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Showing 81 to 100 of 467 Records

• 1957 (10) TMI 25
  
  Issues Involved
  
  1. Validity of the retrospective amendment of Rule 16 of the Madras General Sales Tax Rules.
  2. Alleged violation of Article 14 of the Constitution.
  3. Compliance of Rule 16 with Section 5(vi) of the Madras General Sales Tax Act.
  4. Alleged deprivation of benefits due to the retrospective operation of Rule 16.
  
  Issue-wise Detailed Analysis
  
  1. Validity of the Retrospective Amendment of Rule 16:
  
  The petitioner contended that the retrospective amendment of Rule 16 was ultra vires, arguing that the term "prescribed" in the Act indicated that rules could only operate prospectively. The court rejected this argument, stating that "prescribed" merely means "by rules made under the Act" and is unconcerned with the time from which it shall operate. The court further noted that the State Government had enacted appropriate legislation (Ordinance I of 1957 and Madras Act I of 1957) to validate the retrospective operation of the rules. Therefore, the objection was repelled.
  
  2. Alleged Violation of Article 14 of the Constitution:
  
  The petitioner argued that the retrospective application of Rule 16 discriminated against unlicensed dealers, violating Article 14 of the Constitution. The court found this argument unfounded, explaining that the retrospective rule aimed to create equality between licensed and unlicensed dealers. The court emphasized that the rule was designed to close a loophole that allowed unlicensed dealers to evade tax, thereby ensuring fairness in the tax system. The court held that the enactment was not discriminatory but rather aimed at removing inequality.
  
  3. Compliance of Rule 16 with Section 5(vi) of the Madras General Sales Tax Act:
  
  The petitioner argued that Rule 16, as amended, imposed tax at multiple points, violating the principle of a single point of taxation as required by Section 5(vi). The court rejected this contention, explaining that the rules effectively prescribed a single point for tax liability. The court detailed how the tax points were determined for both untanned and tanned hides and skins, concluding that the rules complied with the single-point taxation requirement.
  
  4. Alleged Deprivation of Benefits Due to the Retrospective Operation of Rule 16:
  
  The petitioner claimed that the retrospective rule deprived them of the ability to claim rebates and pass on the tax to purchasers. The court dismissed this argument, stating that if the petitioner had paid tax at the purchase point, they could still claim the rebate. Additionally, the court noted that the petitioner could not complain about the inability to pass on the tax, as this was a consequence of their failure to obtain a license and pay tax initially. The court found no injustice or hardship caused to the petitioner by the retrospective rule.
  
  Conclusion:
  
  The court dismissed the petitions, finding no merit in the objections raised. The rules nisi were discharged, and the respondents were awarded costs. The judgment upheld the validity of the retrospective amendment of Rule 16, confirmed its compliance with the Act, and rejected the claims of discrimination and deprivation of benefits.

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• 1957 (10) TMI 24
  
  The petitioner, a firm dealing in untanned hides and skins, objected to tax assessment notices issued by the Commercial Tax Officer. The High Court held that the classification under the Madras General Sales Tax Act was valid and did not violate Article 14 of the Constitution. The contention that transactions were exempt under Article 286(1)(b) was also rejected. The petitioner's argument regarding sales to non-resident agents for export was dismissed. The writ petition was therefore dismissed with costs.

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• 1957 (10) TMI 23
  
  Issues:
  1. Whether Badshahi soap and Badshahi powder are liable to special sales tax under section 6 of the Bombay Sales Tax Act.
  2. Whether the articles in question fall under the category of toilet articles.
  3. Whether the articles in question qualify as soaps under the exception in Schedule I.
  
  Analysis:
  The judgment pertains to a reference under section 34 of the Bombay Sales Tax Act, 1953, to determine the tax liability of Badshahi soap and Badshahi powder. The central issue is whether these articles are subject to special sales tax under section 6 of the Act or are only liable to general sales tax. Section 6 distinguishes between general tax and special tax based on the goods specified in Schedule I. The relevant entry in Schedule I includes "Perfumery, cosmetic and toilet articles, except soaps." The first question is whether the articles in question are toilet articles, which is crucial for determining their tax treatment.
  
  The composition of the articles includes "Barium sulphide combined with the whiting powder and vaseline," with properties primarily for depilatory purposes. The court deliberates on the definition of "toilet articles," emphasizing their use in cleansing and grooming one's person. The court refers to the Webster's Dictionary definition of "toilet" to establish that depilatories can be considered toilet articles due to their cleansing function. Therefore, the court concludes that the articles in question qualify as toilet articles, falling within the scope of Schedule I.
  
  Moving on to the second issue, the court examines whether the articles can be classified as soaps under the exception in Schedule I. Despite one of the articles being labeled as Badshahi soap, the court emphasizes that the name does not determine the tax liability; rather, the characteristics of the article are pivotal. The court refers to the definition of "soap" in Webster's Dictionary, highlighting the process of alkali acting on fat to create a cleansing agent. The court notes that the absence of fat in the articles precludes them from being classified as soaps based on the traditional definition.
  
  In conclusion, the court rules that the articles in question do not meet the criteria to be classified as soaps and are thus subject to special sales tax under the Act. The judgment answers the reference questions affirmatively and negatively, respectively, holding the applicants liable to pay costs. The reference is answered accordingly, establishing the tax treatment of Badshahi soap and Badshahi powder under the Bombay Sales Tax Act.

