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1951 (6) TMI 25
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... ... ..... ity of the necessary medical treatment and reasonable amenities have also to be borne in mind. 17. In the result, while we recommend to the Government that adequate facilities and more genial surroundings be afforded to the petitioner or he be permitted to have them as far as possible subject to the discipline of the jail, we dismiss the petitions of Fazl Nawaz Jung. 18. As regards the other applicant Abdul Hamid Khan, the considerations and remarks already made apply to him also, except that he is suffering from Spondylitis and Osteo-Arthrities. Dr. Waghrey deposes that it is a disease common with advancing age, that the treatment is mostly palliative and that there is no special treatment for it which cannot be administered in jail. We dismiss his petitions also, while at the same time recommending to the Government that he also may be afforded more genial surroundings and amenities as could reasonably be given. 19. in the result, therefore, all the petitions are dismissed.
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1951 (6) TMI 24
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... ... ..... rs to me that when that is done "a specific legal remedy" means a remedy which will give the person complaining the specific relief or the precise or particular relief which he will obtain in a mandamus or in an application under Section 45, Specific Relief Act. 47. That being so the view of Banerjee, J., that the Court should not, on the facts of this case issue an order under Section 45, Specific Relief Act was right and must be maintained. A suit filed either at Ali-pore or on the Original Side of this Court would have obtained for the appellant the precise relief which he sought for, namely, a restoration of the water connection. A mandatory injunction could have been granted and such would have been in every respect as convenient, effective and beneficial as an order under Section45, Specific Relief Act. 48. For these reasons the application was rightly dismissed by Banerjee, J., and accordingly the appeal fails and is dismissed with costs. Das, J. 49. I agree.
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1951 (6) TMI 23
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... ... ..... uch further information, as it may deem necessary, from the appropriate Government or from the person concerned, and, if in any particular case it considers it essential, after hearing him in person, Submit its report to the appropriate Government. It is clear, therefore, that the question whether the Advisory Board should call for any further information from the detenue or should give him an opportunity of being heard in person is left entirely to the discretion of the Advisory Board, It is not incumbent upon the Board to give an opportunity to the detenue to make a representation to them, nor is it incumbent upon them to hear him in person. Therefore, in this particular submission also of Mr. Sule viz. that no opportunity was given to the detenue for making a representation to the Advisory Board and that therefore the detention from that point onward is bad, we find no substance. 41. The net result, therefore, is that the application deserves to fail and must be dismissed.
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1951 (6) TMI 22
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... ... ..... orities it appears to me that the correct interpretation of Section 34 is that the evasion or escape of Income Tax must be discovered as a consequence of fresh price of definite information received by the Income Tax Officer and where the Income Tax Officer has already completed an assessment upon certain date he cannot use the same date for revising assessment under Section 34. The figure received from Ahmedabad in the present cases cannot use the same data for revising assessment under Section 34. The figure received from Ahmedabad in the present case cannot be said to constitute fresh information as they were received in reply to letter which the Income Tax Officer has already sent and this letter was sent as consequence of the declaration made by the assessees themselves namely that they had a 7/16th share in the Ahmedabad firm. I would therefore answer the question referred to us in the negative and allowed ₹ 100 as costs to the assessees. Harnam Singh, J. I agree.
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1951 (6) TMI 21
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... ... ..... the second question. Mr. Bajaj, who appeared on behalf of the assessee, was not able to point to any provisions of law whereby the decision of the Appellate Assistant Commissioner could be held as res judicata or binding in the present case. The Appellate Assistant Commissioner had on November 14, 1946, held that these share were originally the property of a joint Hindu family consisting of Shorilal and Kidar Nath. In the present case the finding is that the shares were held by Shorilal alone and the transfer in favour of Kidar Nath was gratuitous. The finding in the first case is clearly not res judicata. The second question also therefore must be answered in the affirmative. In the circumstances I would answer this reference by replying to both then question proposed in the affirmative. In the circumstance of the case, however, I make no order as to costs. Counsels fee in this case is assessed at ₹ 200. Harnam Singh, J. I agree. Reference answered in the affirmative.
