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1959 (12) TMI 66 - SUPREME COURT
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... ... ..... antive evidence in the case. The Additional Sessions Judge therefore erred in law in using the statement of Aggarwal under Section 164 to come to the conclusion that he had been won over. If that statement is excluded from consideration it is a matter of pure guess that Aggarwal had been won over after his examination-in-chief was over. 14. As the Additional Sessions Judge has erred in law, we are bound to consider the evidence of Aggarwal and arrive at our own conclusion whether he is a reliable witness on whose evidence the respondent can be convicted. The various statements made by Aggarwal in cross-examination before and after the framing of the charge clearly demonstrate him to be an utterly untrustworthy witness. We are satisfied that it would be highly dangerous to act upon his evidence. Without his evidence the other evidence in the case does not establish that the respondent has committed the offence with which he was charged. 15. The appeal is accordingly dismissed.
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1959 (12) TMI 65 - HIGH COURT OF MADRAS
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... ... ..... nation of the employment of the workman. The expression "all workman" used in the two places in the passage which I have extracted earlier, appears to me to point to this, as the correct criterion for distinguishing between the case of retrenchment where the termination of employment is only of particular workmen or a particular proportion of workmen or a particular proposition of workmen and those cases where on closure the business itself ceased to exist. It is admitted that in this case the business was run during the relevant period, though it was conducted merely for the purpose of working out contracts already taken. This would not however detract from the termination of employment being a retrenchment within Sec. 25-F of the Industrial Disputes Act. Admittedly as there was non-compliance of the terms of Sec. 25-F, it follows that the award of the Tribunal cannot be challenged as illegal. 6. The petition fails and is dismissed. No costs. 7. Petition dismissed.
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1959 (12) TMI 64 - CALCUTTA HIGH COURT
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... ... ..... siness, but form the normal business carried on by the assessee. As far as we have been able to understand the finding of the Income-tax Officer, it is to the effect that the business of the assessee was that of a general importer of goods and if the assessee in the course of its business entered into a contract for the purchase of hardware in the assessment year, this was a trading activity of the assessee, and this trading activity was in the course of the assessee's normal business. Dr. Pal stated before us that if this be our interpretation of the finding as to the nature of the assessee's business, he could not place any other point for our consideration. In the result, the question referred to this court by the Tribunal must be answered in the affirmative. The assessee will pay the costs of this reference. Certified for two counsel. The application under section 66(2) of the Income-tax Act is dismissed. BACHAWAT J.--I agree. Question answered in the affirmative.
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1959 (12) TMI 63 - PUNJAB & HARYANA HIGH COURT
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... ... ..... the Income-tax Appellate Tribunal. As the memorandum of appeal is signed by Vir Bhan who was competent to sign the memorandum of appeal in either capacity, the Tribunal was not justified in throwing out his appeal in limine. The Income-tax Officer when serving notice under section 22(2) described the assessee as a partnership firm. The contention which Vir Bhan desires to raise before the Tribunal, among others, is that his firm should have been taxed not as Hindu undivided family but as an ordinary partnership firm. At the worst, signing his name and describing himself as member of a firm can be deemed as a misdescription and for such a mis-description the right of appeal cannot be taken away. The question of law, whether on the facts and in the circumstances of the case, the appeal filed by Messrs. Gian Chand Vir Bhan in the capacity of a firm was a valid appeal in law and entertainable by the Tribunal, has, therefore, to be answered in the affirmative. Khosla, CJ.-I agree.
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1959 (12) TMI 62 - CALCUTTA HIGH COURT
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... ... ..... e and the party aggrieved by the Award may not like to leave his business affairs or other affairs in a state of uncertainty with a heavy liability hanging on his head and wait till the enforcement of the Award is barred by limitation. Moreover as the court has very wide powers in dealing with a suit, it can, where it thinks fit, adjourn the suit and ask the parties to have the Award annulled by the Competent Tribunal in the manner envisaged in section 7(3)of the Act of 1937. The provisions of the Arbitration (Protocol and Convention) Act, 1937 cannot therefore be said to constitute a bar to the maintainability of the suit filed by the appellant, though the court might in the instant case have adjourned the suit and dealt with the points raised, in the application filed by the respondent. 67. The other points raised in this appeal have been dealt with by my learned brother and I do not wish to deal with them separately. I agree that this appeal should be dismissed with costs.