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• 1957 (10) TMI 22
  
  Issues:
  1. Jurisdictional validity of notices issued under different sections of the Sales Tax Act for the period between 1946 and 1954.
  2. Interpretation of the applicability of section 11(5) and section 11A in determining the validity of notices issued beyond the statutory period.
  3. Whether the rule of limitation in section 11A should be read into section 11(5) for assessing the timeliness of the notices.
  
  Analysis:
  1. The petitioner challenged the jurisdictional validity of notices issued by the Sales Tax Officer for different periods between 1946 and 1954. The notices were issued under different provisions of the Sales Tax Act, and the petitioner contended that they were out of time, invoking section 11A of the Sales Tax Act, 1953. The respondent, however, argued that the notices were issued under section 11(5) and were within the officer's jurisdiction.
  
  2. The main issue revolved around the interpretation of whether section 11(5) or section 11A applied to the case. The petitioner's counsel, Mr. Mehta, initially argued for the application of section 11A but later conceded to the applicability of section 11(5) based on a previous court decision. Mr. Mehta further contended that the rule of limitation in section 11A should be incorporated into section 11(5) to determine the timeliness of the notices.
  
  3. The court analyzed a previous case involving the interpretation of provisions in a different tax act and the incorporation of a limitation rule from one section to another. Mr. Mehta relied on this precedent to support his argument for reading the limitation rule from section 11A into section 11(5). However, the respondent argued that the principles applied in the previous case were not directly applicable to the present case due to the different nature of the provisions in the Sales Tax Act.
  
  4. Ultimately, the court found that the Sales Tax Officer had the jurisdiction to issue the notices under section 11(5) despite the lack of a specific limitation period in that section. The court noted the distinction between registered dealers and those who had not applied for registration, emphasizing that section 11(5) dealt with the latter category. The court declined to incorporate the limitation rule from section 11A into section 11(5) and suggested that any issue regarding limitation could be raised through the appeal process provided under the Sales Tax Act.
  
  In conclusion, the court dismissed the application, stating that the Sales Tax Officer had acted within jurisdiction in issuing the notices under section 11(5) and that any challenge regarding limitation should be addressed through the appropriate legal avenues available under the Sales Tax Act.

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• 1957 (10) TMI 21
  

  On account of the continued illegal stoppage of work, ’glow down’ tactics, and strikes indulged in by the workmen despite the advice of their Union, the appellant company issued a notice dated August 23, 1953, that in consequence of the illegal strike the Management has no option but to declare a lock-out of the entire works except the special shifts with effect from August 24, 953 The services of all other workers shall be deemed to be discharged with effect from August 24, 953." Subsequently, the company lifted the lock-out. and gave notice on September 17, 1953, to the effect that all employees on the Works rolls of the Company on August 23, 1953, and who wish to report for duty, must resume work on September 18, 1953 A third notice gave extension of time to the workmen to resume work. The question was whether the notice dated August 23, 1953, terminated the services of the respondents by discharging them with effect from August 24, 1953, and the notice dated September 17, 1953, merely gave them an opportunity of reemployment at the pleasure of the company on fulfilment of certain conditions - Held, that, on a construction of the notices, the expression "shall be deemed to be discharged" had to be read in the context of the declaration of a lock-out, and the intention of the company was that the employees whose employment bad been refused during the period of lock-out were to be permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date. Where some of the workmen who were taken in custody by the police applied for leave when in custody but were refused leave by the company acting under Standing Order No. o, and the Labour Appellate Tribunal took the view that as the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14 workmen were in custody the company was not justified in refusing leave, held, that whether in such circumstances leave should be granted or not must be left to the discretion of the employer, unless, it was proved, that it was a case of colourable or mala fide exercise of power under the Standing Order.

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• 1957 (10) TMI 20
  
  Issues:
  1. Confirmation of reduction of company's capital and share premium account.
  2. Challenge regarding the form of the minute in relation to the share premium account.
  3. Interpretation of sections 56, 69, and 70 of the Companies Act, 1948.
  
  Analysis:
  
  The judgment addresses a petition seeking confirmation of a reduction of the company's capital and share premium account. The judge, Wynn-Parry, J., notes that the evidence presented confirms the loss of the sums in question, justifying the reduction from lb300,000 to lb67,610 for the capital and from lb189,556 18s, 2d. to nil for the share premium account. However, a challenge is raised concerning the form of the minute, specifically regarding the practice of including a reference to the share premium account in cases of reduction. The judge examines Section 56 of the Companies Act, 1948, which governs the treatment of the share premium account in reductions. Subsection (1) of the Act establishes the share premium account and its relation to the company's share capital, while subsection (2) outlines exceptions for utilizing the share premium account.
  
  Moving on to Section 69, the judge considers the registration process and the content of the minute in cases of reduction. Notably, subsection (5) of Section 69 states that the registered minute replaces the corresponding part of the memorandum, becoming valid and alterable as if originally part of the memorandum. Section 70 deals with member liability concerning reduced shares. The judge emphasizes that these sections must be interpreted in the context of reductions involving the share premium account.
  
