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1976 (5) TMI 111
... ... ... ... ..... r Section 263 of the Act. Therefore, the Commissioner by the order dated the 20th March, 1975, has given effect to the order passed under Section 263 of the Act which he was restrained to do so. In any event this is not permissible. I, therefore, set aside the order dated the 20th March, 1975, and direct the Commissioner to consider the application under Section 264 for the said assessment years. In the view I have taken the Commissioner must be restrained from giving effect to the notice under Section 263 of the Act which is under challenge in this writ application for the reasons mentioned hereinbefore. In the aforesaid view of the matter if any order has been passed pursuant to the notice as it has been passed in the instant case, the same is also quashed and set aside. The respondents are restrained from giving effect to the same. The rule is made absolute to the extent indicated above. There will be no order as to costs. Operation of this order is stayed for eight weeks.
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1976 (5) TMI 110
... ... ... ... ..... ravention of the order", that is to say, the Control Order, "may order the confiscation of the essential commodities seized". It is arguable that the power is there to confiscate whatever essential commodity may have been seized for the purposes of proceeding against the person who has contravened the Control Order, yet, it cannot be denied that this power is discretionary. 41. Therefore, we do not propose to interfere with the order of the learned Sessions' Judge, to the effect that, as the Revenue Officer's order releasing the seized rice to the extent of about 12% had become final, it should not be interfered with except to the extent that the learned Sessions' Judge added 2% more for foreign matter. Thereby releasing slightly more in favour of the respondents. 42. For the reasons given above, we allow these appeals and set aside the judgment and orders of the High Court and restore those of the learned Sessions' Judge in the cases before us.
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1976 (5) TMI 109
... ... ... ... ..... m a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of Section 40, there is nothing in that section to suggest . that the sub-tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under Section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under Section 16(3) was made. 7. The appeal is allowed, the order of the High Court appealed from is set aside and that of the trial court restored. The appellants will be entitled to their costs in this Court and in the High Court.
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1976 (5) TMI 108
... ... ... ... ..... , there is no provision which bars the civil court either expressly or by implication from trying such a suit. The memorandum of association of a company provided for the retirement of one-third of the directors at the annual general meeting and fresh elections to fill the vacancies. The directors who had to retire were those who had been in office for the longest period since their last election. Where one of the directors objected to his retirement, claimed that the fresh elections were void and applied for an injunction directing the company to allow the petitioner to act as director Held, that the civil court had jurisdiction to try the suit." 3. Similar view was taken by Tuli J. in Company Petition No, 78 of 1972 Edward Ganj Public Welfare Association Ltd., In re 1977 47 Comp Cas 283. 4. In view of this I hold that this petition is not competent before me and the only remedy available to the petitioner is to file a civil suit. The petition is accordingly dismissed.
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1976 (5) TMI 107
... ... ... ... ..... void of inferences arising therefrom) which were disclosed during the investigation and on which reliance is placed. As far as possible, the Court should insist upon affidavits, but in a given case it would be open to the Court to accept material supplied in some other form. Normally, however, the Court must insist upon the affidavit. 23. In view of the aforesaid reasons, the order passed by the learned Additional Sessions Judge is set aside. It is directed that the learned Additional Sessions Judge will call upon the Investigating Agency to dis close the material upon which it proposes to oppose the application for bail given by the petitioner and after such material is supplied, he should give an opportunity to the accused to make his submissions thereon and after hearing both the sides, he should come to the conclusion as regards exercise of discretion of releasing the petitioner on bail or otherwise. 24. With these directions, the present petition will stand disposed of.
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1976 (5) TMI 106
... ... ... ... ..... could reasonably proceed on what was left to the prosecution case to affirm the order of the conviction passed by the trial court. The prosecution case was one integrated story which the trial court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted. It was not the prosecution case that ₹ 70/- which was recovered from the appellant was the amount that the appellant has asked from the complainant. This was a new case made by the High Court. Undoubtedly there are circumstances in this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case an which the other part was dependant, we do not consider it safe to sustain the conviction of the appellant. Accordingly, we allow the appeal and set aside the order of conviction and sentences passed against the appellant.
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1976 (5) TMI 105
... ... ... ... ..... (4) that the appointing authority alone can impose penalties as specified in clauses (vi) to (ix) of Rules 13. Clause (vi) is the penalty of reduction in rank and clause (ix) is dismissal from service. Therefore, under the conditions of service the High Court cannot reduce in rank or dismiss a District Judge. If the reduction of the appellant is without jurisdiction then the appellant is deemed to continue as a District Judge. The High Court could not dismiss the appellant. Dismissal could only be by the Governor. This is clear from the decisions of this Court in N. S. Rao's case (supra) and Shamsher Singh & Anr. v. State of Punjab. The appeal is, therefore, accepted. The judgment of the High Court is set aside. The orders passed by the High Court on 8 December, 1972 and 3 December, 1973 are quashed. In view of the orders being quashed the appellant will be deemed to be an Additional District Judge up to the date he retired. Parties will pay and bear their own costs.
