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1966 (7) TMI 77
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... ... ..... nsequences flowing from that section would be attracted to the corpus of the trust properties which we have now held the Fourth Baronet is entitled to.... 141. In the result, therefore, we confirm the findings of the learned single Judge on all the Constitutional issues arising between the parties and hold that the Sir Currimbhoy Ebrahim Baronetcy (Repeal and Distribution of Trust Properties) Act, 1959, is a valid piece of legislation and intra vires of the Constitution. We partially allow Appeal No. 31 of 1963 and set aside the findings of the learned Single Judge holding that the trust properties reverted to the first Baronet and instead we hold that the fourth Baronet, claimant No. 8 before the Official Trustee, is entitled to the trust properties remaining after payment therefrom of the costs ordered to be paid by the learned Single Judge and by us as we shall presently order. We dismiss appeal No. 34 of 1963. 142. The rest of the judgment is not material to this report.
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1966 (7) TMI 76
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... ... ..... ed not, therefore, go into this alternative and possible cause of action which the plaintiffs could have alleged and proved. Undoubtedly, if that were the only cause of action perhaps Mr. Cooper may be entitled to succeed. In our view the case clearly falls under Article 62 and the cause of action for a suit there indicated is "money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use". In that view, the lacuna pointed out in the notice is not necessarily fatal to the plaintiffs' suit. The plaintiffs have in the plaint, in stating the cause of action, referred to Article 62 of the Limitation Schedule. 22. For these reasons, we allow the appeal, set aside the judgment and decree of the learned single Judge and instead pass a decree for ₹ 45,100 in favour of the plaintiffs and against the defendants. Prayer (d) for interest is also granted. The respondents shall pay the costs of the appellants throughout.
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1966 (7) TMI 75
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... ... ..... ials already brought on the record. 7. Even assuming that the annexures to the petition of appeal may be referred to, it does not at all improve the case of the prosecution. I have already referred to the relevant clause of the articles of association. It will be noticed that the vacation of the office of a Director under the various sub-clauses of Clause 96(1) is not dependent upon the acceptance of the resignation. It takes effect ipso facto. In other words, the Director ceases to hold the office ipso facto upon giving the notice in writing to the company that he resigns his office. Therefore, even assuming for the sake of argument that the respondent had attended the meetings held after he had served the notice, Exhibit B, upon the company, that would not affect the operation of the ipso facto clause contained in the relevant articles of association. 8. In my opinion, the acquittal of the respondent in this case is amply justified and this appeal is accordingly dismissed.
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1966 (7) TMI 74
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... ... ..... gatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case'. Mr. Shroff then contends that if the matter is discretionary. the High Court should not have interfered in the discretion exercised by the learned Sessions Judge. But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sessions Judge ordered confiscation of the truck on the ground that they had no option in the matter. Mr. Shroff then raises the point that M/s. Azad Bharat Finance Co. was a third party in the case and was not entitled to apply for setting aside the order of confiscation or request for the, return of the truck. This point was not raised before the High Court and, therefore, cannot be allowed to be raised at this stage. In the result the appeal fails and is dismissed. Appeal dismissed.
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1966 (7) TMI 73
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... ... ..... fore, of the opinion that the bar under Art, 20(3) of the Constitution will not be available to the statements in this case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Section 107 and 108 of the Customs Act of 1962 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above. (This case coming on for hearing on expression of the Opinion of the Full Bench, the Court (Ramakrishnana J.) made the following order (9th September 1966). (41) In accordance with the decision of the Full Bench, the order of the learned Sessions Judge pronounced on 30-10-1965 on the preliminary objection is set aside, and the learned Sessions Judge is directed to dispose of the case in accordance with law and in the light of the decision of the Full Bench. (42) The stay of the trial of the sessions case will be vacated. (43) Order accordingly.
