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Showing 21 to 40 of 142 Records
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1970 (3) TMI 162
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... ... ..... en academic standards require that the university's appreciation of the problem must be respected. It would not do for the Court to say that he should have examined all the candidates or even their representatives with - a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury. We are satisfied that no principle of natural justice was violated in this case. The Board through its Chairman and later itself reached the right conclusion that the examinations at this Centre had been vitiated by practising unfair means on a mass scale and the Board-had every right to cancel the examination and order that a fresh examination be held. There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and transparent. We therefore set aside the order of the High Court and ordered dismissal of the writ petition but made no order as to costs.
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1970 (3) TMI 161
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... ... ..... in the plaint that the policy was ever surrendered by either of the respondents and no evidence was tendered on behalf of the respondent No. 1 that there was a surrender of the policy. Even assuming that the assignment of the policy by the respondent No. 2 to the respondent No. 1 is a valid and lawful assignment, which in our view, it is not, the respondent No. 1 would have no cause of action against the appellant until surrender of the policy. And in this case such a surrender has neither been pleaded nor proved. Counsel for the respondent No. 1 contended that the parties proceeded on the basis of a surrender. I cannot accept this contention. In order to succeed in this suit the respondent No. 1 is bound not only to establish a valid and lawful assignment of the policy in his favour but must also prove a surrender of the policy, and in my view it has failed to prove either. 28. For these reasons this appeal must succeed and I concur in the order made by my learned brother.
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1970 (3) TMI 160
Whether the numeral '50' and the word 'Fifty' were common to the trade at the time of the original registration and were therefore not distinctive of the bells manufactured by the respondent- company, Sup. CI- 6?
Whether the respondent-company had fraudulently declared at the time of registration that they were the originators or proprietors of the said two marks '50' and 'Fifty'?
Held that:- No contention, therefore, can be raised that the trade marks, '50' and 'Fifty', were not distinctive, i.e., adapted to distinguish the cycle bells of the respondent-company at the date of the registration, and therefore, were not registerable as provided by s. 9.
Though evidence was produced by the appellant companies to show that there were other bells in the market with 'Fifty' or '50' inscribed on them, no evidence was led to show that the use of the word 'Fifty' or the numeral '50' was substantial. In these circumstances, it is impossible to sustain the contention founded on cl. (c) of S. 32. Under s. 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of, appeal would refuse to interfere. In the present case, however, the Trial Court did not appreciate the principle embodied in ss. 32 and 1 1, with the result that the Division Bench was justified in interfering with the discretion exercised by the Trial Court. Appeal dismissed.
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1970 (3) TMI 159
Whether the High Court had power under section 561A of the Code of Criminal Procedure to quash proceedings being taken by the police in pursuance of first information reports made to the police?
Held that:- Appeal dismissed. Though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in section 159 of the Code.
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1970 (3) TMI 158
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... ... ..... appeared before us and produced the relevant registers. On perusal of the registers, it is clear that Gazette No. 328-A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least from 12th December, 1966. The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notifi- cation at all. We are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public. The writ petitions are therefore allowed to this extent, that the res- pondents are restrained from giving effect to the notification between 1st December, 1966, and 11th December, 1966, both days inclusive. Otherwise the writ petitions are dismissed. There will be no order as to costs. Petitions partly allowed.
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1970 (3) TMI 157
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... ... ..... orised gain for themselves, while the State which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice. For all the aforesaid reasons, we are clearly of the view that the petitioners are not entitled to the relief of refund of tax in these petitions under article 226 of the Constitution of India. These writ petitions, therefore, fail and are accordingly dismissed with costs. Advocate s fee Rs. 100 in each. Petitions dismissed.