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1959 (12) TMI 61 - SUPREME COURT OF INDIA
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... ... ..... ers within the meaning of the Factories Act and accordingly they were excluded from the definition of ' Commercial Establishment' under the Act. However, even if the Supervisors and Kamdars were employed in any other kind of work connected with the subject of manufacturing process ", unless they were employed in the factory, the provisions of the Factories Act do not apply to them, there is no dispute that they are employees of a ' Commercial Establishment' within the meaning of the Act. The High Court was therefore in error in acquitting the respondents of the offences of which they were convicted by the Trial Magistrate. The orders of acquittal passed by the High Court are set aside and the orders of conviction and sentence passed by the Trial Magistrate are restored. In view of the order of this Court dated October 1, 1956, made at the time of granting special leave, the respondents are entitled to their costs of hearing in this court. Appeal allowed.
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1959 (12) TMI 60 - MADRAS HIGH COURT
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... ... ..... n respectful agreement with the views of Shah, J. In the view we have taken that the third of the requirements was not satisfied in this case, it is not really necessary for us to examine whether the second test was satisfied, that is, whether what was paid to the petitioner was paid out of the profits of the business of Swami and Co., even construing the term "profits" in the commercial sense. We have held in effect that the Income-tax Officer and the Commissioner correctly construed the order of the Tribunal in deciding what was the ground on which the claim of Swami and Co. was disallowed. Even if that was incorrect, it would have been only an erroneous decision. But even independent of that as the disallowance of the claim of Swami and Co. was on a ground other than that for which alone the notification in question provided, the authorities were right in negativing the petitioner's claim. The rule nisi is discharged and the petition is dismissed with costs.
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1959 (12) TMI 59 - CALCUTTA HIGH COURT
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... ... ..... uch portions is specifically receivable on behalf of one person alone. Though the whole income is not specifically receivable on behalf of any one person each and every portion of the income is so receivable and consequently the proviso does not apply. I think that I have dealt with all the contentions advanced by Mr. Meyer. In my opinion the assessment upon the assessee, Birendra, in his capacity as trustee must be made in accordance with the substantive part of section 41(1) in separate sums and not in a single sum. It is also plain, that the assessment of the entire income in a single sum cannot be made upon the assessee in his personal capacity. I, therefore, propose that the question in both references be answered in the negative. The assessee do get the costs of Reference No. 45 of 1954 from the Commissioner of Income-tax, West Bengal. This reference is certified for two counsel. There will be no order as to the costs of Reference No. 106 of 1954. Lahiri, C.J.-I agree.
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1959 (12) TMI 58 - ANDHRA PRADESH HIGH COURT
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... ... ..... efendant. In my opinion, such a construction of the sentence cannot be supported. The giving up of the property is clearly mentioned as a past event. The first defendant who gave up the property did not execute Ex. B-18. The sentence cannot, therefore, be construed as anything more than a recital of a past event. There was no creation of any interest in immovable property under the document Ex. B-18, within the meaning of Section 17 (1) (b) of the Registration Act, because that could have happened only by a document executed by the first defendant. It follows that Ex. B-18 does not require Registration and was rightly admitted in evidence. 16. It is not disputed that if Ex. B-18 is treated as evidence in the case, the appeal must fail. The appeal is accordingly dismissed with costs. No leave. 17. As there was a reference to Full Bench an additional sum of ₹ 100/- is allowed as Advocate's fee under Rule 46 of the Practitioners' Fees) Rules besides the usual fee.
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1959 (12) TMI 57 - SUPREME COURT
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... ... ..... ed and that the appellant's statement in question should not have been taken into account in considering the probability of his explanation; but, in our opinion, the judgment of the High Court shows that not much importance was attached to this statement, and that the final conclusion of the High Court was substantially based on its appreciation of the oral evidence led by the defence and on considerations of probability to which we have already referred. Therefore, we are satisfied that the High Court was right in discarding the explanation given by the appellant as wholly unsatisfactory and unreasonable. That being so it is really not necessary in the present appeal to decide the question about the nature of onus of proof cast upon the accused by s. 4(1) after the statutory presumption is raised against him. 15. In the result the appeal fails, the order of conviction and sentence passed against the appellant is confirmed and his bail bond canceled. 16. Appeal dismissed.
