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1964 (9) TMI 95 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ceedings and, relying upon Kalipada De and others v. Dwijapada. Dass and others A.I.R. 1930 P.C. 22, he has urged that the matter has been decided finally between the parties earlier before the District Judge that the relief sought by the appellant in the previous applications was not available to her. 14. An obvious injustice, to my mind, has been done by the Court in inserting the schedule of the property and I am, therefore, of the view that the appellant is entitled to the relief sought. It was no function of the District Judge to have annexed copies of the schedules of the properties, annexed to the application for probate, to the probate granted and their annexation was, to my mind, not in accordance with law. I, therefore, accept this appeal, set aside the order of the Court below and hold that the schedules attached to the probate granted to the appellant on the will of her husband, dated the 21st of June, 1955, do not form part of the probate and shall stand deleted.
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1964 (9) TMI 94 - SUPREME COURT
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... ... ..... #39;s report ? He could suggest none, and we cannot also see what other purpose was intended. In our opinion, the position is clear that such reports, if they are regarded as made under s. 190(1) (b), must attract the provision of s. 251A of the Code, because if the fiction is given full effect they cannot be regarded as falling within 'complaints under s. 190(1)(a) or within s. 190(1) (c). In any case, the Divisional Bench also said that s. 251A is applicable to the trial of a case which is initiated on a police report under s. 173 if the investigation is one to which s. 173, Criminal Procedure. Code may be applied, and both conditions are fulfilled in this case. 10. The High Court was right in not interfering in revision with the trial of the case. We dismiss the appeal. The appellant has succeeded in delaying this trial for a considerable time. We direct that the trial shall take place from day to day till the case is disposed of according to law. 11. Appeal dismissed.
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1964 (9) TMI 93 - SUPREME COURT
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... ... ..... f the twenty-four candidates whose names are mentioned in Annexure 'C' and the sixteen candidates whose names are mentioned in Annexure 'D' to the affidavit of the Public Service Commission filed on August 4, 1964. Their selection was not proper and must be set aside. It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing. If any blame for the inconvenience is to be placed it certainly cannot be placed upon the petitioning candidates, the candidates whom this order displaces or this Court. With these observations we allow the petitions to the extent indicated above with one set of hearing fee. Petitions partly allowed.
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1964 (9) TMI 92 - PUNJAB HIGH COURT
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... ... ..... merely because during the period 1 June 1961 to 31 May 1963 (sic). Sri Gupta says that the employers are not prepared to accept that all those persons, who left service and who, according to the return, fulfilled the qualifications laid down in Para. 26, did, in fact, fulfil those qualifications, but this is a matter which will have, to be decided by the Commissioner in accordance with Para. 26B after giving a hearing to both the employer and the employee when that stage is reached. For the present all that is to be decided is whether the order made by the Commissioner calling upon the employers to make contribution of their share towards the provident fund for the pre-discovery period is illegal or without jurisdiction. For the reasons which have already been stated, it is not possible to accede to the contentions of Sri Gupta. 7. In the result, all the petitions fail and are dismissed, but in the circumstances there will be no order as to costs. D. Falshaw, C.J. 8. I agree.
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1964 (9) TMI 91 - MADRAS HIGH COURT
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... ... ..... tire assessment because one more item had to be considered and adjudicated upon. An order in such circumstances though appealable under the statute, was interlocutory in character, forming only a stage in the process of making the final assessment. The general principles laid down in the Privy Council decision in Maharaj Moheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283, will apply. Therefore, we are of the opinion that the correctness of the decision of the income-tax officer and the Appellate Assistant Commissioner under points 1 and 2 could be canvassed, when the matter came before the Appellate Tribunal which cannot be considered to be bound in any way by the decision of the Appellate Assistant Commissioner at the earlier stage. We, therefore, allow the revision case and set aside the order of the Tribunal refusing to consider the points raised by the Appellant in the appeal. We remand the case to the Tribunal for disposal in the light of the above observations.
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1964 (9) TMI 90 - SUPREME COURT
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... ... ..... t of sight, under s. 301, A is deemed to have hit C with the intention to kill him. What is to be noticed is that to invoke s. 301 of the Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C. In the instant case this condition is not complied with. The accused shot at a particular person with the intention of killing him though under a misapprehension of his identity. In that case, all the ingredients of Sections 299 and 300 of the Indian Penal Code are complied with. The aid of s. 301 of the Indian Penal Code is not called for. We are, therefore, of the opinion that s. 301 of the Indian Penal Code has no application to the present case. 11. For the foregoing reasons we hold that all the accused are liable under s. 302, read with s. 34, of the Indian Penal Code. If we reach this conclusion, it is conceded that no other point arises in this appeal. The appeal fails and is dismissed. 12. Appeal dismissed.
