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1960 (3) TMI 54 - SUPREME COURT
... ... ... ... ..... ainst Mr. Dhanda but a mistake crept into the formal order that was drawn up and among the acts of misconduct mentioned as those of which Dhanda had been found guilty and on which the dismissal order was based the fourth charge as regards threatening and intimidating other employees was also mentioned. It is proper to hold that this was an accidents clerical mistake and that in fact the General Manager did not proceed on the wrong basis that Dhanda had been found guilty on this fourth charge also. The mere fact that such a clerical error appears in the formal order does not affect the validity of the order in any way. o p /o p We have therefore come to the conclusion that the separate contentions pressed oil behalf of seven of the appellants that the Tribunals below did not consider certain infirmities in the order cannot also be sustained. o p /o p The appeal is accordingly dismissed, but in the circumstances we make no order as to costs. o p /o p Appeal dismissed. o p /o p
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1960 (3) TMI 53 - SUPREME COURT
... ... ... ... ..... would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced. The present, however, is a case of a very simple nature and so the employer cannot be blamed for the course adopted by him. In the circumstances, there was in our opinion no failure of natural justice in this case and if the respondent did not choose to take part in the enquiry no fault can be found with that enquiry. We are of opinion that this was a case in which the tribunal patently erred in not granting approval under s. 33(2) of the Industrial Disputes Act. Besides it is apparent that in making the order under appeal, the tribunal has completely lost sight of the limits of its jurisdiction under s. 33(2). We therefore allow the appeal and setting aside the order of the tribunal grant approval to the order of the appellant dismissing the respondent. In the circumstances we pass no order as to costs. Appeal allowed.
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1960 (3) TMI 52 - MADRAS HIGH COURT
... ... ... ... ..... Dass claimed deduction of the amounts paid, under the agreement, to the assessee. But the Department declined to allow the deduction claimed. From that, it was sought to be argued that it was not a remuneration paid to the assessee. We cannot see how that can follow. The fact that the amount paid to the assessee was not allowed as a permissible deduction in the assessment proceedings of Ranganatha Dass cannot determine the character of the receipt in the hands of the assessee. The circumstances relied on by the assessee to support a case of personal gift are not conclusive while the alternative case is made out by the terms of the document. The Appellate Tribunal had, therefore, sufficient material to come to the conclusion it did, namely, that the receipts were assessable. We answer the question referred to us in the affirmative and against the assessee. The assessee will pay the costs of the Department. Advocate's fee ₹ 250. Question answered in the affirmative.
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1960 (3) TMI 51 - MADRAS HIGH COURT
... ... ... ... ..... here the business at Arkonam had to be given up, and the compensation paid therefore cannot be said to be for the sterilisation of the business of the assessee, nor was it income received from the business. We have already pointed out that the mere fact that the income the assessee actually derived from the same business during a later period was taken as the basis for ascertaining the quantum of compensation, cannot determine its quality or nature. In its essence the compensation was for not carrying on the business for a period. Not being income from business, the receipt should be held to fall under section 6(v), income from other sources. The receipt, being of a casual, non-recurring nature, would be exempted from tax under section 4(3), clause (vii), of the Indian income-tax Act. We, therefore, answer the question in the negative, and in favour of the assessee. The assessee will be entitled to his costs. Advocate's fee ₹ 250. Question answered in the negative.
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1960 (3) TMI 50 - MADRAS HIGH COURT
... ... ... ... ..... ime anterior to 1st April, 1946. The Assistant Commissioner was, therefore, right in holding that the provisions of section 12B applied to the receipt of this item of ₹ 41,000. From what we have said above it should be obvious that the claim of the assessee, that it was entitled to the benefit of section 4(3)(vii), is erroneous. It was in connection with the business activities of the assessee that the assessee received this sum of ₹ 41,000. That it was a capital receipt in its hands did not make it any the less income from business, and it certainly could not be treated as something of a casual receipt or windfall. We answer question 2(a) in the negative and against the assessee. Our answer to question 2(b) is that ₹ 41,000 was assessable to tax as capital gains under section 12B of the Indian Income-tax Act. As neither the assessee nor the Department has wholly succeeded in this reference there will be no order as to costs. Reference answered accordingly.
