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Showing 1 to 20 of 45 Records
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1962 (7) TMI 67 - CALCUTTA HIGH COURT
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... ... ..... lied on by appellant in this suit, out of which the present appeal arises. And, as a matter of fact, during the pendency of the said suit, when the notice of sale dated 6th February, 1960 is given, the present suit is filed by the appellant, now objecting that the Bank cannot proceed with the sale of the shares because of the pending suit. This is a conduct which must be taken note of and which alone should disentitle the appellant for getting relief in the way of injunction. 31. The pecuniary compensation being also the adequate relief in the instant suit, the Courts should lie reluctant in granting injunction in favour of the plaintiff appellant. The appellant 'in his letter dated 25th June, 1960 has himself given the market value of the shares. Hence I cannot accept Mr. Deb's argument that the shares which have been pledged, cannot be compensated for pecuniary loss if injunction is not granted. 32. On these grounds also I concur in dismissing the appeal with costs.
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1962 (7) TMI 66 - SUPREME COURT
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... ... ..... or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it re-hears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was, considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above. This leaves the case of the other accused. We are of opinion that as we are directing the appeal court to re-hear the appeal with respect to the appellant it is only proper that the order relating to the other accused should also be set aside and his appeal should also be re-heard in the manner indicated above. We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re-heard along with the appeal of the appellant. Appeal allowed.
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1962 (7) TMI 65 - BOMBAY HIGH COURT
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... ... ..... tial depreciation in determining the written down value under clause (vi) is to safeguard the interest of the assessee in the matter of his getting normal depreciation in the subsequent years and it is for that reason that it has been provided that it should not be deductible in determining the written down value under clause (vi). It is also clear that the scheme under clause (vii) appears to be that when a building, plant and machinery are sold, the revenue seeks to recover back tax on the amount of depreciation allowed in the event the price obtained by the assessee on sale allows it. 8. For the reasons stated above, in our opinion, the answer to the question will be in the affirmative. 9. Before parting with the case we must state that Mr. Dwarkadas very fairly pointed out to us a decision reported in Popular Ltd. v. Commissioner of Income-tax which supports the view taken by us. 10. The assessee shall pay the costs of the department. Question answered in the affirmative.
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1962 (7) TMI 64 - MADRAS HIGH COURT
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... ... ..... the instant case. The allowance of ₹ 9,000 said to be salary in favour of Ramaswami Naidu cannot indicate or lead necessarily to the inference that Ramaswami was in management of the managing agency business on behalf of the assessee. Even as taxes and all public charges were allowed to be deducted an amount of ₹ 9,000 per year was also allowed to be reserved by Ramaswami Naidu in computing the net amount from and out of which the assessee was to be paid. In our opinion the right of Ramaswami Naidu to keep the amount of ₹ 9,000 every year alleged to be by way of salary is too thin a foundation to erect the structure of " association of persons between the contracting parties. The Tribunal was right in holding that the terms of the document dated October 30, 1956, did not create either a partnership in law or an association of persons. The reference is answered against the assessee, who will pay the costs of the department. Counsel's fee ₹ 250.
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1962 (7) TMI 63 - BOMBAY HIGH COURT
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... ... ..... s, it was also contended by the revenue that, on the facts of that case, it should be taken that the assessee had waived notice, because he had filed a return in response to a notice under section 34. On these facts, Mr. Mehta argued that in that case the assessee filed a return in response to a notice under section 34, whereas, in the present case, the assessee filed a return in response to a notice under sub-section (2) of section 22. There is a material difference in these two cases, which has been overlooked. In that case the assessee had filed a return under protest and that indicated that he was not submitting to the jurisdiction of the authorities. In the instant case not only there was a return filed without protest but the assessee has therein also accepted its status as agent of Jamal Ramji & Co. For these reasons our answer to the question referred to us is in the affirmative. Assessee shall pay the costs of the department. Question answered in the affirmative.
