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1962 (11) TMI 91 - SUPREME COURT
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... ... ..... ings which could no longer benefit them and could only ensure for the good of their transferees. It is, therefore, obvious that this circumstance clinched the case in favour of the executants. The crucial circumstance in the present case, namely that a smaller extent was sold for a higher amount in discharge of an earlier mortgage of a larger extent for a smaller amount was not present in that case. The said crucial circumstances make the two cases entirely dissimilar and therefore the said judgment of this court is not of any help in construing the document in question. On a consideration of the cumulative effect of the terms of the document in the context of the surrounding circumstances we hold that the document in question is not a mortgage but a sale with the condition of repurchase. The conclusion arrived at by the High Court is correct. 8. The appeal fails and as the advocate for the respondent is not present in Court it is dismissed without costs. 9. Appeal dismissed.
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1962 (11) TMI 90 - SUPREME COURT
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... ... ..... accused persons is a police officer above the rank of a constable, shall not be cognizable except by a Presidency Magistrate or a Magistrate not lower than a second class Magistrate. 19. If the legislature had intended to limit the application of s. 161(1) offences under the Police Act only, it would have instead of using the words in any case of alleged offences used words like in any case of offences against this Act. It appears clear that the legislature deliberately gave the protection of s. 161(1) to offences against any law and there is no justification for our limiting that protection to offences under the Police Act only. It must accordingly be held that the prosecution against the appellant should have been dismissed in accordance with the provision of s. 161(1) of the Bombay Police Act. 20. We accordingly allow the appeal, set aside the order of conviction and sentence passed against the appellant and order that the case against him be dismissed. 21. Appeal allowed.
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1962 (11) TMI 89 - ALLAHABAD HIGH COURT
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... ... ..... d appeal did not amount to a finding that the judgment thereof was accepted to be correct. We are however unable, with the greatest respect, to agree with the aforesaid observation, for it seems to us that as soon as the appeals arising out of suits Nos. 77 and 91 of 1950 particularly the former were dismissed by this Court whatever the reason for the dismissal was the judgment of the trial Court on the common issues became final so far as those suits were concerned, and having become final, they cannot be subsequently registered in an appeal between the same parties, particularly when the other essential conditions of Section 11 are also present. 23. For the reasons stated above, our answer to the question referred to us is that F. A. S. Nos. 365 and 366 of 1951 are barred under Section 11, Civil P. C., to the extent of the decision of the five issues, which were common in the four connected suits. The appeal will now be returned to the learned single Judge with our opinion.
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1962 (11) TMI 88 - KERALA HIGH COURT
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... ... ..... of the bank. In doing so, it has to take the necessary risk of such employees embezzling money and even committing theft. The money that was taken is admittedly the stock-in-trade of the assessee, a banking company. The fact that the money was taken not during office hours, but on a holiday, does not affect the question for decision if the incurring of the loss was incidental to the carrying on of the business. We have no doubt that, on the facts and in the circumstances stated above, the loss incurred was incidental to the conduct of the business. The case will fall within the principles stated by the Supreme Court in Badridas Daga v. Commissioner of Income-tax 1958 34 I.T.R. 10. We follow that decision and answer question No. 2 in the negative and question No. 3 in the affirmative and both in favour of the assessee. In view of the answer to questions Nos. 2 and 3, question No. 1 does not call for any answer. The parties will bear their costs. Reference answered accordingly.
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1962 (11) TMI 87 - HIGH COURT OF CALCUTTA
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... ... ..... , are not allowable under section 10(2) because of the provisions of sub-section (4) of section 10. If it was a kind of cess that is contemplated under clause (ix) of sub-section (2) then it would have been allowed. But since it is a cess payable on the profits or gains of any business or calculated at a proportion on the basis thereof, it is excluded by the provisions of sub-section (4) of section 10. The Appellate Tribunal, therefore, came to the right conclusion. The question that has been asked is as follows "Whether, on the facts and in the circumstances of the case, the amount paid by the assessee company as cess for roads, public works and education, was allowable as deduction under section 10(2)(ix) or section 10(2)(xv) of the Indian Income Tax Act read with section 10(4) of the said Act ?" The answer is in the negative. In other words, it is not allowable as a deduction. The respondent is entitled to costs. Certified for two counsel. D. Datta, J. - I agree.
