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Showing 21 to 40 of 51 Records
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1964 (2) TMI 89 - ALLAHABAD HIGH COURT
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... ... ..... st the power of the Court to act under Article 226; it is a circumstance which would weigh with the Court in deciding whether it should exercise the power or not. Rule 6 is phrased in inexorable language, and constrains the Court to dismiss a petition in limine and at all events, if the petitioner has got an alternative remedy. The rule curtails the discretion of the Court, and is in my judgment ultra vires. Shivdev Singh v. State of Punjab, AIR 1963 SC 365. 30. The appeal is liable to be dismissed for another reason During pendency of the appeal the Antarim Zila Parishad has rolled into the limbo of oblivion, and the Zila Parishad constituted under the Kshettra Samitis and Zila Parishads Act. 1961 has stepped into its place. The appellant has no taken steps to bring on record the Zila Parishad, Muzaffarnagar in place of the Antarim Zila Parishad. No writ, order or direction can be issued to an extinct body. 31. For the reasons already stated I dismiss the appeal with costs.
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1964 (2) TMI 88 - SUPREME COURT
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... ... ..... ly discard the standard prescribed in the rules, as the learned Judge has done, we do not see any principle in holding, as he seems to indicate, that where the Reichert value is below 21 the ghee should be treated as adulterated. We, therefore, hold that the learned Judge was not justified in allowing the revision of the respondent and acquitting him. The result is that the appeal is allowed, the acquittal of the respondent is set aside and his conviction restored. It was stated to us on behalf of the respondent that of the imprisonment for one month to which the sentence passed on him by the Magistrate was modified by the Sessions Judge, he had already undergone a sentence of 18 days. He has been on bail practically since the admission of his Revision Petition in the High Court. In the circumstances, we consider that the sentence of imprisonment passed on him might be reduced to the period already undergone. The sentence of fine imposed will, however, stand. Appeal allowed.
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1964 (2) TMI 87 - SUPREME COURT
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... ... ..... primarily looked to that property for the realisation of his dues. Further, this sub-section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non-jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors. Accordingly, we hold that s. 7(2) imposes reasonable restrictions in the interest of general public. The appeal is accordingly partly accepted, the decision of the High Court in regard to s. 2(e) is confirmed and that in regard to s. 7(2) is reversed. As the respondent was not represented and that appeal has only partly succeeded, we order the parties to bear their own costs in this Court. Appeal partly allowed.
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1964 (2) TMI 86 - CALCUTTA HIGH COURT
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... ... ..... ere registration under the Partnership Act will not be conclusive on the point that a partnership was really in existence as the principal element as to the carrying on of the business is lacking. 5. The Appellate Tribunal found as a fact that no business was carried on in the relevant accounting year. As such even assuming but not finding that there is a partnership in the instant case within the meaning of section 4 of the Indian Partnership Act, the applicants were not entitled to the benefit of registration under section 26A of the Act. 5. Section 2(6B) of the Indian Income-tax Act which attracts the definition from the Partnership Act does not determine any question as to the existence of a partnership which may arise under section 26A read with the statutory rules relating to registration. In the above premises, our answer to the question must be in the negative. The applicants will pay the costs to the respondents. MITRA J.--I agree. Question answered in the negative.
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1964 (2) TMI 85 - MYSORE HIGH COURT
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... ... ..... the Tribunal which finding is binding on us are as follows "The assessee did not either inherit or purchase a forest. He only parted with his capital to acquire a coffee estate; part of that coffee estate consisted of trees. These trees were sold." It is not the finding of the Tribunal that the trees sold had spontaneously grown after the purchase was made; nor is there any finding that the trees sold were immature on the date of the purchase and that they became mature on the date of sale. From the finding of the Tribunal it is seen that the very trees purchased as part of the purchase transaction were sold. On the basis of this finding, the only conclusion possible is that the price realised by the sale of those trees is a capital and not a revenue receipt. Our answer to the question of law referred is that on the facts and circumstances of the case, the sum of ₹ 5,782 is a capital receipt and not a revenue receipt. No costs. Reference answered accordingly.
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1964 (2) TMI 84 - SUPREME COURT
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... ... ..... cultivation or other purposes connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed in revenue or police duties, and all cesses lawfully imposed upon land and all sums due to the State Government, including compensation for any loss or damage sustained by them in consequence of a breach of contract, may be recovered in the same manner as arrears of land-revenue under the provisions of this Act, unless the recovery thereof shall have been or may hereafter be otherwise specially provided of for." It was not disputed that the cess under s. 78 would be "a cess lawfully imposed upon land" and would therefore be covered by its terms. The legality of the procedure, which the respondents proposed to adopt for the recovery of the sums could not, therefore, be successfully challenged. The appeals and the writ petition fail and are dismissed with costs-one hearing fee. Appeals and petition dismissed.