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1976 (5) TMI 104
... ... ... ... ..... before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled. The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court- fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court-fee already paid by the appellants which, in our opinion, is sufficient. In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs. Appeal allowed.
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1976 (5) TMI 102
... ... ... ... ..... urt pointed out that plaintff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient " only for meeting the expenses of livelihood"; plaintif Tirath Prasad (P.W. 6) also admitted that "our present income is not sufficient even for our maintenance because there are many members in the family" It thus appears that the lower appellate court overlooked a very mate rial part of the evidence bearing on the question. It is well establish ed that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v. Haripada Jana and Ors. We therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point. In the result the appeal fails and is dismissed but in the circumstances of the case we make no order as to costs. Appeal dismissed.
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1976 (5) TMI 101
... ... ... ... ..... ine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in s. 202 did not arise. Instead of taking cognizance of the offence he has., in the exercise of his discretion, sent the complaint for investigation by police under s. 156. This being the position, s. 202(1), 1st Proviso was not attracted. A Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to s. 202(1) of the Code of 1973. Suffice it to say, the stage at which s. 202 could become operative was never reached in this case. We have therefore in keeping with the well-established practice of the Court, decided only that much which was essential for the disposal of this appeal, and no more. For the foregoing reasons, we answer the question posed" in the negative, and dismiss this appeal. Appeal dismissed.
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1976 (5) TMI 100
... ... ... ... ..... s also intimated that this was their first mistake and there was no mala fides. 3. After going through the above submissions I observe that there was no deliberated intention on the part of the appellants to evade payment of duty and that the short payment was discovered and made good by the appellants themselves. In view of the above facts and over all circumstances of the case I am inclined to take a lenient view of the two cases. I, therefore, observe that imposition of a personal penalty is not called for in both the cases although the technical contravention of the rules stand. I, therefore, remit the personal penalty imposed on the appellants but otherwise uphold the order.
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1976 (5) TMI 99
What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh?
Held that:- In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant’s distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant’s Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well.
In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination. For the foregoing reasons, the respondents were right in demanding the duty on the shortages. Appeals dismissed
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1976 (5) TMI 98
... ... ... ... ..... ion list. In case it be held that rough rolled zincs are not assessable to duty as zinc sheets or strips after disposal of the matter by the Appellate Collector the petitioner should be directed to amend or vary the classification list accordingly. (6) Until the said decision is made and the said adjustments are given effect to the petitioner should go on paying the duties in terms and in the manner the petitioner has been paying pursuant to the interim order of this court and on final order being passed adjustment or refund should be made accordingly, as the case may be. (7) This order will not in any way prejudice the right of the petitioner to institute such proceeding for claiming refund of the balance sum on account of duty on zinc calots as the petitioner is entitled to under the law (8) The Appellate Collector will give his decision within four months from this date. (9) This rule is made absolute to the extent indicated above. (10) There will be no order as to costs.
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1976 (5) TMI 97
Whether the condition incorporated in the licences of the respondents that they would lift the fixed minimum quantity of liquor and sell the same at their allotted shops and in case of their default or failure to do so, they would be liable to pay compensation equal to the amount of excise duty leviable on the unlifted quantity is valid and enforceable?
Validity of the appellants' demand from the respondents in respect of sales tax at the rate of ten paise per rupee on the retail sales of country spirit made by the latter with effect from April 2, 1969 questioned
Held that:- The demand made by the appellants though disguised as compensation, is in reality a demand for excise duty on the unlifted quantity of liquor which is not authorised by the provisions of the Act. Appeal dismissed.
The High Court was clearly in error in ignoring that the Government cannot divest itself of the right incidental to its office by conduct which, in the case or a private person, would amount to estoppel and in characterizing the demand for sales tax made by the appellants as illegal. Accordingly Appeals are partly allowed, and it is held that the demand made by the appellants from the respondents in these appeals in respect of sales tax on the turnover of sales of' country spirit made by them between April B, 2, 1969 and March 31, 1970 was valid and could not be struck down. The parties in these six appeals shall pay and bear their own costs. P.H.P. Appeals partly allowed.
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1976 (5) TMI 96
Whether the appellant was given a reasonable opportunity to lead evidence?
