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Case Laws
Showing 21 to 40 of 107 Records
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1966 (9) TMI 148
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... ... ..... le to uphold the contention of the assessee that he must be deemed to have “sold” the theatre to the lessor. We have earlier opined that he cannot be considered as having “discarded” the theatre in question. We have also come to the conclusion that the assessee was the owner of the building in question during the accounting year 1958-59. Hence, the assessee is entitled to the allowance for depreciation provided under section 10(2)(vi). Our answer to the questions referred to us is that, on the facts and in the circumstances of this case, the assessee is not entitled to the deduction of ₹ 85,907 claimed by him either under section 10(2)(vii) or under section 10(2)(xv) of the “Act”. But he is entitled to deduct a sum of ₹ 2,203 under section 10(2)(vi) of the “Act” as allowance for depreciation. As the assessee as well as the department have partly succeeded and partly failed in this case, we make no order as to costs.
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1966 (9) TMI 147
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... ... ..... ed to be void in law. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Ali Hossain Miya v. Raj Kumar Haldar(1), of the Allahabad High Court in Aulad Ali v. Ali Athar(2) and of the Madras High Court in Chinna Munuswami Nayudu v. Sagalaguna Nayudu.(1) Mr. Bishen Narain relied on the decision of the Calcutta High Court in Nobin Chandra Soot v. Nabab Ali Sarkar(4) and the judgment of the Allahabad High Court in Gopi Ram v. Jeot Ram(5). For the reasons we have already stated we hold that the later decisions in Ali Hossain Miya v. Raj Kumar Haldar(1) in Chinna Munuswami Nayudu v. Sagalaguna Nayudu,(3) and in Aulad Ali v. Ali Athar,(2) correctly state the law on the point. For the reasons expressed we hold that the decision of the High Court is correct and this appeal must be dismissed with costs. G. C. Appeal dismissed. (1) I.L.R. (1943) 2 Cal, 605. (2) I.L.R. 49 All. 527. (3) 1. L.R. 49 Mad. 387. (4) 5 C.W.N. 343. (5) I.L.R. 45 All. 478.
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1966 (9) TMI 146
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... ... ..... ifferent from that of the Subordinate Judge on the facts of this case we must hold that the whole approach of the learned Judges of the High Court was wrong and as such their decision cannot be upheld. The learned Additional Solicitor-General also wanted to argue that the suit was defective, because the plaintiff was out of possession and had not asked for a decree for possession in his plaint as he was bound to do if he was asking for a declaration of title to the property. It is to be noted that we did not think it necessary to go into this question and did not allow him to place the evidence on this point before us as we were of the view that the case of undue influence had not been sufficiently alleged either on the pleadings or substantiated on the evidence adduced. The result is that the appeal is allowed, the judgment and decree of the High Court set aside and that of the trial court restored. The respondents must pay to the appellant costs throughout. Appeal allowed.
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1966 (9) TMI 145
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... ... ..... e uses the same expression in the same statute at two places or more the same interpretation should be given to that expression unless the context requires otherwise. That being so, there is nothing wrong in permitting the appellant to raise the point as to the rate of interest as that question depends only upon the construction of section 28. In the view that we have taken as to the interpretation of section 28 Mr. Mishra must also succeed on this question. In the result, the appeal must be allowed and the judgment and order passed by the High Court set aside. The judgment and order of the District Judge by which he fixed the compensation at ₹ 20,700/- including solatium at the rate of 15 is restored. But we direct that the interest on the excess amount of ₹ 18,482/should be paid to the appellant at the rate of six per cent per annum from July, 4, 1947 up to the time of payment. The 'respondent, will pay to the appellant his costs throughout. Appeal allowed.
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1966 (9) TMI 144
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... ... ..... the rules he could not be recruited from the Bar as there was no vacancy. Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard. We have considered very carefully the question of expunging Mr. Justice Dutta's remarks, The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another Judge in Mr. Justice Dutta's place would not have made those comments is not the right criterion. The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised. The appeals accordingly fail and are dismissed but there will be no order about costs. Appeals dismissed.
