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Case Laws
Showing 41 to 60 of 92 Records
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1962 (4) TMI 101 - CALCUTTA HIGH COURT
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... ... ..... was a transfer or parting with of the landlords right under the instant building lease. The sum of ₹ 20,000 was also paid prior to the creation of the tenancy and not after the relationship of landlord and tenant had come into existence. The payment is also of a single non-recurring character in the nature of the premium for granting the lease. In view of the absence of any evidence on behalf of the department to show that the rental of ₹ 800 is low and the period of the lease is short and there being no other attending circumstance and in view of assessees proof of another building lease of a contiguous area showing the same state of affairs, we find that the receipt of the said sum of ₹ 20,000 is a capital receipt and not an advance rent. In our opinion, the question referred to us should be answered in the affirmative and in favour of the assessee, who will have his costs of this reference. G.K. Mitter J. - I agree. Question answered in the affirmative.
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1962 (4) TMI 100 - SUPREME COURT
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... ... ..... ng the appurtenant land, does not measure more than 2.85 acres. Mr. Purushottam Trikamdas, learned counsel for the respondent readily conceded this fact and said that the High Court has committed an error through an oversight and that all that the respondent wants is 2.85 acres of land and nothing more. Mr. Bindra then said that it would not be proper to give a direction to the Government to settle any particular area of the land and it should be left to the revenue authorities to determine the precise area covered by the structures and the passages separating these various structures. We agree with him. It would be sufficient to direct the Government to settle with the respondent the whole of the land covered by the structures as well as land appurtenant to those structures from out of Khasra No. 61/1. What the area of that land would be is a matter to be determined during the settlement proceedings. With this modification we dismiss the appeal with costs. Appeal dismissed.
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1962 (4) TMI 99 - SUPREME COURT
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... ... ..... and in his way. What his rights in law are in respect of such past charges and whether any claim for repayment of charges made in excess of reasonable charges can succeed in law in civil courts on the theory that as a common carrier the Railway is not entitled to charge anything more than reasonable rates and charges, need not be examined here. As a suit on ,such a claim world not be on anything done or any omission made by the Railway Administration in violation or in contravention of any provisions of Ch. V, the provisions of s. 26 are quite irrelevant for the decision of the question whether the Tribunal has any jurisdiction to make an order for refund. Our conclusion therefore is that neither expressly nor by necessary implication has the Railway Rates Tribunal been given any jurisdiction to make any order for refund. The decisions of the Railway Rates Tribunal, in the present case, on both the issues are therefore correct. The appeal is accordingly dismissed with costs.
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1962 (4) TMI 98 - SUPREME COURT
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... ... ..... elf. We can see no reason for thinking that in such a case the fact that the person to whom permission has been given is residing in the building, makes it anytheless the actual occupation of the government. If that was so, the fact that the Military Officer may be away for months together and the members of his family or his servants are residing would make the building cease to be in occupation of the Military Officer. That is on the face of it absurd. In our opinion, where the person entitled to occupy, permits some other person to be in the building, he is in actual occupation through such other person. Accordingly, we are of opinion that the building in question was in occupation of the Central Government through the Military Officer whom it has permitted to reside in it. The answers given by the High Court were therefore correct. The appeal is accordingly dismissed. But, as there was no appearance for the other side, there will be no order as to costs. Appeal dismissed
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1962 (4) TMI 97 - SUPREME COURT
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... ... ..... nts on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellant's case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam was correct in the circumstances of the case, and the High Court was not justified in reversing it. The appeal is, therefore, allowed, the judgment of the High Court set aside, and that of the lower Court restored, with costs throughout. Appeal allowed.
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1962 (4) TMI 96 - SUPREME COURT
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... ... ..... ed from those properties. The fact that the fine imposed by the criminal court may have taken into account under s. 10 of the 1943Ordinance the amount of money procured by means of the offence makes no difference to the interpretation of s. 13(3). Therefore, the District Judge was right in holding that out of the properties attached he had first to forfeit properties up to the value of ₹ 30 lacs under s. 13(3) and thereafter if any properties are left, it will be open to Government to realise the fine of ₹ 45 lacs from such properties. The respondent therefore cannot take advantage of the amendment of a. 10 of the 1943-Ordinance by the 1946Ordinance, and on the law as it stood in 1945 and as applicable to the respondent, the order of the District judge is in our opinion correct. We therefore allow the appeal and setting aside the order of the High court restore the order of the District Judge who will now take further steps in accordance with law. Appeal allowed.
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1962 (4) TMI 95 - SUPREME COURT
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... ... ..... guable. These are however considerations which cannot affect our decision in the present case, the amendment of the Constitution, which come later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed." I do not see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, no question of infringing the fundamental right would arise. There is no force in this argument. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner. 32. But, in view of the fact that the period for which licence was asked had run out, the application in respect thereof has become infructuous and, therefore has to be dismissed. In the result, the appeal is dismissed, but, in the circumstances of this case, without costs.