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1970 (3) TMI 156
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... ... ..... lation to tobacco seeds during the relevant assessment years. W.P. Nos. 1468 of 1968 and 3931 of 1969 are also allowed to the extent they seek to challenge the levy of tax on the turnover relating to tobacco seeds and a writ of prohibition interdicting the respondents therein from assessing the petitioners in those applications to tax on the turnover relating to that commodity alone will issue. The petitioner-firm in W.P. No. 1468 of 1968 will be entitled to a refund of the tax which has been paid by it provisionally in relation to tobacco seeds for the assessment year 1966-67. The petitioner in W.P. Nos. 1462, 1464 and 1471 of 1968 are not entitled to any relief since the turnover on the basis of which they were assessed or proposed to be assessed to tax during the relevant years, does not include tobacco seed and as these petitions are dismissed, we direct the parties in all the petitions to bear their respective costs in the circumstances of the case. Ordered accordingly.
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1970 (3) TMI 155
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... ... ..... fitable and of securing to the State compensation or damages caused by the attempted evasion. It was held in that case that section 28(4) of the Indian Income-tax Act, 1922, under which no prosecution for an offence could be instituted in respect of the same facts on which penalty had been imposed, only made provisions for a statutory concession to the assessee in the overlapping cases, and did not attract the vice of unequal protection of laws. To the same effect is a judgment of a Bench of the Andhra Pradesh High Court in Maddula Appa Rao v. Income-tax Officer, Eluru(2). These provisions have to be viewed, therefore, in their true light. And seen thus, it will be clear that the violation of article 14 of the Constitution complained of, does not in fact exist. The second contention of the learned counsel, therefore, cannot be accepted. In the result, the writ petition is dismissed, but in the circumstances of the case, there will be no order as to costs. Petition dismissed.
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1970 (3) TMI 154
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... ... ..... printing charges. 4.. Law on this question has been fully discussed in S. J. C. Nos. 7 to 13 of 1968, disposed of on 12th February, 1970 , and it is unnecessary to discuss the same here. On the facts and circumstances of this case, we are satisfied that the agreement was of a composite character, that the contract was indivisible and as such the opposite party is liable to pay sales tax on the entire sum. 5.. The questions have been badly drafted. So many questions were not necessary. We would reframe the question as follows Whether, when there is an indivisible contract showing an order for purchase of printed material sales tax is payable in respect of the entire charges? On the analysis made above the contract is indivisible and our answer to the question would be that sales tax is payable on the entire charges. 6.. In the result, the references are accepted, but in the circumstances there will be no order as to costs. ACHARYA, J.-I agree. References answered accordingly.
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1970 (3) TMI 153
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... ... ..... ection 21 applies to the facts of the case has not been referred to us. We are also unable to reframe the question to include this aspect of the matter because it is entirely a different question and the revising authority has refused to refer such a question even though the assessee had in its application under section 11(1) specifically requested the judge (Revisions) to make a reference on that question. It was open to the assessee to have made an application to this court under section 11(4) requiring the revising authority to refer that question also, but that procedure has not been followed with the result that we can only answer the question which has been referred to us. For the reasons stated above we answer the question in the affirmative against the assessee and in favour of the department. The Commissioner of Sales Tax is entitled to the costs which we assess at Rs. 100. The counsel s fee is also assessed at the same figure. Reference answered in the affirmative.
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1970 (3) TMI 152
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... ... ..... etitioners to establish such state of affairs, but the petitioners however did not avail themselves of such opportunities given. In those circumstances and having regard to the peculiar circumstances of this case, we are of the view that on the merits the petitioners cannot contend that the action initiated by the respondent has to be thwarted even at its threshold without any further enquiry whatsoever. We are therefore of the opinion that the respondent had jurisdiction to issue the impugned notice. But in view of the legal impediment, which is substantial, the action taken by the respondent against the petitioners is without jurisdiction. The transactions admittedly relate to alleged dealings of a partnership firm. The said firm has been dissolved. There is no provision in the Act to assess a dissolved firm after it becomes defunct. In this view the rule nisi issued has to be made absolute. The petition is allowed, but there will be no order as to costs. Petition allowed.
