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Showing 21 to 40 of 53 Records
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1954 (4) TMI 53 - SUPREME COURT
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... ... ..... section 523, Criminal Procedure Code, to the magistrate and that application was dismissed and that a petition for revision against that order was still pending a and that when another remedy had been taken article 226 could not be availed of. 'This contention cannot be sustained, firstly in view of the fact that section 523 has no application to the facts and circumstances of this case, and the magistrate had no jurisdiction to return these goods to the petitioner. Secondly, the revision application has been dismissed on the ground that there was no jurisdiction in this case to grant relief to the petitioner under section 523. For the reasons given above we allow this appeal, set aside the order of the Judicial Commissioner and direct an appropriate writ to issue directing the restoration to the petitioner of the goods seized by the police. The appellant will have his costs of the appeals and ,those incurred by him in the Court of Judicial Commissioner. Appeal allowed.
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1954 (4) TMI 52 - PATNA HIGH COURT
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... ... ..... of the Appellate Tribunal. It is clear that though the original order of the Income-tax Officer was missing there were circumstances in the case which definitely pointed to the conclusion that before the issue of notice under section 34 the Income-tax Officer had present before his mind the difference in the capital accounts of the two firms between the two relevant Samvat years. That was the definite information upon which the Income-tax Officer Mr. Patnaik started the proceeding under section 34 and it is difficult to accept the argument of Mr. Dutt that there is complete absence of evidence to show that there was definite information of that kind before the initiation of the proceeding under section 34. For the reasons we have stated we think that the question referred to the High Court must be answered in favour of the Income-tax department and against the assessee. The assessee must pay the cost of the reference; hearing fee ₹ 250. Reference answered accordingly.
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1954 (4) TMI 51 - PATNA HIGH COURT
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... ... ..... on the questions of law that are involved. The deductions that are permissible must be examined from the point of view of law. They cannot be said to be simply questions of fact irrespective of the principles of law. It is, therefore, necessary to consider the principles upon which items have been held to belong to capital or revenue, and the characteristics which have been held to turn a particular item into the one category or the other." For the reasons I have expressed I consider that the amount of ₹ 8,674 received by the assessee on account of service connection charges was a capital receipt and was not liable to inclusion in the assessee's business income for the year 1947-48. In view of the answer to the first question it is not necessary to consider or furnish any answer to the second question which has been referred by the Appellate Tribunal. The assessee is entitled to the costs of this reference from the Income-tax Department. Choudhary, J.-I agree.
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1954 (4) TMI 50 - SUPREME COURT
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... ... ..... urther found that the rent reserved was grossly inadequate and it was not even one-fourth of the profits which the properties would ordinarily fetch. The defendants 1 and 2 did not adduce any evidence in support of their case and did not make any attempt to show whether having regard to the profits which could normally be realised from the property the rent secured by the lease was a proper one. The lessees avoided the witness box and in these circumstances we are bound to hold that they failed to discharge the burden which admittedly lay upon them of showing that the transaction was a prudent act of management on the part of the Mahant which it was within his competence to enter into. The result therefore is that in our opinion the view taken by the Subordinate Judge is right. The appeal is hence allowed; the judgment and decree of the High Court are set aside and those of the trial court restored. The plaintiff will have his costs from defendants 1 and 2 of all the courts.
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1954 (4) TMI 49 - PATNA HIGH COURT
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... ... ..... e schedule imposes a duty upon the company to maintain the service line. Reference was also made by the counsel to annexure V of the rules framed under the Act relating to the model form of accounts to be kept by the electric companies. The model form states that the cost of service connection should be adjusted towards the capital account. This view of the legislative authority is of course not binding upon me or the Income-tax authorities. But it reinforces the reasons I have already given for reaching the finding that the amount of ₹ 8,582 which is the expenditure incurred by the assessee in installing service connection is in the nature of capital expenditure. For the reasons I have expressed I consider that the second question referred to the High Court by the Appellate Tribunal must be answered in favour of the assessee. The Income-tax Department must pay the costs of this reference. Hearing fee ₹ 250. CHOUDHARY, J.--I agree. Reference answered accordingly.