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1962 (4) TMI 94 - SUPREME COURT
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... ... ..... g the identity of the Government which made the grant. Besides, the corporation having accepted the grant from the State Government was obviously estopped from contending that the land of which it continued in possession under that grant was not one by the State Government or that the State Government had not the authority to make the grant. If such contention is both not open to the Corporation and not tenable on the merits., it would follow that the impugned notification was fully justified by the, provisions under s. 81 of the Jabalpur Corporation Act. We therefore hold that the impugned notification was valid, though for reasons very different from those on which its validity was sustained by the learned Judges of the High Court. The appeal fails and is dismissed. In view however of the concession made by the respondent before the High Court which misled the learned Judges we consider it proper to direct that each party should bear its costs throughout. Appeal dismissed.
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1962 (4) TMI 93 - SUPREME COURT
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... ... ..... arifying the answer he gave in his earlier letter, and pointing out that whereas if the oats were in whole grain it would fall within item 32, but if the same was crushed, it would be "fodder" within item 42. The respondent however, denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court. We do not propose to record any finding either. We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying, if they consider that the respondent has really been misled, the quantum of penalty imposed on the respondent. The appeal is accordingly allowed and the order of the Division Bench of the High Court set aside. The application filed by the respondent under s. 45 of the Specific Relief Act will stand dismissed. In the circumstances of the case we direct that the parties bear their own costs in this Court. Appeal allowed.
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1962 (4) TMI 92 - SUPREME COURT
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... ... ..... dity and has the same characteristic as a law made directly by the Parliament. Apart from the fact that the words to be construed there were different and in a sense wider than the words to be construed in the present case, the principle accepted in the decision is only of a general application and does not help to construe the specific words of cl. (f) of s. 4 ; their meaning can be gathered only by interpreting the said words, having regard to the setting and the context in which they are used. For the foregoing reasons, I would hold that the Government had no power under s. 12 of the Act to make a bye-law assigning any function to the Commission. It follows that notification dated January 24, 1956, by the Forward Markets Commission was illegal and the appellants would be entitled to the issue of a writ of mandamus in the terms prayed for. In the result, the appeal is allowed with costs. ORDER In view of the Judgment of the majority, the appeal stands dismissed with costs.
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1962 (4) TMI 91 - SUPREME COURT
Interpretation of Art. 301 and other connected articles relating to trade, commerce and intercourse within the territory of India, contained in Part XIII of the Constitution
Held that:- Provisions of the Rajasthan Motor Vehicles Taxation Act (XI of 1951) are regulatory in character and that they do not infringe the freedom enshrined in Art. 301 of the Constitution or violate the provisions of Art. 301 of the Constitution and the taxes imposed under the Act are compensatory taxes which do not binder the freedom of trade, commerce and intercourse assured by that article. Appeal dismissed.
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1962 (4) TMI 90 - SUPREME COURT
Is an order of assessment made by an authority, under a taxing statute which is Intra vires, open to challenge as repugnant to Art. 19 (1) (g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued there under?
Can the validity of such an order be questioned in a petition under Art. 32 of the Constitution ?
Held that:- The correct answer to the two questions which have been referred to this larger Bench must be in the negative. An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder. Nor can the validity of such an order be questioned in a petition under Art. 32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of. appeal, or if the error is an error apparent on the face of the record, then by an application under Art. 220 of the Constitution. It is necessary to observe here that Art. 32 of the Constitution does not give this Court an appellate jurisdiction such as is given by Arts. 132 to 136. Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred by Part III of the Constitution. Unless a question of the enforcement of a fundamental right arises, Art. 32 does not apply. There can be no question , of the enforcement of a fundamental right if the order challenged is a valid and legal order, in spite of the allegation that it is erroneous. Therefore, come to the conclusion that no question of the enforcement of a fundamental right arises in this case and the writ petition is not maintainable.
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1962 (4) TMI 89 - SUPREME COURT
Whether the High Court would have jurisdiction to issue a writ against the Collector of Customs Calcutta in spite of the fact that his order was taken in appeal to the Central Board of Revenue against which the High Court could not issue a writ and the appeal had been dismissed?
Held that:- No hesitation in holding that the order of the origin%] authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. If the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original autbority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition.
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1962 (4) TMI 88 - CALCUTTA HIGH COURT
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... ... ..... precedents in administering this taxing statute when there was no reason or circumstance to justify any change of mind of that tribunal. On that ground also the order of the Additional Member, Board of Revenue, is liable to be set aside and the prayer of the petitioner for deduction under section 5(2)(a)(ii) in respect of the disputed 9 items of transactions totalling Rs. 5,26,667-2-0 should be allowed. In the premises, we make this Rule absolute, set aside the orders disallowing the deductions under section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act, 1941, and direct that in ascertaining the taxable turnover of the petitioner-firm for the period in question, the amount of those transactions be deducted from the gross turnover and the tax under section 4 of the Act be calculated and levied on that footing on the amount, which remains after such further deduction. In the circumstances of this case, we do not make any order as to costs in this Rule. Rule made absolute.