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1964 (2) TMI 83 - SUPREME COURT
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... ... ..... to service only when the court is inclined to' accept other evidence and feels the necessity of seeking for an assurance in support of its con- clusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the con- fession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. In the result, the appeals are allowed and the orders of conviction and sentence passed against the two appellants Haricharan Kurmi and Jogia Hajam are set aside and the accused are ordered to be acquitted. Appeals allowed.
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1964 (2) TMI 82 - SUPREME COURT
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... ... ..... not a public purpose, for here the vice is in the law itself and not merely in the application. I am, therefore, clearly of the opinion that cl. (aa) introduced by the Amending Act XXXI of 1962 is unconstitutional as violative of Art. 31(2). In this view it is unnecessary for me to consider the proper construction of s. 7 of the Amending Act. Under the terms of s. 7 of the Act, all acquisitions of land made prior to June 20, 1962, even accepting the construction which Mr. Setalvad pressed upon us, are deemed to have been made for a purpose falling within cl. (aa). If, as I have held, cl. (aa) is unconstitutional and void, it was not contended that s. 7 would of any assistance to the respondents to sustain the acquisition of the petitioner’s land. I would, therefore, allow the petition and grant the reliefs prayed for therein. ORDER In accordance with the opinion of the majority the petition fails and is dismissed. There will be no order at the costs. Petition dismissed
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1964 (2) TMI 81 - CALCUTTA HIGH COURT
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... ... ..... tutory obligation imposed upon him under section 18A of the Income-tax Act. The interest paid by the assessee, the Patna High Court is of the opinion, on money borrowed by him for payment of advance tax cannot be deducted under the provisions of section 12(2) of the Income-tax Act. We express our respectful agreement with this view. In our judgment, income-tax is not part of an expenditure of an assessee. Therefore, the interest that is paid by the assessee on any sum borrowed by him for payment of income-tax is not deductible from his net income. In other words, when the tax is not an allowable expenditure no expenditure in relation to the tax can also be allowed. An expenditure to become liable must be, in our opinion, incurred in the earning of the income or profit. In the result, therefore, the answer to the question referred to us is in the negative. The applicant will pay to the respondent the costs of this reference. SEN J.--I agree. Question answered in the negative.
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1964 (2) TMI 80 - SUPREME COURT
Whether the plaintiffs-respondents are the lessees of the appellants who were defendants 4 and 5 in the trial court or only their licensees?
Held that:- A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude,. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could, in such circumstances, the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent' was used loosely for 'fee.
Upon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents inso far as it relates to reliefs (ii) (e), (f) and (g) granted by the High Court against the appellants are concerned. So far as the remaining reliefs granted by the High Court are concerned, its decree will stand. In the result we allow the appeal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne, by the parties as incurred. Appeal partly allowed.
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1964 (2) TMI 79 - SUPREME COURT
Decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of fact which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed.
The constitutional question on which certificate was granted does not need consideration in any detail. Appeal dismissed.
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1964 (2) TMI 78 - KERALA HIGH COURT
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... ... ..... In the absence of a valid notice on the petitioner no question of failure to pay within the time allowed would arise. Proper service of notice not having been effected on the petitioner and such service being the foundation for any penal action it follows that the prosecution has to fail. 4.. The essential ingredients of the offence have been lost sight of by the learned Magistrate. The question is not whether the petitioner had anything to do with the charities. Reference has been made to an appeal filed by the petitioner on behalf of the charities, but this is also of no significance and it will not make the petitioner an assessee under the Act. The charities is a separate legal entity and even if the accused had anything to do with the charities at some time it would not make him liable for the tax due by the charities. 5. The conviction and sentence passed on the petitioner-accused are set aside and he is acquitted. Fine, if paid, would be refunded. Conviction set aside.
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1964 (2) TMI 77 - MYSORE HIGH COURT
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... ... ..... rlining is ours). It is, therefore, clear that the right of the State to investigate or to institute legal proceeding for an offence committed by a person when the Mysore Sales Tax Act of 1948 was in force is clearly saved. The learned Magistrate, in our opinion, was entirely wrong where he observed that section 40(1) of the Mysore Sales Tax Act of 1957 does not indicate that such a right in favour of the State has been saved. A plain reading of the proviso, particularly sub-section (d) of section 40(1) quoted above, makes it abundantly clear that such a right has been saved. We are, therefore, of the opinion that the appellant is entitled to succeed in all these appeals. In the result, all these four appeals are allowed and the order of the learned Magistrate in all the four cases is set aside. The cases are remanded to the learned City Magistrate, Bangalore, with a direction that he should proceed with the trial of these four cases, in accordance with law. Appeals allowed.
