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1953 (9) TMI 13 - HYDERABAD, HIGH COURT
... ... ... ... ..... vocate for the Government that the application for the writ is not the proper remedy even where constitutional issues are involved. Obviously, the lower civil authorities cannot decide such constitutional issues. Therefore, filing of a suit would not be as efficacious a remedy as the filing of the petition. As regards appeals and revisions to the taxing authorities, it is equally obvious that the view of these authorities on constitutional issues are not decisive, and we see no reason why the applicants, where such issues are raised, should be troubled with seeking redress from authorities when final and satisfactory adjudication on the issues can be had by the applications to this Court. We, therefore, reject the preliminary objection of the Government Advocate, but we dismiss the applications on the ground that they are not being asked to pay tax which is illegal. This judgment will govern all the five applications. Each party to bear his own costs. Applications dismissed.
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1953 (9) TMI 12 - ALLAHABAD HIGH COURT
... ... ... ... ..... which shows that a Tribunal can have under the statute jurisdic- tion to decide the existence of the preliminary facts on which the further exercise of jurisdiction depends. It depends on the power given to the Court under a statute, which would determine whether its decision with respect to the existence of preliminary facts is a decision within its jurisdiction or is a decision of a point whose decision in a certain way will give jurisdiction to proceed further with the matter. If it is of the latter kind the decision would be on a question of fact or law having a bearing on jurisdiction but if it is of the former kind then the further jurisdiction to proceed in the matter is not dependent on the decision of the first question with respect to the existence of certain facts. In view of the above we are of opinion that no prima facie case is made out for the issue of the writs prayed for in this application. We therefore reject it. Application rejected. (1) 1952 S.C.R. 696.
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1953 (9) TMI 11 - MYSORE HIGH COURT
... ... ... ... ..... termed in the notifica- tion must be taken to have reference to the thread produced by the silk worm and not to what is silk-like. If anything which is not silk was intended to be exempted from taxation the notification should have made it clear as has been done in some other provisions of the Sales Tax Act. In the absence of any such provision and having regard to the sense in which the expression artificial silk is understood, it is difficult to accept the petitioners contention. (1) (1884) 12 Q.B.D. 224 at p. 229. No other point is raised and since the petitioners conceded that if the notification is held to be inapplicable to artificial silk the answer to the questions formulated has to be in the affirmative against the petitioner in each case to the effect that they are liable to pay the tax notwith- standing the notification. Advocate s fee payable to Government in each reference is fixed at Rs. 50 as arguments were common to all. Reference answered in the affirmative.
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1953 (9) TMI 10 - HIGH COURT OF MADRAS
Registration of change of name and its effects thereof ... ... ... ... ..... h prohibition in the latter part of the subjection, as was contended for on behalf of the appellant. Notwithstanding the alteration in the name the company continues its legal status as before, and the mere change in the name would not, in any manner, affect its constitution. The view taken, therefore, by the lower court is, in our opinion, correct. Learned advocate for the appellant also attempted to argue that when he made an endeavour in the trial court to establish that there was a change in the constitution of the company, and that it was altogether a different legal entity from the former company, he was not given an opportunity by the lower court. For this we find no justification either in the order of the lower court or in the grounds of appeal filed in this court. There is not even an affidavit by the appellant to substantiate such a plea. The contention must therefore be overruled. The decision of the lower court is confirmed and the appeal is dismissed with costs.
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1953 (9) TMI 3 - SUPREME COURT
Whether the sales which produced the surplus were so connected with the carrying on of the assessee's business that it could fairly be said that the surplus is the profits and gains of such business?
Held that:- Agreeing with the High Court that there was ample material upon which the Appellate Tribunal could arrive at the conclusion to answer the question in affirmative which they did we dismiss the appeal with costs.
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1953 (9) TMI 2 - SUPREME COURT
Whether the High Court upon Section 25(4) of the Act was erroneous and was not warranted by the language of the section and that by reason of the change in the composition of the firm the same firm did not continue throughout and hence there was no right to relief under Section 25(4) of the Act in the changed firm?
