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1964 (9) TMI 95
Issues:
1. Discrepancy in the assets mentioned in the will and the actual assets found.
2. Repeated dismissal of applications seeking delivery of additional assets from the locker.
3. Interpretation of the purpose and content of a probate.
4. Applicability of Court's inherent jurisdiction under Section 151 of the Code of Civil Procedure.
5. Application of Court-fees Act provisions in probate matters.
6. Dispute regarding ownership of assets not included in the probate schedule.
7. Application of principles of res judicata in probate proceedings.
Analysis:
1. The case involves a discrepancy between the assets mentioned in a will and the actual assets found in a locker after the testator's death. The appellant, as the executrix, sought delivery of all assets but faced resistance due to the difference in the inventory.
2. The appellant made multiple unsuccessful applications to obtain the additional assets from the locker, leading to dismissals by the District Judge and subsequent appeals. The repeated rejections were based on previous orders and the perceived lack of merit in the relief sought.
3. The judgment delves into the interpretation of a probate's purpose, emphasizing that it is granted to administer the deceased's estate, allowing the executor to collect and manage all assets. The Court highlighted the executor's responsibility to handle the estate as per the will.
4. The appellant invoked the Court's inherent jurisdiction under Section 151 of the Code of Civil Procedure, citing suffering due to the Court's error in appending the schedule of assets to the probate. This raised questions about the extent of the Court's authority in rectifying its mistakes.
5. The Court analyzed relevant provisions of the Court-fees Act, emphasizing the need for accurate valuation of property in probate matters. The appellant argued that the schedule of assets should not be part of the probate, leading to a discussion on the Court's error in attaching the schedule.
6. A dispute arose regarding the ownership of assets not included in the probate schedule, prompting discussions on the appropriate forum to resolve such disputes. The parties disagreed on whether the matter should be settled in a probate Court or a civil Court.
7. The application of the principles of res judicata in probate proceedings was debated, with the respondents asserting that previous decisions had conclusively determined the relief sought by the appellant. The Court considered the impact of past judgments on the current application.
In conclusion, the judgment addressed various legal intricacies surrounding probate, asset distribution, Court's jurisdiction, and application of relevant laws. It emphasized the executor's duties, rectification of Court errors, and the need for clarity in probate proceedings.
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1964 (9) TMI 94
Issues:
Prosecution under s. 420 IPC and s. 7 of Essential Commodities Act, 1955 for contravention of Iron and Steel Control Order - Jurisdiction of the Court - Procedure for trial under s. 251A and s. 252 of CrPC - Nature of police report under s. 190 - Applicability of s. 251A to cases initiated on a police report under s. 173.
Detailed Analysis:
1. The appellant faced prosecution under s. 420 IPC and s. 7 of the Essential Commodities Act for contravention of the Iron and Steel Control Order. The objection raised was regarding the jurisdiction of the Court at Secunderabad and the procedure for trial under s. 251A and s. 252 of the Criminal Procedure Code (CrPC). The objection based on the report under s. 11 of the Essential Commodities Act was rejected by the Magistrate and the Sessions Judge, leading to the appeal in the High Court of Andhra Pradesh.
2. The trial under s. 420 IPC can be conducted under s. 251A of the CrPC, which deals with cases initiated on a police report. The Magistrate must ensure the accused receives the documents under s. 173, consider all evidence, and frame a charge if necessary. On the other hand, s. 252 of the CrPC applies to cases instituted otherwise than on a police report, where the Magistrate hears the complaint and takes evidence in support of the prosecution.
3. Under s. 253 of the CrPC, if no case against the accused is made out, the Magistrate can discharge him. If there are grounds for presuming the accused committed an offence, a charge is framed. The accused is given an opportunity to cross-examine prosecution witnesses if he pleads not guilty.
4. The appellant contended that the procedure under s. 251A of the CrPC does not allow for a second cross-examination, causing prejudice in the trial. The distinction between s. 251A and s. 252 was emphasized, suggesting either splitting the charges or trying both offences under the procedure of s. 252.
5. The interpretation of a 'police report' under s. 190 was crucial. The report can fall under (i) initiation by a police officer, (ii) information from non-police sources, or (iii) a complaint of fact. The report by a police officer does not equate to a complaint and must follow the procedure under s. 251A of the CrPC.
6. Section 252 of the CrPC applies to cases not initiated on a police report. In this case, the prosecution began with a report by a police officer under s. 11 of the Essential Commodities Act, satisfying the requirements for cognizance of the offence.
7. The report under s. 11 serves to eliminate private individuals from initiating prosecution, requiring a complaint from a public servant. The report by the police officer, though not a charge-sheet, fulfilled the conditions for initiating the prosecution.
8. The integrated investigation by the police officer into both cognizable and non-cognizable offences based on the same facts is permissible. The officer can include non-cognizable offences in the charge-sheet along with cognizable ones.
9. Precedents were cited to support the view that a prosecution under s. 251A of the CrPC can commence based on a report by a police officer. The report does not need to be a charge-sheet under s. 173, as long as it fulfills the requirements of being initiated by a public servant.
10. The High Court rightly declined to interfere with the trial proceedings, and the appeal was dismissed with directions for the trial to proceed expeditiously.
11. The appeal was dismissed, and the appellant was directed to face trial without further delay until the case is disposed of according to law.
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1964 (9) TMI 93
Issues:
- Challenge under Articles 14, 15, and 16 of the Constitution against State of Mysore and Mysore Public Service Commission regarding appointments made to certain services.
- Change in selection process from competitive examination to viva voce test.
- Discrepancies in marks obtained by selected and rejected candidates.
- Allegations of nepotism and compromise in selection process.
- Validity of appointments made by the Government of Mysore.
Analysis:
The judgment involves fifty-five writ petitions under Art. 32 of the Constitution challenging appointments made by the State of Mysore and the Mysore Public Service Commission. Initially, a competitive examination was announced, but it was later changed to selection based solely on viva voce test results, leading to dissatisfaction among unsuccessful candidates. The Court examined the marks obtained by selected candidates and found discrepancies, with some selected candidates scoring lower than rejected candidates.
The Court scrutinized the selection process and found that sixteen candidates were selected through a compromise before the High Court, including three who had not even attended the viva voce test. The Court concluded that the selection of these candidates could not be sustained due to the lack of merit-based selection. Additionally, the appointments of twenty-four candidates recommended by the Government of Mysore were questioned, as the selection did not appear to be based on merit, raising concerns about the impartiality of the Public Service Commission.
Despite allegations of nepotism, the Court focused on the marks obtained by candidates and concluded that the selection process was flawed. The Court emphasized the importance of merit-based appointments to maintain public trust in the integrity of institutions. Consequently, the Court decided to quash the appointments of the twenty-four candidates recommended by the Government and the sixteen candidates selected through compromise before the High Court.