  The judge delves into the potential conflict between Section 4, which limits alterations to the memorandum, and Section 56(2), which allows various applications of the share premium account. He expresses concerns about reconciling the limitations on altering the memorandum with the flexibility granted for handling the share premium account. Ultimately, the judge decides to alter the existing practice and approves the minute without any reference to the share premium account. The judgment concludes with directions for advertisement and acknowledgment of the solicitors involved in the case.

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• 1957 (10) TMI 19
  
  Issues Involved:
  1. Jurisdiction of the District Judge to review previous orders.
  2. Existence of a "completed contract" between the liquidators and the respondent.
  3. Violation of principles of natural justice.
  4. Allegations of mala fide actions by the liquidators.
  5. Nature of the orders passed by the District Judge (administrative/executive vs. judicial/quasi-judicial).
  6. Availability of alternative remedies.
  7. Enforceability of contractual obligations through writ jurisdiction.
  8. Validity and enforceability of the lease executed in favor of the appellant.
  
  Detailed Analysis:
  
  1. Jurisdiction of the District Judge to Review Previous Orders:
  The respondent contended that the District Judge's order dated October 1, 1956, which effectively canceled previous orders dated September 3 and September 6, 1956, amounted to an unauthorized review. The District Judge lacked the power to review his own orders under the Indian Companies Act or any other provision. The court agreed with this contention, holding that the District Judge had no jurisdiction to review his previous orders.
  
  2. Existence of a "Completed Contract":
  The respondent argued that a "completed contract" for the lease had been formed, evidenced by the deposit of two months' rent, the purchase of stamps for the lease deed, and partial possession of the property. The court initially accepted this argument, applying the doctrine of part performance. However, the appellate court found that the contract was not complete as the liquidators had not agreed on the terms or the identity of the lessee. The liquidators and the District Judge had a duty to safeguard the interests of the company, shareholders, and creditors, which justified their actions.
  
  3. Violation of Principles of Natural Justice:
  The respondent claimed that they were not given a fair hearing before the impugned orders were passed on October 1, 1956. The court initially agreed, noting that the respondent had not been given an adequate opportunity to be heard. However, the appellate court found that the respondent's counsel was present and had addressed the court, thus no principles of natural justice were violated.
  
  4. Allegations of Mala Fide Actions by the Liquidators:
  The respondent alleged that the liquidators acted mala fide, misrepresenting and suppressing facts to obtain an order canceling the lease in favor of the respondent. The court initially did not delve deeply into this allegation, finding it unnecessary given its other conclusions. The appellate court found no evidence of mala fides, noting the liquidators acted in good faith to protect the company's interests.
  
  5. Nature of the Orders Passed by the District Judge:
  The appellant argued that the District Judge's orders were administrative or executive, not judicial or quasi-judicial, and thus not subject to interference under Article 226 of the Constitution. The court initially rejected this argument, finding the orders to be judicial or quasi-judicial. However, the appellate court found that the orders were discretionary and not subject to mandamus or certiorari.
  
  6. Availability of Alternative Remedies:
  The appellant contended that the respondent had alternative remedies, such as appealing the District Judge's orders or seeking specific performance of the contract in civil court. The court initially found that the existence of alternative remedies was not an absolute bar to the maintainability of a writ petition. The appellate court, however, emphasized that the respondent should pursue these alternative remedies rather than seeking relief under Article 226.
  
  7. Enforceability of Contractual Obligations through Writ Jurisdiction:
  The appellant argued that Article 226 is not meant for enforcing contractual obligations. The court agreed, stating that writ jurisdiction is not appropriate for enforcing private contracts. The appellate court reinforced this view, noting that mandamus cannot be used to enforce contractual obligations.
  
  8. Validity and Enforceability of the Lease Executed in Favor of the Appellant:
  The appellant argued that a valid lease had been executed and registered before the respondent's petition was filed. The court found that the lease was an accomplished fact, and the respondent's petition could not quash the lease or dispossess the appellant. The appellate court agreed, stating that the lease was validly executed and registered, and the appellant was in rightful possession of the property.
  
  Conclusion:
  The appellate court allowed the appeal, dismissing the respondent's petition. It held that the District Judge's orders were discretionary, the respondent had alternative remedies, and writ jurisdiction was not appropriate for enforcing contractual obligations. The lease in favor of the appellant was valid and enforceable, and no effective relief could be granted to the respondent under Article 226.

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• 1957 (10) TMI 5
  

  Whether it is open to an Appellate Assistant Commissioner on appeal to reject the assessee's books of account, which have been accepted by the Income-tax Officer ?

  Whether it is open to an Appellate Assistant Commissioner appeal to invoke the provisions of rule 33 of the Indian Income-tax on Rules for the purpose of computing the income of a non-resident, the Income-tax Officer not having done so ?

  Held that:- While we agree that, in the first instance, the Income-tax Officer as the first assessing officer has to form an opinion about the applicability of the proviso to section 13, we do not agree that it is not open to any other authority, which is lawfully in seizin of the order of assessment of which the method of accounting under section 13 is only a part, to come to a different conclusion with regard to the applicability of the proviso. The present is not a case where the Appellate Assistant Commissioner has travelled outside the ambit of his jurisdiction under section 31 of the Act. For the reasons given above, we would answer question No. 1 in the affirmative.

  As to question No. 2, only a few words are necessary. A similar expression occurs in the rule : "In any case in which the Income-tax Officer is of opinion etc." For the same reasons which we have given with regard to question No. 1, the answer to question No. 2 is also in the affirmative. Appeal allowed. The judgment and order of the High Court of Bombay dated 4th March, 1953, is set aside and the two questions referred to the said High Court are answered in favour of the Revenue

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• 1957 (10) TMI 1
  

  Whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate?