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1960 (3) TMI 49 - CALCUTTA HIGH COURT
... ... ... ... ..... trade, albeit that while in hand they or most of them were used for passenger carrying purposes." I think that the proper inference to be drawn from the materials on the record is that, when the shares in set No. 2 were taken over by the assessee firm, they were the stock-in-trade of the Hindu undivided family. The very basis of the finding of the Tribunal that the shares were to stock-in-trade prior to February 21, 1940, therefore disappears. My conclusion is that on the facts found by the Tribunal the inference that the shares in set No. 2 were investment shares and not stock-intrade up to February 21, 1940, was not justified in law. In the circumstances the question of conversion of the shares into stock-in-trade on February 21, 1940, could not arise. I propose that the question referred to this court be answered in the negative. The assessee is entitled to the costs of the reference. Certified for two counsel. LAHIRI C.J.--I agree. Question answered in the negative.
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1960 (3) TMI 48 - MADRAS HIGH COURT
... ... ... ... ..... on the capital gains made by the predecessor company. Learned counsel for the assessee contended that the sale of machinery by the Free Press Company was effected for the purpose of distribution of its capital assets amongst its members, and that, by virtue of the proviso to section 12B, such sale could not be held to come within that section so as to render the capital gain assessable. The decision in Sri Kannan Rice Mills v. Commissioner of Income-tax 1954 26 I.T.R. 351, is against the contention. That point was, therefore, not pursued further; this however must not be understood as indicating that the learned counsel gave up that point. In view of our conclusion that capital gain could not be deemed as profits from business, profession or vocation, the assessee would not be liable to be taxed on such profits made by the predecessor. We answered question 5 in the affirmative, and question 6 in the negative. There will be no order as to cost. Reference answered accordingly.
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1960 (3) TMI 47 - MADRAS HIGH COURT
... ... ... ... ..... tion, leads only to one conclusion, that the assessee company acquired the silk mills to open a new line of business, with very expectation of that lone of business being profitable, and that the purchase was really in the nature of an investment. It follows that the assessee company did not embark upon an adventure in the nature of trade either at the time of purchase or at the time of the sale. Once again we have to point out that there was no express finding by the Tribunal, that it was an adventure in the nature of trade. But none the less, we have examined that position in view of the contention of the learned counsel for the department, that the assessment could be rested on the basis that the transaction of purchase and sale amounted to an adventure in the nature of trade. We answer the first question in the negative and in favour of the assessee. As neither side has wholly succeeded in this reference there will be no order as to costs. Reference answered accordingly.
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1960 (3) TMI 46 - SUPREME COURT
... ... ... ... ..... view clearly untenable. The decision of respondent No. 1 may have been right or wrong and as to that we say nothing, but we are unable to see that decision offends Art. 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art 14. The other contention of the petitioner is that if Chapter IV permits the State to compete with a private citizen, it offends Art. 14 because in view of the vast resources of the State a private citizen is bound to lose in such competition. This point is clearly unfounded. Article 19(6) as it now stands, contemplates such a competition as we have earlier pointed out. The petitioner can base no grievance on such competition. For these reasons we think that this petition must fail and hence it is dismissed with costs. Petition dismissed.
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1960 (3) TMI 45 - SUPREME COURT
... ... ... ... ..... isfy the magistrate who takes cognisance of the case. We would, however, like to emphasise that in rejecting the appellant’s prayer for quashing the proceedings at this stage we are expressing no opinion one way or the other on the merits of the case. There is another consideration which has weighed in our minds in dealing with this appeal. The appellant has come to this Court under Art. 136 of the Constitution against the decision of the Punjab High Court; and the High Court has refused to exercise its inherent jurisdiction in favour of the appellant. Whether or not we would have come to the same conclusion if we were dealing with the matter ourselves under s. 561-A is not really very material because in the present case what we have to decide is whether the judgment under appeal is erroneous in law so as to call for our interference under Art. 136. Under the circumstances of this case we are unable to answer this question in favour of the appellant. Appeal dismissed.