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1951 (6) TMI 20
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... ... ..... by this Court by a mandate or order under Article 226 of the Constitution with the proceedings of the Controller at this stage. In the circumstances disclosed here, it would not be consonant to right and justice to do so. It is impossible to ask him to withdraw his notice. It is impossible to ask him not to make his report. It cannot be anticipated what his report would be or whether he would make a recommendation that an Administrator be appointed. It is impossible to ask the Central Government not to consider that report or to ask it not to make an order on that report as no report has yet been made. Whatever may be said regarding the case against the Controller, no case whatever has been made out for the issue of any order or direction to the Central. Government. The Union of India was a wholly unnecessary party in this case. 148. For the reasons given above, I would dismiss these petitions. The petitioners will pay the costs of the Controller and the costs of the Union.
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1951 (6) TMI 19
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... ... ..... 1937 64 IA 28; 5 ITR 90) . The same must obviously be the position under the Excess Profits Tax Act as well, since that also is an all-India Statute of general application. Besides, so far as the powers of the karta are concerned, they are the same under both the schools, at least in regard to matters such as entering into business partnerships with strangers ; and if anything, when a karta enters into such a partnership, there is less reason for saying in the case of a Dayabhaga karta that, by his act, all the members of the family become partners, because under the Dayabhaga, there is only unity of possession but no unity of ownership. Reference in this connection may be made to Mayne's Hindu Law, 17th Edition, p. 369. For the reasons given above, I am of opinion that the answer to the question referred should be in the affirmative. The Commissioner of Excess Profits Tax, West Bengal, is entitled to the costs of this reference and will have them. Das Gupta, J.-I agree.
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1951 (6) TMI 18
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... ... ..... he acquisition of an agency which was hoped to be profitable. This adventure was part of the business of the company. The main purpose of the adventure was not realised, and when its realisation became impossible the assessee company withdrew, realising the shares, the purchase of which had been an essential incident of the adventure. They realised a profit which may well have been unexpected, but this profit, I think, must be regarded as a profit of the adventure, and therefore of the business of the company. I think therefore that the conclusion should be that there was material on which the Income-tax Officer was entitled to hold the two receipts of ₹ 20,000 and ₹ 2,26,700 were arising from business, and I consider the two questions formulated by the Tribunal should be answered in the affirmative. The assessee company must pay the costs of the department before us which I would assess at ₹ 150. FALSHAW, J.--I agree. Reference answered in the affirmative.
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1951 (6) TMI 17
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... ... ..... siness of Nattukottai Chetties. A well reasoned exposition of the principle upon which a bad debt can be allowed as a deduction will be found in the later case. It appears from the statement of case submitted by the Tribunal that when at the hearing of the application for a reference the later case of the Madras High Court was cited on behalf of the Commissioner of Income Tax the Tribunal felt pressed by its reasoning and authority. I have said enough to indicate the reasons on which the claim of deduction made by the assessee in the present case must be disallowed. In my opinion the question referred to this Court must be answered in the negative. The assessee had not entered appearance and did not appear at the hearing. We do not think that the non-appearance of the assessee is any reason for departing from the ordinary rule that costs will follow the event. The Commissioner of Income Tax is entitled to the costs of this reference and will have them. Das Gupta, J. - agree.
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1951 (6) TMI 16
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... ... ..... finally asked for a reference of the only question that has actually been referred. As I have explained in an earlier part of this judgment, the High Court can direct a reference of only such questions as were formulated before the Tribunal for reference to this Court and which the Tribunal declined to refer. The questions that were formulated before the Tribunal did not comprise the new point sought to be raised by Dr. Pal, nor was its inclusion asked for before this Court at the time of the application under Section 66(2), nor is it included, either expressly or by implication, in the question as actually framed by this Court and referred by the Tribunal. The second point sought to, be raised by Dr. Pal is therefore not open to the assessee. For the reasons given above, the answer to the question referred must be in the affirmative. The Commissioner is entitled to the costs of this reference and will have them. DAS GUPTA, J.--I agree. Reference answered in the affirmative.
