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Case Laws
Showing 41 to 60 of 115 Records
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1975 (9) TMI 155
Whether the impugned assessment orders and demand notices were authorised under the Bombay Sales Tax Act, 1953, and the Bombay Sales Tax Act, 1959, after the dissolution of petitioner No. 1-firm on 20th May, 1962?
Whether respondent No. 1 followed the procedure laid down by law in passing the said orders and issuing the said demand notices?
Whether the assessment and reassessment made against petitioner No. 1-firm is proper and based on the turnovers of petitioner No. 1-firm as stated in the said orders?
Held that:- Appeal allowed. A dissolved firm may be equated with a dead person; both cease to be assessable units. The apprehension that the firm may be dissolved voluntarily in order to avoid liability should not, in my opinion, make any difference in principle; a man who takes his own life is in no worse position than one who dies of a natural cause, so far as the tax dues are concerned. As for aviodance of liability, it is up to the legislature that created the liability to prevent evasion. Section 19(3) of the 1959 Act which makes the erstwhile partners of a dissovled firm jointly and severally liable for the tax (including any penalty) due from the firm, was obviously enacted with that purpose; but making the partners liable for the dues of a dissolved firm does not mean that the dissolved firm as such can be assessed. Therefore the assessment orders made and the demand notices issued in the name of the dissolved firm in the instant case must be held to be invalid.
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1975 (9) TMI 147
Whether "meat on hoof" is taxable under the Punjab General Sales Tax Act, 1948?
Held that:- Appeal allowed. It is difficult to appreciate the view taken by the learned single Judge which has been affirmed by the Division Bench that "meat on hoof is preserved meat, the preservation being the natural carton consisting of the skin of the animal". The skin covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, in our opinion, goes against commonsense.
The question can be answered only on a proper appreciation of the terms of the agreement between the appellants and the army authorities, the case must go back to the High Court for disposal of the matter according to law on a consideration of the relevant contract; the appellants will file copy of the contract, supported by an affidavit, before the hearing of the matter in the High Court.
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1975 (9) TMI 135
Interpretation of section 7-A of the U.P. Sales Tax Act - Held that:- Appeal allowed. If the interpretation given by the High Court is accepted, it will amount to giving a licence to the assessee to escape final assessment by filing wrong quarterly returns and deflating the profits earned by them. The result is that both the appeals are allowed. The judgments and orders of the High Court are set aside, but in the circumstances we leave the parties to bear their costs throughout. The order passed by this court, however, will not preclude the assessee from challenging the correctness of levy of penalty before the statutory authorities In accordance with law, if he is in time
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1975 (9) TMI 126
Contract between managing agent or associate and company ... ... ... ... ..... 140 have not been fulfilled by the assessee-company. Moreover, the contention raised by Mr. B.L. Pal as to agency does not arise out of the order of the Tribunal and he is not entitled to make out a new case for the revenue before us. The Tribunal, after considering all the relevant facts and the circumstances of the case and by applying the legal principles involved in the concept of trade, has come to the conclusion in favour of the assessee. Nothing has been shown by Mr. B.L. Pal to compel us to differ from the Tribunal. That apart, the law laid down by the Madras High Court in the case of Commissioner of Income-tax v. Sree Rajendra Mills Ltd. 1974 93 ITR 122 supports the contention made on behalf of the assessee. In this view of the matter, we overrule the contentions of Mr. B.L. Pal and return our answer in the affirmative and in favour of the assessee. In the facts and circumstances of this case, we do not propose to make any order as to costs. Hazra, J. mdash I Agree.
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1975 (9) TMI 117
Compromise and arrangement ... ... ... ... ..... should be given notice. Furthermore, without the financial particulars the court cannot judge the reasonableness or feasibility of the scheme, and has no material to sanction it. In the circumstances stated above, I hold that (a) the scheme had not. been passed by a 3/4ths majority of the value of the creditors present and it is in fact not possible to hold that it was so passed because a large percentage of the creditors have not been given any notice of the meeting, (b) in any case, the scheme had been rejected by the secured creditors and, therefore, has to be deemed to be rejected by the creditors generally, (c) on account of the failure to comply with the proviso to subsection (2) of section 391, the scheme cannot be sanctioned because the material particulars have not been filed, nor have other necessary details of the working of the company been disclosed to the court. The petition is accordingly rejected. The stay orders passed in these proceedings are all discharged.