  Held that:- The proceedings before the Customs authorities were under Section 167(8) of the Sea Customs Act. Under Section 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the petitioners are now charged include an offence under Section 120B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences.

  It is true that the Collector of Customs had used the words "punishment" and "conspiracy" but those words were used in order to bring out that each of the two petitioners was guilty of the offence under Section 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Article 20(2) cannot be invoked. Appeal dismissed.

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• 1957 (9) TMI 99
  
  Issues:
  1. Validity of reversion and termination of services.
  2. Applicability of Article 311 of the Constitution to temporary appointments.
  3. Distinction between termination and dismissal/removal from service.
  4. Interpretation of rules governing termination of services.
  
  Analysis:
  
  Issue 1:
  The appellant challenged the validity of his reversion and termination of services. The High Court concluded that the appellant had not been dismissed or removed from service, hence Article 311 of the Constitution did not apply. The appellant was not confirmed in any post during his tenure in the Agricultural Services, and the High Court's findings were deemed correct based on the lack of substantiated evidence regarding his confirmation or absorption into a permanent cadre.
  
  Issue 2:
  The appellant contended that Article 311 applied to his temporary appointment, arguing that the termination of his services and reversion amounted to dismissal or removal from the post, as it conveyed inefficiency and unsatisfactory work. However, the Supreme Court clarified that termination of services does not always equate to dismissal or removal, citing previous judgments. The termination in this case was in accordance with the Subordinate Agricultural Service Rules, specifically Rule 25(4), and did not breach Article 311.
  
  Issue 3:
  The Court distinguished between termination and reduction in rank, emphasizing that reversion from a temporary post does not necessarily constitute a reduction in rank, especially when the post is not the individual's substantive rank. The appellant failed to prove that the reversion was a penalty, and thus, it did not violate Article 311.
  
  Issue 4:
  The termination of the appellant's services under Rule 25(4) of the Subordinate Agricultural Service Rules was found to be in line with the terms of his conditions of service. The Court highlighted that there is no significant difference between termination under a contract and termination under service conditions. As the termination was in accordance with the rules, it was deemed valid and did not contravene Article 311.
  
  In conclusion, the appeal was dismissed, affirming the validity of the reversion and termination of the appellant's services, and emphasizing that the orders did not violate Article 311 of the Constitution.

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• 1957 (9) TMI 98
  
  Issues Involved:
  1. Legality of the appellant's discharge.
  2. Implementation of the award by the respondent.
  3. Computation of the money value of the benefit of reinstatement.
  
  Detailed Analysis:
  
  1. Legality of the appellant's discharge:
  The appellant was discharged by the respondent on August 5, 1949, on the grounds of redundancy. The Central Government Industrial Tribunal, Calcutta, held on December 5, 1950, that the discharge was illegal and directed the respondent to reinstate the appellant and pay arrears of salary and allowances. This decision was upheld by the Labour Appellate Tribunal, Calcutta, on September 25, 1951.
  
  2. Implementation of the award by the respondent:
  Despite the Tribunal's directions, the respondent failed to reinstate the appellant or pay the arrears. The appellant communicated with the respondent multiple times, but received no satisfactory response. The respondent later claimed that the appellant did not report for duty despite being asked to do so. The Industrial Tribunal found in favor of the appellant, concluding that the respondent did not implement the award and the appellant was ready to resume duty.
  
  3. Computation of the money value of the benefit of reinstatement:
  The core issue was the computation of the monetary value of the reinstatement benefit under Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The Industrial Tribunal initially awarded Rs. 1,000 based on Section 95 of the Code of Civil Procedure, which was deemed insufficient and not supported by the respondent's counsel. The Supreme Court considered various factors, including the terms and conditions of employment, the possibility of termination or retrenchment, and the respondent's unfair labor practices. It concluded that the monetary value of the benefit of reinstatement should be Rs. 12,500.
  
  Conclusion:
  The Supreme Court allowed the appeal, set aside the decisions of the Labour Appellate Tribunal and the Central Government Industrial Tribunal, and awarded the appellant Rs. 12,500 as the computed value of the benefit of reinstatement. The respondent was also directed to pay the appellant's costs for the appeal and the proceedings before the Industrial Tribunal and the Labour Appellate Tribunal.

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• 1957 (9) TMI 97
  
  Issues:
  Acquittal of the second appellant (accused 3) by the Sessions Judge, Conviction of accused 2 and the Co-operative Society, Interpretation of Section 17 (1) and (2) of the Central Act 37 of 1954, Evidence required for prosecution under Section 17, Responsibility of the Secretary in the conduct of the business of the Society.
  
  Analysis:
  
  The judgment pertains to an appeal against the acquittal of the Secretary of a Co-operative Milk Supply Society (accused 3) by the Sessions Judge, despite the conviction of the Society and another accused for adulteration of milk. The key issue revolves around the interpretation of Section 17 (1) and (2) of the Central Act 37 of 1954, which holds individuals responsible for offences committed by a company. Section 17 (1) states that individuals in charge of the company's business are deemed guilty of an offence committed by the company. However, there is a proviso allowing individuals to prove lack of knowledge and due diligence. Section 17 (2) deems individuals guilty if an offence is committed with their consent, connivance, or neglect.
  