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1966 (7) TMI 72
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... ... ..... cess of manufacture. The packing material cannot be said to be an article used as an ingredient in the manufacture of boot polish nor can it be described as an article consumed in the process of manufacture of boot polish. These articles are utilised for the purposes of packing for the facility of sale. The words used in the definition of raw material are an article used as an ingredient in any manufactured goods or an article consumed in the process of manufacture. If the interpretation of the petitioner is accepted, the words used would have been in connection with or in relation to manufacture of goods . It is, therefore, plain that the contention of the petitioner that the above-said articles are utilised in the manufacture of the boot polish cannot be sustained. 3.. The petition fails and is dismissed with costs. Hearing fee Rs. 100. The outstanding amount of the security deposit, if any, after deduction of costs, shall be refunded to the petitioner. Petition dismissed.
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1966 (7) TMI 71
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... ... ..... cision in regard to the first must necessarily govern this as well, this being an item of deduction provided by rule 7(a) of General Sales Tax Rules, 1950, framed under the General Sales Tax Act, 1125. Counsel on behalf of the department has conceded that the decision in regard to the first point must govern this point also. 7.. The only other point raised in this Tax Revision Case is in relation to the production of the C Forms. The departmental authorities have declined to accept the duplicate of the forms produced before the assessment. Counsel on behalf of the department has conceded before us that the C Forms produced will be sufficient to grant the exemption claimed and that tax could be imposed only at the rate of one per cent. in relation to the turnover covered by the C Forms. We accept this and direct that such modifications as are necessary will be made in this regard. 8.. We dispose of this Tax Revision Case in the above terms. There will be no order as to costs.
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1966 (7) TMI 70
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... ... ..... eral Sales Tax Act, 1125. For this purpose, it is essential that the assessee should carry on the business of buying or selling goods. When a person sells the produce from his land whether produced therein by agricultural operations or what grows there spontaneously, there is no element of any business involved. We dismiss these tax revision cases but make no order as to costs. Petitions dismissed.
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1966 (7) TMI 69
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... ... ..... court has to ascertain the purposes for which legal fiction has to be resorted to by a reference to section 15(h) of the Madras Act, 1939. The statutory fiction is only for its recovery and not for anything else. The recovery provision is contained in section 386(1) of the Criminal Procedure Code. There is therefore no scope for the application of section 70 of the Indian Penal Code to the instant case. We therefore hold that the execution of warrant issued under section 386(1)(b) of the Criminal Procedure Code for the recovery of arrears of sales tax, fee or amount so specified is not controlled by section 70 of the Indian Penal Code. If so the contention regarding limitation has to be overruled. It has to be mentioned that the learned Advocate for the appellant had no contention that the execution petitions are barred by limitation on account of any other statute. In the result, the Second Appeals are without substance and they are dismissed with costs. Appeals dismissed.
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1966 (7) TMI 68
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... ... ..... sa v. Aurobindo Auto Servica 1963 14 S.T.C. 46. which again construed the provisions of section 23(2) of the Orissa Sales Tax Act in relation to the right of appeal against an order summarily rejecting a first appeal. As we have observed earlier, these decisions also do not touch the present point at issue. In our view, the principles enunciated by this Court in Jagmohandas Gokaldas v. Commissioner of Wealth-tax 1963 50 I.T.R. 578. and Krishna Flour Mills v. Income-tax Commissioner 1965 55 I.T.R. 259 A.I.R. 1965 Mys. 70. are, with respect, the correct principles to be applied in respect of the present provisions. We accordingly hold that summary rejection of the appeal of the petitioner by the Deputy Commissioner does not bar a revision application which the petitioner preferred. We, therefore, quash the order of the Deputy Commissioner, dated 18th March, 1965, and direct that the case be heard on merits. The petitioner will get his costs from the respondents. Order quashed.
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1966 (7) TMI 67
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... ... ..... rder of assessment with respect to the third quarter (1st October, 1956 to 13th December, 1956). The perusal of the assessment order shows that the Sales Tax Officer took recourse to rule 28 of the Delhi Sales Tax Rules, 1951, for determining the taxable turnover. In S.B. Gurbaksh Singh v. Sales Tax OfficerCivil Writ No. 540-D of 1959 decided on 29th April, 1966 1966 18 S.T.C. 500. , I have already declared rule 28 to be ultra vires. On the assumption that that decision is correct, Mr. Shankar, the learned counsel for the respondents, does not seriously dispute that this assessment order will have to be quashed. In the circumstances, I quash the order dated 29th September, 1958, with respect to the third quarter mentioned above. It would, however, be open to the Assessing Authority to make a fresh assessment with respect to this period if, and to the extent, permissible by law. The petition is allowed to the extent indicated above with no order as to costs. Petition allowed.