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1951 (6) TMI 15
Income-Tax Reference No. 60 of 1950 ... ... ... ... ..... se (supra), the expenditure in the present case is capital expenditure. It is to use the words of, Dixon, J., an expenditure for maintaining the strength of the capital structure of the company, the organisation set up for the earning of profits and not an expenditure connected with the process by which the organisation operates to obtain regular returns for regular outlay. It is an expenditure for the benefit of the business as a whole and not an expenditure for meeting any of the wide variety of working needs which have to be met out of the returns of the trade. The benefit it confers on the business is enduring and it is made under a provision which was made finally and once for all for the continuance of the benefit during the period of the lease. The answer to the question referred, as re-cast by us, must accordingly be in the affirmative. The Commissioner is entitled to the costs of this Reference and will have them. Certified for two counsel. DAS GUPTA, J. -- I agree.
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1951 (6) TMI 14
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... ... ..... alone we think the Income-tax Officer should have rejected the assessee's books of account and made an estimate under the proviso to Section 13." From what was said by the Income-tax Appellate Tribunal it follows that there was material before the Tribunal justifying the add back of ₹ 30,000. In the appeal under Section 33 of the Act the Department claimed the add back of ₹ 40,000 and in deciding the appeal the Tribunal allowed the add back of ₹ 30,000. No other point was argued in these proceedings. Finding as I do that on the facts and circumstances of the case the Tribunal was competent in law to compute the income of the assessee under the proviso to Section 13 of the Act and that there was material on the record justifying the add back of ₹ 30,000, I dismiss with costs Civil Miscellaneous No. 96 of 1950. Counsel's fee in Civil Miscellaneous No. 96 of 1950 is assessed at Rupees one hundred. KHOSLA, J.--I agree. Application dismissed.
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1951 (6) TMI 13
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... ... ..... have been based. As pointed out above, the Income-tax Appellate Tribunal has proceeded upon the circumstances of the case and has come to the conclusion that the increase in the salaries of Miss Florence Hotz and Mr. Edwin Hotz from ₹ 1,200 to ₹ 2,000 was not justified by business considerations. In other words, the Tribunal has found that the allowance claimed cannot be said to be an expenditure laid out or expended wholly and exclusively for the purposes of business. The claim of the assessee being a claim for exemption of an amount under Section 10(2)(xv) of the Act, the burden of proving the necessary facts in that connection was on the assessee. That burden has not been discharged. Finding as I do that the finding of the Tribunal is supported by material on the record, the question referred to this Court for decision must be answered in the affirmative. In these proceedings we assess costs at ₹ 200. KHOSLA, J.--I agree. Reference answered accordingly.
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1951 (6) TMI 12
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... ... ..... notice under Section 38(1) was served the question whether or not it was valid as a best judgment assessment does not arise. In the result the question as re-framed should be answered as follows - (a) The return was not a return under Section 24(1), nor a return under Section 24(3) but a return under Section 24(2). It was not a "no return at all" and was a return within the meaning of the Act in the sense of conforming to the statutory form of a return. (b) (i) No. (b) (ii) Does not arise. No question was raised as to the correctness of the amount assessed either before the Appellate Assistant Commissioner or before the Tribunal. Indeed, the grounds relating to the matter taken in the memorandum of appeal to the Assistant Commissioner were abandoned at the hearing. As the assessee escapes a substantial amount of tax for a technical defect in the proceedings, there will be no order for costs in this reference. DAS GUPTA, J.--I agree. Reference answered accordingly.
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1951 (6) TMI 11
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... ... ..... und that he did. The definite material need not necessarily be in the form of legal evidence but there must be something which at the first stage should be brought to the notice of the assessee and if the Income-tax Officer in default of any response from the assessee adds something more the additional material also should appear in the order. I desire to add that if the question had been one of estimating the assessee's income from the admitted sources very different considerations would apply but this was a case where the Income-tax Officer was importing an item from a source outside the assessee's own business and attributing it to him without indicating where he found a link between that source and the assessee. As the tests indicated above are not satisfied in this case, I hold that the answer to the question referred to this Court must be in the negative. There will be no order for costs in this Reference. DAS GUPTA, J.--I agree. Reference answered accordingly.
