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Showing 21 to 40 of 71 Records
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1964 (10) TMI 95
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... ... ..... sts. DUA J.--The question referred is by no means free from difficulty and the contentions raised on behalf of the revenue that land or site underneath a building is from the very nature of things not subject to depreciation, though the floor of the building on such land or site is, cannot be considered to be wholly devoid of cogency which can be brushed aside with a shrug of the shoulder. The dearth of judicial literature on this point and the absence of direct precedent in a way simplifies this court's task inasmuch as the question in that event falls to be answered only from first impression, but it also deprives this court of a rich source of assistance which our jurisprudence values so much. Since much can be said for both points of view and the view in support of the assessee's submission has found favour with the Tribunal below, which has not been shown to be clearly erroneous, the answer deserves to be in the affirmative. Question answered in the affirmative.
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1964 (10) TMI 94
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... ... ..... quired under the Principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Art. 14 of the Constitution and is void. In this view it is not necessary to express our opinion on the question whether the Amending Act infringes Art. 19 of the Constitution. In the, result it is hereby declared that the Amending Act is void. We direct the issue of writs of mandamus restraining the respondents from proceeding with the acquisition under the provisions of the Amending Act. This order will not preclude the respondents from continuing the proceedings under the provisions of the Land Acquisition Act, 1894, in accordance with law. The petitioner in Writ Petition No. 144 of 1963 will get one set of costs, and the petitioner in Writ Petitions Nos. 227 and 228 of 1963 will get one set of costs. One hearing fee. Petitions allowed.
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1964 (10) TMI 93
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... ... ..... to ordinary commonsense principles. There are several other decisions of the Supreme Court determining the nature of the income; but since each of those cases depended entirely on facts before it, it would not be of much help in referring to them. It is clear from the facts of this case that the assessee-company, which was carrying on the business of pressing cotton, had stopped its business as early as 1950. Though it had machinery, it was not let out. On the other hand, it was decided to sell it away, and the income was sought to be earned only from the lease of its building premises. Its business activity having ceased totally, the asset was not part of the business asset. It ceased to be a commercial asset. As such the income from the rents derived by the lease of the property is an income assessable under section 9 of the Act. Let the reference be answered accordingly with costs to be borne by the assessee; advocate's fee ₹ 200. Reference answered accordingly.
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1964 (10) TMI 92
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... ... ..... ent periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of Public service and in the present case the difference n has arisen on account of exigencies of exigence of public service. we are therefore of opinion that the second notification of may 25,1961 on which reliance is placed to prove discrimination is really not discriminatory for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for-those who had completed 55 years but not 58 years up to December 31, 1961. The challenge therefore, to the, two notifications on the basis of Art. 14 must fail. We therefore, dismiss the appeal but in the circumstances pass no order as to costs. Appeal dismissed.
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1964 (10) TMI 91
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... ... ..... at the company had made payments in past years to the assessee. In view of the position adopted by the Income-tax Officer, namely, that the company was the assessee's benamidar, and, therefore, the business which the company carried on was really the business of the assessee, there could be no possibility of his having considered the question whether pay-merits made by the company to its shareholder could be brought to tax under section 12(1B) read with section 2(6A)(e). That matter not having been considered by the Income-tax Officer, what the Appellate Assistant Commissioner did was to bring in a new source of income which was never considered nor processed by the Income-tax Officer and the present case, therefore, would fall within the ratio of the Supreme Court decision in Shapoorji Pallonji Mistry's case (Supra) . In that view, our answer to the question referred to us must be in the negative. The Commissioner will pay the costs of the reference to the assessee.
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1964 (10) TMI 90
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... ... ..... anner. Even in those cases where the order of the Government is based upon confidential material this Court has insisted that reasons should appear when Government performs curial or quasi- judicial functions (see Messrs Hari Nagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala & Others ( 1962 2 S.C.R. 339). The High Court did not go into any other question at all because it rejected the petition at the threshold on its interpretation of S. 5(3). That interpretation has been found by us to be erroneous and the order of the High Court must be set aside. As the order of Government does not fulfil the elementary requirements of a quasi-judicial process we do not consider it necessary to order a remit to the High Court. The order of the State Government must be set aside and the Government directed to dispose of the case in the light of our remarks and we order accordingly. The respondents shall pay the costs of the appellants in this Court and the High Court. Appeal allowed.
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1964 (10) TMI 89
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... ... ..... not. It may be that the distribution of this excess would escape tax on the view we are taking but that is not a matter which should weigh with us in the construction of the language of the section. In a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax, there is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only fairly look at the language used and if we do so, the conclusion to which we have arrived is the only conclusion which can be reached. We are, therefore, of the opinion that the distribution of ₹ 1,570 per share was not a distribution out of accumulated profits of the company so as to be liable to be regarded as dividend within the meaning of section 2(6A)(c). 17. In the result we answer the question referred to us in the negative. The Commissioner will pay the costs of the reference to the assessee. 18. Question answered in the negative.