Held that:- The section does not regard a mere change in the personnel of the partners as amounting to succession and disregards such a change. It follows from the provisions of the section that a mere change in the constitution of the partnership does not necessarily bring into existence a new assessable unit or a distinct assessable entity and in such a case there is no devolution of the business as a whole.The partners of the firm are distinct assessable entities, while the firm as such is a separate and distinct unit for purposes of assessment. To all intents and purposes the firm as reconstituted was not a different unit but it remained the same unit in spite of the change in its constitution.
No substantial grounds for disturbing, the opinion given by the High Court on the question submitted to it. The appeal therefore fails and is dismissed.
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1953 (9) TMI 1 - SUPREME COURT
Whether in view of the fact that the partial partition had been accepted by the Income-tax Officer and the business was treated as having been discontinued for the purpose of assessment under the Income-tax Act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of Section 10A of the Excess Profits Tax Act read with Sections 4 and 5 of the same Act ?
Held that:- We allow the appeals, set aside the answer made by the High Court to Question No. 1 and answer it as follows : In view of the finding of fact that the old joint family business in Banaras brocade was wound up and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, the same business could not legally be treated as having continued unbroken in respect of such periods for the purpose of Section 10A of the Excess Profits Tax Act read with Sections 4 and 5 of the same Act.
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1953 (8) TMI 32 - CALCUTTA HIGH COURT
... ... ... ... ..... uate remedy. 16. The duplication of certain demands to which I referred a little while ago is admitted, and it was said before the learned trial Judge that the Customs officials had certainly no desire to realise duty on account of the same goods twice. I must, however, add my condemnation to that of the learned Judge of the inexcusable carelessness displayed by the Customs officials in making these duplicate demands. Demands of this kind not only put members of the public to unmerited harassment, but also bring the department concerned into discredit which is a public mischief. It seems also to be a matter for comment that some of the letters of the appellant were not replied to till after a long time. These however are only minor matters and do not bear upon the main question of relief by way of a writ in respect of the amount properly charged. 17. For the reasons which I have given, this appeal is dismissed with costs. 18. Certified for two Counsel. Lahiri, J. 19. I agree.
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1953 (8) TMI 31 - HIGH COURT OF BOMBAY
... ... ... ... ..... rect that the papers in this matter should go back immediately to the lower Court and that the learned Civil Judge without any delay will dispose of this suit on merits. Mr. Purshottam is apprehensive that there maybe an appeal to the District Court, in which case his client would be still out of the land in respect of which the Mamlatdar has held that he is a tenant. It would be perfectly open to the petitioner to apply to the District Court with regard to the question of injunction and It will be for the District Court to consider whether on the facts of the case the injunction should be continued or it should be dissolved. It would be open to the petitioner also to apply to the learned Civil Judge on proper materials to consider whether the injunction granted by him should not be dissolved. Costs of the revision application costs in the cause. The same point arises in Civil Revision Application No. 1586, and we make the same order in that application. 7. Order accordingly.
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1953 (8) TMI 30 - ALLAHABAD HIGH COURT
... ... ... ... ..... he plaintiff appellant has not been able to establish her rights to the two-thirds share of the property in dispute and her claim for cancellation of the sale deed executed by Raghubar Dayal in favour of the Union Bank, Utraula in respect of this two-thirds share in the property has been rightly rejected. 14. It may be rioted that the relief claimed by the plaintiff was not properly worded or expressed. The plaintiff was no party to the sale deed and she was, therefore, entitled only to a declaration that the sale deed executed by Raghubar Dayal in favour of the Union Bank, Utraula was not binding on her in respect of the property owned by her. The prayer in the plaint, however, was that the sale deed executed in favour of the Union Bank by Raghubar Dayal be cancelled. The intention evidently was that the sale deed may toe declared ineffectual and null and void as against the plaintiff. 15. As a result both the appeals are dismissed. I make no order as to costs in this Court.
