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1955 (4) TMI 58 - SUPREME COURT
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... ... ..... actice is opposed to the positive provisions of clause (3) of article 145. 29. In my opinion, therefore, the present case comes directly within the main clause (3) of article 145 of the Constitution and is admittedly not covered by the proviso to that clause. That being so, the petitioner's appeal to this Court has not been heard and determined in accordance with the procedure established by this Constitution and therefore the petitioner is entitled to the benefit of the protection afforded by article 21 of the Constitution. His appeal, therefore, has got to be heard and determined in accordance with the procedure laid down in article 145(3) of the Constitution. I would therefore allow the petition to this extent only that the appeal be heard by a Constitution Bench on a declaration that the judgment of the Division Court dated the 5th March, 1954 is not that of a competent court. By The Court 30. In accordance with the judgment of the majority, the petition is dismissed.
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1955 (4) TMI 57 - HIGH COURT OF MADRAS
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... ... ..... a. 1 of that section with Para. 2. The further allowance of 20" per cent, is an allowance for depreciation within the meaning of Section 10(2)(vi), Since that was a depreciation allowance actually allowed to the assessee under the Act, and as the assets with reference to which that depreciation allowance was made were acquired before the previous year, that is, before 1946-47, this allowance of ₹ 25,970 should be included in computing the written down value for purposes of assessing the capital gains under Section 12-B of the Act. 11. Our answer to the second question therefore is that the initial depreciation of ₹ 11,506 allowed in the year of account 1946-47 should be excluded and the initial depreciation of ₹ 25,970 allowed in the accounting year 1945-46 should be included in computing the written down value of the assessees' assets. 12. As neither side has wholly succeeded in its contentions, there will be no order as to costs on this reference.
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1955 (4) TMI 56 - MADRAS HIGH COURT
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... ... ..... ted that the loss incurred by the assessee in the present case arose incidentally out of the enforcement of the penalty imposed by the Magistrate and should therefore be deemed part of the penalty. In other words, the suggestion was that the Magistrate must be deemed to have inflicted a further punishment by his direction as regards the manner in which the confiscation should be enforced in addition to the confiscation ordered. We are unable to consider this as any reasonable deduction from, or construction of, the order of the Magistrate. 14. In our opinion the loss sustained by the assessee to the extent of ₹ 8,844 is a trading loss which is deductible in computing the income of the assessee for the assessment year. The reference is therefore answered in favour of the assessee to the extent stated above. The assessee is in favour of the assessee to the extent stated above. The assessee is entitled to his costs. Counsels fee ₹ 250. Reference answered accordingly.
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1955 (4) TMI 55 - CALCUTTA HIGH COURT
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... ... ..... ached is provident fund and therefore" immune from attachment under the law. 6. Before I conclude it is necessary perhaps to say that on behalf of the decree-holder evidence is given by Kasi Prosad Agarwalla and on behalf of the Union of India and the Railway, Mr. Valla, the Deputy Financial Adviser gave evidence. Mr. Agarwalla's evidence is largely hearsay and he admits that he never saw the cheque nor was there any delivery of the cheque to him. Mr. Valla explained satisfactorily the nature of Miscellaneous Account with reference to the Railway Code. 7. I am satisfied on the facts and on the construction of the Provident Funds Act, the Civil Procedure Code and the Account Code of the Railway, that this sum of money against which attachment is sought is not liable to be attached on the ground that it represents the provident fund of the judgment-debtor -- Gregory. 8. The application, therefore, is dismissed. There will be no order as to costs. Certified for counsel.
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1955 (4) TMI 54 - MADRAS HIGH COURT
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... ... ..... bay v. Valiram Bherumal. 22. Our answers to the questions referred to us in Case Referred No. 46 of 1951 are as follows. The first question is answered in the affirmative and against the assessee. The second question is answered in the negative and in favour of the assessee. 23. Our answers to the questions referred to this Court in Case Referred No. 108 of 1953 are as follows. The first question is answered in the affirmative with reference to the accounting years 1944, 1945 and 1946 and in the negative with reference to the other assessment years. The second question is answered in the negative and in favour of the assessee. Our answer to the third question is that the assessee is entitled to no more than one allowance of ₹ 4,500 under the third proviso to section 4(1)(c). of the Income Tax Act. 24. Since neither side could claim to have succeeded in either of the cases we direct that there should be no order as to costs in either case. Reference answered accordingly.