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1959 (12) TMI 56 - MADRAS HIGH COURT
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... ... ..... that the defendant-firm held the import licence, that they established the necessary contacts, etc. would not materially affect the situation, so long as the offer was to Messrs. Thermoid Company U.S.A. and the acceptance was by them, as the record proves. Mr. Gopalawami Ayyangar for the appellant, also advanced an argument that Sec. 230 sub-clause 3 could be invoked, but that clearly has no force. There is nothing in the processual law in this country, or in private international law, to prevent the plaintiff-firm from suing Messrs. Thermoid and Company in Indian Courts, though the question whether a decree so obtained could be effectively executed, is another matter altogether. 12. In result the appeal fails and is dismissed with costs. The memorandum of cross-objections filed by the defendant which merely relates to a claim for reimbursement of clearance costs, and which does not appear to be justified, is dismissed without costs. 13. Appeal and cross-objection dismissed.
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1959 (12) TMI 55 - ANDHRA PRADESH HIGH COURT
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... ... ..... may be taken in respect of any application connected with the same or any decree or order passed therein." The contents of the vakalat-form are very comprehensive. The assessee gave authority thereunder to the advocate to appear not only in the rectification proceedings but "in all proceeding connected with the same or any order passed therein." The application for reference under section 66(1) cannot be said to be unconnected with the application for rectification. Both arise out of the same proceedings and on the language of the vakalat-form, we must hold that it would comprehend the application under section 66(1) also. Having regard to the construction which we have placed on the terms of the vakalat, we hold that the order of the Appellate Tribunal is unsustainable. The Appellate Tribunal will treat the application as made within time as required under section 66(1) and dispose it of in accordance with law. We make no order as to costs. Petition allowed.
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1959 (12) TMI 54 - ANDHRA PRADESH HIGH COURT
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... ... ..... al income of the father. Section 40 of the Act provides for assessment on the guardian or trustee of a minor, lunatic or idiot or on the trustee Or an agent of a non-resident in respect of income which he received or is entitled to receive on behalf of the incapacitated person, or the nonresident. This section is intended to facilitate the collection of tax. It does not affect the incidence of tax under Sections 3 and 4 which are the charging sections. Section 40 is not a charging section but provides the machinery for collection. Where the income is received by the guardian on behalf of a beneficiary, the guardian is made liable. Section 40 and the impugned provision are different in scope and content. They are intended to serve different purposes, and we fail to see any conflict between the two provisions. 14. All the contentions raised on behalf of the petitioner having been negatived, this writ petition fails and is dismissed with costs. Advocate's fee ₹ 100/-.
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1959 (12) TMI 53 - SUPREME COURT
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... ... ..... inction which has any rational relation to that object. The learned Advocate-General for the State of West Bengal contended that this case is covered by the decision of this court in Gopi Chand v. Delhi Administration (A.I.R. 1959 S.C. P. 609). There, no such difficulty as arises in this case, had arisen. I therefore do not think that that case is of any assistance. In my view, s. 2(b) of the Act in so far as it permits an area which was a disturbed area in the past to be declared a disturbed area for the purposes of the Act, offends art. 14 of the Constitution and is therefore unconstitutional and void. The declaration in the present case was made under that portion of s. 2(b) and it cannot be sustained. That portion of the Act and the Notification of September 12, 1952, must therefore be held to be void. In the result I would allow the appeal. ORDER OF COURT In view of the opinion of the majority, the order passed by the High Court is confirmed and the appeal is dismissed.
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1959 (12) TMI 52 - KERALA HIGH COURT
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... ... ..... act to do it would be void. A working test for finding whether the intention be to prohibit is to ascertain whether the punishment is repeated at each act and where that be done the act would be treated as forbidden. (Vide Buckley, J., in Victoria Daylesford Syndicate Ltd. v. Dott ( 1905 2 Ch. 624, at 630)). The counsel for the assessee has not been able to satisfy us about the incorrectness of the aforesaid test and, applying it to section 6 of the Act, it is clear that a person is punished for each act contrary to the provisions of the Act or rule. It follows the act is forbidden and the contract to do so is void. The second ground therefore for upholding the order of the Appellate Tribunal fails. Therefore, the answer to the question referred to us is that the firm cannot be registered under section 26A for the assessment year 1951-52. The reference is accordingly answered and the assessee will pay ₹ 50 as the costs to the Department. Reference answered accordingly.