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1966 (9) TMI 143
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... ... ..... shop rent. The appellants can not claim refund of the surcharge called the health cess on shop rent, if it was or could be collected by the State Government by virtue of its powers under the existing excise Acts. On the other hand, the State Government is liable to refund the surcharge if it was and could be collected under the Mysore Health Cess Act 1962 only. In the absence of arguments and fuller materials, the point is left open. In the result, the appeals are allowed in part, it is declared that the Mysore Health Cess Act, 1962, so far as it makes a levy of health cess on shop rent is beyond the powers of the State legislature and is invalid. The question whether the Mysore Health Cess Act, 1951 is valid as also the question whether the appellants are entitled to refund of the health cess collected from there are left open, and they are relegated to a suit. ORDER in accordance with the Opinion of the majority the appeals are allowed. There would be no order as to costs.
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1966 (9) TMI 142
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... ... ..... right of appeal "from any order or decision made or given in the matter of the winding up of a company by the Court." In Shankarlal Aggarwal v. Shankarlal Podda,( 1964 1 S. C.R.717,736.), this Court decided that these words, though wide, would exclude merely procedural orders or those which did not affect the rights or liabilities of parties. The order of the Controller dated May 29, 1965 refusing to issue a commission for inspection and preparation of a plan of premises No. 17, Alipur Road was a mere procedural order not affecting any right or liability of the appellant. The issue of a commission is only a step for assisting the parties in the prosecution of their case. It is open to the appellant to canvass the error, defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction. But no appeal from the order lay to the Rent Control Tribunal under s. 38(1) The appeal is dismissed with costs. Appeal dismissed.
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1966 (9) TMI 141
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... ... ..... ioning the order of the Commissioner and, therefore, it is open to any member of the public to file a suit under the Act. "Any person" there only refers to a person mentioned in sub-s. (3) of s. 74, i.e., a person who is guilty of misappropriation or wilful waste of the funds of the institution etc. It obviously refers to a trustee or some other person in management of the institution who is guilty of misappropriation. We, therefore, hold that Chapter VII of the Act has no bearing on the question of liability of an ex-trustee to render account to the present trustee of his management. Chapter VII does not provide for determining or deciding a dispute in respect of such rendition of accounts. If so, it follows that s. 93 of the Act is not a bar to the maintainability of such a suit. In the result, we set aside the decree of the High Court and restore that of the learned Subordinate Judge. The respondent will pay the costs of the appellant throughout. Appeal allowed.
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1966 (9) TMI 140
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... ... ..... neither sell, mortgage or alienate it. Only the widow of the deceased son and his sons had title to it. The recital in the will that he eventually wanted to gift, did not mean that he had not in fact given it to the son. The recital in the sale deed belies this. In the Bench decision to which we have referred, it may be noticed that the deceased had in fact declared the property as his own. Notwithstanding it, the Bench held that it did not form part of his estate. In these circumstances, applying the decision of the Bench of this court, we hold that the house bearing No. 134, Park Lane, Secunderabad, does not form part of the estate of the deceased. In this view, our answer to the first question is that it was not correctly included in the estate of the deceased, and as such in the negative and against the department. The second question must be answered in the affirmative and in favour of the department. There will be no order as to costs. Advocate's fees ₹ 250.
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1966 (9) TMI 139
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... ... ..... . The appellants cannot claim refund of the surcharge called the health cess on shop rent, if it was or could be collected by the State Government by virtue of its powers under the existing Excise Acts. On the other hand, the State Government is liable to refund the surcharge if it was and could be collected under the Mysore Health Cess Act, 1962 only. In the absence of arguments and fuller materials, the point is left open. 73. In the result, the appeals are allowed in part, it is declared that the Mysore Health Cess Act, 1962. so far as it makes a levy of health cess on shop rent is beyond the powers of the State legislature and is invalid. The question whether the Mysore Health Cess Act, 1951 is valid as also the question whether the appellants are entitled to refund of the health cess collected from there are left open, and they are relegated to a suit. ORDER 74. In accordance with the opinion of the majority, the appeals are allowed. There would be no order as to costs.