  The judgment highlights the necessity for the prosecution to establish under which part of Section 17 the case is being pursued. If under Clause (1), evidence of the person responsible for the conduct of the business is crucial. If under Clause (2), evidence of consent, connivance, or neglect is required. In this case, the prosecution failed to provide sufficient evidence to prove that the Secretary (accused 3) was responsible for the business conduct of the Society. The evidence presented indicated that the Secretary mainly oversaw cash transactions and accounts, while the day-to-day business operations were managed by a clerk. As the Secretary's role was limited to oversight and not direct management, he could not be deemed responsible for the offence under Section 17 (1).
  
  Therefore, the judgment confirms the acquittal of the Secretary (accused 3) but disagrees with the lower appellate court's reasoning. It emphasizes that the prosecution did not meet the required standard of proof for conviction under Section 16 (1) due to insufficient evidence regarding the Secretary's role in the business conduct of the Society. The appeal against the acquittal is dismissed based on this analysis, emphasizing the importance of establishing individual responsibility under the relevant legal provisions.

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• 1957 (9) TMI 96
  
  Issues Involved:
  1. Legality of the Proclamation under Section 87 of the Code of Criminal Procedure (Cr. P. C.)
  2. Validity of the Attachment of Property under Section 88 of the Cr. P. C.
  3. Jurisdiction of the Magistrate under Section 89 of the Cr. P. C.
  4. Powers of the High Court under Section 439 of the Cr. P. C.
  
  Issue-wise Detailed Analysis:
  
  1. Legality of the Proclamation under Section 87 of the Cr. P. C.:
  
  The principal contention raised by the petitioner was that the proclamation issued by the Magistrate was not in conformity with the mandatory provisions of Section 87, Cr. P. C., and was, therefore, a nullity. Section 87 mandates that the proclamation must specify a time not less than 30 days from the date of the publication of the proclamation for the person to appear. Additionally, the proclamation must be affixed to a conspicuous part of the house of the person required to be present, publicly read in a conspicuous place of the village or town, and affixed to a conspicuous part of the court-house.
  
  In this case, the proclamation was issued on 27th January 1954, directing the petitioner to appear within 30 days of the date of the proclamation, which is a clear violation of Section 87. Furthermore, there was no evidence that the proclamation was publicly read in the village or affixed to a conspicuous part of the court-house. Therefore, the requirements of Section 87 were not complied with, rendering the proclamation invalid.
  
  2. Validity of the Attachment of Property under Section 88 of the Cr. P. C.:
  
  Section 88 allows for the attachment of any property belonging to the proclaimed person. However, Sub-section (6E) of Section 88 states that if the proclaimed person appears within the time specified in the proclamation, the court shall release the property from attachment. Sub-section (7) provides that if the person fails to appear, the property under attachment shall be at the disposal of the State Government.
  
  Since the proclamation itself was invalid due to non-compliance with Section 87, the attachment of the petitioner's property under Section 88 cannot be sustained. The attachment is dependent on a valid proclamation, and when the foundation (proclamation) collapses, the superstructure (attachment) cannot be supported.
  
  3. Jurisdiction of the Magistrate under Section 89 of the Cr. P. C.:
  
  Section 89 provides for the restoration of attached property if the proclaimed person appears voluntarily or is arrested within two years from the date of the attachment and proves that he did not abscond or conceal himself and had no notice of the proclamation. Some courts have held that a Magistrate cannot consider the legality of the proclamation under Section 89. However, this issue was deemed unnecessary to delve into for the present case.
  
  4. Powers of the High Court under Section 439 of the Cr. P. C.:
  
  The High Court has ample jurisdiction under Section 439 to correct any illegality committed in the lower courts. The court held that it has the power to pass a suitable order regarding the illegality of a defective proclamation, which goes to the root of the matter. The court emphasized that any view contrary to this would result in irremediable injustice.
  
  Conclusion:
  
  The court concluded that the proclamation issued by the Magistrate was in clear violation of the imperative requirements of Section 87, Cr. P. C., and was, therefore, a nullity. Consequently, the forfeiture of the petitioner's cattle was also illegal. The court ordered the restoration of the cattle to the owner, noting that the cattle were already in the possession of the petitioner or his surety.
  
  Additional Observations:
  
  The court pointed out the need for Magistrates to exercise greater care in complying with the provisions of Section 87, given the serious consequences for the person found in default. It also noted that the printed forms in use in some courts were defective and misleading, and recommended that they be correctly formulated to conform to the relevant form prescribed in Schedule V of the Cr. P. C.

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• 1957 (9) TMI 95
  
  Issues:
  1. Suit barred by limitation based on unregistered chitty udampady.
  2. Interpretation of Section 19(1) of the Travancore Limitation Act regarding acknowledgment of liability.
  3. Application of Article 52 of the Travancore Limitation Act on account stated.
  4. Analysis of the judgment in Shamlal v. Gulabchand regarding what constitutes an account stated.
  5. Consideration of whether Ex. A-1 amounts to an account stated under Article 52.
  6. Examination of the essence of an account stated as per Bishun Chand v. Girdhari Lal.
  7. Impact of all items being barred by limitation on the account stated, citing Ganesh Prasad v. Rambati Bai and Tulsiram Shrikisan v. Zaboo Bhima.
  8. Comparison of Section 26 of the Travancore Contract Act with Section 25 of the Indian Contract Act regarding agreements without consideration.
  9. Understanding an account stated as an agreement and its relevance when the claim is entirely barred.
  10. Evaluation of Explanation II to Section 26 of the Travancore Contract Act concerning the adequacy of consideration in agreements.
  11. Dismissal of the appeal due to the barred claim and absence of consideration, with costs to be borne by respective parties.
  12. Contention on Ex. A-1 not being in terms of money for an account stated, which was not further considered in the judgment.
  