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1966 (7) TMI 66
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... ... ..... at he cannot be. 8.. In the light of the above, we set aside the order of the Tribunal and direct that the following two questions be investigated and findings entered and appropriate orders passed (a) Whether there have been any assessments on the alleged commission agents in relation to the turnover of Rs. 97,052.43 or any part of it (b) If there are no assessments whether there have been any payment of tax In relation to the turnover of Rs. 97,052.43. And if so, the extent of such payments? If there have been assessments to the full extent or part of it, to that extent, there will be no assessments made on the principal, i.e., the petitioner before us. If there have been no assessments made, there can be an assessment to the full extent on the petitioner but he can be made liable only for the tax less, that, if any, that have been paid by the commission agents. 9.. This Tax Revision Case is disposed of as above. There will be no order regarding costs. Ordered accordingly.
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1966 (7) TMI 65
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... ... ..... ner was assessed to sales tax for the execution of the contract in question, the assessment is invalid and must be quashed. We, therefore, allow this application and quash the assessment order dated the 24th August, 1961, in part, that is, in so far as the petitioner has been assessed to sales tax thereunder for supply and fixture of wooden windows and doors and frames therefor in connection with the construction of the police lines building at Pali during the accounting year 1st April, 1959, to 31st March, 1960. As this assessment order appears to us to have been made with respect to certain other sales also during the accounting period in question, it will be for the Sales Tax Officer to separate the turnover relating to them from that relating to the contract in question, and our judgment shall have no effect on these other sales. Having regard to all the circumstances of the case, we leave the parties to bear their own costs of this writ application. Application allowed.
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1966 (7) TMI 64
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... ... ..... sale could be said to have occasioned the import, it is not necessary that the sale should have taken place anterior to the import and that even if the sale took place and the property in the goods passed during the course of import or even after import, a sale could be a sale in the course of import, provided that the movement of goods was incidental to the contract or was in pursuance of the conditions of the contract. That case can hardly help the petitioner. There was no condition in the alleged contract between Government and the petitioner which occasioned the movement of goods from Pollachi to Pothundi. There is nothing in the contract which prevented Government from diverting the petrol and diesel oil purchased from Pollachi for other purposes. I think the contract between the Government and the petitioner had no immediate causal connection with the movement of the goods across the border. I dismiss the petition but without any order as to costs. Petition dismissed.
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1966 (7) TMI 63
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... ... ..... under section 46(1)(f) and affirm his conviction under section 46(2)(c) of the Kerala General Sales Tax Act, 1963, in both the cases. As regards the sentence, it is pertinent to note that under the old Act the punishment for a fraudulent evasion of payment of tax was only a fine which may extend to one thousand rupees . The penalty of imprisonment was for the first time imposed by the new Act. Considering all circumstances, I think that the ends of public justice will be met in the instant cases by the imposition of adequate fines on the petitioner. I therefore quash the sentence of one month s imprisonment imposed on the petitioner and sentence him to a fine of Rs. 500, with two weeks simple imprisonment in default, in S.T. 592 of 1964 which gave rise to Crl. R.P. No. 309 of 1965 and to a fine of Rs. 2,000, with two months simple imprisonment in default, in S.T. 591 of 1964 which gave rise to Crl. R.P. No. 308 of 1965. Time to pay the fines one month. Judgment accordingly.