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1962 (11) TMI 86 - HIGH COURT OF RAJASTHAN
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... ... ..... Respondent No. 5. The orders of appointment were made on the 22nd of April 1961 and the petitioners have presented their petitions as late as the 7th of July 1962. Thus, there is a delay of more than 1 year-2 months. The only reason for the delay that has been given is that the petitioners were making certain representations. But this is no reason for them not to have come to this Court at a much earlier stage. We are of the opinion that the Writ petitions deserve to be dismissed on this ground as well. The third objection is that the petitioners had made certain scandalous reflections in their Writ petitions against the then Chief Justice and the petitions deserve to he dismissed on that ground alone. nOW that they have withdrawn, the scandalous allegations, we only express our strong disapproval of the conduct of the petitioners in making such reflections. 17. As a result of the aforesaid discussion, the Writ Petitions are dismissed with one set of costs to the respondents.
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1962 (11) TMI 85 - GUJARAT HIGH COURT
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... ... ..... e order of rectification for it is that which rectifies the assessment order and effects the final quantification of tax liability. Before the order of rectification there was no under-assessment. Such under-assessment came into existence because of the order of rectification and, therefore, the information must be subsequent information and the Income-tax Officer had no right to take action under section 34(1)(b). 9. As regards the second ground on which the Income-tax Officer had sought to take proceedings under section 34, the same has not been pressed before us by the learned Advocate-General and it is not necessary for us to consider the same. 10. In the result, we have to hold that, on the facts and in the circumstances of the case, the Income-tax Officer was not right in making a reassessment under section 34(1)(b) and we answer the question in the negative. We order that the respondent do pay the assessee, costs of the reference. 11. Question answered in the negative.
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1962 (11) TMI 84 - ANDHRA PRADESH HIGH COURT
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... ... ..... y the assessee, which do not form part of the commutation amount, are income and liable to tax and (2) that the aforesaid interim allowances are not exempt under section 4(3)(vii) of the Indian Income Tax Act and (3) that payments subsequent to April 1, 1950, towards the commutation amount and in partial discharge therefore would not be liable to taxation for the obvious reason that if any of such payments had been made towards commutation payable to the petitioner, and since it is in partial discharge of the commutation amount, it would be a capital receipt and as such not liable to be taxed. 13. In the result, out answer to question No. 1 is that the value of the shares owned by the assessee in the limited companies will be properly includible in his net wealth subject to the application of rule 2 of the Schedule to the Wealth-Tax Act and our answer to the second question is in the affirmative. Let the reference be answered accordingly with costs. Advocates fee ₹ 100.
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1962 (11) TMI 83 - HIGH COURT OF GUJARAT
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... ... ..... ct Court will be futile and its effect will be merely to promote technicality without in any manner advancing the cause of justice. I do not therefore see any reason to interfere with the order of the District Court. (42) In the result, Revision Application No. 347 of 1962 fails and will be dismissed. Each party will bear and pay his own costs of the revision application. So far as Revision Application No. 349 of 1962 is concerned, there will be no order on the revision application since the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee does not call for interference in revision but inasmuch as the Charity Commissioner has succeeded in the main contention arising in this revision application, he must get the costs of the revision application. Such costs shall be paid to him out of the trust funds. Opponents Nos. 1 to 5 and 7 to 9 will bear their own respective costs of the Revision Application. (43) Revision petition dismissed.
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1962 (11) TMI 82 - SUPREME COURT
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... ... ..... tool in the hands of a superior officer who might have been approached by Chauhan. There is nothing on the record to disclose that Chauhan approached any superior officer in the Police Department and that the appellant had manipulated the records on the dictation of such an officer. This is a pure surmise based upon an observation made by the learned Judge of the High Court in the judgment. There is nothing improbable in Chauhan or some other person interested in him directly approaching the appellant and the appellant acting in the manner he did for consideration or otherwise. If a police officer manipulates the record such as police diary etc., it will be the end of honest criminal investigation in our country. Such offences shall receive deterrent punishment. The punishment awarded errs more on the side of leniency than otherwise. 12. For the aforesaid reasons we hold that the decision of the High Court is correct. The appeal fails and is dismissed. 13. Appeal dismissed.