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1964 (9) TMI 89 - KERALA HIGH COURT
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... ... ..... provided by sub-section 4 of Section 12 that should apply or whether it is the period of three years provided in rule 17(1) that should apply. If escape of turnover is a special matter, I feel no doubt that such action must be taken within the period provided by Rule 17 (1). Otherwise, that provision according to me becomes nugatory and practically ineffectual. The purpose of the provision seems to be that there should be finality at least regarding the question of escaped turnover after the expiry of three years from the end of the assessment year. This purpose will not be served if assessment orders could be reopened after the expiry of the said three years. And such construction of Section 12 would have the effect of overriding the provision in Rule 17 (1) which is as much law as the Section and will be against the rule of harmonious construction. I quash Ext. P. 5 in each of these cases and allow these writ applications; but in the circumstances make no order as to costs.
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1964 (9) TMI 88 - ALLAHABAD HIGH COURT
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... ... ..... t the provisions of section 16(3)(a)(iv) applied to the case, even though the Tribunal determined the status of the assessee as that of a Hindu undivided family. Upon a plain reading of section 16(3)(a)(iv), which applies only to the computation of the total income of an individual, this argument is untenable. We are, therefore, of the view that the gift by Hirday Narain in favour of Satyendra Prakash being a valid transaction, the share of Satyendra Prakash in the firm's income could not be included in the assessment of the Hindu undivided family, of which Hirday Narain was the karta. We, therefore, answer the question in the negative. We direct that a copy of this judgment under the seal of the court and the signature of the Registrar shall be sent to the Income-tax Appellate Tribunal. The assessee shall get its costs from the Commissioner of Income-tax, which we assess at ₹ 200. Counsel's fee is also assessed at ₹ 200. Question answered in the negative.
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1964 (9) TMI 87 - MADHYA PRADESH HIGH COURT
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... ... ..... r for being allowed to transfer the lease to the Company cannot, therefore, be sustained. In the circumstances, stated above, the lessee's application for sanction must he regarded as still pending and the State Government must dispose it of according to law. For the foregoing reasons our conclusion is that the orders, dated 7th April, 1964 and 20th February, 1964 of the State Government cannot be allowed to stand and must be quashed. The result is that both the petitions are allowed. The two aforesaid orders are quashed by issue of writs of certiorari and the State Government is directed to determine according to law the lessee's Shanker Prasad Goenka's application for being allowed to transfer the lease to Messrs. T. C. Bajan and Co. of Katni. The petitioner Goenka shall have costs of the two applications. Counsel's fee in each case is fixed at ₹ 150. The outstanding amount of the security deposit shall be refunded to the petitioners in both the cases.
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1964 (9) TMI 86 - PUNJAB & HARYANA HIGH COURT
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... ... ..... bunal has taken and we see no error in that view. 14. The learned counsel for the assessee relied upon Forbes v. Scottish Provident Institution 1895 3 Tax Cas. 443, Gresham Life Assurance Society v. Bishop 1, Hall v. Marians 1935 19 Tax Cas. 582, Wild v. King Smith 1941 24 Tax Cas. 8, Manickam Chettiar v. Commissioner of Income-tax 1937 5 ITR 534, Commissioner of Income-tax v. Ahmedabad Advance Mills Ltd. 1938 6 ITR 3, Commissioner of Income-tax v. Seth Mathuradas Mohta 1939 7 ITR 160, Keshav Mills Ltd. v. Commissioner of Income-tax 1953 23 ITR 230; 1953 SCR 950 and Ogale Glass Works' case (supra). None of these cases is of any assistance to the learned counsel. It is admitted by him that there is no case directly dealing with the point involved. The result, therefore, is that the question referred to us is answered in the affirmative. However, in view of the difficult nature of the question involved and in the circumstances of the case there will be no order as to costs.