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1962 (7) TMI 62 - BOMBAY HIGH COURT
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... ... ..... it is contended by Mr. Gharekhan that the provisions are a piece of colourable legislation as under the guise of imposing tax on income, tax has been imposed on loan. We have already observed that no tax has been levied on loan but on the other hand tax has been levied in respect of income and is not bad in law. For the reasons stated above, in our judgment, the petition fails and is, therefore, dismissed. The petitioner shall pay the costs of the other side. Costs quantified at ₹ 250. Before parting with the case, it is necessary to mention that the petitioner had filed an affidavit in rejoinder. We are in this petition concerned only with the constitutionality of the impugned provisions and no occasion has arisen to place before the court any affidavit by way of a rejoinder. We also do not consider it necessary for the purpose of decision to admit any affidavit in rejoinder. The affidavit in rejoinder is, therefore, not accepted as a part of the records of the case.
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1962 (7) TMI 61 - BOMBAY HIGH COURT
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... ... ..... ession 'an order of assessment in cases falling under section 34(1)(a)' in section 34(3) cannot be construed to mean an order of assessment in a case which could have been dealt with under section 34(1)(a) but which was not so dealt with. It is well settled that the issue of the prescribed notice is a condition precedent to the assumption of jurisdiction vested by section 34(1), and where such notice was never issued, it cannot be viewed as a case falling within section 34(1)(a), for the purposes of section 34(3)." In our opinion, the voluntary return filed by the assessee on the 20th of May, 1953, was, as observed by the Madras High Court, non est in law and did not preclude the Income-tax Officer from initiating proceedings under section 34 and making an assessment order thereon ignoring the said voluntary return filed by the assessee. Our answer, therefore, to the question referred to us is in the negative. The department will get its costs from the assessee.
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1962 (7) TMI 60 - ALLAHABAD HIGH COURT
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... ... ..... 34(1)(b) was fully satisfied, viz., that now there was before him information as to the true state of the law contained in the ruling. In consequence of that information by reference to the facts of the case he came to the conclusion that income had escaped assessment. The order under section 34 could, therefore, be justified under section 34(1)(b) also. It only remains to say that the notice under section 34 having been issued on January 29, 1953, and the assessment under that section having been completed within one year thereof, viz., on January 25, 1954, the assessment was made within the limitation prescribed under section 34(3). For the reasons stated above all the three questions referred to this court must be answered in the affirmative and against the assessee. The reference should be returned to the Income-tax Appellate Tribunal with this answer under the seal of the court and the signature of the Registrar. The department should get its costs fixed at ₹ 200.
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1962 (7) TMI 59 - BOMBAY HIGH COURT
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... ... ..... irm, when it proceeded to assess the partners in respect of the income of the firm and had reserved to themselves the right to ascertain the extent and the true income of the firm and make the necessary rectification in the assessment orders of the partners. Therefore, all that was open to the department to do was to compute the income of the firm and make necessary adjustments in accordance with its conclusions. To that the assessee had raised no objection. The second contention raised by Mr. Joshi also, therefore, in our judgment, fails. Our answer to the question referred to us, therefore, is that, on the facts and in the circumstances of the case, the assessment of the unregistered firm in the sense that the income has been charged to tax in its hands was not proper and legal, the two partners of this partnership having been assessed in respect of their shares of income from this partnership business. The department shall pay the costs of the assessee. Order accordingly.
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1962 (7) TMI 58 - MADRAS HIGH COURT
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... ... ..... om taxation in regard to its business income. Confining our attention only to the interest on securities, we do not think that any deduction should be allowed either by reason of the departmental instructions, which have no statutory force and which have now been cancelled, or by applying the Explanation to section 8 of the Act which in terms is not applicable. We must point out that there is no reference by the department taking exception to the computation of the taxable income under the head of "interest on securities" as ₹ 59,498. This has become final. The only question is whether the assessee would be entitled to still further relief and can have the amount determined as Rs, 13,578. We do not think that the assessee is entitled to have the amount of interest on securities reduced from the sum of ₹ 59,498 to ₹ 13,578. We therefore answer the question against the assessee who will pay the costs of the department. Counsel's fee ₹ 250.
