|
Advanced Search Options
Case Laws
Showing 1 to 20 of 41 Records
-
1952 (3) TMI 60 - SUPREME COURT
... ...
... ... ..... ary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for the giving him a declaratory relief under the provision of section 92, Civil Procedure Code. The finding as to the existence of the public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. The result is that in our opinion the decision of the High Court should stand, but the decree and the concluding portion of the judgment passed by the trial court and affirmed by the High Court on appeal shall direct a dismissal of the plaintiffs suit merely without its being made subject to any declaration as to the character of the properties. To this extent the appeal is allowed and the final decree modified. The order for costs made by the courts below will stand,. Each party will bear his won costs in this appeal. 12. Appeal allowed.
-
1952 (3) TMI 59 - SUPREME COURT
... ...
... ... ..... e. It is further alleged that Sri Mistry was not produced before a Magistrate within twenty four hours of his arrest; but is still kept in detention in the Speaker's custody at Lucknow. The Attorney - General admits before us that this allegation is well-founded, that is to say, that since his arrest on the 11th March, Sri Mistry has not been produced before a Magistrate; but is still detained in custody. This is a clear breach of the provisions of Article 22(2) of the Constitution of India which is quite peremptory in its terms "No such person shall be detained in Custody beyond the said period without the authority of a Magistrate". 2. In view of the admitted facts it is perfectly clear that this provision of the Constitution has been contravened and the said Mr. Mistry is entitled to his release. The habeas corpus petition therefore succeeds and we direct that Mr. Mistry be released forthwith. (Order communicated by telegram at the expense of the Petitioner).
-
1952 (3) TMI 58 - PUNJAB HARYANA HIGH COURT
... ...
... ... ..... ore be taken not to be based on the interpretation of the statue but on the ground of the rule being salutary and the principle being just. With very great respect I would say that this is no reason for continuing the plain words of the statue in any different way. There appear to be a reason why the ways used in section are "within one year from the date of the order." The period given is fairly long and that appears to me to be the reason why the legislature did not think it necessary to make the addition which they have made on some of the other section, that the limitation is to run from the date the order is communicated to the assessee. A further contention was raised petitioner has delayed his remedy for such long time. But it is not necessary to go into the point. I would therefore dismissed this petition and discharge the rule. The Commissioner of Income-tax will have his costs in this court council fee ₹ 100. Falshaw, J. - I agree Petition dismissed.
-
1952 (3) TMI 57 - SUPREME COURT
... ...
... ... ..... er hand it is found that the sons are liable for this debt, the other question for consideration would be whether there was any proper arrangement made at the time of the partition for payment of the debts of the father. The court below will decide these questions in the light of the principles which we have indicated above and will dispose of the case in accordance with law. In the event of the appellants being held liable for payment of the decretal debt, it would be open to the executing court to make an order that the decree- holder should in the first instance proceed against the separate property of the father which was allotted to him on partition and which after his death devolved upon the sons; and only if such property is not sufficient for satisfaction of the decree, then the decree could be executed for the balance against the ancestral property in the hands of the appellants. There will be no order for costs up to this stage. Further costs will follow the result.
-
1952 (3) TMI 56 - BOMBAY HIGH COURT
... ...
... ... ..... question is. In our opinion that was not the proper attitudes for the Tribunal to take. The law and procedure are perfectly clear. It is open to the assessee to apply the Tribunal to refer the questions of law to us. If the Tribunal refuses then the assessee comes before us and we, if we think it a fit case, frame the questions, as we are entitled to, and ask the Tribunal to make a statement of the case with regard to the questions which we have framed and it is for us to answer those questions after perusing the statement of the case. It is not for the Tribunal to consider whether the questions framed by us are proper question or not. 3. Our answer to the questions referred to us - With regard to the assessment year 1941-42 - (a) In the negative. (b) In the negative. (c) In the negative. With regard to the assessment year 1941-42 - (a) In the negative. (b) In the negative. (c) In the negative. Commissioner to pay the costs of the reference. 4. Reference answered accordingly.
-
1952 (3) TMI 55 - PUNJAB & HARYANA HIGH COURT
... ...