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1954 (4) TMI 48 - SUPREME COURT
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... ... ..... be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one’s own act. Courts cannot recognise that as prejudice which flows from the action of the very party who complains about it. Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court;’ it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.
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1954 (4) TMI 47 - SUPREME COURT
Whether a testamentary disposition by a Hindu in favour of a female' heir conferred on her only a limited estate in the absence of evidence that he intended to confer on her an absolute interest in the property?
Held that:- The learned Judges of the High Court were clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate. Appeal allowed.
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1954 (4) TMI 46 - SUPREME COURT
Whether the failure to make the deposit under Order XXI, rules 84 and 85, is only a material irregularity in the sale which can only be set aside under rule 90 or whether it is wholly void?
Held that:- When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired. no rights at all.
We do not think that the inherent powers of the Court could be invoked to circumvent the mandatory provisions of the Code and relieve the purchasers of their obligation to make the deposit. The appellants by misleading the Court want’ to benefit by the mistake to which they themselves contributed. They cannot be allowed to take advantage of their own wrong. Appeal dismissed.
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1954 (4) TMI 45 - NAGPUR HIGH COURT
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... ... ..... od of a different conclusion. The assessee relies on Fateh Chand Muralidhar v. The Province of Bihar(1). He is a manufacturer of oil for the purpose of sale by himself. His turnover exceeds the taxable quantum of Rs. 5,000 required by section 4(1). He submits that the word turnover in section 4(1) cannot be read as taxable turnover , and that the memorandum referred to in the order in question, which is now before us, proceeds on this misconception. We have adverted to these aspects as the questions of law arising in this case are not well settled and require decision by this Court. 25.. We are, therefore, not satisfied that the refusal of the Board of Revenue to make a reference was justified and so direct it to state the case and refer the questions of law arising out of the order dated the 10th March, 1952, which we have indicated above. 26.. The application succeeds and is allowed with costs. Counsel s fee Rs. 100 if certified. Application allowed. (1) 1952 3 S.T.C. 293.
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1954 (4) TMI 44 - NAGPUR HIGH COURT
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... ... ..... e. The question for decision is whether the proceedings under section 23(1) (1)A.I.R. 1951 S.C. 128. (3)A.I.R. 1953 S.C. 287. (2)A.I.R. 1952 S.C. 235. (4)I.L.R. 1952 Nag. 936 at p. 941. directly affect the revenues of the State. This also must be answered in the affirmative because as a result of the decision of the High Court on reference under section 23(1) the Board may have to revise its order in accordance with the decision of the High Court. But we answer the question in the negative in the absence of the material that the Advocate-General or Government Advocate appeared on behalf of the State in the proceedings under section 23(1). 17. We therefore decide questions (1), (2) and (4) (a) in the affirmative and questions (3), (4) (b), (5) (a) and (b), and (6) in the negative. Since the assessee has failed, he shall pay the costs of this reference. Consolidated counsel s fee of Rs. 150 for Miscellaneous Civil Cases Nos. 153 and 105 of 1953. Reference answered accordingly.
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1954 (4) TMI 43 - MADRAS HIGH COURT
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... ... ..... 50. T.R.C. Nos. 297, 298 and 300 of 1953 The assessee in all these petitions is the same, and the question raised in these petitions is covered by our decision in T.R.C. No. 205 of 1953. These petitions are dismissed with costs in one T.R.C. No. 297 of 1953-Rs. 250. T.R.C. No. 308 of 1953 The question raised in this petition is covered by our decision in T.R.C. No. 205 of 1953. The assessment for the whole year was in issue in this case. This petition is dismissed with costs-Rs. 250. T.R.C. No. 309 of 1953 The question at issue in this petition is covered by our decision in T.R.C. No. 205 of 1953. It was only the assessment for one month that was in issue in this petition. The peti- tion is dismissed with costs-Rs. 125. T.R.C. Nos. 305 and 306 of 1953 The assessee is the same in these two petitions. The question at issue is covered by our decision in T.R.C. No. 205 of 1953, and the petitions are dismissed with costs in one T.R.C. No. 305 of 1953-Rs. 250. Petitions dismissed.