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1962 (7) TMI 57 - ALLAHABAD HIGH COURT
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... ... ..... ery similar and the same question of law arose for the decision of this court. I have stated my reasons at some length in that judgment. If anything, the facts in that case were on a slightly higher footing than the facts in the present case. In that case, at least a show of reason was made by the managing agent before it accepted the so-called termination. In this case there was not even that kind of show. The reference should accordingly be returned to the Income-tax Appellate Tribunal with the above answers under the seal of the court and the signature of the Registrar. The department should be entitled to the costs of this reference assessed at ₹ 200. The application under section 66(4) must also be dismissed as all the points raised in that application were allowed to be argued by learned counsel on this reference and accordingly the learned counsel himself did not press the application seriously. The application is rejected. Questions answered in the affirmative.
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1962 (7) TMI 56 - BOMBAY HIGH COURT
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... ... ..... #8377; 18 lakhs as a deduction under section 10(2)(xv) of the Income-tax Act for the assessment year 1952-53?" We are unable to agree with the Tribunal that this question is covered in the question referred to us. The question referred to us is whether the amount of ₹ 18 lakhs is a permissible deduction, while the second question, which the department sought to raise, was on the assumption that it was deductible. The question raised is as to the year in which it would be deductible. Mr. Palkhivala had raised a preliminary objection and contended that no such question was raised before the Tribunal and, therefore, the respondent is not entitled to raise this question before us. In our opinion, the preliminary objection is well founded. We do not find any such contention raised before the Tribunal. We would, therefore, not be justified in proceeding to record our answer to this question at this stage. Commissioner to pay the costs of the assessee. Order accordingly.
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1962 (7) TMI 55 - BOMBAY HIGH COURT
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... ... ..... ses-see is that his clear profits exceed the reasonable return, it speaks of distribution of those clear profits. This clear difference in the language used by the legislature as regards these two provisions leads to the conclusion that the sums set apart which form part of the income of the assessee as a result of its trading operations have not been diverted at the source before they had reached the assessee. As regards the third aspect as to whether the said amounts set apart can be claimed as an allowance deductible under section 10(2)(xv), in our view, in no sense it can be said to be an expenditure laid out wholly or exclusively for the purpose of the business, inasmuch as it is not expenditure which can be said to have been incurred either during the course of business or for the purposes of earning the profits of the business. For the reasons stated above, our answer to the question referred to us is in the negative. The assessee will pay the costs of the department.
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1962 (7) TMI 54 - BOMBAY HIGH COURT
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... ... ..... d then was in the following terms "Any person responsible for...any other sum chargeable under the provisions of this Act, shall, at the time of payment, unless he is himself liable to pay income-tax thereon as an agent, deduct income-tax at the maximum rate." It is not in dispute that the China Mills, to whom payment was made, are non-residents. On the facts found the amount paid represents the profit made by the Mills on the sale of cotton. As already stated, in our view, the profits made arose from business and tax would, therefore, be chargeable on profits under the Indian Income-tax Act. It is also not in dispute that the assessee was not an agent in India of the China Mills. In our opinion, therefore, the assessee should have deducted income-tax as required by section 18(3A) of the Act at the time he made the payment to the China Mills. Our answer to the question referred to us is, therefore, in the affirmative. Assessee shall pay the costs of the department.
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1962 (7) TMI 53 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... n in AIR 4943 oudh 304 and AIR 1948 All 443. ( 8. ) Thus there is weight of authority in support of the view contended for by the appellant that Section 21 of the Arbitration Act restricts reference to arbitration in a matter in difference between the parties arising in the suit and precludes such reference to arbitration in execution proceedings. The clear language of the statute and the weight of authority impel me to hold that the reference to arbitration in this case during execution proceedings did not have the sanction of Section 21, and was, therefore, without jurisdiction. The reference being void is not binding on the judgment-debtor-appellant. The result, therefore, is that the appeal is allowed and the order of the Senior Sub-Judge, dated 3rd December, 1960, is set aside. In the circumstances of the case, the parties are left to bear their own costs of this appeal. The parties are directed to appear in the trial Court on 13th August, 1962, for further proceedings.