Held that:- There is no affidavit before us that any particular points argued before the Division Bench had not been referred to or dealt with by the Bench. Moreover, the Division Bench had probably not dealt with all arguments on questions of fact because it did not consider it necessary to do so. After all, it was not hearing an appeal against the findings of the departmental authorities. It pointed this out. Furthermore, after hearing the arguments of the learned Counsel for the appellant, we are ourselves unable to see any point which could be raised on behalf of the appellant capable of vitiating the departmental proceedings. Unless such a point could be raised, there could be no declaration that the departmental proceedings were null and void. There is also an application before us for revocation of grant of special leave to appeal by this Court on the ground that some material facts were suppressed or misrepresented for the purpose of obtaining special leave. Although the special leave petition does not state that all the points sought to be raised by it were not argued before the Division Bench, this is not enough to merit cancellation of the special leave to appeal which was granted by this Court. At the time of grant of special leave, the order refusing grant of certificate of fitness of the case for appeal to this Court must have been before this Court. We are unable now to see the point on which special leave was granted. But, that too would not, by itself, merit a revocation of special leave at this stage after hearing arguments. Appeal dismissed.
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1976 (5) TMI 95
... ... ... ... ..... decision settles the controversy raised in this reference. The argument advanced in that case that whatever might be the facts admitted in the return or whatever might be the admission before the assessing authority the assessee could take a different stand before the appellate court was negatived. In this case we find that the assessee had admitted before the assessing authority its liability on a sale of Rs. 26,646.04 and it was not open to take a different stand before the appellate court. Moreover, the finding in this case is that the assessee had collected the tax and his attempt to amend the grounds of appeal was not bona fide. The question in the circumstances of the case appears to be squarely covered by this decision. In view of what we have stated above, we answer both the questions in the affirmative against the assessee and in favour of the department. The department shall be entitled to its costs which we assess at Rs. 100. Reference answered in the affirmative.
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1976 (5) TMI 94
... ... ... ... ..... smissed. On an application made under section 11(3), the Judge (Revisions) referred the following question for opinion of this court Whether, on the facts and circumstances of the case, the learned Additional Revising Authority was justified in holding gur badda as gur and not molasses? The Division Bench in similar circumstances has decided that gur badda is a commodity different than molasses and it cannot be taxed at 3 per cent. We agree with the principles laid down in this decision. In view of this we answer the reference by saying that the Additional Revising Authority was justified in holding gur badda as gur and not as molasses. There shall be no order as to costs.
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1976 (5) TMI 93
... ... ... ... ..... . We have pointed out hereinbefore that when the appellant was sought to be taxed under the provisions of the Act of 1941 he raised a specific defence that he deals in drug, a notified commodity and, as such, the Act of 1941 could have no application. Having had the said assessment proceeding quashed on such a specific defence before the Appellate Tribunal, it is no longer open, in our view, to the appellant now to con. tend that he is not dealing with a notified commodity. Moreover, it is not in dispute that drug is a notified commodity, being so notified under section 25 of the West Bengal Sales Tax Act, 1954, and camphor, in view of its use and action on the British Pharmacopoeia, cannot but be considered to be a drug. In this view, the last point raised by Mr. Burman fails and is overruled. All the points raised in support of this appeal fails for reasons given. The appeal fails and is dismissed. There will be no order as to costs. M.N. ROY, J.-I agree. Appeal dismissed.
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1976 (5) TMI 92
... ... ... ... ..... erence may be made to the observations of the Supreme Court in the case of Commissioner of Income-tax, Bombay City-I v. Indo-Aden Salt Works Co. 1959 36 I.T.R. 429 at 435. and in the case of Pulipati Subbarao and Co. v. Appellate Assistant Commissioner of Income-tax, Vijayawada 1959 35 I.T.R. 673 at 675. In the aforesaid view of the matter I am of the opinion that the Assistant Commissioner of Commercial Taxes has no jurisdiction to consider afresh whether the claim in respect of sales of Rs. 49,82,246.90 was entitled to deduction as given by the previous appellate order. The impugned notice dated 23rd July, 1974, is therefore set aside and quashed. This order, however, will not prevent the respondent-Commissioner, if he is so advised and if he so considers, to pass another fresh order to revise again the appellate order as he is entitled to do in accordance with law. With the above observations the rule is made absolute. There will be no order as to costs. Petition allowed.
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1976 (5) TMI 91
... ... ... ... ..... judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct (see Satyadhayan Ghosal v. Smt. Deorajin Debi A.I.R. 1960 S.C. 941.. This being so, inasmuch as in the earlier revision the question as to whether the turnover returned by the assessee should be accepted or the turnover as fixed by the Sales Tax Officer should be maintained was in issue between the parties, we do not think it was open to the Judge (Revisions) on the revision application filed by the Commissioner of Sales Tax to take a contrary view, and to hold that the turnover fixed by the Sales Tax Officer was correct. We, therefore, answer the question in the negative, against the department and in favour of the assessee. The assessee is entitled to its costs, which we assess at Rs. 100. Reference answered in the negative.
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