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1966 (9) TMI 138
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... ... ..... why Karmik should have perjured himself to implicate an innocent person." It is after arriving at this opinion that the High Court observed that Karmik's evidence received indirect corroboration from the subsequent conduct of the appellant. Such conduct is said to be that the appellant waited for three or four days before approaching the Joint Chief Controller, after receiving the letter of Mishra asking him to meet the Joint Chief Controller the same evening or the next day. The accused was certainly not questioned about the reason for his not meeting the Joint Chief Controller promptly. The delay need not therefore be attributed to his guilty conscience and cannot be taken to be any corroboration of the statement of Karmik. This, however, does not affect the case against the appellant when Kamik's statement is believed and requires no corroboration. The result is that the conviction of the appellant is correct. We therefore dismiss the appeal. Appeal dismissed
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1966 (9) TMI 137
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... ... ..... at his claim for possession falls under any one or more of or the grounds in section 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months notice as required by the proviso to clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed. In our view the construction placed by the High Court on section 3 was not correct and the High Court was wrong in holding that the words "notwithstanding anything contained in any other law for the time being in force or in any contract" absolved the respondents from their obligation to give the six months notice to the appellant before claiming from him vacant possession of the land in question. In the result, we allow the appeal, set aside the judgment and order passed by the High Court and dismiss the respondent’s suit. The respondents will pay to the appellant his costs all throughout. Appeal allowed.
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1966 (9) TMI 136
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... ... ..... he properties in schedule D were not liable to be partitioned. This contention of his was upheld by the trial court. That is why the decree does not provide for partition of D schedule properties. It was therefore unnecessary for the appellants to make him a party to the present appeal unless the appellants claimed some relief against him. Learned counsel for the appellants has stated that no relief is being claimed against Natarajan Chettiar respondent No. 3. The appeal therefore must fail as against Natarajan Chettiar who will get his costs from the appellants but no hearing fee. Further among the properties to be divided where a gold chain (item 6) and certain promissory notes (items Nos. 2 to 4) of schedule B. The trial court held that there was no proof that these items existed. In the decree however this has not been made quite clear. We therefore direct that the trial court will correct the decree to bring it into line with its finding on these items. Appeal dismissed
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1966 (9) TMI 135
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... ... ..... o. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute, but in our judgment in The State of Uttar Pradesh v. Raja Anand Brahma Shah and vice-versa( 1967 1 S. C. R. 362. 392) pronounced today we have held that the intermediary interest of the appellant in respect of Pargana Agor had validly vested in the State of U.P. by notifications issued on June 30, 1953 and July 1, 1953 under the U.P. Zamindari Abolition and Land Reforms Act, 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act, 1963U.P. Act No. 1 of 1964). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected. We accordingly allow this appeal to the extent indicated above and set aside the judgment of the Allahabad High Court dated November 2, 1962. We do not propose to make any order as to costs. Appeal allowed,
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1966 (9) TMI 134
Whether The Judicial Commissioner was in error in rejecting the application of the appellants for filing the arbitration agreement as barred under Art. 181 of the Limitation Act, 1908?
Held that:- There is no doubt that cl. (1) of s. 37 of the Arbitration Act deals only with the authority of the arbitrator to deal with and decide any dispute referred to him it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But s. 37(1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under s. 20 of the Arbitration Act because the claim is not made within three years form the date on which the right to apply arose. In dealing with an application for 'filing 'an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing with that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation : that question falls within the province of the arbitrator to whom the dispute is referred.
The Judicial Commissioner was, in our judgment, in error in rejecting the application of the appellants for filing the arbitration agreement as barred under Art. 181 of the Limitation Act, 1908. Appeal allowed.