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1962 (7) TMI 52 - ALLAHABAD HIGH COURT
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... ... ..... did not decide whether revision of information is permissible as a source of information under section 34, did not overrule the submission made on behalf of the counsel for the department and from an entire reading of their decision they appear to have been half inclined to hold that change of opinion also would be within the section. Here, however, as already stated above, it is not a case of a mere change of opinion but a case of the knowledge of an omission regarding a statutory provision by the predecessor acquired by his successor subsequently in point of time to the making of the assessment order. It follows that the proceedings taken in this case were perfectly valid. The two questions should, therefore, be answered as follows The first question in the affirmative, and the second question in the negative. The reference should be returned to the Income-tax Appellate Tribunal with the above answers. The department should be entitled to its costs assessed at ₹ 200.
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1962 (7) TMI 51 - MYSORE HIGH COURT
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... ... ..... have been applied for the assessment year 1954-55 ; at any rate it was ineffective in respect of the income earned between April 1, 1954, and July 4, 1954. This is not a point referred for our opinion and hence there is no need to deal with the same. But we may incidentally mention that this point is covered by a decision of a Bench of this court in Appanna v. State of Coorg 1958 36 Mys. LJ 73 and that decision is against the contention urged by Sri T. Krishna Rao. In the result, we answer both the questions referred for our opinion against the assessee and in favour of the department. On point No. 1 our answer is that the initiation of action under section 34(1) for the purposes of making reassessment for the assessment year 1954-55 had been validly made, and on point No. 2, the interest on Mysore Durbar Securities had been rightly held to be chargeable to super-tax under the Indian Income-tax Act for the assessment years 1954-55 and 1956-57. Advocate's fee ₹ 250.
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1962 (7) TMI 50 - ALLAHABAD HIGH COURT
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... ... ..... he Bar, for the simple reason that they are cases dealing with the amended second proviso to section 34 of the Act and not to the unamended one and we are not in this case concerned with the amended second proviso. Brij Lal Gupta J.--I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and by Jagdish Sahai J. I agree that the answer to the question referred should be in the affirmative. I also agree with the order regarding costs. The case was referred to a full bench on the request of Sri Gopal Behari, learned counsel for the income-tax department, as he had stated that a question of the constitutionality of the second proviso to section 34(3) and of the correctness of the decision of a Division Bench of this court in Pt. Hazari Lal v. Income-tax Officer 1960 39 I.T.R. 265 might be involved. I agree with Jagdish Sahai J. that for the decision of this case it is not necessary to go into those questions. Question answered in the affirmative.
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1962 (7) TMI 49 - MADRAS HIGH COURT
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... ... ..... remuneration of 5 of the annual net profits. We are frankly at a loss to understand how such an argument can hold the ground. What the assessee was entitled to on the basis of the agreement was 5 of the profits. Clause 8 provides for "such additional remuneration as the directors may sanction", in the event of an increase of business. The invoking of this clause does not and cannot take away the pre-existing right of the assessee company to the 5 share of the profits guaranteed to it under clause 7. The argument that by reason of the demand for additional remuneration, the 5 stipulated in clause 7 was given up cannot for a moment be accepted as sound. We are accordingly of the view that the decision of the department and the Tribunal on this question is correct. The question referred to us is therefore answered in the affirmative and against the assessee, who will pay the costs of the department. Counsel's fee ₹ 250. Question answered in the affirmative.
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1962 (7) TMI 48 - ALLAHABAD HIGH COURT
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... ... ..... there can be no waiver of it. This view was affirmed by the Supreme Court in Narayana Chetty v. Income-tax Officer 1959 35 I.T.R. 388; 1959 Supp. 1 S.C.R. 189. My answers to the two questions are as follows Question No. 1.--No. Question No. 2.--If no return is filed within the time prescribed in the general notice issued under section 22(1) (a) section 34(1)(a) would be attracted if, (i) no return was filed before the expiry of four years, (ii) if a return was filed before the expiry of four years and an assessment order was passed on it and it was later found that on account of the assessee not disclosing true and full facts income had escaped assessment, and (b) section 34(1)(b) would be attracted only if a return was filed before the expiry of four years and was found to be true and complete, and an assessment order was passed upon it but on account of information subsequently come into the possession of the Income-tax Officer he found that income had escaped assessment.
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