In a bid to uphold equality and the rule of law, the Court acknowledged the inconvenience caused by overturning appointments but emphasized the importance of ensuring fair and transparent selection processes. The judgment highlighted the significance of upholding meritocracy in public appointments to foster confidence in public institutions. Ultimately, the Court allowed the petitions to the extent indicated, with considerations for the principles of equality and justice.
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1964 (9) TMI 92
Issues Involved:
1. Jurisdiction to demand provident fund contributions for the pre-discovery period.
2. Applicability of the Employees' Provident Funds Act and Scheme retrospectively.
3. Obligation to contribute for employees who left service during the pre-discovery period.
Issue-wise Detailed Analysis:
1. Jurisdiction to Demand Provident Fund Contributions for the Pre-discovery Period:
The petitioner, a partnership concern registered under the Factories Act since 1958, was called upon by the Regional Provident Fund Commissioner to provide information to determine if it fell under the purview of the Employees' Provident Funds Act, 1952. The Commissioner concluded that the petitioner employed 20 persons as of 31 December 1960 and had completed five years of establishment, thus covering it under the Act from 1 January 1961. The petitioner was directed to deposit the employer's share of contributions and administration charges for the period from 1 January 1961 to 31 May 1963, while employees' contributions were left to the workers to pay if they desired. The petitioner contested this retrospective liability, citing judgments from Madras and Calcutta Courts. However, the Punjab High Court upheld the Commissioner's jurisdiction, referencing previous decisions affirming the employer's obligation to contribute from the date the Act became applicable.
2. Applicability of the Employees' Provident Funds Act and Scheme Retrospectively:
The petitioner argued that the Act and Scheme should not apply retrospectively. The Court referenced the case of Prem Narain Aggarwala v. Union of India, where it was held that liability to contribute commenced from the date the scheme came into force, i.e., 1 November 1952. The Court also discussed the Aluminium Corporation of India, Ltd. v. Regional Provident Fund Commissioner case, where retrospective application was deemed contrary to the Act's purposes. However, the Court found no authoritative pronouncement contrary to the Bench's decision in Prem Narain Aggarwala and thus upheld the retrospective application of the Act and Scheme.
3. Obligation to Contribute for Employees Who Left Service During the Pre-discovery Period:
The petitioner contended that contributions should not be demanded for employees who left service during the pre-discovery period. The Court examined the definition of "contribution" and "member" under the Act, noting that the employer was obligated to ensure eligible employees became members of the fund. The Court referenced Paragraph 26 of the Scheme, which required every eligible employee to become a member from the month following the Scheme's enforcement. The Court concluded that the employer had a duty to require employees who fulfilled the conditions to become members, even during the pre-discovery period. The Court acknowledged that disputes regarding the eligibility of specific employees could be resolved by the Commissioner under Paragraph 26B, which provides for a hearing of both employer and employee.
Conclusion:
The Court dismissed all petitions, affirming the Commissioner's jurisdiction to demand contributions for the pre-discovery period and the retrospective applicability of the Act and Scheme. The Court also upheld the obligation to contribute for employees who left service during the pre-discovery period, subject to verification of their eligibility by the Commissioner.
Separate Judgments:
The judgment was delivered jointly by D. Falshaw, C.J., and A.N. Grover, J., with no separate judgments provided.
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1964 (9) TMI 91
Issues Involved:
1. Rejection of the Assessee's return and assessment on a best judgment basis.
2. Dispute over the net income from the sale of sugarcane and claimed expenditures.
3. Inclusion of income belonging to a third party, Rajalingam, in the Assessee's assessment.
4. Appealability and the finality of the Appellate Assistant Commissioner's order of remand.
Detailed Analysis:
1. Rejection of the Assessee's Return and Best Judgment Assessment:
The Assessee challenged the Agricultural Income-tax Officer's decision to reject his accounts and estimate income on a best judgment basis. The Assessee had reported a net loss for the assessment year 1960-61, but the officer disregarded this and made an assessment based on his judgment. The Appellate Assistant Commissioner upheld this decision, and the Tribunal later confirmed that the Assessee's failure to appeal against the initial remand order precluded him from disputing this point in subsequent appeals.
2. Dispute Over Net Income from Sugarcane Sales:
The Assessee argued that his net income from selling sugarcane to a company should be calculated after deducting his claimed expenditure of Rs. 1,460 per acre. The Agricultural Income-tax Officer, however, determined the net income to be Rs. 800 per acre. This decision was upheld by the Appellate Assistant Commissioner and later by the Tribunal, which ruled that the Assessee's omission to appeal against the remand order rendered the decision final and unchallengeable in further appeals.
3. Inclusion of Income Belonging to Rajalingam:
The Assessee contended that income from plantain cultivation in Marudur village, which belonged to Rajalingam, was wrongly included in his assessment. The Appellate Assistant Commissioner agreed that this required further investigation and remanded the case to the Agricultural Income-tax Officer to revise the Appellant's income based on this observation. The officer subsequently deducted Rs. 2,032 attributable to Rajalingam from the net income and issued a revised assessment order.
4. Appealability and Finality of the Remand Order:
The Tribunal's view that the Assessee's failure to appeal against the remand order precluded him from disputing points 1 and 2 was not supported by any authority or provision in the Agricultural Income-tax Act. The judgment referenced Section 105(2) of the Code of Civil Procedure, which restricts appeals from remand orders, but clarified that this does not apply to tax proceedings. The judgment cited the Bombay High Court's view that failure to appeal an interlocutory decision does not preclude challenging its correctness in a final appeal.
The judgment emphasized that the order of remand by the Appellate Assistant Commissioner was interlocutory, affecting only a portion of the assessment data. Thus, the principles laid down in Maharajah Moheshur Singh v. The Bengal Government (1859) 7 M.I.A. 283, which allow for the correction of erroneous interlocutory orders in subsequent appeals, applied. The judgment concluded that the Assessee could challenge the decisions on points 1 and 2 before the Tribunal, as these were not final.
Conclusion:
The revision case was allowed, and the Tribunal's order was set aside. The case was remanded to the Tribunal for reconsideration in light of the judgment's observations, affirming the Assessee's right to challenge the decisions on points 1 and 2 despite not appealing the initial remand order.
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1964 (9) TMI 90
Issues:
Construction of s. 34 with s. 301 of the Indian Penal Code.
Detailed Analysis:
Issue 1: Construction of s. 34 with s. 301 of the Indian Penal Code
The case involved the interpretation of s. 34 and s. 301 of the Indian Penal Code. The High Court found that the common intention of the accused was to kill a specific individual, but due to a mistaken identity, another person was killed. Section 34 imposes liability on individuals for acts done in furtherance of a common intention, and it was established that the accused acted in concert pursuant to a pre-arranged plan. The application of s. 34 requires a united criminal behavior resulting in a punishable offense, and the act must be done in furtherance of the common intention. The judgment discussed various judicial precedents defining the elements necessary for invoking s. 34, emphasizing the need for a pre-arranged plan and the difficulty in proving individual intentions directly.
