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Case Laws
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1952 (8) TMI 34
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... ... ..... is, the right to apply for a final decree in respect of the instalments not barred by limitation as individual instalments would remain intact in spite of the omission to take advantage of the default clause provided the default clause is not so worded that the decree-holder has a right to rely on that alone and the decree after the default ceases to be an instalment decree. 3. It is immaterial that the default clause is worded as "the decree-holder shall have a right to apply", or as "the decree-holder shall have the option to apply", or as "the entire decretal amount shall become payable", or as "the entire decretal amount shall become due", or as "the judgment-debtor shall pay the entire decretal amount", as in all such cases the default clause is to be interpreted liberally and for the benefit of the decree-holder and the rights of the decree-holder mentioned by us in our answers to questions 1 and 2 will not be affected.
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1952 (8) TMI 33
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... ... ..... therefore, that the application for the writ of Prohibition manifestly fails. So here. 6. Learned Counsel for the Petitioner at the conclusion of the argument placed before the court a decision in -'Rekhi U.C. v. Income Tax Officer 1st "F" Ward New Delhi' AIR 1951 P&H 1 (C) which has taken the view which I have taken in this judgment as regards the maintainability of an application for a writ in a matter of Income Tax under similar circumstances. I am very thankful to Mr. Narayana Pillai for having brought the authority to my notice which Mr. Rama Iyer could, but which he may not have cited seeing the inclination of the court and in view of the fact that he stood supported by the other authorities relied upon by him including the decision of the King's Bench Division and of the supreme Court. 7. The result is that the Original Petition is dismissed with costs. Advocate's fee for the 3rd Respondent who alone appeal's is fixed at ₹ 200/-.
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1952 (8) TMI 32
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... ... ..... int family continued to exist even though may come a time when a joint Hindu family consists of only minors. The whole scheme of the Indian Partnership Act goes against such conclusions. Having, therefore, carefully considered this matter we are of the opinion that - 1. The Hindu undivided family of Ghanshyam Das Sunder Lal, as a coparcenary unit, could not as such be partners in the partnership. Ghanshyam Das and Sunder Lal could be partners in the partnership but in that case it was necessary that their shares should have been specified. 2. We have already said that the facts being as stated by learned counsel when he applied for correction, the Tribunal should not have gone on to hold that the application was signed only by Ghanshyam Das when it was apparent from the application itself that it had been signed by both. The second question, therefore, does not arise. The assessee must pay costs to the Department which we assess at ₹ 300. Reference answered accordingly.
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1952 (8) TMI 31
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... ... ..... f the Code of Civil Procedure. This provision has no application to the present matter, for it deals merely with the rights of parties to lead further evidence before an appellate Court and has nothing to do with the provisions for remand which are to be found in other rules of Order XLI. We are in no way concerned here to pronounce upon the weight, if any, which would be given to the account books which the assessee failed to produce in reply to the notice. The question before us may be very academic, but since it has been made we must give the answer. The answer in my opinion is that in law there is no bar to the Appellate Assistant Commissioner when making a remand order permitting or directing the Income Tax Officer to take into consideration account books of the assessee when making his re-assessment, and I would return the reference accordingly. I do not think we should make any orders as to costs in this matter. Harnam Singh, J. I agree. Reference answered accordingly.
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1952 (8) TMI 30
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... ... ..... s no evidence to show that the other departments are so intertwined as to be a composite one without being able to be separated. On that aspect of the case there does not seem to have been any evidence let in. In our opinion it is possible, even if some of those departments are factories, to separate those which are not factories from those which are factories. No attention seems to have been paid to this aspect of the case also. 36. In the view which we take that it is not specifically determined as to whether workers, as defined in the Act, of the requisite number have been employed in the various departments, it is difficult to sustain the conviction. We therefore set aside the convictions and sentences and direct a retrial of the case to find out whether the persons employed are workers or not. In respect of those departments where the provisions of the Factories Act have been held to be not applicable, there will be no retrial and the order of the lower court will stand.