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1959 (12) TMI 51 - KARNATAKA HIGH COURT
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... ... ..... . When, in my opinion, the Supreme Court expressed its view on any particular point of law such expression of view shall be considered as overriding all contrary views expressed on the point in earlier decisions of the same Court. That being my conclusion on these questions this contention of Mr. T. Krishna Rao fails. 12. The learned Government Pleader no doubt contended before us that even if it were held that the particular provision in question was merely unenforceable and not non-est even then the petitioner would be liable to be taxed under Section 3(1)(a) and (b) of the Mysore Sales Tax Act. In view of my decision that the proviso to the said section which is opposed to fundamental rights guaranteed by the Constitution is non-est and not unenforceable, it is not necessary for me to go into this question. 13. The result, therefore, is that this petition fails and is dismissed. Each party will bear its own costs. A.R. Somnath Iyer, J. 14. I agree. 15. Petition dismissed.
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1959 (12) TMI 50 - ASSAM HIGH COURT
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... ... ..... we have taken that the order of assessment under section 23(4) cannot be maintained it was not necessary to go into this matter; but as the point was canvassed I have considered it. A number of points were raised challenging the constitutionality of the provisions of section 46(5A) on the ground that it infringes articles 19 and 14 of the Constitution. I do not think, however, that there is any substance in those points. We have already elaborately dealt with this matter in the case of Murlidhar Jalan v. Income-tax officer, Dibrugarh 1961 41 I.T.R. 80 (Assam), Civil Rule No. 29 of 1959, decided on July 18, 1959, and it is not necesary, therefore, to go into detail and examine the various submissions made in this behalf. In result, therefore, we allow this petition quashing the order of assessment and issue a writ of mandamus directing the opposite party not to give effect to that order, with costs which we assess to be ₹ 250. C.P. SINHA C.J.--I agree. Petition allowed.
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1959 (12) TMI 49 - BOMBAY HIGH COURT
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... ... ..... t I have stated above, the petitioners are entitled to a writ of certiorari setting aside the order of the first respondent, dated 13-6-1959, and I order accordingly. 25. Mr. Peerbhoy, having stated that the gold in question is in the possession of the third respondent, a writ of mandamus will issue against the third respondent for restoring possession of the seized gold weighing 452 tolas and 17 1/2 vals to the petitioners. 26. One month's time is given to the 3rd respondent to restore possession of the gold. 27. So far as the Union of India is concerned, the Petitioners have not pressed their petition against the Union of India. The Petition against the Union of India will stand dismissed. 28. The matter was of considerable importance and has gone on before me for nearly 17 hours and the fair order to make as regards costs is that the respondents Nos. 1 and 3 should pay to the petitioners the taxed costs of the petition and I order accordingly. 29. Application allowed.
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1959 (12) TMI 48 - SUPREME COURT
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... ... ..... ff and defendant. The wards were not represented by their separate representatives for the simple reason that no representatives were appointed. There is no analogy between that decision and the present case. For the aforesaid reasons I hold that the compromise decree was a nullity and the appeal must be deemed to be pending on the file of the High Court. In this view, I am relieved of the duty of expressing my opinion on the other questions raised and seriously argued, namely, whether the Court of Wards has power to settle conflicting disputes between two wards and whether such a settlement would be a lawful agreement within the meaning of Order XXIII, rule 3 of the Code of Civil Procedure. In the result, the order of the High Court is set aside and it is directed to dispose of the appeals in accordance with law. The appellant will have his costs here and in the High Court. By the Court -In accordance with the opinion of the majority, the appeals stand dismissed with costs.
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1959 (12) TMI 47 - SUPREME COURT
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... ... ..... t be pressed into 627 service, as the State Government renewed the licence for 1953-54. In this state of record we must hold that the respondents failed to prove that the petitioner was guilty of repeated failure to comply with the provisions of the Act. On the basis of the said finding, the respondents would have no power to take action under S. 25(1)(c) of the Act. The foregoing discussion establishes that neither the necessary condition to enable the Government to take action under s. 25(1)(c) of the Act has been established nor the State Government had afforded reasonable opportunity to the petitioner within the meaning of the second proviso to s. 25(1). In the result we accept the petition and issue a writ of certiorari against the respondents quashing the order of the Government of Bihar dated September 1, 1955, cancelling miner’s licence No. 261-H of 1951 granted in favour of the petitioner. The respondents will pay the costs to the petitioner. Petition allowed.
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