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Case Laws
Showing 21 to 36 of 36 Records
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1954 (11) TMI 38 - TRAVANCORE AND COCHIN HIGH COURT
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... ... ..... is direct or only remote or incidental cannot but be based on questions of fact and degree but the distinction is real and very often a court may have no difficulty to decide on which side of the boundary a particular enactment falls and operates. The test suggested by the Privy Council certainly narrows the area of dispute though as stated by Lord Porter It is beyond hope that it should be eliminated . (1) 79 C.L.R. 497. (2) 80 C.L.R. 432. 14.. We are not concerned in this case with provisions that are regulatory or a contention that they are something more the only matter we have to adjudge is whether any restriction on the freedom of trade and commerce that may result from the provisions impugned can be considered as the direct and immediate result of the provisions themselves. We have no doubt that they cannot be considered and in that view this petition must fail and has to be dismissed. 15. We dismiss the petition with costs. Advocate s fee Rs. 150. Petition dismissed.
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1954 (11) TMI 37 - ORISSA HIGH COURT
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... ... ..... be found as illegal on account of the non-observance of the mandatory provisions of section 12 (5) as the assessee has suffered serious prejudice on account of non-service of notice. We would therefore answer the questions in the following manner The answer to question No. 1 is in the negative, that is, the assess- ments are not legal and valid in the absence of an opportunity having been given under sub-section (5) of section 12 of the Act. The answer to question No. 2 is in the negative, that is to say, that the application itself cannot be used as legal evidence against him in proof of the liability for the assessment of the three quarters in question. The answer to question No. 3 is in the negative as there has been no agreement to waive the procedure of the Act. 8.. The reference is disposed of accordingly. The petitioner is entitled to costs of these proceedings. Hearing-fee is assessed at rupees one hundred (Rs. 100). MISRA, J.-I agree. Reference answered accordingly.
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1954 (11) TMI 36 - WEST BENGAL HIGH COURT
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... ... ..... al Finance (Sales Tax) Act, 1941, the powers under which could not be delegated to any subordinate authority, Commercial Tax Officers and Assistant Commissioners had been regularly exercising these powers on the ground that otherwise the administration of the Act would become impossible. The petitioners average taxable turnover not having exceeded 10 of their average gross turnover, the law itself prescribed annual returns for them. The absence of any order to this effect by the Commissioner or the Assistant Commissioner did not affect the legal position in any way. Therefore the Commercial Tax Officer had no jurisdiction to issue notice in Form VI on the date in question nor to commence assessment proceedings at that time. The assessment has been illegal and without jurisdiction and is, therefore, set aside. The petition for revision is allowed and the case is sent back to the Commissioner of Commercial Taxes for making a fresh assessment according to law. Petition allowed.
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1954 (11) TMI 35 - ORISSA HIGH COURT
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... ... ..... nd Co., Madras v. State of Madras(2), wherein their Lordships decided, under Explanation 2 to section 2(h) of the Madras General Sales Tax Act, 1939, which is similar to section 2(g) of the Orissa Sales Tax Act, 1947 that it was open to the State to justify the imposition of the levy of the sales tax if the goods were actually in the State at the time of the contract of sale. This decision was prior to the decision of the Supreme Court in the Allahabad case on which we have respectfully relied. Manifestly, therefore, the Supreme Court decision was not before their Lordships and the Allahabad decision also was not placed before their Lordships. The decision therefore does not change our view. Moreover in the case before us the assessment is not based upon the finding that the goods were in Orissa when the sale was completed outside Orissa. MISRA, J.-I agree. Reference answered accordingly. (1) 1954 5 S.T.C. 193 A.I.R. 1954 S.C. 459. (2) 1954 5 S.T.C. 307 A.I.R. 1954 Mad. 932.