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1975 (9) TMI 116
Oppression and Mismanagement ... ... ... ... ..... o the extent that it is repugnant to the Act will be void. In view of the fact that the learned counsel for the applicant relies on an article of the company which is inconsistent with the provisions of sections 397 and 398, I would hold that the article regarding arbitration would be void. He also states that the subject-matter of the present petition cannot be tried by this court but has to be referred to arbitration before it can be proceeded with. I find an obvious repugnancy between article 43 of the articles and sections 397 and 398 of the Companies Act, 1956. This repugnancy can be resolved in one of two ways, either the article is wholly void by reason of section 9(b) of the Act, or the article does not apply when proceedings for winding up a company or a petition under section 397 or 398 are moved in the court. In either case, the article cannot be called into play for the purpose of staying the present proceedings. The application is accordingly rejected with costs.
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1975 (9) TMI 115
Winding up – Statement of affairs to be made to official liquidator ... ... ... ... ..... e is dealt with. The provisions of the section show that there can be a late filing of the statement of affairs, but up to three months, the default can be excused under sub-section (3) of section 454 by an order of the official liquidator or the court. Now, Mr. Khanna has also made a submission that I should make some observations regarding persons who are directed by the court to file a statement of affairs. He submits that in the present case, the direction to Shri K. Maha-devan to file a statement of affairs has been made to day, which is long after 21 days from the date of the winding-up order and, therefore, such a person may not be subjected to the provisions of section 454(5) of the Act. I would not like to express my opinion on this point at this stage, but I am satisfied that if such a person defaults even if section 454(5) is not attracted, the court has sufficient power to compel the enforcement of its orders in other ways. This decides this application. No costs.
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1975 (9) TMI 114
Winding up – Power of court to assess damages against delinquent directors, etc. ... ... ... ... ..... ions by reason of what is stated in rule 11 are to be tried in a different form altogether. In the case of such company petitions, the notice of the petition is to be in Form No. 6 which specifies the manner in which the reply to the petition has to be filed. Thus, the Companies (Court) Rules, 1959, have themselves specified the procedure to be followed in the case of petitions. There are other provisions in the Rules relating to such petitions and, I find, that there is not much difficulty in applying those Rules in practice. As I have held above, the present proceedings before the court are under section 543 of the Companies Act, 1956, and, therefore, the first respondent was not required to file a written statement. As this is the position there is no necessity to set aside the ex parte proceedings and, hence, this application has to be rejected, but the applicant is permitted to rejoin the proceedings at the stage at which they are now. There will be no order as to costs.
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1975 (9) TMI 95
Compromise and arrangement ... ... ... ... ..... de appointing one or more persons to execute the instruments of transfer on behalf of those members of the transferor-company who have opted for cash payment under the scheme but have failed to carry out their further obligation in the circumstances of the case. It is relevant to bear in mind in this connection that a public notice as well as individual notices have been issued to the concerned shareholders giving them intimation about this proceeding in which such an order is sought by the transferee-company and that none of the concerned shareholders has appeared to oppose the making of an order in terms prayed. If, in spite of such notice given to the concerned shareholders, they have not chosen to appear, it would be legitimate to proceed on the footing that none of the concerned shareholders has any objection to an order of such nature being passed. These are the reasons which have weighed with me in making the order which is set out at the commencement of this judgment.
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1975 (9) TMI 93
‘Come before it’ occurring in section 37(1) of MRTP Act ... ... ... ... ..... n Barium Chemical s case (supra) is of no assistance to the respondent No. 5. I have already said hereinbefore that the reasons have been stated by the Director of Investigation in his letter dated 29th September, 1973, against each and every item mentioned in the impugned notice. It is for the Commission to come to a final conclusion in an enquiry to be instituted under section 37 of the Act whether respondent No. 5 have indulged in restrictive trade practices which are prejudicial to the public interest or not. If the petitioner and respondent No. 5 were aggrieved by any such decision, they could prefer an appeal to the Supreme Court under section 55 of the Act. The petitioner and respondent No. 5 have come up to this court only against the impugned notice under regulation 7 of the 1970 Regulations. No enquiry has been started as yet. As all the points raised by the petitioner fail, this rule is discharged. There will be no order as to costs. All interim orders are vacated.