Issue 2: Impact of s. 301 of the Indian Penal Code
The judgment also analyzed the impact of s. 301 on s. 34. Section 301 deals with the transfer of malice or motive, attributing the intention of causing death to the offender even if the actual victim is different from the intended target. However, in the present case, the accused shot at a specific person with the intention of killing him, albeit under a misapprehension of identity. As a result, the conditions of s. 301 were not met, and the accused were found liable under s. 302, read with s. 34, of the Indian Penal Code. The judgment clarified that s. 301 did not apply in this scenario due to the specific circumstances of the case.
In conclusion, the Supreme Court upheld the decision that all the accused were liable under s. 302, read with s. 34, of the Indian Penal Code. The appeal was dismissed based on the finding that the accused acted in furtherance of a common intention, leading to the criminal act resulting in the death of an unintended victim due to mistaken identity. The judgment provided a detailed analysis of the legal principles governing common intention and the transfer of malice, emphasizing the specific application of these provisions to the facts of the case.
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1964 (9) TMI 89
Issues:
1. Jurisdiction of Deputy Commissioner to revise orders passed by the Appellate Assistant Commissioner after the prescribed period.
2. Interpretation of Section 12(2) and Rule 17(1) of the Madras General Sales Tax Act and Rules, 1939.
3. Application of the principles of natural justice in passing orders.
4. Competency of the Deputy Commissioner to exercise revisional powers.
Analysis:
1. The judgment addresses the issue of whether the Deputy Commissioner has the jurisdiction to revise orders passed by the Appellate Assistant Commissioner after the prescribed period. The court considered the grounds raised by the petitioners, including the time limitation for action on escaped turnover, violation of natural justice, and the authority's competence. The court focused on the time limitation argument for disposal of the case.
2. The court analyzed Section 12(2) and Rule 17(1) of the Madras General Sales Tax Act and Rules, 1939. Section 12 grants wider powers to re-open orders lacking legality or propriety, while Rule 17 deals specifically with escaped turnover. The court emphasized the need for a harmonious construction of the statute and the rule, highlighting that the special power under Rule 17 must be exercised within three years from the end of the assessment year.
3. The judgment did not delve into the application of the principles of natural justice in passing orders, as the case was disposed of based on the time limitation issue. However, it acknowledged the importance of notice and fair procedures in administrative actions.
4. Regarding the competency of the Deputy Commissioner to exercise revisional powers, the court concluded that action on escaped turnover must adhere to the conditions set in Rule 17(1) to maintain finality and avoid overriding the statutory provisions. The court referred to previous decisions supporting the limitation on revising escaped turnover assessments. Ultimately, the court quashed the orders passed by the Deputy Commissioner and allowed the writ applications without costs.
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1964 (9) TMI 88
Issues:
Assessment of income in the hands of Hindu undivided family vs. individual status, validity of gift deed by the karta, applicability of section 16(3)(a)(iv) to Hindu undivided family, consent of minor in gift transaction.
Analysis:
The judgment by the Allahabad High Court involved the assessment of income in the hands of a Hindu undivided family versus individual status. The case revolved around the validity of a gift deed executed by the karta of the family in favor of his minor son and the applicability of section 16(3)(a)(iv) to a Hindu undivided family. The assessee, a Hindu undivided family, underwent a partition, post which a partnership firm was formed with the karta and his sons. The Income-tax Officer assessed the karta as an individual, including the minor sons' share in the firm's income. The Appellate Assistant Commissioner upheld the individual assessment but directed the exclusion of one son's share. The Income-tax Appellate Tribunal determined that the income should be assessed in the hands of the Hindu undivided family, not as an individual. The Tribunal also considered an additional ground raised by the departmental representative regarding the minor son's share, which was admitted and decided in favor of the family.
The assessee sought a reference to the High Court, questioning the Tribunal's decision on various grounds. The High Court considered the validity of the gift deed made by the karta to his minor son. It was established that the gift was valid, and the Tribunal's finding to the contrary was deemed incorrect. The Court relied on precedents stating that alienation by the family manager without legal necessity is voidable, not void, and can be challenged by the coparceners. The Court also rejected the argument that the minor son's consent to the gift was necessary, as the transaction was to his benefit. Additionally, the Court dismissed the Commissioner's argument that section 16(3)(a)(iv) applied, emphasizing that the provision pertains to individual income computation, not applicable to a Hindu undivided family. Therefore, the Court concluded that the minor son's share in the firm's income should not be included in the family's assessment, ruling in favor of the assessee.
In conclusion, the High Court answered the reference question in the negative, stating that the inclusion of the minor son's share income with the karta was not justified in law. The Court directed the Tribunal to receive a copy of the judgment and awarded costs to the assessee.
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1964 (9) TMI 87
Issues Involved:
1. Cancellation of the quarry lease.
2. Rejection of the application for the transfer of the lease.
3. Alleged failure to maintain proper accounts.
4. Alleged unauthorized transfer of the lease.
5. Opportunity for hearing and procedural fairness.
6. Validity of the grounds for rejection of the transfer application.
Detailed Analysis:
1. Cancellation of the Quarry Lease:
The lease was canceled on two grounds: unauthorized transfer of the lease and failure to maintain proper accounts. The court found that the agreements between the lessee and third parties did not constitute a legal transfer or assignment of the lease. The agreements were for the extraction and sale of limestone, which were not prohibited by the lease or the relevant rules. Thus, the ground of unauthorized transfer was without foundation. Regarding the failure to maintain accounts, the court noted that no notice was given to the lessee to remedy the breach within 30 days as required by Rule 25(1)(xvi) of the Madhya Pradesh Minor Mineral Rules, 1961. Therefore, the cancellation on this ground was illegal and contrary to the statutory rule.
2. Rejection of the Application for the Transfer of the Lease:
The lessee's application for transferring the lease was rejected on the grounds of "strong speculations in the proposed transaction." The court found this reason to be vague and unsupported. The agreements in question were legal and did not violate Rule 18 or Condition No. 9 of the lease. The refusal to grant sanction for the transfer was arbitrary and lacked a rational connection to the property leased or the character of the proposed assignee. The court held that the State Government failed to exercise the discretion given to it by Rule 18 properly.
3. Alleged Failure to Maintain Proper Accounts:
The court noted that the lease was subject to Rule 25(1)(viii) and (xvi) of the Madhya Pradesh Minor Mineral Rules, 1961, which required the lessee to maintain correct accounts and provided a specific procedure for addressing breaches. No notice was given to the lessee to remedy the breach, making the cancellation on this ground illegal. The court emphasized that the lessee should have been given an opportunity to remedy the breach within 30 days before any action could be taken.