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1954 (11) TMI 34 - NAGPUR HIGH COURT
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... ... ..... If the schedule as originally framed in the parent Act could be altered-and this is conceded could be done-there is nothing to show why the amended schedule (though amended by another Act) cannot be amended in the like manner. 36.. In conclusion I would, therefore, hold that the definition of sale price in section 2(h)(ii) of the C.P. and Berar Sales Tax Act, 1947, and rule 4 of the C.P. and Berar Sales Tax Rules, 1947, are beyond the powers of the Legislature, inasmuch as they involve taxation on an artificial basis having no relevance to the price of the goods sold or supplied by a builder. The other impugned provisions I hold to be in order. In this view, the demand for sales tax on the basis of pre-deter- mined proportions must cease and I would therefore order that the writs of mandamus nisi issued be made absolute against the respondents. The respondents must pay the costs of the petitioners. Counsel s fee Rs. 100 in each case. SINHA, C.J.-I agree. Ordered accordingly.
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1954 (11) TMI 33 - IN THE CHANCERY DIVISION
Meetings and Proceedings – Quorum for meeting ... ... ... ... ..... ould be present, but that after the real business of the meeting is started and under consideration the quorum might go away. Prima facie those words are apt to apply to the case before me, but as I read the somewhat short report and look at the facts, it appears to me that that statement can be properly regarded as obiter dictum. In any event, with all respect to that decision of the Court of Session, I feel compelled primarily to concentrate on the language of the two relevant articles before me. From the force of that language, I have come to the conclusion that I ought not to follow the Scottish case, but that I ought to conclude that the meeting in question of the holders of the B ordinary shares was one at which a valid class resolution was passed, because at the beginning of the meeting, that is, when the meeting proceeded to business there was present a quorum as provided by article 46 of the articles of association. His Lordship then heard the petition on its merits.
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1954 (11) TMI 32 - SUPREME COURT
Whether the High Court had jurisdiction, in the circumstances of this case, to require the two respondents to pay the sum of ₹ 11,39,400 to the official liquidator under the provisions of section 185 of the Indian Companies Act?
Held that:- We are not been able to follow how the appeal Bench of the High Court arrived at the conclusion that the scheme propounded in the agreement was unlawful. We are constrained to observe that both the learned single Judge and the appeal Bench of the High Court completely lost sight of the fact that no rights could be vested either in the preference shareholders or the so-called trustees on the basis of a document which merely contained proposals and which was of an inchoate character and which was never completed or became operative and it is this opinion which led to an error in the decision of the case.
We allow this appeal, set aside the decision of the appeal Bench and restore the decision of the single Judge ordering the return of the sum of ₹ 11,39,400 by the two respondents to the official liquidator of the Gaya Sugar Mills Ltd. in liquidation.
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1954 (11) TMI 31 - HIGH COURT OF MADRAS
Winding up – Suits stayed on winding-up order ... ... ... ... ..... onveniently dealt with in winding up except probably by way of giving directives to the provisional liquidators to compromise if the other party agrees to the same. The right to have the fair rent fixed under the Madras Buildings (Lease and Rent Control) Act, is a right vested in both the applicants and the respondents and that right is not taken away by reason of any agreement between the parties. The order fixing a fair rent has to be made only by the Rent Controller after taking into consideration the various factors set out in the section and it is in the exclusive jurisdiction of the Rent Controller to fix the rent. But no order could be passed by the winding up court. In the result, the leave is granted and there is no necessity to impose terms because the reply affidavit states that the applicants are now paying Rs. 200 per month and which they will continue to do till the disposal of the proceedings before the Rent Controller. The application is ordered as prayed for.
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1954 (11) TMI 29 - HIGH COURT OF ALLAHABAD
Registration of change of name and its effects thereof ... ... ... ... ..... efective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name. The change of name does not, therefore, affect the rights of the company. The decree in its former name can be executed in the new name which has already been incorporated. The second point raised was that the company did not obtain the approval of the Central Government to change its name as provided by sub-section (4) of section 11 of the Companies Act. This is a question of fact and it was not raised in the court below as there is no mention of it in the judgment. Learned counsel is unable to say whether in fact the approval of the Central Government was or was not obtained, but in the circumstances we cannot allow this objection to be raised at this stage. There is no force in this appeal and we dismiss it under Order XLI, rule 11, of the Civil Procedure Code.