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1960 (3) TMI 44 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... ing year. Their Lordships followed the decisions in State of Madras v. Louis Dreyfus and Company Ltd. 1955 6 S.T.C. 318 (F.B.). and State of Madras v. Ibrahim Kunhi. 1956 7 S.T.C. 617. We respectfully follow this decision and hold that, though the return had not been made within time. the assessment made on the basis of a voluntary return is an original assessment made as per section 14(1) of the Act. Such an assessment can hardly be said to be a best of judgment assessment or an assessment of the escaped turnover contemplated in section 14(4), The acceptance of the return by the assessing authority would mean by implication that it has condoned the delay in the submission of the return. In this view, we agree with the opinion of the majority members of Tribunal and hold that neither sub-section (3) nor (4) of section 14 of the Act has any application to the case. The tax revision case accordingly fails, and is dismissed with costs. Advocate s fee Rs. 50. Petition dismissed.
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1960 (3) TMI 43 - ALLAHABAD HIGH COURT
... ... ... ... ..... imply held that any notification which was issued by the Governor under certain provisions of the Sales Tax Act and which was declared invalid by the Court required validation and was not validated by merely an amendment of the provisions of the Act to the effect that the Governor did have a power to issue a similar notification on the date the notification, which had been held void, had been made because in issuing that notification the Governor had not exercised the power which he neither possessed in fact on the date of issuing the notification but was deemed to possess that power that day on account of the subsequent amendment under the Act. In view of the above, we are of opinion, with respect to the learned Judge, that the order under appeal is wrong, and should be set aside. We accordingly allow the appeal, set aside the order of the learned Judge and dismiss the petition of the respondent. In the circumstances of the case we make no order as to costs. Appeal allowed.
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1960 (3) TMI 42 - ALLAHABAD HIGH COURT
... ... ... ... ..... ard oil makes the mixture unfit for consumption as food. Linseed oil thus being an article which is fit for being eaten as food was clearly edible oil. In this connection we may also refer to the remarks of a Division Bench of this Court in State v. Bal Makund 1954 A.I.R. 1954 All. 97., where a question arose as to whether linseed oil was an article of food under section 4 of the U.P. Prevention of Food Adulteration Act 6 of 1926 and it was held that linseed oil was an article of food. It may be noticed that in that case also the question whether linseed oil was an article of food arose when interpreting a provision of an Act which was applicable only locally in the State of Uttar Pradesh. That decision also thus supports the view taken by us. As a result we answer the question referred to us in the affirmative. The dealers in each of the references shall be entitled to their costs of the references which we fix at Rs. 150 in each case. Reference answered in the affirmative.
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1960 (3) TMI 41 - RAJASTHAN HIGH COURT
... ... ... ... ..... ioned in the section or to give evidence in respect of them, it does not follow that the Court may not admit in evidence a document which falls within section 54(1). However, in the present case, in the absence of provisions in the Sales Tax Act similar to the later part of section 54(1) and sub-section (2), the direction of the lower court requiring the Sales Tax Officer to send the original applications cannot be successfully challenged. Mr. Roshanlal had also taken a preliminary objection to the competence of the revision petitions on a ground that the orders being of an interlocutory nature and being challengable in appeal against final adjudication, are not revisable. As I have considered the revision petitions on merits and decided to reject them, it is not necessary to record any decision on the preliminary objection. The result is that the revision applications fail and are hereby dismissed, but in the circumstances of the case, without costs. Applications dismissed.
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1960 (3) TMI 40 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... the first time. There is no reason to read a restriction into this rule. In our opinion, the true position is that when once a return is filed or assessment proceedings are started in time the final assessment need not be completed within three years since the Act does not lay down any period within which the final assessment should be made, although the officers are expected to make the final computation in the succeeding year. There is nothing in the Act or in the rules which fixes a definite period of limitation excluding the jurisdiction of the taxing authority to finalise it after the closing of the succeeding year. But where no return is made or if made has been rejected by the taxing authority for any of the reasons, and the taxing authority has recourse to rule then it should be dealt with under rule 32, i.e., within the period fix under rule 32. In these circumstances, we cannot accept this revision case and it has to be dismissed without costs. Petition dismissed.