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1953 (8) TMI 29 - ORISSA HIGH COURT
... ... ... ... ..... hroughout the country that it is too late in tile day to invalidate marriage on the ground of public policy, nor can such marriage contracts be held to be immoral or illegal in the absence of a statutory enactment expressly prohibiting the custom. (v) If a marriage has been solemnised the Courts will not help a suitor to recover back the money paid by him under such a contract, but if the agreement remains executory the Court will direct the recovery of the amount paid as bride price, though no suit for specific performance of the contract will be entertained. 23. Having these principles in mind, I have arrived at the conclusion that the suit by the plaintiff is maintainable and that he is entitled to our judgment. I would, therefore, set aside the judgment under appeal, restore that of the trial court and decree the plaintiff's suit as directed by the learned munsif. The plaintiff will also have his costs of this litigation throughout. Jagannath Mohanty, J. 24. I agree.
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1953 (8) TMI 28 - ASSAM HIGH COURT
... ... ... ... ..... r relief could be give to the heirs of late Jyotirindra Narayan Sinha Choudhury in one reference covering three assessments for three consecutive years though, in my opinion, that might have been a good ground for Income-tax Appellate Tribunal for refusing to make a reference under Section 66 of the Income-tax Act. In my opinion, therefore, the point under reference should be answered in favour of the Department and the assessees should be made liable for costs. Per Curiam -It is hereby ordered that the question under reference should be answered in the affirmative. In other words it is held that on the facts and circumstances of this case the receipts from the sale of sal trees are agricultural income under Section 2(1) and are exempt from taxation under Section 4(2)(viii) of the Income-tax Act. The applications under reference are allowed with costs. There will be a consolidated hearing fee of ₹ 250 (Rupees two hundred and fifty only). Reference answered accordingly.
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1953 (8) TMI 27 - PATNA HIGH COURT
... ... ... ... ..... higher footing. Here, on their own showing, the assessees were an association of individuals. Further although they inherited specific and ascertainable shares in the property, they for several years had jointly managed the property and derived income therefrom, and the appropriation of income was not strictly in accordance with their shares. Their cash book showed that the members of the association drew moneys from the common fund as and when money was needed by them, irrespective of their shares in the income. On the facts found in this case, I have no doubt that there was sufficient material for assessment as an association of individuals. The Appellate Tribunal was, therefore, right in holding that the assessees constituted an association of individuals within the meaning of section 3 of the Indian Income-tax Act. I consider that the question referred to the High Court must be answered against the assessees and in favour of the Income-tax Department. Das, CJ - I agree.
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1953 (8) TMI 26 - PUNJAB & HARYANA HIGH COURT
... ... ... ... ..... e received was not his income. At page 1034 Lord Macmillan said - "When the Act by Section 3 subjects to charge ' all income ' of an individual, it is what reaches the individual as income which it is intended to charge. In the present case the decree of the Court by charging the appellant's whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out his revenue before it becomes income in his hands". Relying on these cases I am of the opinion that this sum of money received by the assessee was not received by him as professional income but was received on behalf of a trust and not in his capacity as an individual. I would answer the question accordingly. Falshaw, J.-I Agree.
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1953 (8) TMI 25 - MADRAS HIGH COURT
... ... ... ... ..... roperty the property taken into consideration is only such portion of the property, which is not in the occupation of the assessee for the purposes of any business or vocation carried on by him. The charging section, Section 3, states that the income-tax can be charged on the income, and Section 6 deals with the heads of income, and the computation of income in respect of the heads specified under Section 6 is provided in the following sections, and Section 9 relates to the computation of income in respect of the property. It is, therefore, difficult to hold that the property which does not enter into the computation is property which is "chargeable", but which is excluded for the purposes of tax to be levied. It is never made chargeable under Section 9 and, therefore, it is impossible to hold that the second proviso to Section 12B(1) applies to this case. In our opinion, therefore, the second question also must be answered in the negative and against the assessee.