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1954 (4) TMI 42 - MADRAS HIGH COURT
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... ... ..... , Whoever hopes a faultless tax to see, Hopes, what ne er was, or is, or e er shall be. (M Culloch Adaptation of Pope). To tax and to please, no more than to love and to be wise, is not given to men (Cicero). 31.. In the result, I find in both the suits that the plaintiffs are commission agents and not principals that the plaintiffs are assessable to tax under section 14-A of the Madras General Sales Tax Act and rule 5(1) of the Madras Turnover and Assessment Rules that the sale transactions in dispute took place within the State of Madras that the plaintiffs are not entitled to the deductions asked for that the plaintiffs are not entitled to claim exemptions on behalf of the non-resident principals that the Sales Tax Act is not invalid as opposed to the pro- visions of the Constitution of India and that the plaintiffs are entitled to no relief. The issues in both the suits are found accordingly. The suits are dismissed with costs. I certify for two counsel. Suits dismissed.
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1954 (4) TMI 41 - MADRAS HIGH COURT
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... ... ..... ing power vested in the Government. It is no doubt true that on moral and ethical grounds the assessees are put to considerable hardship. But in fiscal law moral and ethical grounds may not enter into consideration. On the other hand, if the Government is levying any arbitrary assessments against the assessees, which are not within the scope of any section of the Act or Rules, then certainly it is open to Courts of law to interpret the section in the strictest form so as to enure to the benefit of the assessee. But, I do not think that such a case arises in the present appeal. I am therefore unable to agree with the judgment and decree of the learned First Additional City Civil Judge in his having allowed the prayers asked for by the respondent. The decree of the lower court is set aside and the appeal is allowed. In the circumstances of the case, I do not think that I shall be justified in ordering costs to the Government. There will be no order as to costs. Appeal allowed.
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1954 (4) TMI 40 - MADRAS HIGH COURT
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... ... ..... ion for the learned Judge to construe the scope of Section 11(2) of the Travancore-Cochin General Sales Tax Act, which is analogous to Section 8-B(2) of the Madras Act. In our opinion, the claim of the assessee has to be allowed. The assessment already made on the assessee under rule 15(5) of the Turn- over and Assessment Rules has to be revised. We notice from the order of the assessing authority, the Deputy Commercial Tax Officer, that even after the inclusion of the disputed turnover what the assessee had paid was in excess of what was lawfully payable by it, and the assessee company was held entitled to a refund of Rs. 5,299-2-0 under rule 15(6). To that amount should be added what was mistakenly collected as tax on the disputed turnover. The petitioner-assessee is entitled to a refund order in Form C for the revised amount. As the petitioner has succeeded, the petitioner will be entitled to costs Rs. 250 from the respondent State. Petition allowed. (1) 1954 5 S.T.C. 58.
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1954 (4) TMI 39 - PATNA HIGH COURT
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... ... ..... on. It was pointed out by the learned counsel that the assessee got himself registered as a dealer on 30th of November, 1948, long before the Amending Act came into fore in Chotanagpore. There is much force in the argument of Mr. P.R. Das but the difficulty is that this is not the question referred by the Board of Revenue for the opinion of the High Court under Section 25(1) of the Act. It should also be pointed out that in the application under Section 25(1) to the Board of Revenue the petitioner did not raise the question as to the legality of the penalty imposed upon him. We cannot in these circumstances permit the counsel on behalf of the assessee to raise the new question for the first time at the hearing of this reference. For the reasons we have already expressed we answer the question referred to the High Court against the assessee and in favour of the State of Bihar. The assessee must pay the cost of the reference hearing fee Rs. 250. Reference answered accordingly.
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1954 (4) TMI 38 - MADRAS HIGH COURT
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... ... ..... community shall have effect unless it has been reserved for the con- sideration of the President and has received his assent. The learned counsel for the petitioner contended that groundnut was declared by Parliament in 1952 to be essential commodity, and that therefore, the levy of any tax even on the purchase of groundnut was opposed to Article 286(3). Article 286(3) would apply to any law made by a Legislature of a State subsequent to the date on which the Consti- tution came into force. Even apart from that, the ban of Article 286(3) will fall only after Parliament declares by law any goods as essential for the life of the community. We are concerned with the assessment year 1950-51. During that period, there was no declaration by Parliament by law that groundnut was an essential commodity, essential for the life of the community. The contention from either point of view has to be rejected. The petition is dismissed with costs which we fix at Rs. 250. Petition dismissed.
