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Showing 1 to 20 of 38 Records
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1965 (1) TMI 86 - SUPREME COURT
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... ... ..... n the cited case the Judges had differed on the question of sentence itself and the third Judge before whom the matter was placed was in favour of the death penalty. Bose J, in reducing the sentence to imprisonment for life, observed "But when appellate Judges, who agree on the question of guilt differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons". This cannot be raised to the pedestal of a rule for that would leave the sentence to the determination of one Judge to the exclusion of the other. In the present case both the Judges appear to have been in favour of the death sentence because although Gyanendra Kumar J. was in favour of acquittal he did not object to the confirmation of the sentence when Takru J. had given his opinion. The offence here was brutal and normally the death penalty should follow. We, therefore, decline to reduce the sentence passed. The appeal fails and is dismissed. 21. Appeal dismissed.
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1965 (1) TMI 85 - BOMBAY HIGH COURT
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... ... ..... individuals. On the argument advanced by Mr. Mehta, what may make it not the document itself but the document coupled with certain other evidence. Under section 26A, however, it must be the document itself which must constitute the instrument of partnership. In our opinion, therefore, the draft of the partnership deed produced on behalf of the assessee will not be sufficient to constitute an instrument of partnership. The other documents, as we have already pointed out, will not avail, because they were not in existence in the year of account, and cannot, therefore, form part of the instrument of partnership. 5. The result, therefore, is that the Tribunal was right in the view it took that there was no instrument under which the partnership was constituted within the meaning of section 26A of the Indian Income Tax Act, 1922. 6. Therefore, the question must be answered in the affirmative. The assessee will pay the costs of the department. Question answered in the affirmative.
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1965 (1) TMI 84 - CALCUTTA HIGH COURT
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... ... ..... been scored out. The contention of the assessee that he did not know exactly as to which capacity of his was under investigation rendering the notice invalid was not accepted by the Allahabad High Court. The Court observed that- "If the assessee was in doubt he might well have asked for elucidation from the Income Tax Authorities, or, when he was submitting his return, he should have made clear the capacity in which he was furnishing his return." The notice was held not to be bad on that score. 5. To the same effect is the judgment of the same High Court in re Radhelal Balmukand 1942 10ITR131(All) . 6. In our view the tribunal fell into error in concluding that it was for the Income Tax Officer to make up his mind in what status the notice was to issue. In many cases that might in effect be prejudging the issue without hearing the assessee. 7. The answer to the question posed must be in the negative and against the assessee who will pay the costs of this reference.
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1965 (1) TMI 83 - ANDHRA PRADESH HIGH COURT
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... ... ..... s and repairers to very small proportions. In that situation it was observed that the company dealt with part of its property which had become redundant and sublet it purely to produce income - a transaction quite apart from the ordinary business activities of the company. o p /o p 14. For the said reasons, we cannot accede to the contention that the ratio decidendi of Narain Swadeshi Weaving Mills v. Commissioner of Excess Profits Tax would apply to the facts of the case. We are inclined to the view that the ratio decidendi enunciated by Lord President Strathclyde in Sutherland v. Commissioners of Inland Revenue, referred to with approval in Commissioner of Excess Profits Tax v. Shri Lakshmi Silk Mills Ltd., applies on all fours to this case and that the question referred to us has to be answered in the affirmative, i.e., against the assessee. The reference is answered accordingly with costs. Advocates fee ₹ 200. o p /o p Question answered in the affirmative. o p /o p
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1965 (1) TMI 82 - MADRAS HIGH COURT
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... ... ..... ; Co. v. Commissioner of Income-tax 1965 56 I.T.R. 29, to which one of us was a party, has been cited. That was a case where a family was carrying on a business. There was a suit between the members of the family seeking a declaration of exclusive title of one of them to the business. The question was whether the legal expenses incurred by the firm in defending the suit would be an allowable deduction under section 10(2)(xv). It was held that it was not. Though this decision is not directly applicable, the circumstances in the present case bear some analogy to the facts of that decision. To the extent to which the legal expenses and charges for the interim administration were incurred by the company in the present case, they appear to fall in the ratio of the above decision and would, therefore, be not allowable items of expenditure. We answer the question partly in favour of the assessee on the lines indicated above. In the circumstances, there will be no order as to costs.
