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1961 (4) TMI 102 - GUJARAT HIGH COURT
... ... ... ... ..... t, we are unable to agree with the same. Such observations would be contrary to the fundamental notion of commercial profits. Profits in the commercial sense can only be ascertained after taking into account depreciation. The correct amount representing depreciation does not come out of the profits of the company. As observed by Paton in his Accountants' Handbook, third edition, there is nothing at all imaginary about depreciation as a cost of business operation and at bottom it is just as much an out-of-pocket cost as any other. The depreciation charge is merely the periodic operating aspect of fixed asset costs and there is no doubt as to the reality of such costs. In our view it is not shown that the reserves in this case in any way or to any extent represent accumulations of past profits. In the result the answer to the question is in the negative. We direct the Commissioner to pay to the assessee company the costs of the reference. Question answered in the negative.
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1961 (4) TMI 101 - SUPREME COURT
... ... ... ... ..... agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under s. 39(1)(VI) of the Arbitration Act which allows an appeal against an order refusing to set aside an award. o p /o p Lastly, it was submitted that the objection to the effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the award property which did not fall within the scope of his authority, should have been considered by the trial Court. Such an objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up. o p /o p We therefore see no force in this appeal and dismiss it with costs. o p /o p Appeal dismissed. o p /o p
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1961 (4) TMI 100 - SUPREME COURT
... ... ... ... ..... rt of the compensation representing the loss to the estate goes into the calculation of the personal loss under s. 1 of the Act, that portion shall be excluded in giving compensation under s. 2 and vice versa. In the instant case, under s. 1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of ₹ 25,200. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under s. 2 both the courts awarded damages for the loss to the estate in a sum of ₹ 5,000. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under s. 2 of the Act. The judgment of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (4) TMI 99 - SUPREME COURT
... ... ... ... ..... ion made. by the petitioners that they had mentioned the fact that their applications for permission to settle permanently in India had been rejected by the Government. As we understood learned counsel for the respondents, he also accepted this position. The only other point that was taken by the respondents was that the Collector having the power to grant the registration certificate under the Citizenship Act had by virtue of s. 21 of the General Clauses Act, and apart from s. 10(2) of the Citizenship Act, the power to cancel it. We are entirely unable to agree that a. 21 conferred on the Collector any such power. The orders mentioned in that section are not orders of the kind contemplated in s. 5 of the Citizenship Act. It seems to us therefore that the orders canceling the registration of the petitioners as citizens were wholly illegal and unsupportable and they are accordingly set aside. The petitioners will be entitled to the costs of this application. Petition allowed.
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1961 (4) TMI 98 - SUPREME COURT
... ... ... ... ..... the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. The State of Bihar, 1953 S.C.R. 1129 this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi's case (supra), remarkable for their disturbing implications. For these reasons, we allow the application with costs and a writ will now issue as directed. Petition allowed.
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1961 (4) TMI 97 - CALCUTTA HIGH COURT
... ... ... ... ..... ner of Income-tax that section 66 of the Indian Income-tax Act does not confer on the High Court jurisdiction to decide a different question of law not arising out of the order of the Appellate Tribunal. "It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered." In the circumstances it is not permissible to call upon the Tribunal to submit a supplementary statement which will have the effect of opening a fresh line of enquiry and of compelling the Tribunal to decide a question which was not raised before it previously. I agree that the question referred should be answered in the negative and against the assessee and there should be no order for costs. Question answered in the negative.
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1961 (4) TMI 96 - SUPREME COURT
... ... ... ... ..... Court has held that a Magistrate passing an order under s. 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of s. 435 of the Code of Criminal Procedure. To the same effect is the decision of the Allahabad High Court in Madho Ram v. Rex (I.L.R. (1950) All. 392). We have referred to these decisions only to illustrate that in dealing with similar provisions under the municipal law different High Courts seem to have taken the view that Magistrates entertaining recovery proceedings under the appropriate statutory provisions are not inferior criminal courts under the Code of Criminal Procedure. Though we have referred to these decisions we wish to make it clear that we should not be taken to have expressed any opinion about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them. The result is the appeal fails and is dismissed. Appeal dismissed.