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1955 (4) TMI 53 - MADRAS HIGH COURT
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... ... ..... income. It should be remembered that Sokkalal died on 22nd June, 1942, and the accounting year came to a close on 16th August, 1942. There was no finding either by the taxing authorities or by the Appellate Tribunal that Hariram himself was in charge of his estate or that his guardians were in any way responsible for any concealment or suppression of income. The requirement of section 28(1)(c) being that Hariram to be penalised must have himself concealed his income, and that requirement not having been satisfied, we have to hold that there was no basis at all for the Tribunal to come to the conclusion, that Hariram should be penalised to the extent of ₹ 10,000. In the view we have taken of the requirement of section 28(1) (c ) it is not necessary to discuss any of the other questions, no doubt interesting, raised by counsel on both sides. We answer the question in the negative and in favour of the assessee. The assessee will be entitled to the costs of this reference.
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1955 (4) TMI 52 - SUPREME COURT
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... ... ..... er the temple in this case falls within this category. If, however, the temple is a private one or the idol therein is not one Shastrically consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriously challenged. At this stage, it is desirable to mention one other matter. In the present case the emoluments attached to the office are stated to be the daily and other offerings made to the deity at the worship by the visiting devotees. Both the parties to this case have come up to Court on the common footing that it is this which constitutes the emoluments. Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the temple is a public institution, (i.e., not a private family temple) and whether any usage in this behalf is valid is a matter which does not arise before us in this case. 29. In the result, the appeal must be allowed with costs throughout and the decree of the trial court must be restored.
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1955 (4) TMI 51 - ALLAHABAD HIGH COURT
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... ... ..... ction 5. The prime mover of these proceedings was opposite party No. 2. It is true that opposite party No. 2 being beyond our jurisdiction, we cannot issue a writ directed to that party, but it does not mean that costs cannot be awarded against that party, when that party is given an opportunity to appear and represent its case before us. There may be a case where a person, residing outside the jurisdiction of this court, may institute a suit in a court within the jurisdiction of this court. In such a case, if a writ of certiorari or of prohibition is issued against that court, the liability for the costs incurred by the petitioner would fall not on the court but on the person, who initiated those proceedings, even though he may be residing outside the jurisdiction of the court. On that principle the costs should be payable by the opposite party No. 2 and we direct that the petitioners shall be entitled to their costs from opposite party No. 2 which we assess at ₹ 500.
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1955 (4) TMI 50 - MADRAS HIGH COURT
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... ... ..... nce of an intention to trade. Even the mere fact, that the purchase itself was for the purpose of resale at a profit, is thus a relevant factor in deciding whether the purchase and sale constituted a transaction, and that transaction was an adventure in the nature of trade. Only, in given circumstances it may by no means be a conclusive factor as Lord Dunedin pointed out in Leeming v. Jones 15 TC 333. In the present case the intention to resell was not the only factor that weighed with the Tribunal when it came to the conclusion that it was a transaction in the nature of trade. We are unable to hold that on the material placed before the Tribunal and considered by it there was no evidence on which it could come to the conclusion, that it was an adventure in the nature of trade and the profits from that transaction constituted taxable income. The question referred to us is answered in the affirmative and against the assessee. The assessee will pay the costs of the respondent.
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1955 (4) TMI 49 - MADRAS HIGH COURT
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... ... ..... the Income-tax Act and rule 12 of Schedule I of the Excess Profits Tax Act, there was really no basis on record to show that, judged from the point of view of a businessman, payments in excess of the minima recommended by the I.C.I. were not reasonable. We are of opinion that the entire claim should have been allowed both under section 10(2)(x) of the Income-tax Act and under rule 12 of Schedule I of the Excess Profits Tax Act on the ground that the statutory requirements were satisfied by the assessee. The first question is answered in the negative and in favour of the assessee. The second question, as we have already pointed out, has to be answered with reference to the requirements of section 10(2)(x) of the Income-tax Act, and our answer to that question is that the amount of commission paid out by the assessee to its branch managers and assistant managers was reasonable. The assessee will be entitled to its costs in each of the two references, 53 of 1952 and 44 of 1953.