4. Alleged Unauthorized Transfer of the Lease:
The court found that the agreements between the lessee and third parties did not amount to a legal transfer, assignment, or subletting of the lease. The agreements were for the extraction and sale of limestone and did not involve the lessee giving up his rights or privileges under the lease. The State Government's contention that these agreements constituted a transfer was rejected.
5. Opportunity for Hearing and Procedural Fairness:
The court noted that the lessee was not given a proper opportunity to present his case or produce his account books. The Sub-Divisional Officer, Additional Collector, and Commissioner did not provide the lessee with an opportunity for a personal hearing. The lack of procedural fairness further invalidated the cancellation of the lease.
6. Validity of the Grounds for Rejection of the Transfer Application:
The court held that the grounds for rejecting the transfer application were arbitrary and lacked a rational basis. The State Government's refusal to grant sanction was based on an incorrect interpretation of the agreements and was not in accordance with the principles of reason and justice. The court directed the State Government to reconsider the lessee's application for transfer according to law.
Conclusion:
The court allowed both petitions, quashing the orders dated 7th April 1964 and 20th February 1964. The State Government was directed to determine the lessee's application for the transfer of the lease according to law. The lessee was awarded costs for the two applications, and the outstanding security deposit was ordered to be refunded.
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1964 (9) TMI 86
Issues Involved:
1. Whether the amount of Rs. 31,305 covered by the two drafts brought into the taxable territories during the previous year relevant for the assessment year 1948-49 was liable to tax under the Indian Income-tax Act, 1922, despite being encashed after the accounting period had closed.
Detailed Analysis:
Issue 1: Taxability of the Amount Brought into India
Question Presented:
"Whether the amount of Rs. 31,305 covered by the two drafts which the assessee had brought into the taxable territories during the previous year relevant for the assessment year 1948-49 was liable to tax under the Indian Income-tax Act, 1922, though the drafts were encashed on the 26th April, 1948, after the accounting period had closed?"
Facts:
- The assessee left India in 1935 for New Zealand and earned some money there.
- He brought this money to India via two drafts from the New Zealand Bank, drawn on the Chartered Bank, Amritsar.
- The drafts were for Rs. 21,752 (in the name of the assessee) and Rs. 9,553 (in the name of his wife).
- The assessee arrived in India on 8th/9th March, 1948, and the drafts were cashed on 26th April, 1948.
- The Income-tax Department assessed the amount under section 4(1)(b)(iii) of the Income-tax Act for the assessment year 1948-49.
Contentions:
- Assessee's Argument: The income should be treated as brought into India in the subsequent year (assessment year 1949-50) because the drafts were encashed in April 1948, during the accounting period of the subsequent year.
- Department's Argument: Bringing in the drafts is tantamount to bringing in the money into the taxable territories. The encashment of a draft relates back to the date of receipt of the draft, similar to the treatment of cheques.
Relevant Legal Provisions:
- Section 4(1)(b)(iii) of the Indian Income-tax Act, 1922, which includes income "having accrued or arisen to him without the taxable territories before the beginning of such year and after the 1st day of April, 1933, are brought into or received in the taxable territories by him during such year."
Court's Analysis:
- The court noted that the distinction between "received" and "brought in" is crucial.
- Referring to the Supreme Court's decision in Dharamdas Hargovandas's case, it was observed that the meaning of "received" must be understood in the context of clause (b)(iii), which deals with income accrued outside the taxable territories and brought into the taxable territories in the previous year.
- The court emphasized that the income, though accrued outside, must have been received there and later brought into the taxable territories.
Key Judgments Referenced:
- Ogale Glass Works Ltd. Case: It was held that the delivery of a cheque is conditional payment, and once cashed, the payment dates back to the receipt of the cheque.
- Dharamdas Hargovandas Case: It was concluded that income brought into the taxable territories need not be in the same shape as initially received; it could be in the form of a draft or other negotiable instrument.
Conclusion:
- The court concluded that the money was effectively received or brought into the taxable territories when the assessee entered India with the drafts.
- The analogy of the Supreme Court's decision in Ogale Glass Works' case was applied, determining that the receipt of the drafts in the taxable territories during the assessment year 1948-49 constituted bringing in the income.
- Therefore, the amount was liable to tax under the Indian Income-tax Act for the assessment year 1948-49.
Final Judgment:
- The question referred to the court was answered in the affirmative, confirming the tax liability for the assessment year 1948-49.
- No order as to costs was made due to the complex nature of the question and the circumstances of the case.
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1964 (9) TMI 85
Issues Involved:
1. Whether the illegal seizure of cattle under Section 10 of the Cattle Trespass Act, 1871 amounts to the offence of theft or robbery.
2. Whether the complainant party had the right to use force to rescue the cattle.
3. Whether the appellants had the right of private defence in causing injuries and death.
Detailed Analysis:
1. Illegal Seizure of Cattle and Offence of Theft or Robbery:
The primary issue was whether the illegal seizure of cattle under Section 10 of the Cattle Trespass Act, 1871, constitutes theft or robbery. The court determined that the seizure of cattle by the appellants, even if illegal, did not amount to theft. The court noted that for an act to be considered theft under Section 378 of the Indian Penal Code, it must involve moving movable property out of someone's possession without consent and with dishonest intention. The court found that the appellants seized the cattle under the mistaken belief that they were damaging crops and intended to take them to the pound, as directed by the Act. The court emphasized that the Act provides comprehensive remedies for illegal seizure through Chapter V, which deals with complaints, compensation, and penalties, but does not criminalize the act of illegal seizure itself. Therefore, the appellants' actions did not constitute theft or robbery.
2. Right to Use Force to Rescue Cattle:
The court examined whether the complainant party had the right to use force to rescue the cattle. The High Court had held that the prosecution party had the right of private defence of property and could use force to recover their cattle, subject to the limitation that excessive force should not be used. However, the Supreme Court disagreed, stating that since the seizure was not theft, the complainant party had no right to use force to rescue the cattle. The court emphasized that the remedy for illegal seizure is provided under Section 20 of the Act, which allows the aggrieved party to make a complaint to the Magistrate and seek compensation.
3. Right of Private Defence in Causing Injuries and Death:
The court also addressed whether the appellants had the right of private defence in causing injuries and the death of a member of the complainant party. The court accepted the findings of the High Court that the plot was in the possession of Shamnarain Singh and that the seizure was illegal. However, it concluded that the appellants had a reasonable apprehension of suffering grievous hurt or death at the hands of the complainant party, who were armed and determined to rescue the cattle. The court found that the complainant party's aggressive actions justified the appellants' use of force in self-defence. Consequently, the court held that the appellants committed no offence in causing injuries and death.
