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Case Laws
Showing 21 to 40 of 56 Records
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1958 (4) TMI 112 - MADHYA PRADESH HIGH COURT
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... ... ..... n continue to utilize the name of their father for their own business, but the distinction is quite apparent that they are an "association of persons"; and it is not the case of the Department that the notice, which was addressed to Shri Shakir Hussain, was sent to this "association of persons". The wording of the notice as well as the letters which have been written by the Department on subsequent occasions clearly show that, in so far as the Department was concerned, it was dealing with Shakir Hussain who, they knew, was dead. In our opinion, the notice was defective. As such a notice is a condition precedent for action under section 34 of the Income-tax Act, the assessment cannot be made. The Income-tax Officer is prohibited from making an assessment on the strength of the notice which he has issued. An appropriate writ shall issue. The petition is, therefore, allowed, but in the circumstances of the case we make no order about costs. Petition allowed.
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1958 (4) TMI 111 - MADRAS HIGH COURT
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... ... ..... e order it passed further makes it clear that it was acting not on the application of the Department but in exercise of its own power to rectify the mistake it had made. Mr. Viswanatha Aiyar finally stated that a copy of the order made on January 3, 1957, by which the Tribunal rectified its error was served on the petitioners only on January 24, 1957, that by that date the period of sixty days which he had under section 66(1) of the Act to ask for a reference to this court had expired and that for that reasons the order of the Tribunal is bad. We are unable to agree. So far as the time within which a rectification can be made is concerned, it is specifically provided for in sub-section (1) of section 35 of the Act, viz. as four years, and that period would also apply to the action of the Tribunal under sub-section (2) of section 35. In the result of both these writ petitions fail and they are dismissed with costs. Advocate's fee, one set ₹ 250. Petitions dismissed.
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1958 (4) TMI 110 - SUPREME COURT
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... ... ..... far as it purports to totally prohibit the slaughter of breeding bulls and working bullocks without prescribing any test or requirement as to their age or usefulness, it offends against Art. 19 (1) (g) and is to that extent void. As regards the Madhya Pradesh Act we likewise declare that it is constitutionally valid in so far as it prohibits the slaughter of cows of all ages and calves of cows, male and female, but that it is void in so far as it totally prohibits the slaughter of breeding bulls and working- bullocks without prescribing any test or requirement as to their age or usefulness. We also hold that the Act is valid in so far as it regulates the slaughter of other animals under certificates granted by the authorities mentioned therein. In the premises we direct the respondent States not to enforce their respective Acts in so far as they have just been declared void by us. The parties will bear and pay their own costs of these applications. Petitions partly allowed.
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1958 (4) TMI 109 - BOMBAY HIGH COURT
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... ... ..... in construing section 33A(2) as we are construing, we are not adding to the words used by the Legislature or altering the words used by the Legislature. We are placing a reasonable interpretation upon the very words used by the Legislature, an interpretation which ensures an effective right of revision to the assessee and also ensures an effective period of limitation provided by the Legislature. In our opinion, therefore, the Commissioner was in error in coming to the conclusion that the application for revision of the petitioner was barred by limitation. If the application was not barred, it was the statutory duty of the Commissioner to hear his application. This is a clear case where we should issue a mandamus against the Commissioner directing him to hear the application of the petitioner. The result is that the petition must succeed. The rule is made absolute with costs. There will be an order in terms of prayer (b) of the petition. Petition allowed Rule made absolute.
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1958 (4) TMI 108 - SUPREME COURT
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... ... ..... wo brothers in equal shares. Both by the auction-purchase of the year 1906 (D-57-D) and the sale deed (exhibit D-54 of the year 1909), Sadashiv's moiety share in the mortgaged property, was purchased by Fulchand aforesaid. The plaintiff, therefore, could only claim the other moiety share of her father, Gundi. In our opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage-bonds and on the plaintiff's own case that the entire ancestral properties and not only Gundi's share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiff's father. In the result, the appeal is allowed to the extent indicated above. As success between the parties, has been divided, they are directed to bear their own costs throughout. Appeal allowed in part.
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1958 (4) TMI 107 - BOMBAY HIGH COURT
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... ... ..... efore that court. What was advanced was that the court must assume that the Income-tax Officer had waived the penal tax because under the proviso he had the power to do so. Mr. Palkhivala has not put his case on that basis. He does not say that a case of waiver has been made out on the record. The argument which has found acceptance with us is an entirely different argument that on the record as it stands it cannot be clearly predicated of the action of the Income-tax Officer that it constituted a violation of a statutory duty or obligation. The result is that the petitioner must succeed and the rule will be made absolute with costs. There will be an order in terms of prayers (a) and (b) of the petition. Respondent to pay the costs of the petition. With regard to the costs of the appeal, we have already ordered that the costs of the appeal will be costs in the petition, and as the petitioner had succeeded he will also be entitled to the costs of the appeal. Petition allowed.