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1962 (11) TMI 81 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... he sense of sleeping there. I am of the opinion that the mere presence of furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2)(v). This view was also expressed by Harnam Singh, J. in Baij Nath v. Badhawa Singh I.L.R. 1956 P&H 421 1956 P.L.R. 236. The learned Judge held that although occupation includes possession as its primary element it also includes something more and the owner of a vacant house who as long as leaves it vacant is not in occupation. The fact that 'occupation' means occupation in the sense of actual user appears to be clear from the words of Section 13(2)(v), since it specifically exempts houses situated in a hillstation which normally remain unoccupied by owners or tenants from October to April, although their furniture remains there. I thus consider that the decision of the learned Appellate Authority was correct and dismiss the revision petition, but leave the parties to bear their own costs.
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1962 (11) TMI 80 - KERALA HIGH COURT
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... ... ..... t to about 7½ months' salary. They reduced the bonus to 3 months' salary. The questions to be considered are stated in the proviso to section 10(2)( x) of the Indian Income-tax Act and they are (a)the pay of the employee and the conditions of his service, (b)the profits of the business of the year, and (c)the general practice in similar businesses. The average salary of the employees is quite meagre. There is no evidence regarding the other conditions of service. It is not even suggested that the employees are afforded other amenities and facilities. The profits during the relevant accounting year is substantial. There is no evidence about the practice in similar businesses. But considering the profits earned and the low salary of the employees, it is impossible to say that the bonus paid is not reasonable. We, therefore, answer the question referred to us in the affirmative and in favour of the assessee. The parties will bear their costs in these proceedings.
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1962 (11) TMI 79 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... called a proceeding under the Indian Income-tax Act, and the fact that the money paid by the assessee under the Indian Income-tax Act may have been seized by the Pakistan authorities or disposed of in some other manner, can in no way affect the right of the assessee under the Indian Income-tax Act. That right is clearly expressed in sub-section (11) of section 18A, and the income-tax authorities in India are, in my opinion, bound to obey the direction contained in that provision. The Income-tax Appellate Tribunal was, therefore, right in holding that the assessee was entitled to credit for the advance tax which had been paid at Lahore under the Indian Income-tax Act and, since the advance tax actually paid was in excess of the tax found due on regular assessment, the assessee was entitled to a refund of the difference. I would, in the circumstances, answer both the questions in the affirmative and allow the assessee the costs of the present proceedings. Falshaw C.J.-I agree.
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1962 (11) TMI 78 - MADRAS HIGH COURT
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... ... ..... rtner when he is one, or of being a workman employed when that position would involve that he would be both 'employer and employee'." 7. This decision turned upon the construction of the provisions of the Workmen's Compensation Act, 1897, and the sole question for determination was whether a partner who received remuneration from the other copartners was an employee of the firm or not. The question now before us is certainly not whether the assessee was an employee. The question is what is the character of the income of the firm, whether it is really income derived from the sale of tea grown and manufactured by him within the meaning of rule 24 of the Income-tax Rules. In our opinion, the assessee has failed to make out that the receipt of the allowance and commission is exempt from taxation under the Act. 8. The Tribunal has reached the correct conclusion in the matter. The question is answered against the assessee, who will pay the costs of the department.
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1962 (11) TMI 77 - SUPREME COURT
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... ... ..... tired on invalid pension and his pension had been paid for three months, the matter was re-opened and an order was made removing the Sub-Inspector from service as from the date on which he was invalided. Lord Roche speaking for the Board said "It seems to require no. demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained." The position is the same here. The respondent had ceased to be in service on March 31, 1961 by the very order of the State Government. Art. order of retention in service passed more than a month thereafter, was a mere nullity and cannot be sustained. 8. Therefore, the order of the High Court allowing the writ petition was justified, though not for the reasons given by it. We would accordingly dismiss this appeal, but in the circumstances there will be no order for costs.