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1966 (7) TMI 62
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... ... ..... s. This contention, therefore, must necessarily fail. Mr. Thakar then has contended that inasmuch as the maximum penalty that can be imposed under section 10 is 1/4th of the actual tax leviable as the tax is reduced because of the judgment of this Court in the reference, the penalty levied will be reduced accordingly. Now, the judgment of the Sales Tax Officer shows that the penalty that he levied is not 1/4th in every case. The Sales Tax Officer is entitled to charge penalty at the maximum leviable. If, therefore, the amount of tax is reduced, the penalty exceeding 1/4th cannot be charged. Under the circumstances, therefore, we must modify the order regarding penalty and we direct that the penalty shall not be leviable in excess of 1/4th of the amount of the tax leviable in each of the cases. Subject to this modification, the petitions fail substantially and the rule is discharged. The petitioner will pay costs of the respondents in all the three cases. Petitions dismissed.
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1966 (7) TMI 61
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... ... ..... ing timber in the forest for the cutting of which the contract was given to the petitioner is not goods within the definition of goods contained in section 2(13) of Sales Tax Act which defines goods to mean all kinds of movable property . We are left to refer to the General Clauses Act for finding out the meaning of the words movable property which clearly does not include anything attached to the earth. Standing trees are very much attached to the earth and, therefore, they cannot be regarded as movable property. It is not necessary to elaborate the discussion inasmuch as in Husenali Adamji and Co. v. Commissioner of Sales Tax, M.P. 1956 7 S.T.C. 88. , this Court has expressly decided so. In the result, we allow the application and direct the Sales Tax Authorities to grant the set-off for the amount of tax recovered by the Government at the time of the contract. The petitioner will get his costs from the respondents. The point of penalty is not pressed. Application allowed.
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1966 (7) TMI 60
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... ... ..... . Is this principle offended in this case? In answering this question, we are inclined to think that we should look at the substance and not the form of the matter. Section 16 of the Madras General Sales Tax Act, 1959, substantially re-enacted, as we already mentioned, the provisions under the Madras General Sales Tax Act, 1939, relating to assessment of escaped turnover and the period of limitation for exercising that power. This is not, therefore, a case where the law, as re-enacted by the local Legislature, is substantially different from what it was when the Central Legislature enacted by reference to it. The crux of the matter is that the subject-matter of section 16 of the Madras 1959 Act is not something which the Parliament had not applied its mind to when it enacted section 9(3). On that view, we are not persuaded to hold that subsection (3) of section 9 is unconstitutional. The petitions are dismissed with costs one set. Counsel s fees Rs. 250. Petitions dismissed.
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1966 (7) TMI 59
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... ... ..... hear it on the ground that the persons who had presented the revision petitions had invoked the suo motu power of the Commissioner. It is clear that under the amended provisions of the Act, the only revisional jurisdiction which is confided to the Commissioner is that created by section 22-A in the exercise of which he could revise orders made by officers subordinate to him only if they are prejudicial to the interests of the revenue. That revisional jurisdiction was unavailable in the cases before us in which the orders far from being prejudicial to the interests of the revenue, promoted that interest. That being so, the retransmission of the records to the Commissioner was beyond the competence of the Appellate Tribunal. We set aside the orders of the Appellate Tribunal by which there was such retransmission and we direct the Appellate Tribunal to hear and dispose of what have now become appeals before it on their merits and according to law. No costs. Ordered accordingly.
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1966 (7) TMI 58
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... ... ..... ll the powers a civil court has under the Code. The decision of the Supreme Court does not affect the correctness of the view of the Bombay High Court on the interpretation of section 13 of the Bombay City Land Revenue Act of 1876 corresponding to section 48 of the Madras Revenue Recovery Act (11 of 1864). Thus the Commercial Tax Officer has no jurisdiction to invoke the powers of arrest under section 48 of the Revenue Recovery Act before satisfying the condition precedent that the arrears of tax demanded from the petitioner cannot be liquidated by the sale of his property. It is no doubt open to the Commercial Tax Officer to exercise the powers of arrest conferred under section 48 of the Revenue Recovery Act after exhausting his remedies against the properties of the petitioner. For the foregoing reasons, the order of detention of the petitioner in a civil jail is set aside. The writ petition is allowed. We make no order as to costs. His bond is cancelled. Petition allowed.
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