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1955 (4) TMI 48 - MADRAS HIGH COURT
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... ... ..... ined in the declaration. In the circumstances the assessee must be held to have established that the profits derived by him from the General Commercial Distributors were received by him as the manager of the undivided Hindu family consisting of himself and his son. The answer to the reference therefore is that whether or not the moneys invested by the assessee in the business came out of the funds belonging to the undivided Hindu family consisting of the assessee and his minor son, the recital in the deed of partnership together with the fact that the partnership has functioned is sufficient to lead to the inference that the share of the profits was received by the assessee as the manager of a undivided Hindu family. The assessee is entitled to his costs. CM.P. No. 8322/52.-Since R.C. 29 of 1952 has been disposed of today in favour of the assessee, counsel for the petitioner represents that no further question need be referred at this stage. C.M.P. 8322 of 1952 is dismissed.
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1955 (4) TMI 47 - MADRAS HIGH COURT
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... ... ..... uthority. That appellate decision with nothing more will not amount to definite information within the meaning of section 34 of the Act to enable the Income-tax Officer to exercise the powers conferred on him by section 34 with reference to the same set of facts. In this case the order of the Income-tax Officer dated 15th January, 1948, made it clear that the only basis on which he invoked section 34 was the decision of the Appellate Tribunal. He realised he bad committed a mistake. The facts for consideration remained the same. Only his erroneous decision was eliminated. It was nothing more than a change of opinion on the same set of facts, though the change in this case was apparently forced by the decision of the Tribunal. There was no definite information or any discovery in consequence of such information within the meaning of section 34. The question is answered in the negative and in favour of the assessee. The assessee will be entitled to the costs of this reference.
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1955 (4) TMI 46 - ANDHRA PRADESH HIGH COURT
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... ... ..... rson or class of persons while that under section 12 of the Finance Act is vested merely to surmount obstacles or difficulties which may arise in the application of the Indian Income-tax Act to Part B States or merged States, though even this power which is merely an enabling one, does not prima facie appear (though we do not wish to express any definite view on the matter) to authorise the Central Government to make any order to the disadvantage of the assessee who would be securing a benefit under the provisions of the Act. For the aforesaid reasons, we hold the explanation added to paragraph 2 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, to be void." In the result the first question will be answered in the negative. The answer to the second question, which is dependent on the first question being answered in the negative, does not arise. But even the answer to this question has been dealt with by us in the case of D.B.R. Mills (supra) .
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1955 (4) TMI 45 - ALLAHABAD HIGH COURT
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... ... ..... person on such an interpretation. It has been held that a penal provision must be clear and unambiguous before effect can be given to it. As held by Desai J. in -- 'Bishamber Dayal v. State' AIR1954All183 , "an order of a penal nature must be clear and specific in its language and must not leave anything to presumption. If a member of the public is prohibited from doing an act, he must be prohibited clearly and in an unambiguous language." We, therefore, find that the word 'paper' is neither clear nor unambiguous. As such, it is not possible to convict the opposite party by holding that the word 'paper' includes the notice which was printed by him. 9. In our opinion the learned Sessions Judge made no error of law when he acquitted the opposite party. On the law as it stands, the conviction of the opposite party was not maintainable. We, therefore, dismiss this appeal. The opposite party need not surrender, and his bail bonds stand cancelled.