... ... ..... nto existence and this oral partnership was followed by a partnership deed executed after the accounting period the partnership cannot be registered as having taken place before and during the accounting year. The partnership is not in such cases entitled to registration under section 26A. We accordingly answer the reference in these terms. The respondent will pay costs which we assess at Rs, 150. Kapur, J.-I agree.
-
1952 (3) TMI 54 - MADRAS HIGH COURT
... ...
... ... ..... and as according to the definition of "partner" in the Indian Income-tax Act even a minor is treated as a partner for the purpose of the Act the six adults may be treated as having entered into a valid partnership and the minor as having been admitted to the benefits of the partnership. As he is also a partner according to the definition of the Income-tax Act there is no valid objection for registering the partnership under Section 26A of the Income-tax Act. As already stated, the subsequent deed of 24th March, 1948, could not be considered in these proceedings and it was rightly rejected. We have already given reasons for not construing the settlement deed of 7th August, 1942, as constituting a partnership. There is however a valid partnership deed under the deed of 21st August, 1942, and the partnership should have been registered under Section 26A of the Act. The answer therefore to the question referred to us is in the affirmative and in favour of the assesses.
-
1952 (3) TMI 53 - MADRAS HIGH COURT
... ...
... ... ..... the effect of carrying forward the loss after allowing the department to set off the sum of ₹ 22,440 would be to reduce the amount of loss that could be carried forward, and in the succeeding year if the assessee earned profits which exceeded the loss that is carried forward, the result would be in effect to subject the sum of ₹ 22,440 to double taxation for, by allowing a set-off in the accounting year, the loss was reduced, and the effect of reducing the loss was to increase the profits in the succeeding year which would be available for the purpose of tax after setting off the loss that was carried forward. This in substance is really to subject the sum of ₹ 22,440 to a further tax though it is not actually levied and collected. We think, therefore, that the contention urged on behalf of the Income-tax Commissioner cannot be accepted and the question referred to us for decision must be answered in the negative and against the Commissioner of Income-tax.
-
1952 (3) TMI 52 - CALCUTTA HIGH COURT
... ...
... ... ..... . Hussan” 1939 2 K.B. 61, and Krishna Hydraulic Press Ltd. v. Commissioner of Income-tax, Bengal 1943 11 ITR 504 , in support of his contention that the amendment is not retrospective and cannot apply to the assessments in question. It is not necessary to deal with these cases in any detail for the purpose of this case. It may be sufficient to point out that they support the argument put forward by Mr. Mitra against the retrospectivity of the amendment of Section 34 as made in September, 1948. In my view this petition must succeed. The rule is made absolute to the extent that the respondents are prohibited from proceeding with the assessment proceedings taken against the petitioner pursuant to the notices dated 28th March, 1951, issued under Section 34 of the Income-tax Act as amended by Act XLVIII of 1948. As the question is not free from difficulty the Income-tax authorities cannot be blamed for taking steps under the amended section and so I make no order for costs.
-
1952 (3) TMI 51 - MADRAS HIGH COURT
... ...
... ... ..... ments entered into between several persons, some of whom are by law incompetent to contract, are not wholly null and void, but are only in some respects less effective than if all the parties to them were competent". See also Jafferali v. Standard Bank AIR 1928 PC 135. which to some extent supports our conclusion. The fact therefore that the minor was included in the contract would not make the partnership as between the two adults invalid and the minor may be deemed to have been admitted to the benefits of the partnership by the two adults. Under the income-tax law a minor admitted to the benefits of a partnership becomes a partner. It therefore appears to us that on the facts and circumstances of this case there was undoubtedly a valid partnership in respect of the cloth business which could be registered under Section 26A of the Act. The answer therefore to the question referred to us in Referred Case No. 2 of 1950 is in the affirmative and in favour of the assessee.
-
1952 (3) TMI 50 - BOMBAY HIGH COURT
... ...