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1965 (1) TMI 81 - CALCUTTA HIGH COURT
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... ... ..... viously. The statute again does not state that the company is bound to act on the succession certificate though the properties did not belong to the estate of the deceased. In any event, the Succession Act read with the Companies Act does not compel the company to act on the succession certificate as obtained in this case. Hence, in my opinion, it is clear that there has been no default. In this connection the case of Kasiviswanathan v. Indo-Burma Petroleum Co. Ltd., reported in AIR 1936 Rang 52 may be referred to with advantage. Hence in my opinion the issues have to be answered in the following manner -- Issue No. 1-- No. It does not arise, Issue No. 2--No. Issue No. 3--No. 20. 20. In the result, it is evident that the application must be dismissed with costs. 21. In the circumstances of this case, I will give only a token cost to the respondent company assessed at ₹ 170/-. The applicant is accordingly directed to pay ₹ 170/- as costs to the Respondent Company.
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1965 (1) TMI 80 - ALLAHABAD HIGH COURT
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... ... ..... stent with the provisions of the Contract Act and, as such, would be wholly void and unenforceable. 8. I am, therefore, clearly of the opinion that the sale of the securities by the appellant Bank without reasonable notice to the respondent was bad and was not binding on hint. What is contemplated by Section 176 is not merely a notice but a 'reasonable' notice, meaning thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice. No such notice was ever given by the appellant to the respondent. There can thus he no escape from the conclusion that the sale of the securities by the appellant was against law and not binding on the respondent. The conclusion reached by the lower appellate court was, therefore, legally sound. 9. I accordingly dismiss this appeal, but in the circumstances of this case make no order as to costs of this appeal.
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1965 (1) TMI 78 - BOMBAY HIGH COURT
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... ... ..... in the view of the Tribunal Ciba Pharma was liable to make this payment because it had taken over the business relating to the pharmaceutical section and, therefore, this was part of the liability which arose to the appellant in the course of the carrying on of its business. It is not necessary to deal with this view of the Tribunal inasmuch as it had not been pressed by Mr. Kaka and in our opinion rightly. In the result, therefore, our answer to the second question would be against Ciba Pharma and in favour of the revenue. For reasons stated above, our answer to the first question is that the payment made by the assessee to Ciba Basle in pursuance of the agreement of December 17, 1947, is not an admissible deduction under the provisions of section 10(2)(xii) of the Income-tax Act, but the whole of the amount is an admissible deduction under section 10(2)(xv). Our answer to the second question is in the negative. In the circumstances of the case we make no order as to costs.
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1965 (1) TMI 77 - MADRAS HIGH COURT
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... ... ..... t if default occurred, the settlement would be void and the Government would be restored to their old rights, did not exist, then the only manner in which the Government could realise this sum of ₹ 6.50 lakhs or any amount out of it remaining unpaid would be to institute a suit, for, to our minds, this is not an order made under any of the provisions of the Income-tax Act, and would not consequently arm the Government with any powers of recovery under the Act. The correct view to take appears to us to be that this debt came into existence on the date of the agreement, and being not under the Act at all, it cannot be said that it comes within the mischief of section 2(m)(iii) of the Act. We are satisfied that the view taken by the Tribunal that these sums are deductible as debts owed on the respective valuation dates is correct. The question is answered accordingly. The assessee will be entitled to his costs. Counsel's fee ₹ 250. Question answered accordingly.
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1965 (1) TMI 76 - CALCUTTA HIGH COURT
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... ... ..... remarked (at page 521) "the written down value may be far from the real value of the asset on the valuation date. There cannot be any hard and fast rule in this matter and the Wealth-tax Officer is under no obligation to consider the written down value as the proper value of an asset." While we agree that the written down value may not in all cases represent the real value of the assets, in normal cases it will give the Wealth-tax Officer a fair idea of its proper value unless the plant and machinery are of a rare type or are of a quality which is not generally available in India and for which there is a keen demand. No such uncommon feature is to be found in the case before us. In our opinion, on the facts of this case, the Appellate Tribunal was right in its conclusion and the question posed must be answered in the affirmative and in favour of the assessee who will have the costs of this reference. MASUD, J.--I agree. Question answered in favour of the assessee.