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1966 (9) TMI 133
Whether the arbitrator committed an error of law in holding that the appellant had deducted ₹ 3,57,500/- from the bills of the Company with regard to contracts other than the three contracts of bedsteads which are the subject matter of the present case?
Whether the arbitrator could subtract the aforesaid amount of ₹ 3,57,500/from the price of steel credited to the appellant?
Held that:- There is no error of law on the face of the award and the argument of the appellant on this aspect of the case must fail.
In the present case, all the disputes in the suit, including the question of interest, were referred to the arbitrator for his decision. In our opinion, the arbitrator had jurisdiction, in the present case, to grant interest on the amount of the award from the date of the award till the date of the decree granted. Though, in terms, s. 34 of the Code of Civil Procedure does not apply to arbitration proceedings, the principle of that section will be applied by the. arbitrator for awarding interest in cases where a court of law in, a suit having jurisdiction of the subject-matter covered by s. 34 could grant a decree for interest. Appeal dismissed.
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1966 (9) TMI 132
Whether there was no error on the face of the award and the High Court exceeded its jurisdiction in setting aside the award of the arbitrator?
Held that:- The Umpire, in fixing the amount of compensation, had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Umpire or an Arbitrator cannot be held to be erroneous on the face of the record. We, therefore, allow the appeals, set aside the appellant order of the High Court, and restore that of the learned single Judge.
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1966 (9) TMI 131
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... ... ..... from the State to places outside was as a direct result of any covenant or incident of the contract of sale. On the contrary, the contract of sale with the Nagpur buyer had been completely carried out within the State of Madhya Pradesh itself, wherein the price was received by sending the documents of title to the buyer. The subsequent movement of the goods to places outside the State, being on the despatch instructions of the buyer, must be regarded as having been effected by the Nagpur buyer, after property in the goods had passed to him, so that the sales were not sales in the course of any inter-State trade or commerce but were intra-State sales. 7.. In that view, the answer to the question referred must be that the sales amounting to Rs. 2,74,965.77 were intra-State sales, liable to be taxed under section 18(4) of the Madhya Pradesh General Sales Tax Act, 1958. The Commissioner shall have the costs of this reference. Hearing fee Rs. 100. Reference answered accordingly.
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1966 (9) TMI 130
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... ... ..... eme Court. In that case, viz., Shree Bajarang Jute Mills Ltd., Guntur v. The State of Andhra Pradesh(1), their Lordships of the Supreme Court held that as 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, the State of Andhra had no authority to levy tax in respect of those sale transactions. In view of this decision of the Supreme Court, the decision of the Board of Revenue on the facts as found has to be set aside. It is not disputed by the learned Government Pleader that the actual delivery took place outside the State, which is the criterion held to be necessary to bring the transactions within the ambit of the definition of sale. The appeal is, therefore, allowed, the decision of the Board of Revenue is set aside, and the order of the Deputy Commissioner of Commercial Taxes, Guntur, is restored. There will be no order as to costs. Advocate s fee Rs. 100. Appeal allowed.
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1966 (9) TMI 129
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... ... ..... not exceed Rs. 5,000 and (iii) all such purchases relate to the same assessment year. It is indisputable that the two forms of declaration do not conform with these conditions. In the circumstances, even if any one of the conditions prescribed under rule 9-A is not satisfied, the seller will not be entitled to a concessional rate. Mr. Rama Rao, however, cited a decision of the Madras High Court in R. Nandalal and Co. v. Government of Madras 1965 16 S.T.C. 1. The Madras High Court, in our view, was not considering rule 9-A, but rule 10, which as framed by that Government is different, and, therefore, the ratio of that decision, even if it supports the contention of the learned counsel, which prima facie we do not think it does, is inapplicable to the facts of the instant case. We have no hesitation in holding that the Board of Revenue was right in disallowing the concession. In this view, this appeal fails and is dismissed with costs. Advocate s fee Rs. 100. Appeal dismissed.
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