... ... ..... tion 24(2). The Tribunal has taken the view that the loss cannot be so set off. Here also, with respect to the Tribunal, it is difficult to understand why Section 24(2) does not apply to the case of the assessee. Turning to Section 42(1), once the statutory agent is assessed to tax in respect of the income of the foreign principal, the statutory agent is to be deemed to be for all the purposes of this Act the assessee in respect of such income-tax. One of the purposes of the Act is to allow the assessee a set-off under Section 24 under given circumstances. Therefore, if the statutory agent is an assessee, he has the same right as any other assessee under the Act. There seems to be no reason why the assessee should be deprived of his right to set-off under Section 24(2). The answer to question (1) will therefore be in the affirmative in the first part. Question (2) in the affirmative. Question (3) in the affirmative to the extent of loss being apportioned under Section 42(3).
-
1952 (3) TMI 49 - BOMBAY HIGH COURT
... ...
... ... ..... uestion would only have been relevant if we had come to the conclusion that the document constituted a partnership in law. Then undoubtedly subsequent conduct would have been relevant to find out whether the partnership was acted upon in order to determine whether the partnership was a genuine partnership. In our opinion the question of the subsequent conduct of the parties to the document does not arise. Although four questions have been framed by the Tribunal as directed by us, on a consideration of the matter and on a consideration of the various provisions of the partnership deed, it is clear that really only one question arises, viz. - "Whether on a true construction of the various provisions of the partnership deed a partnership in law has been formed between Mahomed Umar and his two sons". Having raised this question the answer we give to it is in the negative. The assessee to pay the costs of the reference. The notice of motion is also dismissed with costs.
-
1952 (3) TMI 48 - MADRAS HIGH COURT
... ...
... ... ..... the profits of a different head or heads under Section 24(1) and if the loss exceeded the profits in the year leaving a balance, then alone it could be carried forward under Section 24(2), seems plausible. But it is unnecessary to express a final opinion on this question. It is no doubt true, as pointed out by the Appellate Tribunal, there is a lacuna in the Act in not making it compulsory upon the Income-tax authorities to assess the loss of an assessee in a particular year when he has no assessable income to enable him to carry it forward and claim to set it off in the succeeding year. But it is a matter for the legislature to consider whether they would adopt a policy of giving relief to assessees in such cases but we are not concerned with it. The question referred to us must therefore be answered in the negative and against the assessee. As the assessee has failed, he must pay the costs of the Commissioner which we fix at ₹ 250. Reference answered in the negative.
-
1952 (3) TMI 47 - ALLAHABAD HIGH COURT
... ...
... ... ..... the limitation which they did. As their Lordships could have refused to hear the appellant on a point which was concluded by concurrent findings of the two Courts at the time of the hearing of the appeal, so it was hardly necessary for them to impose the limitation while granting special leave. 82. The Full Bench decisions of this Court in Nathu Lal v. Raghubir Singh, 54 ALL. 146 (S. B.) and Jaggo Bai v. Harihar Prasad Singh I. L. R. (1941) ALL. 180 (F. B.) lay down the correct law and these decisions fully support the applicant's right to appeal to the Supreme Court as of right, irrespective of the subject-matters which she may or may not be entitled to raise at the hearing of the appeal in the Supreme Court. By the Court 83.The application for amendment and the petition for leave to appeal to the Supreme Court are allowed. It is certified that the case fulfils the requirements of Article 133 of the Constitution and is declared a fit one for appeal to the Supreme Court.
-
1952 (3) TMI 46 - ORISSA HIGH COURT
... ...
... ... ..... to a set-off in respect of the fixed deposit amounts under Exts. B and B-1, though they had not matured by the date of the application for winding up and though the factum of adjustment pleaded by him is found not to have been proved. 17. Having regard to the letter, Ext. A dated 18-9-1945, interest payable on the fixed deposit amounts would be 7 per cent, as from the date of that letter, but no interest will run from the date of the application for winding up. 18. In the result, therefore, the plaintiff will have a decree for an amount to be recalculated on the basis of my findings above as regards the right to a set-off and the interest payable on the overdraft account and on the fixed deposit amounts with reference to Ext. A dated 18-9-1945. Since the defendant has set up a plea of adjustment, which has not been substantiated on facts, and which has occasioned the trial he will pay the costs of the plaintiff in the suit, though he has succeeded on the point of law raised.
-
1952 (3) TMI 45 - MADRAS HIGH COURT
... ...