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1964 (10) TMI 88
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... ... ..... e and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such, appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs' suit was not maintainable. Accordingly we set aside the judgment of the High Court and allow this appeal. We, however, make no order as to costs. Appeal allowed.
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1964 (10) TMI 87
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... ... ..... fer from this conclusion; and so, it follows that though respondent No. 1 has been able, to show that her charge could not be enforced against the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is that the requirement of the proviso to 0. 21 r. 90 of the Code is not satisfied in the present case. We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him his mother respondent No. 1 and his widow, and the estate of Umrao Mal has devolved on these two widows; and so, respondent No. 1 has now become the owner of part of the properties against which she would otherwise have been entitled to proceed in execution of tier maintenance decree. The result is, the appeal is allowed, the order passed by the High Court is set aside and the application made by respondent No. 1 under 0. 21 r. 90 is dismissed. There would be no order as to costs throughout. Appeal allowed.
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1964 (10) TMI 86
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... ... ..... hout complying with the requirements of the proviso. To this I would like to add that if the effect of an amendment is to curtail substantially, though indirectly, the jurisdiction of High Courts under AA. 226 or of this Court under Art. 136 and recourse has not been had to the proviso to Art. 368 the question whether the amendment was a colorable exercise of power by Parliament will be relevant for consideration. Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time-or at least for the foreseeable future-or whether the yard no more enduring than the implemental and subordinate provisions of the Constitution. Petitions dismissed.
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1964 (10) TMI 84
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... ... ..... Hindu undivided family. In our view, there is no substance in this contention, for section 63 provides a permissive method of service upon a Hindu undivided family and recognises service on a member of the Hindu undivided family in the absence of the manager of the family upon a Hindu undivided family. Such a permissive provision being merely a procedural provision cannot possibly be held to render a member of a Hindu undivided family as an assessee in the assessment proceedings against a Hindu undivided family. For these reasons, it is not possible to accede to the contention urged by the learned Advocate-General that the assessee, Shantilal, was an assessee for the purposes of the assessment proceedings against the Hindu undivided family. Our answers to the questions, therefore, are as follows Question No. 1--in the affirmative. Question No. 2--in the affirmative, and Question No. 3--in the negative. The Commissioner will pay to the respondent the costs of this reference.
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1964 (10) TMI 83
Whether having regard to the method of packing adopted and theother features of the get-up etc., on which the defence had relied,the defendant was not guilty of passing off?
Whether the word "Navaratna" was a common word in Ayurvedic phraseology and consequently the plaintiff could not claim any exclusive title to the use of that word by reason of his having used it for his products even though this had been for a number of years?
Whether the mark "Navaratna Pharmaceutical Laboratories" could be validly registered?
Held that:- The conclusion reached by the Courts below that the appellants mark is deceptively similar to that of the respondents cannot be stated to be erroneous. Besides, this question of deceptive similarity is a question of fact, unless the test employed for determining it suffers from error. In the present case, it was not suggested that the Courts below had committed any error in laying down the principles on which the comparison has to be made and deceptive similarity ascertained.
As there are concurrent findings of fact on this matter, we do not propose to enter into a discussion of this question de novo, since we are satisfied that the conclusion reached is not unreasonable. Appeal dismissed
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1964 (10) TMI 82
Whether a provision in a statute is mandatory or directory
Held that:- No serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to tax-payers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131(3) is mandatory
The manner of publication provided by s. 94(3) which we have called the second part of s. 131(3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in s. 131(3) is directory.
In the present case the mandatory part of s. 131(3) has been complied with and its directory part has been substantially complied with and so s. 135(3) will apply and the objection that the tax is not validly imposed must fail. Appeal dismissed.
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1964 (10) TMI 81
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... ... ..... of Andhra Pradesh v. Kajjam Ramachandraiah(1), where the Andhra Pradesh High Court has held that the term oil-seeds as used in item No. 3 of Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957, means oil-seeds which in common parlance would be taken as oil-seeds, but not every seed from which by some process or other oil can be extracted . The learned Judges of the Andhra Pradesh High Court held that coriander, ajwan and sompu are used as spices and are not known as oil-seeds and consequently they did not fall within the definition of oil-seeds mentioned in item No. 3 of Schedule IV. 5. For these reasons, our answer to the question stated for our decision is that cocoanut, groundnut kernel and jira are not oil-seeds falling under item No. 3 of Part II of Schedule I of the Act, and consequently sales tax at the rate of three pies in a rupee cannot be levied on them. In the circumstances of the case, there will be no order as to costs. Reference answered accordingly.