Conclusion:
The Supreme Court allowed the appeal, setting aside the convictions of the appellants under Sections 302 and 326 of the Indian Penal Code, as well as other offences. The court ordered the release of the appellants from custody, concluding that their actions did not amount to theft or robbery, and they were justified in exercising their right of private defence.
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1964 (9) TMI 84
Issues Involved:
1. Relevant date for determining the character of the property under Section 7(1) of the Administration of Evacuee Property Act, 1950.
2. Retrospective operation of the declaration of evacuee property.
3. Conflict between the Administration of Evacuee Property Act and the Provincial Insolvency Act.
4. Interpretation of Section 7(1) of the Administration of Evacuee Property Act.
5. Impact of the death of an alleged evacuee on proceedings under Section 7(1).
Issue-wise Detailed Analysis:
1. Relevant Date for Determining the Character of the Property:
The primary issue is the relevant date by reference to which the character of the property must be determined when issuing a notification of evacuee property under Section 7(1) of the Administration of Evacuee Property Act, 1950. The Supreme Court held that the determination of the character of the property must be made at the time of the declaration under Section 7(1). If the property is not evacuee property at the relevant time, no declaration can be made under Section 7(1), and there would be no scope for the retrospective operation of the vesting of the property in the Custodian under Section 8(1).
2. Retrospective Operation of the Declaration of Evacuee Property:
The appellants argued that the vesting of the evacuee property in the Custodian should take effect from the date the evacuee migrated to Pakistan, even if the declaration was made later. The Court, however, clarified that Section 8(1) provides for a statutory consequence of a valid declaration made under Section 7(1). Therefore, Section 8(1) cannot be used to interpret Section 7(1), and the property must be evacuee property at the time of the declaration.
3. Conflict Between the Administration of Evacuee Property Act and the Provincial Insolvency Act:
The appellants contended that the provisions of the Administration of Evacuee Property Act should prevail over the Provincial Insolvency Act due to Section 4(1) of the former. The Court rejected this argument, stating that there is no inconsistency between the relevant provisions of the two Acts. Section 28(7) of the Provincial Insolvency Act, which states that the insolvent's property vests in the Official Receiver from the date of the petition, does not conflict with Sections 7(1) and 8 of the Administration of Evacuee Property Act.
4. Interpretation of Section 7(1) of the Administration of Evacuee Property Act:
The Court emphasized that Section 7(1) requires the Custodian to form an opinion that the property is evacuee property at the time of the declaration. The property must bear the character of evacuee property when the opinion is formed. The Court rejected the appellants' argument that the property's status should be determined based on its status at the time of the evacuee's migration, as this would lead to anomalous results and defeat the purpose of the Act.
5. Impact of the Death of an Alleged Evacuee on Proceedings Under Section 7(1):
The Court discussed the impact of the death of an alleged evacuee on proceedings under Section 7(1), referencing the case of Ebrahim Aboobaker v. Tek Chand Dolwani. The Court noted that Section 7(1A) was added to allow the continuation of proceedings even after the death of the alleged evacuee. However, this provision does not authorize the commencement of proceedings after the death of the alleged evacuee. The High Court's reliance on this case was deemed irrelevant for construing Section 7(1) in the present context.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and dismissing the writ petition filed by the respondent. The Court held that the relevant date for determining the character of the property under Section 7(1) is the date of the declaration, and the property must be evacuee property at that time. The Court also clarified that there is no conflict between the Administration of Evacuee Property Act and the Provincial Insolvency Act, and that Section 7(1) should be interpreted in light of the Act's purpose and other relevant provisions.
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1964 (9) TMI 83
Issues Involved:
1. Exemption under Rule 3(26) of the Bengal Sales Tax Rules, 1941
2. Exemption under Rule 3(28)(a) of the Bengal Sales Tax Rules, 1941
3. Ultra vires and unconstitutionality of Rule 3(28)(a)
4. Contravention of Article 19(1)(g) of the Constitution
5. Article 14 of the Constitution
6. Principles of natural justice
Issue-wise Detailed Analysis:
1. Exemption under Rule 3(26) of the Bengal Sales Tax Rules, 1941:
The petitioner claimed exemption for sales of handloom-woven cotton cloth under Rule 3(26). The court found that the petitioner was barred from obtaining relief under Article 226 because the claim for exemption was rejected based on a factual finding by the Commercial Tax Officer. The petitioner failed to show that the goods were manufactured on handloom, and did not pursue the available administrative remedies. The court cited "Shri Ambica Mills Co. Ltd. v. S. B. Bhatt" to support this position, concluding that the petitioner's case on this point must fail.
2. Exemption under Rule 3(28)(a) of the Bengal Sales Tax Rules, 1941:
The petitioner sought exemption for sales of cotton fabrics under Rule 3(28)(a), which required proof that additional excise duty had been paid under the Central Act of 1957. The petitioner produced some certificates but failed to provide evidence for goods produced by manufacturers with fewer than four power-looms, which were exempt from additional excise duty. The Commercial Tax Officer disallowed the deduction for these goods, leading to the disputed assessment.
3. Ultra vires and unconstitutionality of Rule 3(28)(a):
The petitioner contended that the restrictive words "on which duty has been paid" in Rule 3(28)(a) were ultra vires and unconstitutional. The court referred to its previous judgment in "Dilip Mukherjee v. C. T. O." and concluded that the imposition of sales tax at a rate exceeding 2% was ultra vires and unconstitutional, as it was inconsistent with Section 15 of the Central Sales Tax Act, 1956, and Article 286(3) of the Constitution. The court held that the impugned assessment was invalid from April 1, 1958, as Section 15 of the Central Sales Tax Act circumscribed the validity of Section 5(1) of the Bengal Act.
4. Contravention of Article 19(1)(g) of the Constitution:
The court established that an imposition of sales tax that offends against Article 286 of the Constitution or is otherwise ultra vires will also fail for contravention of Article 19(1)(g). The petition succeeded on this additional ground due to the inconsistency with Article 286(3) and Section 7 of the Central Act of 1957.
5. Article 14 of the Constitution:
The petitioner argued that the levy of sales tax on cotton fabrics produced by not more than four power-looms was discriminatory and violated Article 14. The court rejected this contention, stating that the two imposts (additional excise duty and sales tax) were levied by two independent legislatures, and Article 14 could not be invoked due to inequality resulting from laws made by different legislatures, citing "State of M.P. v. G. C. Mandawar."
6. Principles of natural justice:
The petitioner claimed that the refusal of the Commercial Tax Officer to summon Excise Department officials violated the principles of natural justice. The court found no substance in this claim, as the petitioner did not argue that additional excise duty was paid but rather that it was not payable due to the goods being produced by establishments with fewer than four power-looms.