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1964 (2) TMI 76 - ALLAHABAD HIGH COURT
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... ... ..... in sections 53 and 55 of the Commonwealth of Australia Act, 1900, and they appear to me, therefore, of great instructive value in the interpretation of the words imposing or authorizing the imposition of a tax in Article 286(3) of our Constitution. The principle deducible from the above cases is that imposition is the levy as distinguished from the management, assessment, collection and control of the tax, the latter being only the legal machinery by which the obligation declared by the imposition is effectuated. The imposition of sales tax had been done by section 3 of the Act and section 3-A is really in the nature of an exception empowering conversion of multiple point taxation into single point taxation in regard to the goods and under the conditions mentioned therein. The amendment in question therefore did not obviously amount to a law imposing or authorizing the imposition of tax and is not rendered ineffective by Article 286(3) of the Constitution. Appeal dismissed.
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1964 (2) TMI 75 - SUPREME COURT
Whether the Assam High Court was right in taking the view that the provisions of s. 5 applied to the proceedings between the parties which were pending at the relevant time before the lower appellate Court?
Whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from -the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes?
Held that:- Appeal dismissed. Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by s. 5(1)(a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by s. 5(1)(a), provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of s. 5(1)(a). It is common ground that if s. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.
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1964 (2) TMI 73 - SUPREME COURT
The appellants as workmen of respondent No. 1 in all the three respondent concerns were getting free medical benefits of a very high order in a well-furnished hospital maintained by respondent No. 1. Respondent No. 3. the Union of India issued a notification under s. 1(3) of the Employees State Insurance Act appointing 28th August, 1960 as the date on which some provisions of the Act should come into force in certain areas of the State of Bihar and the area in which the appellants were working came within the scope of the Act.
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1964 (2) TMI 68 - SUPREME COURT
Whether the property in the goods passed within or without the Province, provided the Province had a territorial nexus with one or more elements constituting the transaction of sale?
Held that:- Appeal allowed. The High Court was in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts, that the goods were actually delivered within the State. If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted, on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States.
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1964 (2) TMI 65 - SUPREME COURT
Validity of section 11(2) of the Hyderabad General Sales Tax Act, No. XIV of 1950 questioned
Held that:- Appeal allowed. The State Legislature was incompetent to enact a provision like section 11(2). We may also add that the provision contained in section 20(c), being consequential to section 11(2), will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period. We therefore allow the appeal and quash the assessment order dated September 27, 1956, in so far as it is based on section 11(2).
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1964 (2) TMI 50 - HIGH COURT OF CALCUTTA
Appointment of sale selling agent ... ... ... ... ..... erely because an injunction might hold up the selling of the company s products in the overseas markets temporarily. As had already been noted if the defendants command the majority share they can easily put matters right. Lastly, it was argued that the orders being discretionary orders should not be interfered with in appeal. Ordinarily, no doubt, a court of appeal will be slow to interfere with the exercise of discretion by a trial court but this principle will not hold good if it be found that the trial court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration See per Viscount Simonds in Zackaria v. Republic of Cyprus 1963 AC 634, 661. As we have held that section 294 is a mandatory provision and as I have taken the view that, prima facie, the agreements are sole selling agency agreements, the exercise of discretion by the trial court cannot be upheld. In the result, the appeal should be allowed.
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1964 (2) TMI 49 - IN THE COURT OF APPEAL
Winding up - Powers of liquidator ... ... ... ... ..... sociation is complete. It intends to carry on its activities, inter alia, in the three rooms on the top floor of No. 29, Tavistock Square, virtually for the rest of its life, short as that may be. Moreover (and this is of crucial importance), it is quite plain that the transfer to the new chartered association will be by way of gift, and not for any financial consideration. In these circumstances there seems to me to be no reason on principle or authority why the probable brevity of the landlords occupation of the three top rooms should confer any benefit upon the tenants, and in my view it does not do so. If the transfer to the chartered association had been completed before the county court hearing, the tenants would clearly have had no right to a new lease. I am glad to think that the law does not make the rights of the parties depend upon the fortuitous circumstance as to whether the transfer is executed sooner rather than later. I agree that the appeal should be allowed.
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