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1975 (9) TMI 91
Resignation of director ... ... ... ... ..... instant case, the articles of association do not provide specifically about resignation . I am of the view that even in the absence of a provision in respect of resignation under the Act or under the articles of association of the company, the resignation tendered by a director or managing director unequivocally in writing will take effect from the time when such resignation is tendered. It is clear from the evidence in this case that even within six months after the company was formed, the petitioner tendered his resignation in writing on January 17, 1968, and, in my view, the resignation had taken effect on that day itself and the petitioner ceased to hold office from January 17, 1968. In the result, I set aside the conviction and sentence imposed on the petitioner and so acquit him. The fine amounts, if paid, will be refunded to the petitioner. The petitions are allowed. The valuable assistance rendered by Sri S. Gopalarathnam as amicus curiae is appreciated and recorded.
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1975 (9) TMI 75
What is the meaning and scope of section 186 of the Companies Act, 1956?
Held that:- On the occurring of any one or more of the said contingencies the court has to order the calling of a meeting of the company and its holding and conducting in such manner as the court thinks fit. The use of the word "and" between the words "held" and "conducted" in clause (a ) of sub-section (1) clearly shows that the court has no power to make any order regarding the holding and conducting of any meeting which has already been called without ordering a meeting of the company to be called in place of the meeting already called. If an order under clause (a) has been made such ancillary or consequential directions as the court thinks expedient could be given under clause (b), including a direction within the meaning of the explanation appended thereto. The language of sub-section (2) further fortifies the above interpretation of sub-section (1) and makes any meeting called, held and conducted in accordance with an order under sub-section (1) to be a meeting of the company duly called, held and conducted. The use of the word "or" in the first part of sub-section (1) may be disjunctive or conjunctive in the manner we have interpreted above. But, undoubtedly, the order under clause (a) has got to be for all the three purposes and not merely for holding or conducting of the meeting. Appeal allowed.
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1975 (9) TMI 66
... ...
... ... ..... e bill including the so called deposit before 3rd Aug., 1972 in respect of sales of products of Ruttanjee and Co. represents the price of liquor. It is not the appellant rsquo s case also, that the container is separately sold. There is no divisible sale involved. The split up between price and deposit without bailment or any other arrangement to indicate real deposit during the period, in our opinion can only be ignored. 8. It is established that where the value of container is insignificant, there is no implication of an independent sale of container even in general law as held by the Supreme Court in M.A. Razack and Co. vs. State of Madras in 19 STC 135 and other cases. 9. In the result both the appeals are partly allowed. The appellant will be entitled to a relief on a turnover of Rs. 4,80,484.78 at 12 per cent for 1971-72 and Rs. 8,22,085.65 at 12 per cent for 1972-73. The appellant will also be entitled to relief in respect of consequential surcharge and additional tax.
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1975 (9) TMI 65
... ...
... ... ..... has fixed the date of refund as the relevant date for purpose of deduction from the total turnover. Thus, the position under r. 5A(b)(i) was that a dealer can claim deduction in respect of the refund only in the year in which it was refunded and was not enabled to deduct the same in the year in which the sale took place if the year of sale and the year of refund was different. 8. In this present appeal the sales were done on 10th Nov., 1971 and 19th Nov., 1971. CN. were passed on 16th Feb., 1973 beyond the period of 6 months indicated in s. 13(5). The appellants are consequently eligible to claim the deduction in the year in which the refund was made, as there was no possibility of preferring the claim under s. 13(5). We find that the ratio of the recent decision in TC 369/70 rendered on 11th April, 1975 squarely applies to this instant case. The appellants are therefore entitled for relief on the disputed turnover of Rs. 1,41,214.08. 9. In the result, the appeal is allowed.
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1975 (9) TMI 62
... ...
... ... ..... imposition of a penalty in the present case. Having regard to the discussion above, it will be clear that there was no element of mens rea or contumacy on the part of the assessee to conceal the particulars of his income or to furnish inaccurate particulars thereof within the meaning of s. 271 (1)(c) for the assessment year 1968-69. We, therefore, hold that no penalty is exigible for this year and that the Appellate Assistant Commissioner was not justified in sustaining the penalty of Rs. 4,000. We accordingly cancel the said penalty of Rs. 4,000 and direct the Income-tax Officer to refund the same, if already collected from the assessee. 12. In the result, the assessee rsquo s appeal in ITA. No. 329 (Jab)/1974-75, for the assessment year 1967-68 is dismissed, while his appeal in ITA. No. 330 (Jab)/1974-75, relating to the assessment year 1968-69 is allowed. Consequently, the department rsquo s appeal in ITA No. 359 (Jab)/1974-75, for the assessment year 1968-69 is dismissed.