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1952 (8) TMI 29
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... ... ..... ght to the notice of the Court in evidence, as it was in the present case, that defendant 6 brought a summary suit and recovered a decree, it was then the duty of the Court to ascertain whether defendant 6 had reserved his rights to ask a Court of law subsequently to enforce his mortgage. It is plain that he did not ask the Court to reserve him any such right. That being so, in my opinion, having regard to the explanation to Order 2, Rule 2, and the provisions of that Order the Court ought not to allow defendant 6 to obtain as a defendant any relief which he would not have been entitled to obtain as a plaintiff. Accordingly, I think that the rights of defendant 6 must be restricted to a right to redeem the plaintiffs' mortgage and a right to receive the balance of the proceeds, of sale resulting from the sale of the property, should the plaintiffs' mortgage not be redeemed. I agree that the decree must be modified in the manner indicated by the learned Chief Justice.
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1952 (8) TMI 28
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... ... ..... t he would be entitled to the remuneration fixed for him under Article 61 of the Articles of Association. It cannot be seriously contended that Seth G. M. Modi could have continued to exercise the functions entrusted to him under Article 62 as Governing Director, if he had ceased to be director of the company. It is clear that the remuneration payable to him under Article 61 was payable in his capacity as a Governing Director irrespective of the fact whether he also discharged the functions of the manager under the Indian Companies Act or entrusted such functions to any other person appointed by him. 7. We are, consequently, satisfied that, on the facts and circumstances of this case, the remuneration granted to R.B. Seth G. M. Modi was director's remuneration within the meaning of the term as used in Schedule I, Rule 7 (1), Excess Profits Tax Act read with Clause 2 (a) of the same rule. 8. The assessee must pay the costs of the other side which we assess at ₹ 500.
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1952 (8) TMI 27
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... ... ..... merce was not guilty of any unreasonable delay and that there should be an extention of the time as a matter of course. I therefore make an order in terms of prayer (b) of the petition enlarging the time of award until 17-10-1951. The petitioner Dutch Company must pay to the respondent Messrs Juggilal Kamlapat the costs of this application. 31. With regard to the judgment on award matter counsel for the awardholder submits that I should pass judgment now and stay the execution of the decree for such time as I think fit. He does not insist upon security. I do not see any useful purpose in passing judgment and at the same time staying execution of the decree. I therefore adjourn the matter of judgment upon award-matter until 15-3-1953. Messrs. Juggilal Kamlapat undertake to file the appeal within three weeks from today and to take steps to have the appeal expedited. It is expected that the appeal will be disposed of before 15-3-1953. 32. The order to be drawn up expeditiously.
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1952 (8) TMI 26
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... ... ..... is placed are these "by such individual for the benefit of his wife or minor child or both". Now, if the Legislature thought that the "individual" referred to in Section 16(3)(a)(ii ) of the Act must in all cases be a male, the Legislature could have drafted the concluding part of Section 16(3)(b) of the Act to read "by such individual for the benefit of his wife or his minor child or both". As pointed out in the Allahabad case if the Legislature had intended that the word "individual" in sub-clause (ii) should mean only the father and not the mother there was no reason why they should not have used similar language as in sub-clause (i) and said "from the admission of the minor to the benefits of partnership in a firm in which his father is a partner". With very great respect I follow the decision given in Shrimati Chanda Devi's case (supra) , and answer the question referred to us in the affirmative. Weston, CJ.-I agree.
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1952 (8) TMI 25
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... ... ..... two owners of the houses could not live in their own houses, the Government thought that a case had been made out for allowing the owners to have their houses in preference to the tenants. Oh 9-9-1950, by the same Notification, the G. O. exempting Subramanian's house from the operation of Sections 7(3) and 9 was revoked and the 2nd respondent's house was exempted from the provisions of the Act After going through the entire records, I am not satisfied that the petitioner has made out that the Government exempted the 2nd respondent's house to circumvent the orders of civil courts. It is more likely that they exercised their undoubted powers with the 'bona fide' intention of protecting the interests of the landlords who had no other houses to live in. I cannot therefore hold that the Government was actuated by 'mala fides' in issuing the order. In the result the application is dismissed with costs. Respondents 2 to 6. Advocate's fee ₹ 100.