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1953 (8) TMI 24 - BOMBAY HIGH COURT (NAGPUR BENCH)
... ... ... ... ..... ated, which is likely to prejudice mankind against them, then, irrespective of whether the matter is indictable, we would expect the Press and the public men to act with the greatest caution before publishing any such inflammatory statement or narration. In this context we appreciate the apologies, in some cases wholly unconditional, which have been tendered by most of the Respondents including all the newspapers concerned. We trust that the Press and public men will always endeavour to exercise moderation and while upholding the privileges of the public, not act in a manner which may shake public confidence in the Courts, Tribunals or authorities functioning within the State. We also trust that all those who are charged with public duty, whatever the domain of their service, will act with large-hearted sympathy and understanding and make this great country a haven of peace, amity and concord. 18. The Rules in all the cases are discharged. There will be no order as to costs.
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1953 (8) TMI 23 - PATNA HIGH COURT
... ... ... ... ..... circumstance anywhere, I am unable to accept the contention on behalf of the respondent that I should infer from the pleadings of the defendant that he was obliged with the loan on a friendly request. There is no such admission in the written statement as well which contains categorical denial of facts in the plaint, a good part of which was not accepted by the Courts below. For the limited purpose, however, of the applicability or otherwise of the stringency of Section 4, Bihar Money-lenders' Act, I see no circumstance in which I could hold that the plaintiff can claim that he was only a casual money-lender. 9. In these circumstances, I come to the conclusion that the plaintiff has failed to prove that he is a casual money-lender and the view of the learned Subordinate Judge that the Bihar Money-Lenders' Act will not apply to a transaction evidenced by a hand-note is clearly erroneous. Accordingly, the appeal must be allowed, but there-will be no order as to costs.
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1953 (8) TMI 22 - CALCUTTA HIGH COURT
... ... ... ... ..... ted 2-1-1953, so far as it was held thereby that the Respondent's order of 29-4-1952 was valid even as regards the period prior to its date and the order of the learned Judge, dismissing the Appellant's application are set aside. The application of the Appellant is allowed in part and the Respondent is directed to cancel forthwith his orders, dated 29-4-1952 and 9-5-1952, so far as they purport to place the Appellant under suspension during the period between 16-1-1951 and 28-4-1952, both Inclusive, and to forbear from giving any effect to the said orders and from acting thereon or causing them to be acted upon, to the extent mentioned above, in any manner whatsoever. 18. As the Appellant questioned the entire order before the learned trial Judge and took several other points on which he failed, each party will bear its own costs in the trial Court. The Appellant will get from the Respondent his costs of this appeal. Certified for two Counsel. Lahiri, J. 19. I agree.
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1953 (8) TMI 21 - MADRAS HIGH COURT
... ... ... ... ..... the assessed income-tax only on the date of the registration; and on 15th March, 1947, that liability could not have been enforced. If the unregistered firm was under a liability to disclose its income and provide for payment of the income-tax in advance on 15th March, 1947, it was not the unregistered firm that was eventually assessed. So, there was no possibility, in any event, of enforcing the liability for failure to comply with sub-clause (3) of Section 18A, as far as the registered firm, and at any rate as far as the individual members thereof, were concerned. Therefore, there was no question of any default of either the registered firm or of the individual partners thereof. Therefore, there was no question of there being any liability to pay any penalty. The question is answered in the negative and in favour of the assessee. Since the assessee has succeeded, the Income-tax Department will pay the costs of the assessee, ₹ 250. Reference answered in the negative.
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1953 (8) TMI 20 - BOMBAY HIGH COURT
... ... ... ... ..... h should be allowed to Sarabhai, taking into consideration all the factors mentioned in clauses (a), (b) and (c) of Section 10(2)(x). They will consider the evidence in the light of the judgment delivered by us and they will decide the reasonable remuneration on such evidence and such materials as are before them, having considered the evidence and the materials in the light of the factors mentioned by the Legislature in clauses (a), (b) and (c) of Section 10(2)(x). Turning to the questions, the first is unnecessary. The answer to the second question is clause (x) of Section 10(2) applies and not clause (xv). With regard to question No. 3, we would answer the first part in the affirmative. The second part does not arise because it would be for the Tribunal in the light of the judgment to direct itself properly in law and to consider the evidence in the manner indicated by us in the judgment. Question No. 4 does not arise. No order as to costs. Reference answered accordingly.
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