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1954 (4) TMI 37 - MADRAS HIGH COURT
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... ... ..... fact. In view of the special nature of the articles the sale of which was included in the turnover in dispute, we do not feel called upon to order Since reported as East India Match Factory v. The State of Madras 1954 (5 S.T.C. 269.) a further investigation into the question of fact involved in the claim of the assessee even apart from the other aspects of the scope of Article 286(1)(a) and the Explanation thereto which we considered in T.R.C. Nos. 117 and 133 of 1953 . The sales in question came directly within the purview of Article 286(2) of the Constitution and therefore the proviso to that clause. The legality of the tax levied on these sales was rightly sustained under the President s Order G.O. No. 7 of 1950 issued in exercise of the powers vested in him by the proviso to Article 286(2) of the Constitution. This petition fails and is dismissed with costs Rs. 250. Petition dismissed. Since reported as East India Match Factory v. The State of Madras 1954 (5 S.T.C. 269).
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1954 (4) TMI 36 - MADRAS HIGH COURT
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... ... ..... the firm that should be prosecuted and if in the first instance itself the firm had been prosecuted represented by its partners, this difficulty would never have arisen. If there is any difficulty now it is due to the methods adopted by the authorities by not realising in the first instance itself that the individual ought not to be prosecuted, but it is the firm that should have been prosecuted. I have sufficiently indicated that Jacob Nadar cannot be put again for trial in respect of the non-payment of sales tax for the same year for which he was prosecuted before and if he cannot be put on trial, the other partner by himself alone cannot also be put up for trial and the objection therefore on this ground was successfully maintained by the lower court and the appeal filed by the State fails. This appeal is therefore dismissed. I must acknowledge my indebtedness to Mr. G. Gopalaswami, who appeared amicus curiae and argued the case with conspicuous ability. Appeal dismissed.
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1954 (4) TMI 35 - MADRAS HIGH COURT
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... ... ..... ept to partake in the distribution of the sale proceeds of the pool. The function of the Board and its legal position are in our opinion undoubtedly those of a seller of goods which are owned (1) 62 C.L.R. 116 at p. 133. (2) 76 C.L.R. 414 at p. 422. by it and which are vested in it absolutely. As in the case of the statutory Board in the Peanuts case(1), the sales effected by the assessee were in the course of trade and commerce, even as the sales would have been in the course of trade and commerce had there been no Board and the sales been by the producers themselves. We are therefore in entire agreement with the view of the Tribunal that the assessee was a dealer and therefore the assessee was rightly assessed to sales tax on the turnover. This is the only question which was argued on behalf of the peti- tioner, and as we have rejected this contention the petitions must be dismissed with costs, Rs. 250 in one, T.R.C. No. 211 of 1952. Petitions dismissed. (1) 48 C.L.R. 266.
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1954 (4) TMI 34 - MADRAS HIGH COURT
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... ... ..... ible to consider the assessees as dealers in respect of these turnovers, as they do not carry on business and they are not sales in the course of any trade or business of the assessees within the meaning of the Madras General Sales Tax Act. In C.R.P. No. 2292 of 1952 , we considered the meaning of the word business used in the definition of dealer in the Act and we reached the conclusion that the word business was used in the Act in the commercial sense, an integral part of which is the motive to make profits by sales or purchases, and if this is wanting, a person buying or selling would not be a dealer . Following that decision, we hold that in these cases the assessees were not dealers in respect of the turnovers in dispute and they cannot be validly assessed to tax under the Act. The tax revision cases are, therefore, allowed with costs, Rs. 250 in one. Petitions allowed. Since reported as Gannon Dunkerley and Co., (Madras) Ltd. v. The State of Madras 1954 (5 S.T.C. 216).
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