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1955 (4) TMI 44 - MADRAS HIGH COURT
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... ... ..... r Plaintiff 2 who had attained majority could have been allowed to withdraw from the suit without the consent of the subsequent purchaser, the Appellant before us, under Order XXIII, Rule 1, Sub-rule 4, Code of Civil Procedure. Mr. Gopalaswami Ayyangar was unable to refer us to any authority in support of his contention that even after a transfer of his interest in the property the reversioner could affirm the alienation by the limited owner to the detriment of the purchaser. In these circumstances, we disagree with the learned Judge in his finding that it is no longer open to the first Plaintiff to continue the action. 18. The appeal is allowed and the suit is remanded to the Court of the Subordinate Judge of Coimbatore for disposal of the other issues except issue 10, the finding of the learned Subordinate Judge on which was not challenged before us. No order as to costs in the appeal. The Appellant is entitled to a refund of the court-fee paid on the memorandum of appeal.
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1955 (4) TMI 43 - SUPREME COURT
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... ... ..... that this judgment does not come in the way of his client because, even if he is not the Sajjada, that would make no difference. He insists that his client was in possession at all relevant times, that is to say, he equates the brother's possession to that of his client and contends that now that the civil litigation has ended unfavourably to his opponent Azam Ali, the respondent must be restored to possession. But that is not what the Firman says. The respondent's rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no decision of a civil Court declaring the respondent's right to possession, therefore, on that short ground he cannot get the writ he seeks. 17. The appeal is allowed. The decision of the High Court is set aside and the respondent's petition for a writ is dismissed. There will be no order about costs in any of the Courts.
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1955 (4) TMI 42 - SUPREME COURT
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... ... ..... a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bombay. We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile. We may record here that the learned Attorney-General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile. Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the civil suit to be filed by the Petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed. Each party will bear and pay the respective costs of the petitions.
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1955 (4) TMI 41 - MADRAS HIGH COURT
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... ... ..... ely for the business, and not on the ground that in the opinion of the Income-tax Officer or other taxing authority the remuneration is "unreasonably" high--either because the employee does not, in the authority's opinion, deserve so much, or because the assessee could have secured other employees on more favourable terms. The assessee certainly satisfied the third of the tests postulated by their Lordships in the Eastern Investments case 1951 20 I.T.R. 1, that the money was expended "not of necessity and with a view to direct and immediate benefit to the trade but voluntarily and on the ground of commercial expediency, and in order to facilitate the carrying on of the business." Even necessity for the expenditure does not enter this test. The question referred to us is answered in the negative and in favour of the assessee. The assessee will be entitled to the costs of this reference. Counsel's fee ₹ 250. Reference answered in the negative.
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1955 (4) TMI 40 - MADRAS HIGH COURT
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... ... ..... of the opinion that the addition of the ₹ 1,46,000 to the income of the assessee was unjustified. The answer to the reference will be in these terms. At the close of the arguments Mr. Rama Rao Sahib invited us to issue a direction under the proviso 2 to sub-section (3) of section 34 of the Indian Income-tax Act to enable the assessments of the three purchasers from the mills being re-opened. His apprehension was that these parties might not have shown the figures as disclosed by the companys books as their purchase price but instead might have entered the ruling prices as on the date of purchase or some figure higher than that found in the companys books. Since in the course of this assessment the books of the three purchasers do not appear to have been examined, we consider this request reasonable and give directions accordingly. As the assessee has succeeded in the reference, he will be entitled to his costs. Counsels fee ₹ 250. Reference answered accordingly.
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1955 (4) TMI 39 - SUPREME COURT
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... ... ..... , it was urged that the Pakistan Ordinance is a penal law and is confiscatory in character, therefore, no domestic tribunal will recognise it or give effect to it. That proposition is, in any event, too widely stated, but we are unable to condemn this law as opposed to the public -policy of this country be,cause we have exactly the same kind of laws here, as do other civilised countries which find themselves in similar predicament or at the outbreak of war; see Arab Bank Ltd. v. Barclays Bank(1) and also Fouad Bishara Jabbour v. State of Israel(2) and Re. Munster(3) where a like argument was repelled. We hold that this legislation is not confiscatory. The same rules apply to the item of ₹ 79-6-6 and to the deposit of ₹ 1,000 as security. The appeal succeeds. The decrees of the lower Courts are set aside. A decree will now be passed dismissing the plaintiffs' claim, but in the special circumstances of this case the parties will bear their own costs throughout.
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