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1965 (1) TMI 75 - BOMBAY HIGH COURT
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... ... ..... ch it was raised was only for the acquisition of the stock-in-trade and the manner in which it was raised was the ordinary commercial manner, where a trader for the purpose of acquiring its stock-in-trade borrows monies and utilises them for the acquisition of the stock-in-trade of the business and after disposal of the stock-in-trade repays the borrowed money to the creditor. The manner of raising the loan, therefore, was an ordinary incident of the trade, where circulating capital or stock-in-trade is held by borrowing temporary loans. In our opinion, therefore, the sum of ₹ 15,172 could be claimed by the assessee as a deductible revenue expenditure under section 10(2)(xv) of the Act and the departmental authorities and the Income-tax Appellate Tribunal were in error in not allowing the said deduction. Our answer, therefore, to the question referred to us is in the affirmative. The assessee will get his costs from the department. Question answered in the affirmative.
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1965 (1) TMI 74 - BOMBAY HIGH COURT
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... ... ..... e computation the sum paid or payable in the United Kingdom for the years in question in respect of the Indian profits was nothing. The amount of relief must be quantified and can only be ascertained by computing how much of the whole of the United Kingdom income tax is to be attributed to the income in respect of which Dominion tax has been paid." It appears to us that applying the test laid down by Lord Justice Atkin to the facts of the case before us, there is no doubt that the part of the Indian income-tax paid by the assessee which corresponds to the tax on the amount of ₹ 20,512 is attributable to the income in respect of which the State income-tax has been paid. The cases referred to by Mr. Joshi, therefore, do not support the contentions which he has raised. The result, therefore, is that our answer to the question which has been referred to us is in the affirmative. The Commissioner will pay the costs of the assessee. Question answered in the affirmative.
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1965 (1) TMI 73 - ANDHRA PRADESH HIGH COURT
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... ... ..... t must be held that the adjudicatory process adopted the petitioner " a reasonable opportunity of being heard" in answer to the charge, within the meaning of section 124 (c) of the Act. this amounted to such a denial of natural justice as to entitle this Court to set aside those proceedings. (19) In the result, this writ petition is allowed and the impugned order of the Collector, in so far as it relates to the Petitioner, is quashed. This however, does not preclude the authorities from taking fresh action against the petitioner in the light of this judgment . We may also mention that the learned Government Pleader , appearing for the Collector, has stated before us that the show-cause notice issued to the petitioner , was defective in that it did not give sufficient particulars of the wrongful act alleged against him so as to enable him to make an effective to be taken. (20) In all the circumstances of the case, we make on order as to costs. (21) Petition allowed.
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1965 (1) TMI 72 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ence of the transfer the business of the assessee had come to an end. The Tribunal found to the contrary and as that finding has been maintained in this reference, the allowance of this amount by the Tribunal to the assessee as legitimate expenditure is correct. So all the items have in law been rightly allowed by the Tribunal to the assessee. The broad basis for disallowing the same was that the business of the assessee had come to an end on March 10, 1951, when it transferred its banking business to the transferee bank, but that basis not being correct, the only approach that could be made to those amounts was the one adopted by the Tribunal in the facts and circumstances of the case. So the answer to the third question is also in the affirmative. The three questions referred to this court have been answered in the affirmative. The Commissioner of Income-tax will bear the costs of the assessee in this reference. FALSHAW C.J.--I agree. Questions answered in the affirmative.
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1965 (1) TMI 71 - HIGH COURT OF PUNJAB AND HARYANA
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... ... ..... the decisions in those cases and long before the decision in Banarsi Debt's case (supra) and yet in none of these cases was any reliance placed on the expression "notice issued" in section 31 of this last mentioned Act as altering the meaning of the expression "served" in subjection (1) of section 34 of Act 11 of 1922. Just as the expression "issued" in the first proviso to sub-section (3) of section 34 of Act 11 of 1922 cannot be read to affect the meaning of the expression "served" in sub-section (1) of section 34 of that Act in the same manner the expression "issued" in section 31 of Act 25 of 1953 does not affect the meaning and scope of the expression "served" as used in sub-section (1) of section 34 of Act 11 of 1922. So that even section 31 of Act 25 of 1953 does not advance the argument on the side of the Commissioner of Income-tax. The answer to the question in the reference is thus in the affirmative.