Conclusion:
The court concluded that the assessment regarding cotton fabrics was invalid due to its inconsistency with Article 286(3) of the Constitution and the Central Act of 1957. The petition succeeded in part, with the court issuing a mandamus directing the respondents not to enforce the impugned assessment order without deducting Rs. 3,00,000 from the petitioner's gross turnover. The assessment concerning handloom cloth was deemed separate and severable, and the rule was made absolute in part with no order as to costs.
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1964 (9) TMI 82
Issues involved:
1. Validity of notice served under section 34 of the Income-tax Act within the prescribed period.
2. Interpretation of the law regarding the service of notice under section 34 after the expiry of the 8-year period.
3. Jurisdiction of the court to consider a question of law not raised before the Tribunal.
Detailed Analysis:
1. The case involves a dispute regarding the service of a notice under section 34 of the Income-tax Act to a Hindu undivided family for the assessment year 1945-46. The notice was initially attempted to be served through affixture on 30th March, 1954, and later by registered post on 31st March, 1954. The validity of the service was challenged by the assessee, leading to a series of appeals. The Appellate Assistant Commissioner deemed the service defective, while the Income-tax Appellate Tribunal upheld the service as proper under Order V, rule 20, of the Code of Civil Procedure. The key issue was whether the service by affixture without pasting a copy on a conspicuous place was valid within the prescribed period.
2. The judgment referred to a Supreme Court decision regarding the interpretation of section 4 of the Indian Income-tax (Amendment) Act, 1959, which aimed to save the validity of notices issued under section 34(1)(a) even if served after the 8-year period. The Supreme Court rulings clarified that notices issued under section 34(1)(a) before or after April 1, 1956, could not be challenged based on the time limit of 8 years. The Commissioner of Income-tax relied on these decisions to argue that the notice served in this case could still be valid even after the prescribed period.
3. The judgment delved into the jurisdiction of the court to consider a question of law not raised before the Tribunal. It emphasized that the court's role is advisory, limited to questions referred by the Tribunal, and arising out of its order. The court can only address questions raised before or decided by the Tribunal. In this case, the court concluded that the new question raised by the Commissioner of Income-tax was neither raised nor considered by the Tribunal, precluding its consideration at this stage. The judgment highlighted the importance of adhering to the questions framed by the Tribunal in the context of advisory jurisdiction.
In conclusion, the High Court upheld the previous Bench decision and answered the referred question in the negative, emphasizing the limitations on raising new questions of law not previously addressed by the Tribunal. The judgment provided a comprehensive analysis of the issues surrounding the validity of the notice served under section 34 and the interpretation of relevant legal provisions and precedents.
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1964 (9) TMI 81
Issues Involved:
1. Exemption under section 4(3)(vi) of the Income-tax Act.
2. Nature of the 5% commission received by the assessee.
3. Whether the assessee held an office or employment of profit within the meaning of section 4(3)(vi).
Issue-wise Detailed Analysis:
1. Exemption under section 4(3)(vi) of the Income-tax Act:
The primary issue was whether the amount of Rs. 1,90,538 received by the assessee during the accounting year was exempt from tax under section 4(3)(vi) of the Income-tax Act. The Tribunal had ruled in favor of the assessee, stating that the 5% commission was a special allowance specifically granted to meet contingency expenses, and thus exempt under section 4(3)(vi). The High Court of Bombay initially upheld this view, but the Supreme Court remitted the case back to the High Court to direct the Tribunal to state a case on whether the 5% commission or the unexpended portion thereof was exempt under section 4(3)(vi).
2. Nature of the 5% commission received by the assessee:
The learned Advocate-General contended that the 5% commission did not represent a special allowance specifically granted to meet particular expenses. However, the Tribunal and subsequently the High Court found that the 5% commission was indeed a special allowance for meeting contingency expenses such as commissions to dyeing masters and agents. The agreement dated 29th October 1928, and the letter dated 20th August 1935, clarified that the 5% was compensation for such expenses, thus qualifying it as a special allowance under section 4(3)(vi).
3. Whether the assessee held an office or employment of profit within the meaning of section 4(3)(vi):
The High Court initially ruled that the assessee, as the selling agent for Ciba (India) Limited, held an office of profit. This decision was based on the precedent set in Tejaji Farasram Kharawalla's case. The Supreme Court did not disturb this finding but remitted the case to address the comprehensive question of whether the 5% commission was exempt. The High Court reaffirmed that the assessee held an office of profit, rejecting the Advocate-General's argument that the term "office or employment of profit" implied a subsisting, permanent, substantive position.
Conclusion:
The High Court concluded that the 5% commission received by the assessee was a special allowance specifically granted for meeting contingency expenses and was exempt under section 4(3)(vi). Additionally, the assessee held an office of profit within the meaning of section 4(3)(vi). The reference was answered in favor of the assessee, and the Commissioner was directed to pay the costs of the assessee.
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1964 (9) TMI 80
Issues Involved:
1. Assessability of interest on securities issued by the erstwhile Indian States of Travancore and Cochin.
2. Inclusion of dividend from shares held by the assessee in Vibhuti Glass Works Ltd. in the total income for the assessment year 1951-52.
Issue-wise Detailed Analysis:
1. Assessability of Interest on Securities:
The primary issue was whether the interest on securities issued by the erstwhile Indian States of Travancore and Cochin is assessable under section 8 or section 12 of the Income-tax Act, 1922. The assessee argued that these securities should be considered as securities of the Kerala State, which succeeded the erstwhile States of Travancore and Cochin. However, the court noted that the State of Kerala did not exist at the time of assessment and was formed later. The alternative argument presented by the assessee was that the securities should be considered as those issued by the Part B States of Travancore-Cochin, and hence, the liability for tax payment should be on the successor state, Kerala, not on the assessee.
The court examined section 3(60) of the General Clauses Act, which defines "State Government," and section 3(24), which defines "Government securities." The court concluded that the securities issued by the erstwhile States of Travancore and Cochin could not be deemed to be Government securities as per section 3(24) of the General Clauses Act, which expressly excludes securities issued by a Part B State. Consequently, the interest on these securities would not be assessable under section 8 of the Act, which pertains to "Interest on securities." Instead, it would fall under section 12 of the Act, which deals with "Income from other sources."
The court thus answered the first question in the affirmative, against the assessee and in favor of the department, stating that the interest on securities issued by the erstwhile States of Travancore and Cochin is assessable under section 12 of the Act.
2. Inclusion of Dividend in Total Income:
The second issue was whether the dividend of Rs. 23,000 in respect of shares held by the assessee in Vibhuti Glass Works Ltd. is liable to inclusion in the total income for the assessment year 1951-52 under section 16(2) or section 4(1)(b) of the Act. The resolution of Vibhuti Glass Works Ltd. indicated that the dividend was to be paid only if the court allowed it, and the right of the bank to receive the dividend was in dispute.