  Analysis:
  1. The case involved a suit based on an unregistered chitty udampady, which was found barred by limitation.
  2. The interpretation of Section 19(1) of the Travancore Limitation Act was crucial in determining the effect of an acknowledgment of liability on the limitation period.
  3. The application of Article 52 of the Travancore Limitation Act was discussed concerning the concept of an account stated and its impact on the limitation period.
  4. The judgment in Shamlal v. Gulabchand provided insight into what constitutes an account stated, emphasizing the necessity for specific details in the account.
  5. The consideration of whether Ex. A-1 could be classified as an account stated under Article 52 was pivotal in the case analysis.
  6. The essence of an account stated, as outlined in Bishun Chand v. Girdhari Lal, highlighted the mutual agreement on the amounts and the creation of a new cause of action.
  7. The impact of all items being barred by limitation on the account stated was examined, citing relevant judgments for reference.
  8. A comparison between Section 26 of the Travancore Contract Act and Section 25 of the Indian Contract Act was made regarding agreements without consideration.
  9. The nature of an account stated as an agreement and its relevance when the claim is entirely barred was discussed in detail.
  10. The evaluation of Explanation II to Section 26 of the Travancore Contract Act concerning the adequacy of consideration in agreements was a crucial aspect of the case.
  11. The appeal was dismissed due to the barred claim and absence of consideration, with costs to be borne by respective parties as per the lower court's direction.
  12. The contention on Ex. A-1 not being in terms of money for an account stated was raised but not further explored in the judgment, given the conclusion reached.

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• 1957 (9) TMI 94
  
  Issues:
  1. Validity of the certificate issued by the Excess Profits Tax Officer for recovery of taxes.
  2. Interpretation of section 46(7) of the Act regarding the limitation period for recovery proceedings.
  3. Effect of revision of tax liability by the Commissioner on the validity of the recovery certificate.
  4. Authority of the Collector to recover the revised amount of tax based on the original certificate.
  
  Analysis:
  
  1. The petitioner was initially assessed for excess profits tax for specific accounting periods, and the Excess Profits Tax Officer issued demand notices for the determined amounts. Subsequently, the Commissioner revised the tax liability, reducing the total amount due. The petitioner challenged the recovery of the original tax amount through a writ petition, primarily arguing that the recovery certificate was invalid as it did not accurately reflect the revised tax liability.
  
  2. The Excess Profits Tax Officer issued a recovery certificate to the Collector within the permissible time frame under section 46(7) of the Act. The petitioner contended that the certificate was not valid as it did not reflect the correct tax amount after the revision by the Commissioner. However, the court held that the certificate was a valid proceeding for tax recovery, and the Collector had the authority to initiate recovery proceedings based on the original certificate.
  
  3. The court emphasized that the revision of tax liability by the Commissioner did not render the original recovery certificate invalid. The certificate issued by the Excess Profits Tax Officer was deemed lawful at the time of issuance, and the subsequent reduction in tax liability did not impact the validity of the recovery proceedings initiated based on the original certificate.
  
  4. The petitioner also argued that the recovery proceedings were time-barred under section 46(7) of the Act. However, the court rejected this contention, stating that the certificate issued within the prescribed period was valid for recovery, irrespective of the subsequent revision in tax liability. The court upheld the Collector's authority to recover the revised tax amount based on the original certificate, dismissing the petitioner's claim for immunity from payment.
  
  In conclusion, the court ruled in favor of the Collector, affirming the validity of the recovery certificate issued by the Excess Profits Tax Officer and rejecting the petitioner's objections regarding the limitation period and the revised tax liability. The petition was dismissed, and the petitioner was ordered to pay costs.

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• 1957 (9) TMI 93
  
  Issues:
  1. Interpretation of depreciation allowance under section 10(2)(vi) and 19(2)(via) exceeding the original cost to the assessee of the depreciable asset.
  
  Analysis:
  The judgment dealt with the question of whether an assessee is entitled to claim depreciation allowance under section 10(2)(vi) and 19(2)(via) that exceeds the original cost of the depreciable asset. The proviso in question, proviso (c) to section 10(2)(vi), clearly states that the aggregate of all depreciation allowances shall not exceed the original cost to the assessee. The argument presented by the assessee's counsel was based on two premises. Firstly, that the proviso only applies to exceptions like ocean-going ships, and secondly, that initial depreciation should not be considered in calculating the written down value. However, the court rejected these arguments, emphasizing that the proviso applies universally and that initial depreciation does not alter the original cost for the purpose of depreciation calculation.
  
  Further, the court delved into the historical context of the legislation, highlighting the shift from allowing depreciation based on original cost to the written down value. The judgment clarified that while initial depreciation is excluded from determining the written down value, it still contributes to the total depreciation allowance. The court refuted the contention that depreciation should continue until the written down value reaches zero, as it would lead to depreciation exceeding the original cost, contrary to established accounting principles and commercial practices.
  