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1958 (4) TMI 106 - PUNJAB HIGH COURT
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... ... ..... into consideration. It is obvious that if at the close of the year or soon thereafter, the firm is found to possess stocks worth nearly two lacs of rupees, the outturn of the firm must be of the same magnitude because, as stated by the Assessing Authority, no business firm will lock so much of capital in maintaining huge stocks if its turnover is only to the tune of Rs. 7,805 during four months. I am, therefore, of the view that in the circumstances of the present case, no question of law arose and the second question must also be replied in the negative. It was not disputed before us that the powers of revision of the Excise and Taxation Commissioner under section 21 are much wider than under the Civil Procedure Code and he can interfere on grounds of illegality or impropriety of the order. This reference is, therefore, answered as above. The petitioner will pay the costs of the respondent which are assessed at Rs. 200. FALSHAW, C.J.-I agree. Reference answered accordingly.
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1958 (4) TMI 105 - MADHYA PRADESH HIGH COURT
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... ... ..... ions recorded by my learned brothers. All those cases are distinguishable on the ground that they deal with the question of the nature and scope of the discretionary revisional jurisdiction conferred on an authority and with the question whether there was a duty imposed on that authority to exercise the revisional jurisdiction upon an application of an aggrieved person. As I have said that is not the question for determination here. For the foregoing reasons, I agree with the conclusion reached by Nevaskar, J., though not with the reasoning, that the Commissioner of Sales Tax was not right in refusing to entertain the revision petition filed by the petitioner on the ground that it was not accompanied by a satisfactory proof of the payment of the full amount of tax determined in respect of which the revision petition had been preferred. I would, therefore, answer the first two questions in the affirmative and the third question in the negative. Reference answered accordingly.
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1958 (4) TMI 104 - RAJASTHAN HIGH COURT
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... ... ..... hat the preliminary objection succeeds. The applicants had an alternative remedy by way of appeal under section 13 of the Act and further remedies under sections 14 and 15. They have not availed themselves of those remedies. In the circumstances, we should not interfere in our extraordinary jurisdiction. Turning briefly to the merits of the case, we are of opinion that there is no force in the contentions raised by the applicants. Misri, Batasa, etc., are not merely sugar and the fact that sales tax has been paid on sugar is no reason for not levying sales tax on these articles made from sugar. Nor are we prepared to accept that they are Deshi sweetmeats. It would be impossible to attempt a definition of Deshi sweetmeats. But it is common knowledge that no one in this part of the country would consider Misri, Batasa or toys made of sugar etc. Deshi sweetmeats. So they are not exempt under the Schedule. We therefore dismiss the applications with costs. Applications dismissed.
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1958 (4) TMI 103 - ALLAHABAD HIGH COURT
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... ... ..... he petitioner either to claim benefit of the notification after payment of the fees prescribed, or, in the alternative, he need not make that payment, in which case he can be assessed to tax in accordance with the provisions of section 3 of the Act. The contention of learned counsel that this notification should be held to be valid to the extent that it grants exemption from tax on sales of foodgrains, whereas the portion of the notification imposing conditions should be held to be invalid, must be rejected. It was within the competence of the Government to prescribe fees under section 4(b) of the U.P. Sales Tax Act and, as long as the terms of the notification fall within the four corners of the provisions of law, the notification cannot be declared void. It is only optional for the petitioner either to take advantage of this notification or ignore it and be governed by the general provisions of the law. There is no force in this petition. It is rejected. Petition rejected.
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1958 (4) TMI 102 - MADRAS HIGH COURT
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... ... ..... on these matters. The burden of proof is no doubt on the appellant and but for the fact that the entire case proceeded on the footing that the only relevant consideration was the place of passing of property, we would have been reluctant to give a further opportunity to the appellant to let in evidence on the question of delivery. In the circumstances of this case we consider that in the interests of justice an opportunity should be given to the parties to let in evidence on the question as to whether the appellant has made out a case for exemption under section 5(v) of the Madras General Sales Tax Act. The appellant s right to exemption in regard to sales of tea prior to 1st January, 1948, and of rubber during 1947-48 and 1948-49 is declared and his claim in respect of the assessment for the year 1950-51 is dismissed. The suits will be remanded to the Original Side for fresh disposal in the light of the above observations. There will be no order as to costs. Cases remanded.