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1962 (4) TMI 87 - MAHARASHTRA HIGH COURT
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... ... ..... e evidence produced by the petitioners in support of their case. As we have already pointed out, this evidence has not been considered by the Tribunal in its judgment. In our opinion, therefore, on the facts and circumstances of the present case, there appears to be no reason why the case which was made out by the petitioners before the Sales Tax Authorities cannot be taken to have been established. In the view that we are taking of the matter, question No. 1 will be answered in the negative. Our answer to question No. 2 will be that the supply of paper and the contract of printing constituted two separate contract transactions. Our answer to question No. 3 is that the correct turnover for the purpose of sales tax would be the price of the paper supplied. The petitioners will get their costs from the respondent. Costs quantified at Rs. 250. The petitioners will also be entitled to the refund of the amount deposited by them before the Tribunal. Reference answered accordingly.
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1962 (4) TMI 86 - PUNJAB HIGH COURT
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... ... ..... evidence. The Assessing Authority called for no evidence. All that the petitioner-firm did was to point out that the action taken by the respondents was without jurisdiction and contrary to law. It is a different matter whether in this stand the petitionerfirm was or was not justified the fact remains that it pointed this out to the Assessing Authority, but otherwise ignored the notice. The substance of the matter on the facts then is that the petitioner-firm as dealer failed to comply with the terms of the notice issued to it under sub-section (2) and it is sub-section (4) of section 11 that is attracted to its case, with the result that the assessment having been made three years after the quarter ending on 31st March, 1956, it cannot be maintained and has to be quashed. In the result, this petition is accepted, the assessment made against the petitioner-firm is quashed. Respondent I will bear costs of the petitioner in this petition. SHARMA, J.-I agree. Petition allowed.
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1962 (4) TMI 85 - KERALA HIGH COURT
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... ... ..... ects and reasons it is stated in paragraph 2 Cashew and its kernel are liable to tax at 4 nP. in the rupee at the last point of purchase within the State. Doubts have been raised as to whether the purchase of cashew kernel produced out of raw nuts on which tax has already been paid is liable to be taxed again. It is not the intention to tax the cashew kernel again in such cases. It is proposed to make this position clear by amending item 37 of the Schedule. For the removal of a similar doubt regarding the liability to tax of cocoanut and copra it is proper to amend item 35 and omit item 36. Item 36 as it originally stood read copra . From the objects and reasons it is clear that the intention is not to tax cocoanut and copra separately. So we direct that the assessment made on the turnover relating to the last purchase of copra will be vacated and necessary alteration made in the assessment order. There will be no order as to costs in the Tax Revision Case. Petition allowed.
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1962 (4) TMI 84 - PUNJAB HIGH COURT
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... ... ..... under Article 32 are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party. In that case a declaration as to the invalidity of the impugned Act together with the consequential relief by way of an injunction restraining the respondents from asserting any rights under the enactment so declared void were considered to be the only appropriate relief which the petitioners were held entitled to get. For the reasons given above I hold that the imposition of sales tax under item No. 6 of the First Schedule on the articles in question is altogether illegal, with the result that the petition is allowed and an appropriate writ or order shall issue directing respondents Nos. 1 and 2 not to realise sales tax at the rate of 7 per cent. from the dealers concerned in respect of the sales effected in favour of the petitioner. In view of the nature of the points involved, the parties are left to bear their own costs. Petition allowed.
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1962 (4) TMI 83 - KERALA HIGH COURT
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... ... ..... that there ought to have been as many assessments as there were principals. This point too was not taken in the revision memorandum or before the Tribunal or the assessing authorities. The learned Government Pleader objected to the point being entertained, for according to him, there have been several cases, in which considering perhaps the inconvenience of having to file separate returns, the agents themselves preferred to have and even pressed for, joint assessments. We think the point is not open and decline to consider it. This disposes of all the contentions which were pressed before us in the three revision petitions. The result is, that the order of the Tribunal is vacated and the order of the Appellate Assistant Commissioner is restored. T.R.C. Nos. 90 and 91 of 1960 are dismissed with costs including Advocate s fee Rs. 200. T.R.C. No. 109 of 1960 is allowed to the extent and in the manner indicated above, but there will be no order as to costs. Ordered accordingly.
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1962 (4) TMI 82 - MADHYA PRADESH HIGH COURT
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... ... ..... medy of an appeal and even of a revision which was equally efficacious and the petitioner should not be given any relief in these proceedings. It is no doubt true that alternative remedies were available to the petitioner. But the notices issued to the applicant and the reassessment proceedings taken are so patently defective and without jurisdiction that we do not think that the existence of an alternative remedy should be allowed to stand in the way of quashing the notices and the assessment proceedings and orders. 8.. For these reasons, this petition is allowed and the three notices for reassessment and the imposition of penalty issued to the petitioner on 17th October, 1961, the assessment proceedings taken pursuant to those notices and the three assessment orders made on 30th November, 1961, in those proceedings are all quashed. We leave the parties to bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner. Petition allowed.
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