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1961 (4) TMI 95 - SUPREME COURT
... ... ... ... ..... attended the meeting at Major Barsay's on the 18th. (5) Avatarsing loaded the truck for the first trip and also for the second trip, and in loading the second trip he used the usual laborers and two outside workers. (6) After the truck was loaded, he asked Rambhan to take the truck to D. 0. D. under instructions from the superior officers. (7) The words "D. O. D." in Ex. 42, the duty slip, were not entered by Avatarsing. The High Court held that the said facts found on independent evidence did not implicate the said accused in the offence and they were all consistent with his innocence. Though some of the findings give rise to suspicion we cannot say that the High Court was wrong in holding that the said facts found did not corroborate the evidence of Lawrence in implicating the accused in the offence. We, therefore, accept the finding of the High Court in regard to accused Nos. 2 and 3. In the result both the appeals fail and are dismissed. Appeals dismissed.
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1961 (4) TMI 94 - SUPREME COURT
... ... ... ... ..... ent for water used; and the fact that the rates prescribed may be high cannot alter this position. We are therefore of opinion that the use of the water by the petitioners was not an "offence" and the order for levy of special rates for user thereof was not the imposition of a penalty for an offence. When the Sub- Divisional Canal Officer or the Canal Commissioner was dealing with the matter they had to decide whether these petitioners had used water in an unauthorised manner and if so at what rates they should be charged for such use. In doing this, they were not trying anybody for any offence; and the fact that special rates were imposed did not deprive these rates of their essential character of a charge for water used and did not convert them into any penalty for the commission of an offence. There is therefore no scope here for the application of the provisions of Art. 20(1) of the Constitution. The appeal is accordingly dismissed with costs. Appeal dismissed.
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1961 (4) TMI 93 - SUPREME COURT
... ... ... ... ..... nding the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of ’cheating’. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher. We therefore hold that the appellant has been rightly convicted of the offence under s. 420, read with s. 511, Indian Penal Code, and accordingly dismiss the appeal. Appeal dismissed.
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1961 (4) TMI 92 - SUPREME COURT
... ... ... ... ..... of a person who has been declared an intending evacuee to be evacuee property whenever the existence of any of the circumstances prescribed as constituting a preparation for his migrating to Pakistan is established. Where, as in the present case, a Custodian in exercise of such authority has given such a declaration there is no reason for saying that the declaration has been improperly made. In our opinion, the High Court was right in setting aside the order of the District Judge and in directing the Custodian-General or the Deputy Custodian-General to dispose of the matter in accordance with the views expressed by the High Court that on the facts proved in the case the order made by the Deputy Custodian declaring Dr. Mohammad Saeed's property as evacuee property was right. The order made by the Deputy Custodian-General in compliance with the directions given by the High Court cannot therefore be assailed. The appeal is accordingly dismissed with costs. Appeal dismissed.
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1961 (4) TMI 91 - SUPREME COURT
... ... ... ... ..... a different footing, but it is conceded that no cause of action against him survived, because the appeal has abated against him. Mohabat Singh, who is the third defendant, cannot be described as an agent of the ex-Ruler, because his connection with the orders placed was merely to sign the letters purporting to emanate from the Military Secretary. Those letters he signed "for the Military Secretary". He was not acting as the agent of the ex-Ruler but was performing the ministerial act of signing the letters on behalf of the Military Secretary. This cannot be said to have constituted him an agent. The suit against him was, therefore, misconceived, whatever might have been said of the Military Secretary. In our opinion, the dismissal of the suit was justified in the circumstances of the case. The appeal fails, and is dismissed with costs. The appellant will pay court-fee on the memorandum of appeal, as he was allowed to file this appeal as a pauper. Appeal dismissed.
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1961 (4) TMI 90 - MADRAS HIGH COURT
... ... ... ... ..... tion 34(1)(b) applied. Learned counsel for the department urged that the assessments could be viewed as assessments on the original returns themselves filed by the assessee. Such a contention does not arise for consideration in this case on the question as it has been framed and submitted to us. All along, the point in issue between the department and the assessee was whether the proceedings under section 34 had been lawfully initiated and completed. It was the validity of recourse to section 34 that has got to be decided on the question submitted to us under section 66(1). We therefore refrain from going into the question whether the assessments could be justified without recourse to section 34. Our answer to the question is that the purported reassessments for 1950-51, 1951-52 and 1952-53 under section 34 of the Act were invalid. The reassessments for 1953-54 and 1954-55 were valid. As neither side has wholly succeeded on this reference, there will be no order as to costs.