  In conclusion, the court answered the question in the negative, affirming that depreciation allowances cannot surpass the original cost of the depreciable asset. The assessee was directed to bear the costs, and the reference was resolved in the negative, upholding the limitation on depreciation allowances as per the proviso in section 10(2)(vi).

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• 1957 (9) TMI 92
  
  Issues:
  Interpretation of the term "taxes levied in respect of property" under the Indian Income Tax Act.
  
  Analysis:
  The judgment in question pertains to a reference that raised a legal issue regarding the interpretation of the term "taxes levied in respect of property" under the Indian Income Tax Act. The specific question posed was whether conservancy tax and water rate should be considered as taxes falling within the scope of the third proviso to section 9(2) of the Act. The case involved an assessee who owned multiple properties in Nagpur, with income from property being computed for the relevant year. The dispute arose when the Income Tax Officer, applying the third proviso, calculated the income by deducting half of the conservancy tax and water rate along with property tax. The assessee contended that the entire conservancy tax and water rate should be deducted, a stance upheld by the Tribunal but challenged by the Income Tax Commissioner.
  
  The court delved into the relevant provisions of the Income Tax Act, particularly section 9, which outlines the computation of income from property. Sub-section (1) mandates tax payment based on the annual value of property, with sub-section (2) deeming the annual value as the expected rental income. The third proviso allows for deduction of taxes payable by the owner or owner and tenant, limited to half the total amount. The crux of the matter lay in determining whether conservancy tax and water rate qualified as taxes "in respect of the property" for the purpose of this proviso.
  
  The court scrutinized the nature of the conservancy tax and water rate levied under the City of Nagpur Corporation Act, 1948. The Act specified conditions for imposing these taxes, emphasizing services rendered by the Corporation in exchange for the taxes. Notably, the conservancy tax required private latrines or premises to be cleansed by the Corporation, while the water rate was contingent on water supply by the Corporation. The court highlighted that these taxes were not merely due to property existence but were linked to services provided, thereby not squarely falling under the ambit of taxes "in respect of the property" as per the Act.
  
  In the court's analysis, the conservancy tax and water rate were deemed as charges for services rendered rather than taxes directly related to property ownership. The court rejected the broad interpretation advocated by the assessee's counsel, emphasizing that these taxes were not solely based on property ownership but on services provided by the Corporation. Consequently, the court concluded that these taxes did not qualify as taxes "in respect of the property" under the Act, affirming the Tribunal's decision to allow full deduction of conservancy tax and water rate from the income calculation.
  
  In conclusion, the court answered the reframed question in the negative, ruling in favor of the assessee and directing the Income Tax Commissioner to bear the costs. The judgment elucidated the nuanced distinction between property-related taxes and service-based charges, providing clarity on the scope of deductions permissible under the Income Tax Act.

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• 1957 (9) TMI 91
  
  Issues Involved:
  1. Validity of the gift deed due to undue influence.
  2. Validity of the gift deed as a death-bed gift (Marz-ul-Maut).
  3. Delivery of possession under Muslim Law.
  4. Validity of the gift deed due to Musha (undivided shares).
  
  Detailed Analysis:
  
  1. Validity of the Gift Deed Due to Undue Influence:
  The plaintiffs argued that the gift deed dated 1st February 1947 was invalid because it was executed under undue influence when Muhammad Ismail, the donor, was of advanced age and unable to take care of himself. Both the trial court and the appellate court found no evidence to support this claim. The courts determined that the finding on this issue was one of pure fact, which could not be challenged in the second appeal.
  
  2. Validity of the Gift Deed as a Death-Bed Gift (Marz-ul-Maut):
  The plaintiffs also contended that the gift deed was invalid because it was made when Muhammad Ismail was seriously ill and expecting to die, invoking the rule of Marz-ul-Maut, which limits the effect of such gifts to one-third of the donor's property. Both the trial court and the appellate court rejected this argument, and this finding was also considered a pure fact, making it unchallengeable in the second appeal.
  
  3. Delivery of Possession Under Muslim Law:
  The trial court decreed the suit in favor of the plaintiffs, stating that the defendants had not established that possession of the gifted properties was delivered to them by the donor, a requirement under Muslim Law for a valid gift. The appellate court upheld this decision for the lands but made an exception for the residential house, where the donor and donees were jointly residing. The defendants appealed, arguing that there was no specific issue raised about the delivery of possession and that the courts below erred in considering this point.
  
  The appellate court noted that the pleadings did raise the issue of delivery of possession and that the trial judge should have framed a specific issue on this point. Despite the absence of a formal issue, the court found that the parties understood the case they had to meet, and the defendants did not object to the consideration of this point during the trial or the first appeal. Therefore, the appellate court rejected the argument that the defendants were taken by surprise.
  
  The defendants also argued that the recital in the deed of gift, which stated that possession was delivered, should create a rebuttable presumption in their favor. The appellate court agreed that the courts below had wrongly placed the burden of proof on the defendants instead of the plaintiffs. The court cited precedents from the Privy Council, which held that such recitals by the donor are admissions binding on the heirs and create a rebuttable presumption of delivery of possession.
  
