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Showing 21 to 25 of 25 Records

• 1959 (2) TMI 21
  
  Issues:
  1. Entitlement to refund of sales tax paid for a specific period.
  2. Determination of whether the sale took place within the State of Andhra or outside.
  3. Validity of the tax payment and entitlement to refund under the Indian Contract Act.
  4. Consideration of previous court decisions and their impact on the case.
  5. Whether the appellant is entitled to a refund despite collecting sales tax from customers.
  6. Calculation of the refund amount and entitlement to interest.
  
  Detailed Analysis:
  1. The appeal before the High Court of Andhra Pradesh involved the question of whether the appellant was entitled to a refund of the sales tax paid for the period from 26th January, 1950, to 31st March, 1950. The Subordinate Judge had denied the refund, stating that the contracts were concluded within the State of Andhra and the payment was voluntary.
  
  2. The primary issue was to determine whether the sale transactions occurred within the State of Andhra or outside. The Court examined the evidence provided by the plaintiff's clerk, confirming that the sales were completed outside the province, with delivery and property transfer happening outside the state. Relying on previous court decisions, the Court concluded that the sales did not take place within Andhra and were not subject to taxation under the Madras General Sales Tax Act of 1939.
  
  3. The Court addressed the validity of the tax payment and entitlement to a refund under the Indian Contract Act. The appellant argued against the Subordinate Judge's view that the tax payment was voluntary. Citing a recent Supreme Court decision, the Court held that the appellant was entitled to a refund based on legal grounds.
  
  4. The judgment referenced previous court decisions, including those of the Supreme Court, to support the appellant's claim for a refund. The Court highlighted the inconsistency of the Subordinate Judge's decision with established legal principles and precedents.
  
  5. Another issue raised was whether the appellant's collection of sales tax from customers affected his entitlement to a refund. The Court rejected this argument, emphasizing that the legality of the tax collection was crucial, and the appellant could still claim a refund despite collecting sales tax from customers.
  
  6. Finally, the Court allowed the appeal, directing the Court below to determine the refund amount for the specified period. The appellant was also granted interest on the refund amount at 6% per annum from the date of the demand notice. The judgment concluded with a partial allowance of the appeal and a decision to remand the case for further proceedings on the refund amount calculation and cost distribution between the parties.

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• 1959 (2) TMI 20
  
  Issues Involved:
  1. Legality of including Rs. 41,736 (excise duty) in the taxable turnover.
  2. Availability of alternative remedies under the Bihar Sales Tax Act.
  3. Appropriateness of a writ under Article 226 of the Constitution.
  
  Detailed Analysis:
  
  1. Legality of Including Rs. 41,736 (Excise Duty) in the Taxable Turnover:
  The petitioner argued that the sum of Rs. 41,736, representing central excise duty paid by customers, should not be included in the taxable turnover. The petitioner contended that since the customers paid the excise duty directly into the treasury, it was not part of the consideration for the sale. However, the court held that under Section 2(h) of the Bihar Sales Tax Act, "sale price" includes any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery. The court noted that the excise duty was deposited by the customers in the treasury in the name of the petitioner, making the customers agents of the petitioner for this purpose. The legal liability to pay the excise duty was upon the petitioner under the Central Excise and Salt Act, 1944. Therefore, the payment of excise duty by the customers was considered part of the valuable consideration for the purchase of the goods, thus constituting part of the sale price within the meaning of Section 2(h) of the Bihar Sales Tax Act. Consequently, the amount was rightly included in the taxable turnover and assessed to sales tax.
  
  2. Availability of Alternative Remedies under the Bihar Sales Tax Act:
  The respondent argued that the petitioner had an alternative remedy under Section 25(2) of the Bihar Sales Tax Act, which he did not avail within the statutory time limit. Section 25(1) allows a dealer to require the Board of Revenue to refer any question of law to the High Court. If the Board refuses, Section 25(2) permits the dealer to apply to the High Court within 45 days against such refusal. The court emphasized that the Bihar Sales Tax Act provides an elaborate machinery for the determination of the liability of dealers to pay sales tax, including provisions for appeal, revision, and review under Section 24 and the referral of legal questions to the High Court under Section 25. The court found no sufficient cause for the petitioner's failure to follow the prescribed procedure, thereby rejecting the argument that a writ under Article 226 was the proper remedy in this case.
  
  3. Appropriateness of a Writ under Article 226 of the Constitution:
  The court reiterated that a writ under Article 226 is an extraordinary remedy, meant to be used in proper cases where no other adequate legal remedy exists. The court referred to precedents, including Allen v. Sharp and Raleigh Investment Co., Ltd. v. Governor-General in Council, which underscore that statutory remedies should be exhausted before seeking a writ. The court held that the petitioner had an effective remedy provided by the machinery of the Bihar Sales Tax Act and, having not availed himself of that remedy within the stipulated time, could not seek redress through a writ under Article 226. Even assuming the writ was appropriate, the court found no merit in the petitioner's claim for a refund of the tax amount.
  