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1951 (6) TMI 10
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... ... ..... case of an assessee of the type in this case. We therefore think that the Appellate Assistant Commissioner's approach was very defective and the finding given by him, which has resulted in this heavy reduction in the appellant's assessment, is not justified." Shri Gauri Dayal concedes that the initial onus of explaining cash credits lay on the assessee. That is all what the Tribunal has said. From the decision of the Tribunal that on the facts and the circumstances of the case the assessee has failed to discharge that onus, question No. (5) set out above does not arise. Indeed it is assumed in question No. (5) that the initial onus of proving the genuineness of the credits in the various accounts challenged by the Income-tax Officer lay on the assessee. No other point was raised in these proceedings. For the foregoing reasons, I dismiss Civil Miscellaneous No. 86 of 1950 with costs which I assess at rupees one hundred. KHOSLA, J.-I agree. Application dismissed.
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1951 (6) TMI 9
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... ... ..... culty. Again Sub-section (7) of Section 37 A is clearly ancillary to Sub-section (5). It begins "For the purpose of an award made under Sub-section (5) (a) the debt shall be deemed....... " Thereafter it gives the method of calculating the debt, which method incidentally may obviously in certain cases lead to the debt being ascertained to be zero or a negative amount In other words, the calculation may show that the original debt has been either extinguished, or overpaid. If a valid award can be made under Sub-section (5) where it is known that the debt has been extinguished or overpaid, there is nothing whatever in the terms of Sub-section (7), in my opinion, which will wipe out the effect of such an award for the purposes of Sub-section (8). 6. The result is that this appeal must be allowed. The order of the appeal Court is set aside & that of the trial Court restored. 7. The appellant is entitled to costs throughout. No order is necessary on the application.
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1951 (6) TMI 8
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... ... ..... at is done, the material on which the conviction is based is considerably weakened. I have considered anxiously whether this is a case in which we should direct a retrial de novo or whether the retrial should be from the stage at which the irregularity occurred or whether we should refuse to allow a retrial and acquit the appellant. Having given my anxious thought to this matter, I am of opinion that there should be a retrial de novo in the Sessions Court either by the same or by some. other Sessions Judge. I consider it inexpedient to say more than this, lest I prejudice the issue one way or the other. The conviction and sentence are set aside and the case is sent back to the High Court with a direction that that Court will order a retrial de novo in the Sessions Court, treating the committal as good. FAZL AI.I J.--I agree and have nothing to add. PATANJALI SASTRI J.--I agree and have nothing further to add. DAs J. --I agree to the order proposed by my learned brother Bose.
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1951 (6) TMI 7
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... ... ..... amount. It merely says that necessary steps will be taken for the offences committed. As we have already said the letter merely amounts to an offer to drop criminal proceedings in case the amount was paid. We cannot construe it as an order appealable under Section 21 of the Act. If the Collector sanctions the prosecution of the appellant there would be an order under Section 24(2) of the Act and an appeal can lie to this Tribunal against it. The Sales Tax Officer who appears for the respondent is not prepared to accept this view, but reading the pertinent provision of the Act, we think that is the position. If the appellant so wants he can decline the Collector s offer. He (the Collector) will then have to pass an order under Section 24(2) sanctioning the prose- cution and then the appellant can appeal to this Tribunal, if so advised. 3.. For the reasons given above we think that this appeal is pre- mature and must be rejected. ORDER. The appeal is rejected. Appeal rejected.
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1951 (6) TMI 6
Company – Incorporation of ... ... ... ... ..... ed above on behalf of the respondent to the contrary, I do not think that there is any doubt that the view taken in the second of the Rangoon decisions and in the Calcutta decision was correct. The wording of section 3 of the General Clauses Act clearly indicates that the definitions and explanations which form the rest of the section are not universally applicable, and that in spite of these definitions and explanations the meaning of the words has to be construed in the light of the subject of the statute and the context in which the words or used, and to my mind the provisions of Order XXXIII leave no doubt that the word person in this part of the Civil Procedure Code means only an indivual person. I accordingly accept the revision petition with costs and set aside the order of the lower court permitting the respondent company to sue in forma pauperis. The parties have been directed to appear in the lower court on the 16th of July, 1951. I assess the costs at fifty rupees.
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