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1962 (11) TMI 76 - SUPREME COURT
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... ... ..... It was not in dispute that the case allotted to the special court related to the same occurrence, charged the same accused with substantially the same offences as were involved in the proceedings in the case before the Magistrate. The appellant therefore gains no advantage by a fresh allotment in July 1957 or the earlier allotments on which reliance was placed. It is precisely such an allotment that is within the prohibition in s. 12 and the protection which that section affords is not to be nullified by considering the fresh allotment as the initiation of a fresh proceeding. This point has therefore no substance and is rejected. 25. The result is that the appeal is allowed and the order of the High Court set aside. 26. We hope that with the decision of this Court, there will be an end to the objections as to forum and the case will be proceeded with expeditiously be the judge of the Special Court we have held has jurisdiction to proceed with the matter. 27. Appeal allowed.
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1962 (11) TMI 75 - MADRAS HIGH COURT
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... ... ..... h the Courts below that the defendants had not executed any fresh promissory note, as pleaded by them, and in the absence of any such fresh promissory note, the original debt would be the amount due and payable on the promissory note. 6. In any event, the learned advocate for the appellants contends, the plaintiff-respondent would not be entitled to claim more than the amount mentioned in the reply notice, viz, ₹ 2,550, and in support of his contention, he cited Bans Gopal v. Mewa Ram A.I.R. 1930 All. 461 where it was held that where a definite sum has been acknowledged, the acknowledgment an be used to save limitation only with respect to the sum acknowledged. I agree. The result would be that the plaintiff would be entitled to a decree for the sum mentioned in the reply notice, Exhibit A-3, viz., ₹ 2,550 with interest as decreed by the Courts below from 2nd January, 1954. 7. In the result, the decree of the lower Courts is modified as above. No costs. No leave.
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1962 (11) TMI 74 - MADRAS HIGH COURT
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... ... ..... ocks of these goods even on the dates when he made purchases under the bills in question. It was urged that the Collector did not examine whether the stocks that he had on hand previously would not account for the possession of the quantity of goods which he had with him on the date of the seizure. These features apart, there is no doubt that it is not open to the Collector to presume that any goods, the entry of which into India is not wholly prohibited, should be deemed to have been illicitly imported only for the reason that the person in possession of such goods was not able to establish how he came to possess them. I follow the decision referred to above, and hold that the order of confiscation and the imposition of penalty in this case cannot be sustained. The burden of proof has been wrongly cast upon the petitioner and that is sufficient to destroy the basis of the decision of the Collector. The petition is allowed, but in the circumstances with no order as to costs.
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1962 (11) TMI 73 - SUPREME COURT
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... ... ..... er's territory merged with the State of Orissa. On the finding that the petitioners, or their ancestors, had ceased to the sovereign State, on the eve of the merger of the State of Gangpur with the State of Orissa, the petitioners' position would be that of intermediaries who held or owned "interest in land between the Raiyat and the state", within the meaning of s. 2(h) of the Act, and the 'Takoli paid by them to the Ruler of Gangpur and later to the State of Orissa was land revenue within Explanation I read with Explanation III to s. 2(g) which defines "estate". There is, thus, no escape from the conclusion that their interest in their lands was liable to be acquired under the Act. No other point was urged before us in support of the appeals, and as the only point urged in this Court has no substance in it, the appeals must be held to be without any merit. They are accordingly dismissed with costs, one set of hearing fees. Appeals dismissed.
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1962 (11) TMI 72 - PATNA HIGH COURT
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... ... ..... bench decision of this Court (Parsuram Sahu v. Sant Saran Lall, ILR 39 Pat 714, it was held that, if a suit is instituted by a money-lender for an amount exceeding the maximum amount mentioned in the registration certificate, no decree could be passed beyond the maximum amount so mentioned. Hence, according to this decision, if the amount advanced by the plaintiff was a loan, he could not get a decree for more than ₹ 20,000/-as principal. It is however, not necessary to express any opinion on this point, in view of the finding that the amount advanced by the plaintiff was not a loan. 19. In conclusion, it must be held that the plaintiff is not entitled to recover any amount in the suit as framed; and the suit shall be dismissed, without prejudice to his right to sue for rendition of accounts. 20. The appeal is, accordingly, allowed, the judgment and decree of the Court below are set aside and the suit is dismissed with costs through out. Kanhaiya Singh, J. 21. I agree.
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