The court reviewed the resolution and the certificate issued by Vibhuti Glass Works Ltd., which stated that the amount had not been paid but provisionally kept for payment pending litigation. The Tribunal had concluded that the amount stood credited to the assessee, but the court disagreed, stating that the resolution clearly showed that the amount was conditional on the outcome of litigation. The balance-sheet did not show an actual credit of the amount in favor of the bank, and the certificate confirmed that the amount had not been paid or credited.
Therefore, the court held that the sum of Rs. 23,000 could not be deemed to have been credited to the assessee under section 16(2) of the Act. The court answered the second question in the negative, in favor of the assessee and against the department, stating that the dividend of Rs. 23,000 is not liable to inclusion in the total income of the company for the assessment year 1951-52 under section 16(2) or section 4(1)(b) of the Act.
Conclusion:
For the first issue, the court ruled in favor of the department, stating that the interest on securities issued by the erstwhile States of Travancore and Cochin is assessable under section 12 of the Act. For the second issue, the court ruled in favor of the assessee, stating that the dividend of Rs. 23,000 is not liable to inclusion in the total income for the assessment year 1951-52 under section 16(2) or section 4(1)(b) of the Act. The parties were directed to bear their own costs, with the counsel's fee for the department fixed at Rs. 200.
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1964 (9) TMI 79
Issues Involved:
1. Admissibility of compensation payments to ex-agents as deductions against assessee's profits.
2. Whether the compensation payments were an appropriation of profits.
3. Applicability of the real income theory.
4. Whether the compensation payments were capital expenditure.
5. Interpretation of the agreement between the assessee and I.C.I. (Exports) Ltd.
Detailed Analysis:
1. Admissibility of Compensation Payments to Ex-Agents as Deductions Against Assessee's Profits:
The Income-tax Officer disallowed the deductions of compensation payments made to ex-agents, amounting to Rs. 2,03,503, Rs. 5,41,526, Rs. 5,29,284, and Rs. 4,00,052 for the assessment years 1949-50 to 1952-53, respectively. The officer held that these payments were not admissible deductions against the assessee's profits. The Appellate Assistant Commissioner and the Tribunal upheld this decision. The court examined the agreement between the assessee and I.C.I. (Exports) Ltd. and determined that the assessee's income was the difference between the commission at normal rates and the compensation payable to the ex-agents.
2. Whether the Compensation Payments Were an Appropriation of Profits:
The court evaluated whether the payments to ex-agents were an appropriation of profits. It was argued that the compensation payments were made from the profits already earned by the assessee. However, the court found that the compensation payments were not an appropriation of profits but were part of the agreement between the assessee and I.C.I. (Exports) Ltd. The court concluded that the payments were made before the profits reached the assessee and thus could not be considered an appropriation of profits.
3. Applicability of the Real Income Theory:
The court discussed the real income theory, which states that tax is levied on the actual income that reaches the assessee. The court noted that the assessee's income should be determined based on the agreement, which specified that the assessee would receive a reduced commission for the first three years. The court held that the compensation payments to ex-agents were not part of the assessee's real income, as they were diverted by an overriding title before reaching the assessee.
4. Whether the Compensation Payments Were Capital Expenditure:
The Commissioner of Income-tax argued that the compensation payments were capital expenditure and not deductible under section 10(2)(xv) of the Income-tax Act, 1922. The court examined the nature of the payments and concluded that they were not capital expenditure. The payments were made to fulfill the terms of the agreement and were necessary for the assessee to carry on its business. Therefore, the court held that the payments were deductible as business expenditure.
5. Interpretation of the Agreement Between the Assessee and I.C.I. (Exports) Ltd.:
The court analyzed the agreement between the assessee and I.C.I. (Exports) Ltd., which specified that the assessee would receive a reduced commission for the first three years. The court found that the agreement was valid and binding. The court held that the assessee's income should be calculated based on the reduced commission specified in the agreement and not on the full commission. The court concluded that the compensation payments to ex-agents were made in accordance with the agreement and should not be included in the assessee's total income.
Conclusion:
The court answered the reference question in the negative, stating that the inclusion of Rs. 2,03,503, Rs. 5,41,526, Rs. 5,29,284, and Rs. 4,00,052 in the assessment for the years 1949-50, 1950-51, 1951-52, and 1952-53, respectively, in the computation of the total income of the assessee, was not justified. The court emphasized that the assessee's income during the first three years should be determined strictly in accordance with the agreement between I.C.I. (Exports) Ltd. and its former agents, and not based on the book entries maintained by the assessee. The respondent was ordered to pay the costs of the reference to the appellant.
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1964 (9) TMI 78
Issues Involved:
1. Validity of assessments for the years 1950-51, 1951-52, and 1952-53.
2. Application of the second proviso to section 34(3) and its constitutionality under Article 14 of the Constitution.
3. Jurisdiction of the Income-tax Officer under section 34(1) and the effect of the Appellate Assistant Commissioner's findings.
4. Whether the original returns filed by the assessees were still pending and the implication of "no assessment" remarks.
Issue-wise Detailed Analysis:
1. Validity of Assessments for the Years 1950-51, 1951-52, and 1952-53:
The main question was whether the assessments for the years 1950-51, 1951-52, and 1952-53 were valid. The Income-tax Officer issued notices under section 34(1) for all three years, claiming that the income had escaped assessment. The validity of these notices was challenged on the grounds of limitation. The court concluded that the assessments for 1950-51 and 1951-52 were invalid as the notices were issued beyond the permissible period. However, the assessment for 1952-53 was deemed valid since the notice was issued within four years from the end of the assessment year.
2. Application of the Second Proviso to Section 34(3) and Its Constitutionality:
The second proviso to section 34(3) removes the time-limit for reassessment in cases where an appellate authority has made a finding or direction. The proviso was challenged as discriminatory under Article 14 of the Constitution. The court referred to the Supreme Court's majority view in Prashar v. Vasantsen Dwarkadas, which held that the proviso was invalid only insofar as it applied to third parties. Thus, the proviso was upheld as valid for the assessees who were actual parties to the appeal.
3. Jurisdiction of the Income-tax Officer Under Section 34(1) and the Effect of the Appellate Assistant Commissioner's Findings:
The Appellate Assistant Commissioner had accepted the partition between Karuppan Chettiar and his son, necessitating individual assessments. The court held that the second proviso to section 34(3) allowed the Income-tax Officer to reassess Karuppan Chettiar individually, as he was a party to the appeal. The court concluded that the proceedings initiated against Karuppan Chettiar on March 2, 1957, were valid.