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1964 (9) TMI 85 - SUPREME COURT OF INDIA
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... ... ..... ceased, and 4 incised wounds on Sukhari Mahto. Even if Shamnarain Singh's party were not the aggressors and the attack was started by the party of Rattan, as appears to be the view of the High Court, that would not give any right of private defence of person to Shamnarain's party as Rattan and others could have apprehended, in the circumstances, that Shamnarain's party was not peacefully inclined and would use force against them in order to rescue the cattle and that the force likely to be used could cause grievous hurt. We are of opinion that Rattan and others, appellants, committed no offence in causing injuries to persons in Shamnarain's party and in causing the death of Ramdeo who was in that party. We accordingly allow the appeal, set aside the conviction of Rattan Ahir under s. 302 I.P.C. and of others under s. 326 I.P.C. and also their conviction of the other offences they were convicted of. They will be released forthwith from custody. Appeal allowed.
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1964 (9) TMI 84 - SUPREME COURT
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... ... ..... e Provincial Insolvency Act, they should be exempted form the proceedings under s. 7(1) of the Act. We are not impressed by this argument. If the legislature wanted to save these categories of transactions where the evacuees' title was lost, it could have easily made a suitable provisions in that behalf. We feel no difficulty in holding that the legislature could not have intended to permit private transfers of their properties by evacuees after they migrated from India, where these transfers were completed before the commencement of the proceedings under s. 7(1). We are, therefore, satisfied that the view taken by the High Court does not correctly represent the true scope and effect of the provisions contained in s. 7(1) of the Act. 18. In the result, the appeal is allowed, the order passed by the High Court is set aside and the writ petition filled by the respondent is dismissed. In the circumstances of the case, there would be no order as to costs. 19. Appeal allowed.
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1964 (9) TMI 83 - CALCUTTA HIGH COURT
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... ... ..... d goods were produced by establishments not owning more than 4 power-looms, 10. In view of my finding as to the invalidity of the assessment with respect to cotton fabrics owing to its inconsistency with Article 286(3) of the Constitution and the Central Act of 1957, this petition will succeed in part, since the assessment, with respect to handloom cloth is separate and severable. The deduction of ₹ 3,00,000/- from the gross turnover on account of the sale of cotton fabrics having been illegally disallowed by the Commercial Tax Officer, the proper order would be an order in the nature of mandamus directing the Opposite Parties not to enforce the impugned assessment order against the Petitioner or to take further steps in that behalf, without deducting the said sum of ₹ 3,00,000/- from the Petitioner's gross turnover and modifying the assessment order accordingly, 11. Let the Rule be made absolute in part in the above terms. There will be no order as to costs.
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1964 (9) TMI 82 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... hips finally laid down and they were applied to the case because it was considered that the Tribunal was conscious that the new contention which had been raised also might bear on the controversy so that it could not be said to be foreign to the scope of the question as framed. Mr. Awasthy does not say that the question of law which he has endeavoured to raise before us was raised before the Tribunal but it failed to deal with it, nor can it be said that the Tribunal dealt with it although it was not raised before it. Thus, there is no escape from the conclusion that the aforesaid question was neither raised before the Tribunal nor considered by it, and, therefore, it is not possible for us to allow Mr. Awasthy to raise it for the first time before us in this reference. In the result, the question must be answered in the negative for the reasons given in the previous Bench decision (Jhabar Mal Chokhani v. Commissioner of Income-tax 1963 49 ITR 391 ). D. Falshaw C.J.-I agree.
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1964 (9) TMI 81 - GUJARAT HIGH COURT
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... ... ..... sections. Equally a selling agent would be holding such office of profit. Now, if a selling agent can be said to be holding an office of profit under the company for the purpose of the Companies Act, it is difficult to see why he cannot be said to be holding an office of profit under the company when we refer to the Income-tax Act. Just as in the Companies Act, the words "office of profit" are used according to their plain and natural meaning and not in a narrow and restricted sense, so also in the Income-tax Act these words are used in their plain and natural sense and must not be interpreted in any narrow or constricted manner. We are, therefore, of the opinion that the assessee in the present case held an office of profit within the meaning of section 4(3)(vi). In the result our answer to the question referred by the Tribunal pursuant to the order made by this court on 9th October, 1962, is in the affirmative. The Commissioner will pay the costs of the assessee.