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1970 (3) TMI 151
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... ... ..... me Court in State of Punjab v. Bajaj Electricals Ltd. 1970 25 S.T.C. 82 (S.C.)., the negotiation of documents through a bank is an ancillary activity to secure the realisation of the price of the goods from the purchasers. I am, therefore, of the opinion that the decision in the case of Nestles Products 1963 14 S.T.C. 606. is erroneous in so far as it seeks to hold the assessee in that case to be dealer in U.P. on the ground that the railway receipts in respect of the goods despatched to U.P. dealers were negotiated through bankers in U.P. By the Court The first question is answered in the negative, in favour of the assessee and against the department. In view of the answer to the first question, the other questions are merely of academic importance, and they are returned unanswered. The assessee would be entitled to his costs, which are assessed at Rs. 200. The fee of the learned counsel for the department is also assessed at the same figure. Reference answered accordingly.
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1970 (3) TMI 150
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... ... ..... used for all other fixtures. Therefore gattis do not fall within the scope of the expression all other accessories of electrical goods. In the result, we hold that wooden casings and reapers fall within the meaning of the expression all other accessories and that gattis do not fall within the scope of the expression all other accessories . Therefore, to the extent of the turnover of the sale of gattis , the rate at which the sales tax can be levied will be at the general rate and not at the rate specified for the goods listed in item 37 of the First Schedule. If there is any separate account maintained by the assessee for the sale of gattis , it will be open to him to place the accounts with respect to the sale of gattis , so that the assessment could be made at the general rate with regard to that turnover. With the aforesaid direction regarding gattis , the revision and the connected writ petition (W. P. No. 1597 of 1968) are dismissed with costs. Petition partly allowed.
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1970 (3) TMI 149
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... ... ..... er he will be liable to tax only if the purchase can be brought within the second limb of the entry, that is, if it is the last purchase within the State. So construed the object of the Legislature to tax the goods at the point of last purchase alone before the goods lose their identity as a taxable commodity is carried out. That this is the object of the entry was also recognised by the learned Judges who decided the two cases referred to. Though we have expressed our disagreement with the two decisions, it is not necessary to refer the case to a larger Bench in the view taken by us that the word miller occurring in entry 3 of Schedule IV does not take in a person who decorticates groundnuts. We have expressed our views only because we do not want to be understood as having accepted the views of the learned judges in the earlier two cases. In the result the two writ petitions are allowed. There will be no order as to costs. Advocate s fee Rs. 100 in each. Petitions allowed.
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1970 (3) TMI 148
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... ... ..... or error of jurisdiction justifying our interference in these special appeals. The submission of Sri T. Ramam that the Deputy Commissioner cannot revise an order which was the subject-matter of the appeal decided by the Sales Tax Appellate Tribunal cannot be entertained in T.R.C. No. 27 of 1969. The assessee is at liberty to raise this point before the concerned authority and have adjudication of his rights, if any. In the result, the writ petitions filed by the rice millers, viz. W. P. Nos. 1017, 1214, 1216 to 1221, 3005, 3085, 3086, 3088, 3090, 3306, 3327, 3401, 3837, 3838, 3866, 3878, 3919, 3920, 4232, 4233, 4243, 4244, 4269, 4270 and 4430 of 1969 are dismissed with costs. Special Appeals Nos. 1 and 2 and T.R.C. No. 27 of 1969 are also dismissed with costs. The writ petitions filed by the retail dealers, viz., W. P. Nos. 181 and 3447 of 1969, 1981 of 1966, 542, 1057, 1397, 3630 and 3632 of 1967, 714, 1208, 1584 and 1849 of 1968 are allowed with costs. Ordered accordingly.