4. Whether the Original Returns Filed by the Assessees Were Still Pending:
It was argued that the original returns filed by Muthukaruppan Chettiar should be deemed pending because they were closed with a "no assessment" remark. The court held that the "no assessment" remark constituted a lawful termination of the assessment proceedings, thereby allowing the Income-tax Officer to initiate proceedings under section 34. The court cited M. Ct. Muthuraman v. Commissioner of Income-tax to support this view.
Conclusion:
- The assessments for the years 1950-51 and 1951-52 were invalid due to the expiration of the limitation period.
- The assessment for the year 1952-53 was valid as the notice was issued within the permissible period.
- The second proviso to section 34(3) was upheld as valid for the assessees who were parties to the appeal, thereby allowing reassessment without a time-limit.
- The original returns were not pending, and the "no assessment" remark did not prevent the initiation of proceedings under section 34.
The court answered the questions accordingly, affirming the validity of the assessment for 1952-53 and invalidating the assessments for 1950-51 and 1951-52. Costs were awarded to the department for T.C. No. 157 of 1960, while no costs were ordered for T.C. No. 156 of 1960.
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1964 (9) TMI 77
Issues Involved:
1. Whether the income of the assessee derived from properties held by it is exempt from tax under section 4(3)(i) of the Income-tax Act, 1922.
2. Whether the properties are held under trust or legal obligation wholly for religious or charitable purposes.
3. Whether the purposes of the wakf are public or private, and whether they benefit the community or a section of the community.
4. Whether the decision of the Charity Commissioner under the Bombay Public Trusts Act, 1950, is binding on the revenue authorities.
Detailed Analysis:
Issue 1: Exemption under Section 4(3)(i)
The primary question revolves around whether the income derived from the properties held by the assessee is exempt from tax under section 4(3)(i) of the Income-tax Act, 1922. The Tribunal initially held that the properties were wakf properties and that the income was not exempt under section 4(3)(i) because the benefit of the wakf was confined exclusively to the Murids, who did not constitute a section of the community. The Tribunal concluded that the properties were held under a legal obligation but not for public charitable or religious purposes.
Issue 2: Properties Held Under Trust or Legal Obligation
The Tribunal found that the properties were held under a legal obligation, even though they may not have been held under a trust. The properties were recognized as wakf in revenue records and were managed by a committee appointed by the general body of Murids. The Tribunal accepted that the properties were held for the benefit of the Murids, but the benefit was not public in nature.
Issue 3: Public or Private Purposes of the Wakf
The Tribunal held that the Murids did not constitute a section of the community and were merely a fluctuating body of private individuals. The Tribunal relied on the test laid down by the House of Lords in Oppenheim v. Tobacco Securities Trust Co. Ltd., which stated that a class of beneficiaries must not be defined by personal relationships to a particular individual. Since the Murids were disciples of the saint and their descendants, the relationship was personal and not impersonal, thus failing the test of public benefit.
Issue 4: Decision of the Charity Commissioner
The Tribunal noted that the decision of the Charity Commissioner under the Bombay Public Trusts Act, 1950, which held the wakf to be a public trust, was not binding on the revenue authorities. The inquiry by the Charity Commissioner is of a different character from the inquiry under the Income-tax Act, and the revenue authorities are not precluded from examining whether the terms of section 4(3)(i) are satisfied.
Conclusion:
The High Court concluded that the income derived from the properties held by the assessee is not exempt from tax under section 4(3)(i). The properties were held under a legal obligation, but the purposes of the wakf were not public in nature. The Murids did not constitute a section of the community, and the purposes of the wakf included the maintenance of Madrassas and a library, which were not wholly religious purposes. Therefore, the claim for exemption was not well-founded. The decision of the Charity Commissioner was not binding on the revenue authorities, and the assessee's claim for exemption was rejected.
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1964 (9) TMI 76
Issues Involved:
1. Maintainability of the suit and cause of action.
2. Plaintiff's title to the property.
3. Validity of the two registered deeds from 1946 and 1948.
4. Whether the lease deed of 1953 was nominal and not intended to be operative.
5. Applicability of Section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947.
6. Determination of tenancy and requirement of notice under Section 111(g) of the Transfer of Property Act.
7. Plea of absence of notice raised for the first time in appeal.
Detailed Analysis:
1. Maintainability of the Suit and Cause of Action:
The defendant contested the suit's maintainability and claimed there was no cause of action. The trial court found the suit maintainable and held that there was a valid cause of action for the plaintiff to seek eviction and arrears of rent. The appellate court upheld this finding, emphasizing that the plaintiff's right to re-enter the premises was triggered by the defendant's breach of lease conditions.
2. Plaintiff's Title to the Property:
The defendant argued that the plaintiff was not the owner of the premises, claiming that he had taken a permanent settlement of the land under the names of the plaintiff due to familial concerns. The trial court found in favor of the plaintiff, confirming his ownership and the validity of the lease agreement dated 2nd December 1953. The appellate court did not challenge this finding, as it was a question of fact.
3. Validity of the Two Registered Deeds from 1946 and 1948:
The defendant asserted that the two registered deeds were taken in the plaintiff's name as a "benami" transaction. The trial court rejected this claim, holding that the deeds were valid and the plaintiff was the rightful owner. This finding was upheld on appeal, with no challenge to the factual determination.
4. Whether the Lease Deed of 1953 Was Nominal and Not Intended to Be Operative:
The defendant claimed that the lease deed executed on 2nd December 1953 was a sham and never intended to be operative. The trial court found the lease to be genuine and operative, a finding that was not contested on appeal.
5. Applicability of Section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947:
The trial court held that Section 6 of the Bihar Buildings Control Act had been repealed and thus did not bar the suit. This finding was not contested in the appeal.
6. Determination of Tenancy and Requirement of Notice under Section 111(g) of the Transfer of Property Act:
The defendant argued that the plaintiff had not determined the lease by giving a notice in writing as required under Section 111(g) of the Transfer of Property Act. The court noted that the suit was instituted the day after the default in rent payment, leaving no time for notice. The court held that the right to possession accrued on forfeiture, but the right to recover possession required a decree for eviction. The court concluded that the cause of action was the accrual of the right to possess the premises on forfeiture.
7. Plea of Absence of Notice Raised for the First Time in Appeal:
The plea of absence of notice was raised for the first time in the second appeal. The court emphasized that under Order 8, Rule 2 of the Civil Procedure Code, the defendant must raise all matters showing the suit's non-maintainability in the written statement. The court held that the defendant's failure to raise the issue of notice during the trial or in the first appellate court precluded him from raising it in the second appeal. The court cited precedents to support the principle that inconsistent defenses based on contradictory facts are generally not permitted.
Conclusion:
The court dismissed the appeal, affirming the trial court's judgment and decree. The court held that the defendant's plea of absence of notice was not maintainable as it was raised for the first time in the second appeal. The plaintiff was entitled to evict the defendant and recover arrears of rent due to the breach of lease conditions. The judgment was concurred by both judges.
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