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1952 (8) TMI 24
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... ... ..... ible to say that the business of an auctioneer does not require any personal qualifications for its being carried out successfully. It may be that anybody can set up the business, as no restrictions have yet been imposed, but so far as the assessee firm is concerned, there can be no doubt that the circumstances relied on by them could lead to the conclusion that the main part of their profits depended on the personal qualifications of the partners and the Tribunal erred in rejecting the contention on general grounds. On the facts and circumstances stated by us above, which appear from the appellate order of the Tribunal and the statement of the case, in our view it is possible to come to the conclusion that the income of the assessee depended mainly on the personal qualifications of the partners as contemplated by Section 2(5). That is our answer to the question referred to us. The assessee is entitled to its costs which we fix at ₹ 500. Reference answered accordingly.
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1952 (8) TMI 23
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... ... ..... st judgment assess- ment under Section 11. I am afraid some amount of confusion seems to prevail regarding this particular matter in the Directorate of Commercial Taxes. The provisions of Section 11 are mandatory and every dealer who is assessed under Section 11 has a right of being given a reasonable opportunity of being heard by the officer who makes the assessment. On this ground alone this petition must be allowed. 2.. It has also been pointed out by the learned pleader for the petitioners that the assessment in question appears to have been very arbitrary as compared to those for the immediately preceding years. However, I need not go into that here, but I would advise the learned Commissioner to make a fresh assessment after giving a proper hearing to the petitioners and also following carefully the principles laid down in the law for a best judgment assessment. The petition is allowed and the case is sent back to the Commissioner of Commercial Taxes. Petition allowed.
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1952 (8) TMI 22
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... ... ..... he point has been dealt with at some length in dealing with K. Kariappa v. Government of Mysore(1), and I do not think it is necessary to reconsider the same aspect of the matter at greater length. If in this case as in the case reported in Rama Iyer v. Government of Mysore(2), the Sales Tax Officer had come to the conclusion that the turnover of the petitioner was over Rs. 10,000 for the financial year, it would not have been open to the petitioner to contend either in a civil or criminal court that he is not liable to pay the sales tax. Since his turnover is admittedly less than Rs. 10,000 for the financial year 1948-49, the as- sessment is not one made under the Sales Tax Act. The revision petition is therefore allowed. The petitioner is acquitted of the offence of which lie stands convicted. The conviction and sentence are set aside. Fine if levied will be refunded. Conviction set aside. (1) 1953 4 S.T.C. 94 A.I.R. 1953 Mys. 12. (2) 1951 2 S.T.C. 122 A.I.R. 1951 Mys. 70.
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1952 (8) TMI 21
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... ... ..... de under the Act . The learned Magistrate was not right in allowing the petitioner to adduce evidence that he was merely a commission agent and not a dealer, as it is not open to him to question the finding of the Sales Tax Officer on a question of fact. If the petitioner who has been held to be a dealer of vegetables by the Assessing Authority under the Sales Tax Act, wanted to challenge that finding, he should have done so either by filing an appeal and a revision petition or taking proceedings under Section 16 of the Act. Having failed to do so, he cannot question the correctness of the order of the assessing authority, that he is a dealer in vegetables. He is liable to pay sales tax under the Act. The petitioner was therefore rightly con- victed and the sentence is not severe. The revision petition stands therefore dismissed. Petition dismissed. (1) 1953 4 S.T.C. 94 A.I.R. 1953 Mys. 12. (2) 1953 4 S.T.C. 105 A.I.R. 1953 Mys. 18. (3) 1991 2 S.T.C. 122 A.I.R. 1951 Mys. 70.
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1952 (8) TMI 20
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... ... ..... ore us but the presumption is that if bran from wheat can be used as food it may as well be used as food when separated from rice and as a matter of fact, rice with bran is considered to be healthier food. In consideration of this fact, we are prepared to uphold the conten- tion on behalf of the assessee that bhushi or rice bran may be considered to be included in the word cereal in Item 1 of Schedule III of the Act. In this view, we answer the third question in the affirmative that is, bhushi is exempt from assessment as included in Item 1 of Schedule III. In the final result, we hold that the turnover from the supply of gunny bags is rightly assessed and the two items of khudi and bhushi are not assessable under the Assam Sales Tax Act. As two of the points referred have been decided in favour of the assessee and only one decided against him, we make no order as to costs. The reference is answered as indicated above. RAM LABHAYA, J.-I agree. Reference answered accordingly.