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1975 (9) TMI 61
... ...
... ... ..... we fail to see how the assessees can endeavour to meet a charge which they have not been called upon to meet. The argument of Shri Rama Rao that in the explanation submitted by the assessees before the IAC, there was no endeavour by the assessees to show that there was no gross neglect on their part has, therefore, no substance. The orders of penalties passed on foot of the said incorrect charge are liable to be struck down. But we have not done so. We have considered the cases on the assumption that the IAC has framed the charge correctly. On a careful consideration of the facts and circumstances of the cases and on the materials on record, we are satisfied that the assessees had discharged the burden of proof cast on them and had shown that they are not guilty of fraud or gross or wilful neglect in filing the returns of net wealth of the beneficiaries. 9. We cancel the penalties for all the years under appeal in respect of all the beneficiaries. 10. The appeals are allowed.
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1975 (9) TMI 60
... ...
... ... ..... Thus though the point decided in the case was whether delay was reasonable it was also observed that the photostate copy was as authentic as the counter foil. In the present case we have not only this photostate copy, but also a certificate furnished by the Commercial Tax Officer of the Government of Andhra Pradesh and this certificate clearly says that C form for this amount was issued by the purchasing dealer. In the unusual circumstances of this case in which the original and duplicate have both been lost, and the purchasing dealer is prevented from issuing lsquo duplicate rsquo because he has wound up his business, there seems no objection to the acceptance of the photostate copy of the counterfoil and the certificate of the Commercial Tax Officer of the Andhra Pradesh Government in place of the Original C forms and for assessing the sales to tax on that basis. 5. The appeal is allowed and the case remanded to the assessing authority for further action as directed above.
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1975 (9) TMI 59
... ...
... ... ..... My conclusion are mdash 1.(i) that the statute does not require that the notices under s. 269D(2) must be issued only after the publication of the notice under s. 269D(1) in the Gazette and (ii) that all the notices having been served or published in the present case, the mandatory provisions of the statute have been complied with any there is no irregularity or invalidity attaching to the proceedings. Alternatively, 2(i) that even if one assumes that the services of the notice under s. 269D(2) was invalid, that does not affect the validity of the initiation of the proceedings but only affects the validity of the order of acquisition passed this case and (ii) that it would be open to the competent authority to continue the proceedings from the stage of initiation by service of the notices under s. 269D(2) and complete them afresh 9. The case will now go back to the Members who originally heard the appeals for disposal in conformity with the provisions of s. 255(4) of the Act.
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1975 (9) TMI 58
... ...
... ... ..... ne, 1968 is not valid in the eye of law in as much as it is not signed by the guardians of the minors. This ground firstly in our view dos not arise out of the order of the AAC as well as the ITO as the ITO has taken action under s. 186 of the Act wherein the scope of the section is very must limited as it refers to the genuineness of the firm only. Secondly the above ground involves investigation of facts and it is not referring to purely a question of law. In this view we reject the prayer of the authorised representative of the Department for its inclusion ground No. 3 of the grounds of appeal taken by the Department. Thus in the facts and circumstances of the case we do not see any merit in the appeal filed by the Department as there is no infirmity in the order of AAC and as such the order of the AAC is confirmed and the appeal filed by the Department is dismissed. This is so because the assessee firm did transact business during the assessment year under consideration.
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1975 (9) TMI 57
... ...
... ... ..... The amount is sufficiently large enough to exclude any assumption that it would have been spent away immediately. After considering all the facts and circumstances of the case, we feel that it is quite likely that a part of this amount could come into the assessee s books later. So we would hold that Rs. 75,000 shown as bogus loans in 1964-65 assessment year could possible come out of Rs. 1,05,000 shown by the assessee as bogus loan on the last day of the prior accounting year. On the ground we will delete the addition of Rs. 75,000 in 1964-65. 11. As far as 1961-62 is concerned, the addition made was merely protective. The moneys were shown to have been received in 1963-64 assessment year and that is the proper year for addition. The protective assessment made for 1961-62 will have to be cancelled. 12. In the result, the appeal for the year 1963-64 is allowed while those for the years 1961-62 and 1964-65 are dismissed. The cross objection of the assessee is also dismissed.
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