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1954 (11) TMI 28 - HIGH COURT OF ALLAHABAD
Winding up – Suits stayed on winding-up order ... ... ... ... ..... on behalf of the company after the winding up order, according to the view taken by Braund J. the subsequent prodeedings by way of defence would come under the rule laid down by Lord Davey. There does not appear to us, with great respect to the learned Judge, to be any good reason for coming to the conclusion that the result should be otherwise where the proceedings had been instituted and continued by the company before the winding up order, specially as under section 171 of the Companies Act the company is not required to obtain the permission of the company Judge for the institution or the continuance of a legal proceeding. In our view, therefore, in a case like the present, where the company has obtained a decree, an application to have that decree reviewed by reason of some error apparent on the face of the record is not a legal proceeding commenced against the company within the meaning of section 171 of the Companies Act and no leave of the company Judge was necessary.
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1954 (11) TMI 6 - SUPREME COURT
Whether Section 12-B which authorised the imposition of a tax on capital gains was invalid being ultra vires the Central Legislature?
Held that:- Act XXII of 1947 which amended the Indian Income-tax Act by enlarging the definition of the term income in Section 2(6-C) and introducing a new head of income in Section 6 an inserting the new Section 12-B is intra vires the powers of the Central Legislature acting under entry 54 in List I of the Seventh Schedule of the Government of India Act, 1935. In this view of the matter it is unnecessary for us to consider or express any opinion as to the meaning, scope and ambit of entry 55 in that List. The appeal is accordingly dismissed.
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1954 (11) TMI 5 - SUPREME COURT
Whether on the facts and in the circumstances of the case the profits derived by the assessee-company from sales made to European and American buyers arose outside British India ?
Whether on the facts and in the circumstances of the case the profits derived by the assessee-company from sales made to European and American buyers were received outside British India ?
Held that:- As at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers' bank against the acceptance of the relative bill of exchange. In the premises, the Appellate Tribunal as well as the High Court were quite correct in holding that the sales took place outside British India and, ex hypothesi, the profits derived from such sales arose outside British India.
The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee-company. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India. In our opinion the High Court correctly answered the second question also in favour of the assessee-company. Appeal dismissed.
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1954 (11) TMI 4 - SUPREME COURT
Whether the Income-tax Officer was justified in making an estimate for calculations under rule 2(a) of the Schedule attached to section 10(7) of the Income-tax Act?
Held that:- When once it is found that there was no proper determination of the profits as required under rule 2(a)--and that was indeed conceded-and there was no justification for it such as the High Court thought there was, the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal, and, that, in our opinion, was right.
This appeal will accordingly be allowed, and the second question referred by the Tribunal answered in the negative. The result of this will be that the Income-tax Officer will proceed to enquire into the profits of the appellant company for the years in question in accordance with the requirements of rule 2.
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1954 (11) TMI 3 - SUPREME COURT
Whether excess is a receipt from business and not a mere appreciation in capital?
Held that:- We reverse the decision of the High Court and hold that the purchase of shares to the tune of ₹ 3,00,000 was an investment and not an adventure and the two sums which were taxed were not in the nature of income from business and were therefore not liable to tax. We allow the appeal and set aside the judgment of the High Court with costs to the appellant.
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1954 (11) TMI 2 - SUPREME COURT
Whether, in the circumstances of the case, the two sums of ₹ 5,000 and ₹ 35, 000 paid under clauses 4 and 5 of the deed of the 14th November, 1938, were rightly disallowed as being expenditure of a capital nature and so not allowable under section 10(2)(xv) of the Indian Income-tax Act?
Held that:- The conclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of ₹ 40,000 paid by the company to the lessors during the accounting years 1944-45 and 1945-46 were not allowable deductions under section 10(2)(xv) of the Act. Appeal dismissed.
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1954 (11) TMI 1 - SUPREME COURT
Whether P.B. Deshmukh was not liable for the act of his agent and could not be prosecuted for the false statement in the return under section 52 of the Income-tax Act?
Held that:- Whether his liability arose under section 51 for failure to furnish the return as required by section 51(c) or for making a false statement in the return as contemplated by section 52, it made no difference to the authority of the Assistant Commissioner to permit the composition of the offence under section 53. That section covers both the offences under sections 51 and 52. There can be no doubt therefore that P. B. Deshmukh could be prosecuted either under section 51(c) or section 52 and even if he had been prosecuted by the Income-tax authorities under section 52 only, there was nothing to prevent the Court from altering the charge to one under section 51(c) if it thought fit. Appeal dismissed.
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