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1961 (4) TMI 89 - SUPREME COURT
... ... ... ... ..... pro- tection of the Act given to the tenant or tenants concerned should be withdrawn. The section is applicable not merely to institutions like hospitals or schools, but may be applied to other cases also, where there is no question of any unreasonable eviction of the tenant, or where prevention of eviction itself may be unreasonable. We, therefore, think that the Government's action in exempting the Gaiety Theatre premises from the operation of the Act was within the scope of the Act, and the High Court does not seem to have considered the case from this point of view. For these reasons, in our view, the order of June 4, 1952, was a competent and legal order and no exception can be taken to it. We would, therefore, allow the appeal and set aside the order of the High Court. The second respondent should pay the costs of the other parties throughout. By COURT. In accordance with the majority Judgment, the appeal is dismissed with costs to the contesting second respondent.
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1961 (4) TMI 88 - SUPREME COURT
... ... ... ... ..... Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents", Therefore the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof. There cannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the court. This would be an original instrument, and the words, "certified copy" appearing thereon are a misdescription and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (4) TMI 87 - SUPREME COURT
Whether the imposition in the present caw offends Art. 276 or 301 of the Constitution ?
Whether the failure to notify the final resolution of the imposition of the tax in the Government, Gazette is fatal to the tax ?
Held that:- The answer to the first question referred is that the impugned octroi duty does not contravene the provisions of Arts. 276 and 301.
This case was sought to be distinguished on the ground that the words there were " all goods other than and those words would comprise every article which was not specifically mentioned in the Schedule. We are unable to accept this distinction because even though the words used in the present statute are different the combined effect of ss. 97 and 130 and Part V of Schedule III including Class VIII is that the words are of 'very general nature and would have the same effect as if all articles were intended to be and were included. In view of this it is unnecessary to discuss the second contention. Appeal dismissed.
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1961 (4) TMI 86 - SUPREME COURT
Whether the defendants-appellants are 'protected tenants' within the meaning of the Bombay Tenancy Act (Bombay Act XXIX of 1939) whose rights as such were not affected by the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act (Bombay Act LXVII of 1948)?
Held that:- It is clear that so far as the appellants were concerned, their status as 'protected tenants' had been recognised by the public authorities under the Act of 1939, and they bad to do nothing more to bring their case within the expression 'right accrued', in el. (b) of s. 89(2) of the Act of 1948.
The controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in Our Opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939. It has not been disputed before us that if that. is done, there is only one answer to this suit, namely, that it must be dismissed with costs. Accordingly, we allow the appeal, set aside the judgments below and dismiss the suit with costs throughout, to the contesting defendants-appellants.
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1961 (4) TMI 85 - MADRAS HIGH COURT
... ... ... ... ..... e character of the interim payments, a decision on this question is not necessary in these writ petitions. In the result, the petitions are allowed. The rule nisi will be made absolute in each case. Writs of certiorari will issue on the application filed by the Raja of Ramnad and writs of prohibition on the application filed by the Raja of Sivaganga. They will be entitled to their costs, but each of them will be allowed only one counsel 39 s fee. Counsel 39 s fee Rs. 250. Learned counsel for the department drew our attention to the fact that during the arguments the learned Advocate-General referred to the decision of the Privy Council in Maharajkumar Gopal Saran v. Commissioner of Income-tax ( 1935 3 I. T. R. 237). In our judgment we did not consider it necessary to refer to every one of the cases cited during the arguments, and in our opinion, the decision we have referred to above did not help us in solving the real question at issue in these petitions. Petitions allowed.
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1961 (4) TMI 84 - SUPREME COURT
Whether the appellant did not get a hearing to which he was entitled under s. 68.D(2)of the Motor Vehicles Act, No. IV of 1939?
Held that:- The officer in this case was wrong on both the points. He was wrong in his view that it was not open to him to reject the scheme in toto and withhold approval altogether. He was also wrong in the view that it was not open to him to take evidence, whether oral or documentary, though of course, as we have said above the control on this evidence must be in him. The result of this wrong approach to our mind has certainly been that the appellant did not get a hearing to which he was entitled under s. 68.D(2). In the circumstances we must hold that the approval of the scheme was without a proper hearing under s. 68-D(2), which, even though arguments were heard in full in this case, vitiates the approval given to the scheme by the officer concerned. Appeal allowed.
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1961 (4) TMI 83 - SUPREME COURT
Whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed?
Held that:- On the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no case for interference by us in an appeal under Article 136 of the Constitution has been made out. The appeal fails and is dismissed
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