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1964 (10) TMI 80
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... ... ..... , 1964 . No steps were taken within three years for assessment under section 11(4) of the Act. Therefore no best judgment assessment can be resorted to and the one that has been effected would be wholly without jurisdiction. Since reported at page 107 supra. However, the assessment proceedings were started within three years. There is no limitation to start those assessment proceedings. In view of the setting aside of the impugned order there would be no assessment order in this case. The department can therefore proceed to assess the petitioner under section 11(3) in accordance with law. Mr. Nehra contends that in this case the assessment in fact is under section 11(3). I am, however, unable to accept this contention. One has simply to read the order to come to the conclusion that in fact the assessment is under section 11(4). For the reasons given above, both these writ petitions are allowed and the impugned orders are quashed, with no order as to costs. Petitions allowed.
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1964 (10) TMI 79
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... ... ..... icant has taken exception to this addition because, in his opinion, it is speculative. We do not agree. It is now well established that, where a dealer has not maintained any account of his sales, it is open to the taxing authority exercising its judgment reasonably and judicially to compute the profit by applying a flat rate of a certain percentage to the admitted figure of total purchases. In this view, the answer to the second question also is in the affirmative. But the question at what rate the profit should have been calculated is essentially a question of fact depending upon the nature and extent of the business and the surrounding circumstances and does not raise any question of law Feroz Shah v. Income-tax Commissioner 1933 1 I.T.R. 219 (P.C.). 5.. In the result, we answer the two questions in the manner indicated above and direct that the applicant shall bear his own costs and pay those incurred by the department. Hearing fee Rs. 50. Reference answered accordingly.
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1964 (10) TMI 78
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... ... ..... rse of the hearing our attention was also drawn to the details of the sales of the machinery and parts thereof sold by the assessee during the years 1958-59. On a perusal of the same we are clearly of the opinion that it is impossible to hold that the sale of the arc furnaces was either ingrained in the business activity of the assessee or would constitute its normal business activity. Judged by any test, test of frequency, volume, regularity and continuity or the existence of profit motive or test of reasonable connection with the normal business activity of the assessee, it is impossible to hold that an isolated sale of a capital asset as in the instant case would amount to a sale in the course of the business which the assessee carries on. For all these reasons we hold that the turnover in question is not liable to sales tax and we allow the revision petition and reverse and set aside the decisions of the Tribunal and the assessing authorities. No costs. Petition allowed.
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1964 (10) TMI 77
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... ... ..... to present its case. The order of 26th of June, 1961, did not stand obliterated by the appeal being allowed and it cannot be controverted that the Assessing Authority had actually proceeded to assess and the subsequent order passed by the appellate authority only resulted in the issue of a fresh notice. The proceedings for reassessment had actually started within a period of three years and the issue of a second notice was merely a continuation of the proceedings for reassessment which had actually commenced with a notice which had been served on the petitioner on 13th of March, 1961. In my judgment, this Court cannot declare the proceedings to be invalid on the ground of limitation and according to the decision of the Full Bench of this Court, I would hold that the Assessing Authority had proceeded with the assessment within the requisite period of limitation. This petition fails and is dismissed. In the circumstances, I would make no order as to costs. Petition dismissed.
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1964 (10) TMI 76
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... ... ..... s Tax at the higher rate was therefore not unlawfully collected at the time the transaction was put through. This feature also saves to distinguish the present case from the decisions referred to. It is not however denied that the petitioners have already refunded a sum of Rs. 2,791-71. Accordingly, the net collection by way of tax in the hands of the petitioners is the sum demanded less the amount specified above. On whatever footing the petitioners might have collected the tax they have refunded the amount to the buyers, and that amount is no longer available with them. The department must take note of the entire set of circumstances and not only the initial collection and refuse to recognise a proved fact, viz., that of refund. It would follow that the demand must be restricted only to the difference between the two amounts. The petition is allowed to this extent only. There will be no order as to costs. C.M.P. No. 6028 OF 1964. The petition is allowed. Petitions allowed.
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1964 (10) TMI 75
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... ... ..... arrear of tax which was due on the date of the commencement of Act of 1959, and that it is not a levy, which can be related to the process of recovery. Learned counsel for the petitioner referred to the decision in Mathew v. Second Additional Income-tax Officer 1956 29 I.T.R. 456., where there is an observation at page 459-no doubt in some other context under the Indian Income-tax Act, It is impossible to consider that the imposition of penalty is also a mode of recovery of tax. In my opinion, no authority is really necessary for the clear position that the penalty levied in this case, which the new Act alone contemplates but not the old Act, cannot be imposed retrospectively in respect of an arrear of sales tax, which became due before the new Act, and that nothing in the transitory provision in section 61 will justify its levy. The writ petition is therefore allowed and the impugned order is quashed by a writ of certiorari. The rule nisi is made absolute. Petition allowed.
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