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1960 (3) TMI 39 - KERALA HIGH COURT
... ... ... ... ..... think the correct views is that imposing a tax on trade would not infringe the freedom under Article 301 unless the legislation be intended to restrict the freedom. No such intention can be attributed to, or fairly inferred from, the enactment impugned which is an amendment and is passed under item 54 of List II with a view to charge what had been earlier exempted. Therefore this objection to its constitutionality also fails. 15.. As regards the third part of the objection, the reason for not accepting the absence of Governor s recommendation as fatal is obvious. Article 207 forms part of the legislative procedure in financial matters. and courts are precluded by Article 212 from enquiring into any alleged irregularity of such procedure. Therefore this head of the complaint against the constitutionality of the Act is not accepted. For these reasons we hold that the petitions should be dismissed with costs. Counsel fee is fixed at Rs. 50 in each petition. Petitions dismissed.
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1960 (3) TMI 38 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... ly restriction in the matter of exercise of revisional powers by way of enhancing the assessment is the giving of a notice under sub-section (4) of section 12, which has been complied with in this case. On a consideration of the provisions of the Act, we are satisfied that even though the Deputy Commissioner of Commercial Taxes had confirmed the assessment on the appeal preferred by an assessee, he would still have the power of revision under section 12(2) and so long as he complied with the requirements of notice under sub-section (4) of section 12, any order of enhancement passed by him could not be attacked on grounds of jurisdiction. Moreover this question was not raised before the Tribunal or even in the memorandum of revision petition. There is therefore no substance in the objections taken by Mr. Anantha Babu, the learned counsel for the petitioner in this case. In the result, this petition fails and is dismissed with costs. Advocate s fee Rs. 200. Petition dismissed.
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1960 (3) TMI 37 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... ods mentioned therein that would be governed by this rule. The mere purchase of some goods for consumption would not bring it within the ambit of rule 5. The profit motive must be with regard to the commodities in regard to which the impost is sought to be levied. There can be little doubt that the expression business in the definition of dealer is used in a commercial sense. A person who buys large quantities of any category of goods for the purpose of consumption or for any other purpose unconnected with the business in that commodity, cannot be regarded as a businessman within the mischief of rule 5. In the circumstances, we reach the conclusion that the tanning bark purchased by the petitioners cannot fall within the scope of rule 5(2) and the turnover in that regard cannot be subjected to sales tax. In the result, the order levying tax on the purchase of tanning bark is set aside and the revision petition is allowed. There will be no order as to costs. Petition allowed.
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1960 (3) TMI 36 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... tems 10 and 11 of sub-section (2-A) of section 3, the following expressions are used Item (10) Bullion ad specie. Item (11) jewellery made of bullion and/or specie excluding previous stones. This makes it abundantly clear that the legislature has used these expressions as containing two different concepts, bullion being equated only to pure gold. If the word bullion could cover every form of gold or silver, it was unnecessary for the use of the word specie . Similarly, in the Andhra Pradesh General Sales Tax Act, 1957, the use of the expression bullion and specie in items 12 and 13 also is a pointer in the same direction. For these reasons, we have reached the decision that the expression gold or silver bullion connotes only pure gold or silver and it does not take in gold or silver mixed with copper or lead. In these circumstances, we uphold the order of the Tribunal and dismiss these revisions with costs in T.R.C. No. 91 of 1958. Advocate s fee Rs. 75. Petitions dismissed.
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1960 (3) TMI 35 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... 8 9 S.T.C. 747 A.I.R. 1959 S.C. 135., we hold that the plaintiffs are entitled to recover the amounts collected from the plaintiffs under the Act. Bhagwati, J., delivering the judgment of the Supreme Court, held that there is no warrant for placing a limited construction on the word mistake in section 72 of the Indian Contract Act and that it is wide enough to cover not only a mistake of fact but also a mistake of law. As the terms of the Explanation to Article 286(1)(a) of the Constitution apply to the facts of this case, the collection of the tax under the Act is illegal and the payments that were made by the plaintiffs were made only under a mistake of law. It is conceded that the terms of section 18 of the Madras General Sales Tax Act of 1939 do not apply to a case of this description Vide The Province of Madras v. Satyanaryanamurthy 1951 2 M.L.J. 340 2 S.T.C. 141. In the result, the appeal is allowed with costs, both in this Court and in the Court below. Appeal allowed.
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