  Conclusion:
  The court dismissed the application, holding that the amount of Rs. 41,736 was rightly included in the taxable turnover and assessed to sales tax. The petitioner failed to make out a case for the grant of a writ under Article 226 of the Constitution, and the application was dismissed with costs.

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• 1959 (2) TMI 19
  
  Issues:
  - Dispute over the settlement of the list of contributories and making calls on certain individuals who claim they were not shareholders at the time of the company's liquidation.
  - Allegation of incorrect share register and the need for rectification.
  - Interpretation of the principle that a transferor cannot avoid liability in winding up as a contributory if their name remains on the register despite the transfer, unless due to the company's default.
  
  Analysis:
  The judgment addresses a dispute where certain individuals from the Sonepur Raj family objected to being included as contributories in the winding up of a banking company, claiming they were not shareholders at the time of liquidation. The individuals sought rectification of the share register to remove their names. The court examined the facts, noting that the shares in question were sold by the Maharaja of Sonepur and his family in 1945, with evidence of the transfer provided. The court highlighted a letter from the bank to the transferor, indicating the intent to register the transfer unless objections were raised within a specified period. However, the transfer was not reflected in the company's registers despite no objections being made.
  
  The court considered the principle that a transferor cannot escape liability if their name remains on the register post-transfer, unless the company is solely at fault for non-rectification. In this case, the court found no fault on the part of the transferor, as the transfer was legitimate and the bank failed to update its records despite being notified of the transfer. The court emphasized that the transfer was made before the liquidation, through authorized brokers, establishing its legitimacy. As a result, the court ruled in favor of the disputants, setting aside the order of settlement of contributories and the call-making order specifically for them, absolving them of liability as contributories due to the company's default in rectifying the share register.
  
  The judgment concluded by stating that each party would bear their own costs, with the liquidator retaining costs from the assets in hand. The court's decision was based on the lack of default on the part of the transferors and the company's failure to rectify the share register, ultimately relieving the disputants from contributory liability.

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• 1959 (2) TMI 12
  
  Issues Involved:
  1. Whether a right to sue for damages for breach of contract appertaining to the business of the transferor company is transferred by a vesting order under section 153A of the Indian Companies Act, 1913.
  2. Whether the transfer infringes the provisions of section 6(e) of the Transfer of Property Act.
  3. Whether the decision in Nokes v. Doncaster Amalgamated Collieries Ltd. applies to the present case.
  
  Issue-Wise Detailed Analysis:
  
  1. Transfer of Right to Sue for Damages under Section 153A of the Indian Companies Act, 1913:
  The court examined whether a right to sue for damages for breach of contract, which pertains to the business of the transferor company, is transferred by a vesting order under section 153A of the Indian Companies Act, 1913. The judgment held that the right to sue for damages for breach of contract falls within the wide definition of "property" in section 153A(4). The claim for damages appertains to the undertaking of the transferor company and passes with the undertaking. The court emphasized that the transfer takes place by virtue of the vesting order without any further act or deed, making it unnecessary to obtain a formal conveyance from the transferor company.
  
  2. Infringement of Section 6(e) of the Transfer of Property Act:
  The court addressed the argument that the transfer infringes section 6(e) of the Transfer of Property Act, which states that a mere right to sue cannot be transferred. The judgment clarified that section 6(e) prohibits the transfer of a "mere right to sue," but property with an incidental right to sue for damages may be transferred. The court reasoned that an undertaking or business as a going concern is property, and a right to sue for damages for breach of contract appertaining to the business is intimately connected with the enjoyment of the business. Therefore, the transfer of the incidental right to sue for damages together with the business is not a transfer of "a mere right to sue."
  
  3. Applicability of Nokes v. Doncaster Amalgamated Collieries Ltd.:
  The court considered whether the decision in Nokes v. Doncaster Amalgamated Collieries Ltd. applied to the present case. The House of Lords in Nokes' case dealt with the transfer of non-assignable rights and contracts, such as contracts of service, and held that such rights and contracts could not be transferred by a vesting order. However, the court distinguished the present case from Nokes' case, stating that the question of transferring a right to sue for damages appertaining to the business of the transferor company did not arise in Nokes' case. The judgment concluded that an accrued right to sue for damages is not a right which by its very nature is incapable of being transferred and may be transferred with property to which it is incidental without infringing any rule of law.
  
  Conclusion:
  The court held that the claim and the subject-matter of the suit lawfully vested in the appellant by virtue of the vesting order dated December 6, 1955, and the appellant is entitled to continue the suit. The appeal was allowed, and the judgment and order of Bose J. were set aside. The court made an order in terms of prayers (a), (b), (c), and (d) of the petition and certified that the case was a fit one for the employment of counsel before Bose J. The appellant was entitled to the costs of the appeal.

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• 1959 (2) TMI 1
  

  Whether on the facts and in the circumstances of the case the loss of ₹ 27,709 arising in Cochin State could be set off against the profit of ₹ 38,998 arising in Travancore State ?

  Held that:- The question referred to the High Court which is common to the two appeals was rightly answered in favour of the assessee. Appeal dismissed.

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