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1958 (4) TMI 101 - ANDHRA PRADESH HIGH COURT
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... ... ..... e classes of interest specified in the clause, viz., ownership, usufructuary mortgage or tenancy, is the right to the exclusive possession of the land and any interest to be brought within the scope of the term otherwise in section 2(m) must satisfy that generic requirement, the right to exclusive possession of the land itself. This was the view taken by Satyanarayana Rao and Rajagopalan, JJ., in Sultan Ahmed Rowther v. State of Madras 1954 5 S.T.C. 166. in construing the provisions of section 2(i) of the Madras General Sales Tax Act which are in pari materia with the provisions of section 2(m) of the Hyderabad General Sales Tax Act, and I am in respectful agreement with the view taken by them. The view taken by the Sales Tax Appellate Tribunal is correct and there are no valid grounds justifying the interference of this Court under Article 226. These writ petitions must therefore fail and are dismissed with costs. Advocate s fee in each petition Rs. 50. Petitions dismissed.
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1958 (4) TMI 100 - ANDHRA PRADESH HIGH COURT
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... ... ..... the assessees who could prove that the purchases in question were made by them from unlicensed dealers. As regards the petitioners in these cases, their claims were disallowed as, in the opinion of the Tribunal, the petitioners had not established that the purchases were made from unlicensed dealers. No exception can be taken to the decision of the Tribunal. It is for a person who claims exemption to prove the circumstances which warrant the exemption. Consequently, he has to make out that the skins and hides in question were bought from persons who did not hold any licences. There is not presumption that every dealer in hides and skins is an unlicensed dealer. That being the case, unless he succeeds in proving that the persons from whom he purchased the skins and hides had no licences, he cannot claim the exemption. In the result, the orders under appeal are confirmed and these petitions are dismissed with costs, which we fix at Rs. 50 in each petition. Petitions dismissed.
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1958 (4) TMI 99 - MADRAS HIGH COURT
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... ... ..... those authorities are precluded from entertaining One example of such a contention would be that the Act or any particular provision of it is ultra vires. In addition to such pleas the accused person can also show for example that he is not the person assessed or that he has paid the amount in respect of which he has been assessed. It is only pleas in such categories that will be open to him. We answer the question referred to us accordingly. This appeal came on for final hearing and the Court (Ramaswami, J.) passed the following order on 23rd April, 1958. ORDER On the answer returned by the Full Bench the acquittal by the lower Court cannot stand. The acquittal is set aside, and the accused is convicted for an offence punishable under section 15(b) of the Madras General Sales Tax Act, 1939. He is fined Rs. 25 (Rupees twenty-five only) and the recovery of arrears of tax of Rs. 205-12-6 is directed to be made. It will be recoverable as if it were a fine. Acquittal set aside.
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1958 (4) TMI 98 - SUPREME COURT
Whether, in the circumstances of this case, the respondents can be made liable under either sub-section (1) or sub-section (2) of section 4 of Orissa Sales Tax Act?
Whether the notification has appointed a date as a result of which liability to pay tax under the sub-section arises?
Held that:- Appeal allowed in part. The fact that under sub-section (1) liability is made to arise on the turnover of the year immediately preceding the commencement of the Act, to my mind, shows that it was contemplated that the date under sub-section (1) would be fixed soon after the Act commenced. That would indicate that the intention was that both sub-sections (1) and (2) of section 4 would begin to operate at the same time. It was not contemplated that any question of liability under sub-section (2) would arise before such a question under sub-section (1) arose. I would, therefore, hold that in the present case the appellants are not entitled to levy any tax on the respondents under sub-section (2).
The decree, in so far as it sets aside the assessments for the quarters ending on June 30, 1950, September 30, 1950, and December 31, 1950, is upheld, but the decree, in so far as it sets aside the assessments for the quarters ending on September 30, 1949, and December 31, 1949, is reversed and the orders of assessment of the Sales Tax Authorities are restored.
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1958 (4) TMI 97 - SUPREME COURT
Appellant giving an undertaking not to claim any refund of the compensation moneys already paid in pursuance of the order dated 31-1-1953, passed by the Commissioner for Workmen's Compensation at Junagadh and to pay in any event the respondents their costs of the appeal. - Appeal is accordingly allowed and the order of the Commissioner for Workmens Compensation directing the appellants to pay compensation is set aside. The appellant, however, will pay the costs of the respondents of this appeal and will not be entitled to recover the compensation money already paid.
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1958 (4) TMI 87 - SUPREME COURT
Whether the High Court was in error in rejecting the appellant's case that, in purchasing the teas in question at the public auction in Calcutta, the appellant was acting merely as an agent for his principals in Bombay?
Held that:- It would thus be clear that unless the appellant had purchased the teas in question as a dealer he was not required to show these transactions in his return at all. The fact that those transactions were included in his return is consistent only with the theory that the appellant purchased the teas as a dealer within the meaning of the Act and is wholly inconsistent with his case that in these transactions he was concerned only as an agent.