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1965 (1) TMI 70 - BOMBAY HIGH COURT
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... ... ..... he has received a sum of ₹ 9,95,000. Understanding the dealing in the commercial sense, what the assessee has gained is only the balance, viz., ₹ 4 lakhs. It is found as a fact that ₹ 5,000 have been paid to the broker for bringing about this deal. Paying the amount to the broker is in ordinary course of business. The assessee has received in its hand only a sum of ₹ 3,95,000. In these circumstances, in our opinion, the Tribunal has rightly held that the amount which could be brought to tax in the hands of the assessee under section 10(5A) was only ₹ 3,95,000, and not the entire amount of ₹ 10 lakhs. The answer to the second question would, therefore, have to be in favour of the assessee and against the department. In the result, our answer to the first question is in the affirmative, and our answer to the second question also is in the affirmative. In the circumstances, we make no order as to costs. Questions answered in the affirmative.
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1965 (1) TMI 69 - CALCUTTA HIGH COURT
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... ... ..... deductible in view of the words 'net value' in Section 7(2)(a) of the Act. We cannot accept such contention also because this new aspect has not been urged at any earlier stage of the proceedings nor do we propose to reframe the question in a broader language as suggested by him. In any event, this aspect of the question has also been dealt with by us in a judgment of this Court in Macneill and Berry Ltd. v. Commissioner of Wealth Tax Calcutta Matter No. 141 of 1962 delivered to-day where on a construction of Section 7(2)(a) we have decided the point against the assessee. 9. For the reasons stated above, the answer to first question is that the water tanks and roads are, and pipelines and bridges are not, 'agricultural land' within the meaning of Section 2(e)(i) of the Wealth Tax Act. The answers to the second, and third questions are in the negative and against the assessee. Each party to bear and pay its own costs of this reference. 10. Mitter, J.-I agree.
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1965 (1) TMI 68 - SUPREME COURT
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... ... ..... argument advanced by the learned counsel for the appellant that the expression "appeal" in S. 39 of the Act takes in a Letters Patent appeal under s.110 of the Letters Patent. Learned counsel for the respondents further contended that s. 39 of the Act conferred a special jurisdiction on the High Court as persona designate and therefore, the decision of the single Judge in appeal is not a "judgment" within the meaning of cl. 10 of the Letters Patent. In support of this view reliance was placed, inter alia, on Radha Mohan Pathak v. Upendra Patowary(A.I.R. 1962 Assam 71.) and Hanskumar Kishanchand v. The Union of India( 1959 S.C.R. 1177.) But, in the view we have expressed on the construction of S. 39 read with s. 43, of the Act, it is not necessary to deal with that question in this appeal. We shall not be understood to have expressed our opinion on this question one way or other. In the result, the appeal fails and is dismissed with costs. Appeal dismissed
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1965 (1) TMI 67 - ALLAHABAD HIGH COURT
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... ... ..... if, in order to be on the safe side, he filed additional applications for reference and the Tribunal not only entertained them but consolidated them for the sake of convenience, we can see nothing illegal, inherently wrong or irregular in this course. It cannot be that the petitioner is neither an "individual" nor a "Hindu undivided family" and as such not entitled to any relief. He certainly had a grievance as a result of the order passed by the Tribunal and at least three of the reference applications were competently filed. As already observed the references were consolidated and the answers given to the questions referred will have to be given effect to in the assessments made and therefore the technical objection taken by the department is of no substance. Accordingly, the questions are answered as stated hereinabove. Counsel's fee is assessed at ₹ 200. In the circumstances of the case, there will be no order as to costs of this reference.
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1965 (1) TMI 66 - SUPREME COURT
Whether the High Court had no jurisdiction to entertain the action instituted by the plaintiffs and had no power to make an order issuing a temporary injunction?
Held that:- By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it. The appeal must therefore be allowed. Temporary injunction granted by the High Court is vacated and the plaint is ordered to be returned for presentation to the proper Court. Appeal allowed.
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