  Given the long delay since the suit was filed and the absence of a specific issue on delivery of possession, the appellate court decided to call for a finding on fresh evidence regarding whether possession was delivered as required by Muslim Law.
  
  4. Validity of the Gift Deed Due to Musha (Undivided Shares):
  The plaintiffs also claimed that the gift deed was invalid because it involved undivided shares (Musha). This issue was raised in the pleadings but did not figure in the issues framed or the discussions in the judgments of the courts below. The appellate court noted that there was no evidence or argument presented on this point during the trial or the first appeal, suggesting that this objection was either not seriously put forward or abandoned. Therefore, the court decided not to permit further evidence on this point.
  
  Conclusion:
  The appellate court dismissed the plaintiffs' memorandum of cross-objections regarding the residential house, agreeing with the lower court's finding that the gift was valid due to the joint residence of the donor and donees. The court called for a finding on fresh evidence regarding the delivery of possession for the other properties and remanded the case to the trial court to submit a finding within three months. The second appeal will be posted for final disposal after the receipt of this finding.

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• 1957 (9) TMI 90
  
  Issues:
  1. Assessment of a sum of money as income in the hands of the assessee.
  2. Lack of specific findings by the Tribunal regarding the nature of the sum of money and its accrual to the assessee family.
  3. Lack of evidence to support the assessment of the sum of money as income for the relevant accounting year.
  4. Tribunal's failure to provide clear grounds for its decision.
  
  Detailed Analysis:
  1. The judgment pertains to the assessment of a sum of money, amounting to Rs. 7,750, as income in the hands of the assessee Hindu undivided family. The Department and the Tribunal contended that this sum was liable to be assessed as income from undisclosed sources during the accounting year ending on 31st March, 1945. The Tribunal upheld this addition, leading to a reference under section 66(1) of the Income-tax Act to determine if there was sufficient material to assess this sum in the hands of the assessee.
  
  2. The Tribunal's decision was challenged, highlighting the lack of specific findings regarding whether the sum of Rs. 7,750 constituted income and if it accrued to the assessee family during the relevant period. The Court noted the absence of explicit directions from the Tribunal on these crucial aspects. Despite a further statement of the case being requested, the Tribunal failed to provide clear grounds or findings supporting its conclusion, leading to ambiguity in the assessment process.
  
  3. The Court emphasized the necessity of establishing that the sum of Rs. 7,750 was indeed income received by the assessee family during the relevant accounting year. The original assessment for the subsequent year indicated different sources of income, with no evidence suggesting the possibility of receiving the disputed sum during the specified period. The lack of investigation or evidence supporting the accrual of this amount as income raised doubts about its inclusion in the assessment for the relevant year.
  
  4. The Tribunal's response to the Court's queries was deemed unhelpful, with vague remarks failing to address the specific grounds required to justify the assessment of the disputed sum as income. Despite attempts to seek clarification and additional information, the Tribunal's failure to provide a clear rationale for its decision led the Court to rule in favor of the assessee, emphasizing the lack of evidence supporting the inclusion of the sum as taxable income.
  
  In conclusion, the judgment highlights the importance of establishing clear findings and evidence to support the assessment of income, particularly when sourced from undisclosed origins. The Court's decision in favor of the assessee underscores the necessity of a thorough and well-supported assessment process in income tax matters.

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• 1957 (9) TMI 89
  
  Issues:
  Interpretation of partnership deed clauses regarding goodwill ownership and profit-sharing, taxability of income diverted by overriding title, assessment of income in the hands of the assessee.
  
  Analysis:
  1. The case involved the interpretation of clauses in a partnership deed regarding the ownership of goodwill and profit-sharing ratios among partners. The deed specified that the goodwill exclusively belonged to the father initially, with subsequent agreements altering profit-sharing arrangements. The partnership continued until the father's death, leading to a succession in the business.
  
  2. Following the father's death, a question arose regarding the taxability of an amount diverted to the mother as per the father's will. The contention was that this amount was diverted by an overriding title and should not be included in the assessee's taxable income. Reference was made to legal precedents emphasizing that income diverted by overriding title does not form part of the assessee's taxable income.
  
  3. The court analyzed the nature of the transaction based on the partnership deed and the father's will. It was established that the agreement between the father and son, as reflected in the will, obligated the son to share a portion of his income with the mother in exchange for the goodwill and profit-sharing rights he received. This arrangement did not create an overriding title diverting income but rather constituted an agreement for specific profit-sharing.
  
  4. The court applied the legal principle established in previous cases to determine that the amount diverted to the mother was assessable to tax in the son's hands. It was clarified that the son had agreed to allocate part of his income to the mother as per the terms agreed upon with the father before the making of the will.
  
  5. Additionally, the court noted that the amount in question had already been taxed in the mother's hands by the tax authorities. It was acknowledged that taxing the same income in multiple individuals' hands could be a precautionary measure, but it was expected that the tax authorities would refund the tax if the court's decision deemed the income taxable in the son's hands.
  
  6. The court provided an affirmative answer to the question of whether the amount diverted to the mother was assessable to tax in the son's hands. The assessee was directed to pay costs, and it was indicated that the income tax authorities would need to address any potential double taxation issues arising from the assessment.
  
  This detailed analysis of the judgment provides a comprehensive understanding of the legal issues involved and the court's reasoning in determining the taxability of the diverted income in the hands of the assessee.

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