
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1961 (2) TMI 83
... ... ... ... ..... nder the Revenue Recovery Act on the basis, that all proceedings taken subsequent to the notification in the District Gazette on October 18, 1958, were in excess of the jurisdiction conferred on the revenue authorities by the Revenue Recovery Act. Since neither side has wholly succeeded we direct that the parties bear their respective costs. Before we completed the judgment, learned counsel for the Department brought to our notice the fact that the applications filed by the petitioner assessee under section 66(2) of the Ac....... + More
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1961 (2) TMI 82
... ... ... ... ..... y serious error was committed in incorporating that direction which would justify our interference. 7. Finally it was urged that the appellant was entitled to claim the loss suffered by him on account of defective work by way of an equitable set off in the claim made by the respondent in suits Nos. 55 of 1946-47 and 117 of 1945-46. But the appellant made a claim in a substantive suit for compensation for loss suffered by him because of the alleged defective work done by the respondent. That suit was dismissed by the High C....... + More
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1961 (2) TMI 81
... ... ... ... ..... After hearing the learned counsel for the parties I am of the view that it has not been shown in the present case that the partnership in question offended the provisions of any Act or statutory rules or any term and condition of the licence. The same was, therefore, valid. 49. Since I have held that the partnership did in fact come into existence between the parties to this litigation and that it was a valid partnership; points Nos. 3 and 4 do not arise and no finding need be given thereon. The proper remedy for the plain....... + More