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1970 (3) TMI 147
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... ... ..... or where the expenditure is incurred as an incident of sale. Therefore, it is clear that what is sought to be excluded there are the freight and handling charges after the sale and not before the sale. Clause (h) of section 2 of the Central Sales Tax Act deals with freight and handling charges prior to the stage of delivery and in this case, the expenditure incurred towards freight and handling charges was prior to delivery in connection with the sale in question. Therefore, the Tribunal was 1969 24 S.T.C. Short Notes 6 since fully reported as Dyer Meakin Breweries Ltd. v. State of Kerala 1970 26 S.T.C. 248 (S.C.). right in holding that sale price does not include freight and handling charges and as such, the assessees are entitled to claim exemption in respect of this turnover shown as freight and handling charges for the four assessment years in question. In the result, the order of the Tribunal is confirmed and the revisions are dismissed with costs. Petitions dismissed.
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1970 (3) TMI 146
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... ... ..... ected in the course of the enquiry held behind the back of the assessee would be a question of law coming within the sweep of the second part of the question. In our opinion, the results of the enquiry could not have been utilised against the assessee without his being given a reasonable opportunity of having his say in the matter. 13.. Learned Advocates for the parties say that the case should go back to the Tribunal to make a further enquiry into the matter in the light of the points formulated above. Thereafter the Tribunal would dispose of the case after giving both parties an opportunity to place all materials and to lead evidence in support of their respective cases. The assessee will also get full opportunity to give rebutting evidence against any materials used against him. The references are disposed of accordingly and the case is remanded to the Tribunal. In the circumstances, there will be no order as to costs. ACHARYA, J.-I agree. References answered accordingly.
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1970 (3) TMI 145
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... ... ..... it of prohibition and as the matter is remitted to the assessing authority for reappraisal of the evidence, the revenue should be given an opportunity to prove that there was a market for sugar-cane in the vicinity, and that there were transport facilities available for carrying sugar-cane to places outside the place of its growth for being sold as sugar-cane. The request appears to be reasonable, as justice should not fail for want of evidence. Whilst allowing the request made by the learned counsel for the State, we make it clear that, if the attitude of the petitioner is indicative of the fact that he wanted to convert sugar-cane into jaggery not to earn the normal agricultural income but that the prime purpose was to get business income as a trader, then the petitioner would run the risk of being brought into the net of tax. This principle will also be borne in mind by the assessing authority. This addendum will form part of the judgment already delivered. Case remitted.
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1970 (3) TMI 144
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... ... ..... efore us to show that the element of time for deposit of the fee is a mandatory requirement. Nor can the mandatory nature be spelled out from anything in the context. We are not satisfied that merely because an exemption is involved every condition necessary to such an exemption is of a mandatory nature requiring strict compliance by the dealer. In our opinion, on this ground alone, the petitioner is entitled to succeed. The petition is allowed. The order dated 26th March, 1958, refusing exemption and the assessment order dated 17th September, 1959, made by the Sales Tax Officer, the appellate order dated 12th February, 1962, made by the judge (Appeals) in the assessment case, and the order dated 25th February, 1964, made by the judge (Revisions) Sales Tax in so far as it relates to the rejection of the exemption application and to the assessment for the year 1954-55 are quashed. Having regard to the circumstances of the case, there is no order as to costs. Petition allowed.
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1970 (3) TMI 143
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... ... ..... n the ambit of section 3-B, then the second purchaser is entitled to deduction from his taxable turnover. The process may go on in this manner and ultimately the same article may be purchased by the hundredth man without paying the purchase tax. The proviso puts the burden on the purchasing dealer to establish that either all or any of the earlier purchasers had paid the tax or at any rate had the liability to pay tax. This is a very heavy burden and could not be introduced by a rule when the Act does not intend to impose such a burden. It is open to the Legislature to introduce such a clause in the Act itself. We are told that the same has been done by the amending Act 15 of, 1968. 5.. On the aforesaid analysis, we are clearly of opinion that the impugned proviso is ultra vires the Act and is liable to be quashed. 6.. We accordingly issue a writ. The application is allowed but in the circumstances there will be no order as to costs. ACHARYA, J.-I agree. Application allowed.
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