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1964 (9) TMI 80 - ALLAHABAD HIGH COURT
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... ... ..... We are, therefore, unable to agree with the Tribunal that the sum of ₹ 23,000 stood credited in the name of the bank in the books of Vibhuti Glass Works. Mr. Gulati has not contended that the sum of ₹ 23,000 could be assessable under section 4(1)(b) of the Act. We have held above that the sum of ₹ 23,000 cannot be held to have been credited or deemed to have been credited to the assessee-bank under section 16(2) of the Act. For the reasons mentioned above, we answer the second question in the negative, in favour of the assessee and against the department by saying that the dividend of ₹ 23,000 held by the assessee is not liable to inclusion in the total income of the company for the assessment year 1951-52 either under section 16(2) or section 4(1)(b) of the Act. In the circumstances of the case, we direct the parties to bear their own costs. For the purposes of assessing the counsel's fee for the department, we fix it at a figure of ₹ 200.
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1964 (9) TMI 79 - CALCUTTA HIGH COURT
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... ... ..... native arguments which the learned counsel for the assessee and for the Commissioner of Income-tax have urged. For the reasons stated above, the question raised in this reference should be answered in the negative and the inclusion by the Income-tax Officer of ₹ 2,03,503, ₹ 5,41,526, ₹ 5,29,284 and ₹ 4,00,052 in the assessment for the years 1949-50, 1950-51, 1951-52 and 1952-53 for the relevant accounting year ending 30th September, 1948,1949, 1950, and 1951, respectively, in the computation of the total income of the assessee is not justified. We may, however, add that the assessee's income during the first three years should be ascertained strictly in terms of the agreement between I.C.I. (Exports) Ltd. and its former agents and not in accordance with the book entries as maintained by the assessee-company under the advice of Messrs. Lovelock and Lewis. The respondent shall pay the costs of this reference to the appellant. S.P. Mitra, J.-I agree.
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1964 (9) TMI 78 - MADRAS HIGH COURT
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... ... ..... gs initiated by the Income-tax Officer under section 34 against Karuppan Chettiar was not taken before him or before any one of the appellate authorities. The question, therefore, does not arise on the order of the Tribunal. Hence, we cannot permit the assessee to raise this point before us. The result is that the assessment of Karuppan Chettiar for the three years in question must be regarded as valid. We answer the question referred to us in T.C. No. 157 of 1960, in the affirmative and against the assessee who will pay the costs of the department. Counsel's fee ₹ 250. As regards T.C. No. 156 of 1960, we answer the question in the affirmative and against the assessee so far as the year 1952-53 is concerned. But with respect to the other two years, namely, 1950-51 and 1951-52, the assessments will be invalid. The question in regard to those years will have to be answered in the negative and in favour of the assessee. There will be no order as to costs in this case.
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1964 (9) TMI 77 - GUJARAT HIGH COURT
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... ... ..... s contention has absolutely no force. The inquiry by the Charity Commissioner under the Bombay Public Trusts Act, 1950, is of an entirely different character from the enquiry under the Indian Income-tax Act and if we look at the provisions of sections 79 and 80 of the Bombay Public Trusts Act, 1950, it is clear that the decision of the Charity Commissioner which is made final and conclusive is only for the purpose of proceedings before the civil court and there is nothing in those sections that precludes the revenue authorities from examining whether the terms of the section under which the claim for exemption is made by the assessee are satisfied or not. This contention of Mr. Kaji must, therefore, be rejected. In this view of the matter our answers to both the questions are in negative. The assessee will pay the costs of the reference to the Commissioner. The advocate's fee is fixed at ₹ 600. Certificate for leave to appeal to the Supreme Court under section 66A.
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1964 (9) TMI 76 - PATNA HIGH COURT
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... ... ..... vendors were yearly tenants and not permanent tenants. So the plaintiff could not be anything more than a yearly tenant and was entitled to a notice to quit from the defendant before he could be validly ejected from the fields. Learned Judges of the Bombay High Court took a different view and held that as the plaintiff in his plaint and during trial of the suit denied his landlords' title (defendants) as ho had claimed to be the full owner, he could not be permitted afterwards to be restored to possession on the ground that he was an yearly tenant entitled to notice to quit which was not given. 16. For all the reasons given above, I am of the view that the defendant-appellant's plea of absence of notice by the plaintiff raised for the first time in this appeal cannot be maintained. No Other point was urged in support of the appeal. Accordingly the appeal is dismissed with costs and the judgment and decree of the court below are affirmed. A.B.N. Sinha, J. 17. I agree.
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