We are, therefore, satisfied that the correctness of the finding made by the High Court on the question of appropriation cannot be effectively challenged by the appellant on the materials on record. If the goods were appropriated to the contract by the appellant with the consent, and to the knowledge, of the Bombay merchant, title to the goods clearly passed in favour of the Bombay party. Incidentally, the goods sent by the appellant were not the same as the goods originally purchased by him. There has been blending according to the instruction of the Bombay party and that also indicates that the sale of the goods by the appellant to the Bombay party had preceded the blending of several teas which was done under the instructions of the Bombay party on the basis that the title in the goods had already passed to the Bombay party. In that view of the matter section 5(2)(a)(v) of the Act would be wholly inapplicable. Appeal dismissed.
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1958 (4) TMI 80 - SUPREME COURT
Whether the mistake made in the notification was immaterial?
Whether the pre-Constitution assessment orders are justified under sub-section (2) of section 4?
Whether the assessment orders for the post-Constitution period to be invalid?
Held that:- For a liability to arise under sub-section (1) of section 4, the issue of a notification is an essential prerequisite, and unless the notification complies with the requirements of the sub-section, no liability to tax can arise under it. The notification not only fixed the relevant date, but fixed the relevant period for deter- mining the class of dealers who would be subject to the liability. In doing so, it made a mistake, the result of which was that the notification was not in conformity with the law. We do not think that it can be severed in the way suggested by the learned Solicitor-General.
We are, therefore, of the view that all the requirements of sub- section (2) are fulfilled in this case, and the two assessment orders made against the respondent for the pre-Constitution period were validly made under sub-section (2) of section 4 of the Act. The effect of the invalid notification under sub-section (1) was that there was no liability thereunder, and no dealers were liable to pay tax under that sub-section. But that did not mean that any dealer who properly came under sub-section (2) was free to escape his liability to pay tax. Surely, the position cannot be worse than what it would have been if the Provincial Government had failed to issue a notification under sub-section (1).
The assessments for the post-Constitution period in this case were hit by clause (1)(a) of Article 286 as also section 30(1)(a)(i) of the Act and were rightly held to be without jurisdiction. The result, therefore, is that in our view this appeal should succeed in part, as we hold that the assessments for the two quarters of the pre-Constitution period were valid under sub-section (2) of section 4 of the Act and the assessments for the post-Constitution period were invalid.
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1958 (4) TMI 73 - SUPREME COURT
Whether the appellants fall within the definition of "dealer" given in Explanation 3 to section 2(c) of the Act?
Held that:- The goods in question were directly supplied by the Mills to the customers, whether they were supplied in pursuance of the orders placed by the appellants with the Mills or were supplied in pursuance of orders directly placed by the customers with them. The invoices were all made out in the names of the customers and the relevant documents were negotiated by the Mills with the customers through the Banks. The customers released those documents from the Banks on payment of the relevant drafts and the sale price of the goods was thus received by the Mills through those Banks. At no time whatever was there any handling of the goods or the receipt of the sale price thereof by the appellants in regard to the goods in question and under those circumstances the sale price thereof could not be included in the gross turnover of the appellants. If that was the true position, the appellants were not liable to sales tax in respect of the disputed transactions, even though, perchance, they could be included within the expanded definition of "dealer" in the Explanation 3 to section 2(c) of the Act-a contention which we have already negatived.
In regard to the disputed transactions which were of the total value of ₹ 6,21,369-10-3, the appellants were not at all liable to pay sales tax thereupon and the first respondent was clearly in error in assessing the same to sales tax. The appeal will accordingly be allowed and the assessment order made by the first respondent on January 15, 1955, will be set aside.
The sales tax of ₹ 27,816 assessed by the first respondent on the appellants, if paid, will be refunded and the appellants will get from the first respondent the costs of this appeal as also the costs incurred by them in contesting the proceedings before the first respondent. Appeal allowed.
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1958 (4) TMI 65 - SUPREME COURT
Whether it is a question of policy whether taxes should be imposed on the supply of materials in building contracts, and that, therefore, the power conferred by section 2 on the Government to extend a law with modifications cannot be exercised so as to modify a provision of the Bengal Finance (Sales Tax) Act, 1941, relating to that matter?
Held that:- The modification made by the Central Government, assuming that that is its true character, does not involve any change of policy underlying the Bengal Finance (Sales Tax) Act, 1941. Indeed, the modification gives effect to the policy of that enactment which was to bring construction contracts within the ambit of the taxation powers of the State, and which failed only for want of legislative authority. Whether we view the notification as one extend- ing a subsisting statute to Delhi or as extending it with modifications so far as the impugned provisions are concerned, it is intra vires section 2. Appeal dismissed.
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