... ... ..... ury. On the facts I must hold that the plaintiff had acquiesced in the construction of the structures and is now not entitled to the discretionary remedy of a mandatory injunction. The two Courts below refused to exercise their discretion in her favour and I do not think I am justified in taking a different view on the facts found. 6 The learned Subordinate Judge valued the site in the sum of ₹ 200 and directed that amount to be paid to the plaintiff and gave a declaration that the defendant will have full rights in the site. In my view the Court cannot compel the plaintiff to sell the site to the defendant. If she insists to have her title to the site, she is entitled to have it. But as the defendant broke one of the warranties in the agreement Ex. A. 1, he would be liable to pay nominal damages to the plaintiff in view of his subsequent conduct, which I fix at a sum of ₹ 20. 7. With the aforesaid modification the second appeal is dismissed with costs. No leave.
-
1952 (3) TMI 44 - NAGPUR HIGH COURT
... ...
... ... ..... the estimated income of ₹ 25,000. This grievance was not made in the application for reference nor in this application under Section 66(2). This ground was evidently not argued before the Tribunal. At the conclusion of the hearing before us the assessee filed an affidavit of the pleader who appeared before the Tribunal along with the Solicitor who argued the case. In the affidavit the grounds raised in the memorandum of appeal to the Tribunal have been reproduced, but it is not stated that these grounds were pressed. From the order under Section 66(1) it is abundantly clear that the only question that was argued at the hearing of the appeal was whether the assessee's story about the loss of books was believable or not. Since the point was argued before the Tribunal and does not arise out of the facts found by the Tribunal, no question of law arises out of the order of the Tribunal. The application therefore fails and is dismissed with costs. Application dismissed.
-
1952 (3) TMI 43 - BOMBAY HIGH COURT
... ...
... ... ..... ome is land. Until a dividend is declared, there is nothing that the shareholder can get. The dividend is conditional upon a declaration being made in that behalf by the general body, and although the dividend ultimately may come out of profits--and indeed a dividend cannot be declared without profits being made--the immediate and effective source of that dividend cannot be taken to be land which is the remote or ultimate source of that income, and not the immediate and effective source. I agree, therefore, respectfully, with my Lord the Chief Justice that the question referred to us should be answered in the negative. Per Curiam.--This is a reference more in the nature of a test case as thousands of shareholders holding shares in tea, rubber and other similar companies would be affected by the decision of this Court one way or the other. We therefore think that the fair order to make as to costs is that there will be no order as to costs. Reference answered in the negative.
-
1952 (3) TMI 42 - MADRAS HIGH COURT
... ...
... ... ..... e proceeded upon the peculiar custom or usage which obtained among the Nattukottai Nagarathars and is not a justification for extending that principle to other cases. This point was considered in Commissioner of Income-tax, Madras v. Subramanya Pillai 1950 18 I.T.R. 85 by this Court and the case in Commissioner of Income-tax, Madras v. Ramaswami Chettiar 1946 14 I.T.R. 236 was distinguished. The loss in such a case is totally outside the scope and purpose of the business of the assessee and the claim cannot be sustained. This decision was followed by the Calcutta High Court in Commissioner of Income-tax v. Madras Gopal Bagla 1952 21 I.T.R. 142. We think, therefore, that the view taken by the Appellate Tribunal even as regards this question was correct. This question also must be answered in the negative and against the assessee. As the assessee has failed on all the questions he must pay the costs of the respondent which we fix at ₹ 250. Reference answered accordingly.
-
1952 (3) TMI 41 - BOMBAY HIGH COURT
... ...
... ... ..... n by the assessee. Therefore, we must answer the first question in the affirmative. With regard to the second question, viz., "If the answer to the first question be in the affirmative whether on a true interpretation of Section 10(2)(xi) of the Indian Income-tax Act, it is open to an Income-tax Officer to disallow a claim under that section on the ground that the loan had become irrecoverable in a year of account earlier than that in which it was written off", we should have thought that there was no doubt as to what the answer to this question should be, because as laid down by their Lordships of the Privy Council in Commissioner of Income-tax v. Chitnavis 1932 59 I.A. 290; 6 I.T.C. 453, it was for the Income-tax Officer to determine when the loan became irrecoverable. Therefore, the answer to that question would be in the affirmative. We do not answer the question but we have remanded the matter as pointed out in our judgment. There will be no order as to costs.
|