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1952 (8) TMI 19
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... ... ..... interfere and not otherwise. The distinction, in other words, is as bet- ween a jurisdiction arising on an erroneous decision of fact, as opposed to one usurped on an erroneous view of the law. In the former case, the jurisdiction of the Income-tax Officer cannot be attacked, since he is given jurisdiction to decide it, rightly or wrongly in the latter case it can be on the ground that the assessment is not one made under the Act. In this case the sales tax has been levied though on facts found by the Sales Tax Officer the petitioner is dealing in a commodity exempt from sales tax. It cannot, therefore, be said that the assessment is one made under the Sales Tax Act. The petitioner was not liable to pay sales tax levied either for the year 1948-49 or for the year 1949-50. The revision petitions are allowed. The petitioner is acquitted of the offence of which he stands convicted. The conviction and sentence are set aside. Fine if levied will be refunded. Conviction set aside.
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1952 (8) TMI 18
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... ... ..... Provinces and Berar Sales Tax Act was not in force in it. For the purpose of the present assessment case, therefore, the posi- tion of Raigarh is not materially different from that of Maihar. 7.. Admittedly the goods passed direct from the former States of Raigarh and Maihar to places outside the Province, never at any time having been situated within the Province. The fact that the assessee has his place of business at Kareli in this Province is immaterial. The case is covered by the decisions already given by the Board in the cases, Lipton Ltd. v. The State(1), Bombay Cycle Stores Co., Ltd. v. The State(2), (1) 1952 3 S.T.C. 224 1952 N.L.J. 278. (2) 1952 N.L.J. 97. Provincial Automobile Co. v. The State(1). Accordingly I hold that the despatches of chironji and harra mentioned in paragraph I of this order do not constitute sales liable to be taxed under our Act. The application for revision is, therefore, allowed. Application allowed. (1) 1952 3 S.T.C. 147 1952 N.L.J. 149.
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1952 (8) TMI 17
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... ... ..... ised outside the State. The State of New South Wales sought to levy income-tax on the profits made on such sales. The Privy Council held that it was within the competence of the Legislature of New South Wales to impose tax even though the profits were received outside the State, as part of the process was within the State. In International Harvester Company of Canada Ltd. v. Provincial Tax Commission(3) the Privy Council after quoting with approval the above decision observed that regarding profit as arising solely at the place of sale is fallacious. Vide also the decision of this Court in Vakkan v. Province of Madras(4). On these authorities, the attack on the Madras General Sales Tax Act on the ground that it is extra-territorial in its operation must fail. In the result, this appeal fails and is dismissed. RAJAMANNAR, C.J.-I agree. Appeal dismissed. (1) 1949 F.L.J. 18 17 I.T.R. 63. (2) 1900 A.C. 588. (3) 1949 A.C. 36 17 I.T.R. Suppl. 38. (4) 1952 65 L.W. 793 3 S.T.C. 204.
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1952 (8) TMI 16
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... ... ..... nto those who take out licences and those who do not is one resting on a rational basis and must be upheld. Moreover, if it is a discrimination, it is one in favour of those who take out licences and against those who do not and it is difficult to see how the petitioners who are licence holders can make a complaint of it. In the result it must be held that the provisions of the Madras General Sales Tax Act and the Rules except Rule 16(5) are intra vires and valid and not obnoxious to Article 14. These petitions must accordingly be dismissed with costs. Before concluding, we think it desirable to observe that some of the difficulties and anomalies which have been shown to exist in the working of the Act could be avoided by making it compulsory that all tanners and dealers should take out licences and this is a matter which should engage the attention of the Government. RAJAMANNAR, C.J.-I agree and have nothing to add. Petitions dismissed. (1) 292 U.S. 86 78 L.Ed. 1141 (1148).
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1952 (8) TMI 15
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... ... ..... on, if anything, would be far less favour- able for a totally different assessee. And, therefore, in the present case the Commissioner was justified in rejecting the claim for refund made after limitation had expired, nor was he under any obligation to reopen the case in review suo motu or otherwise. The Privy Council s decision, however, cannot in my view justify the action of the Commissioner in rejecting outright the claim for refund made in respect of the assessment for the third period. That claim was lodged within time and deserved examination on merits. Such examination should certainly take into account the legal position created by the High Court s decision. The position then briefly is that the learned Commissioner s order is upheld in so far as the claim for refund of the assessment made for the first two periods is concerned but in regard to the third period, the case is remanded to him for examining on merits the claim made by the appellant. Ordered accordingly.
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