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1951 (8) TMI 29
... ... ... ... ..... due to physical incapacity clearly comes within the provisions of Section 240(3), Government of India Act and that being so, the Rule of the Railway, namely, Rule 1709(b) is ultra vires the provision of the Government of India Act and I think clearly ultra vires the present provisions of the Constitution, though the Constitution has no application to this particular case. 17. For these reasons, the view of Bose, J. was undoubtedly right and the dismissal of the plaintiff was contrary to law. He was, therefore, entitled to a declaration and as to the form of the declaration there can be now no dispute. The form of the declaration in cases of this kind was laid down by their Lordships of the Privy Council in the case of -- 'I. M. Lall, (A)' and a declaration in that form was one given to the plaintiff by the learned Judge. 18. For these reasons I see no force in this appeal which fails and is dismissed with costs. 19. Certified for two counsel. Banerjee, J. 20. I agree.
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1951 (8) TMI 28
... ... ... ... ..... rit of mandamus is under consideration and not in the case of a writ in the nature of certiorari or a prohibition. This argument also, therefore, has no force. 10. In view of the fact that we have come to the decision that the declaration must be set aside on the ground of want of jurisdiction due to non-compliance with the provisions of Sub-section (2) of Section 8, U. P. Court of Wards Act, 1912, we have considered it unnecessary to examine the alternative ground taken by the petitioner that the provisions of Section 8 (1) (d) (v), U. P. Court of Wards Act are ultra vires in view of Article 19(f) of the Constitution. 11. As a result, we allow this petition, quash the declaration made by the Government Under Section 8, U. P. Court of Wards Act in respect of the petitioner and direct that he be restored to pos-session of his property taken over in pursuance of that declaration. The petitioner will be entitled to his costs from the opposite parties which we fix at ₹ 300.
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1951 (8) TMI 27
... ... ... ... ..... hink, read as a whole, it is amply clear that the intention is to give notice on the tenant to vacate at the end of the Bengali calendar month which was known to be the month of the tenancy. Out of a sort of extra caution whoever drafted the notice has mentioned the period of 15 days which Is required under Section 106 and the meaning there is clearly that the vacating is to take place not less than 15 days after the receipt of the notice and within the month of Pous. The addition, that is to say, "by the 1st of Magh" does not seem to me to matter in the least and there is no need to suppose that it was subsequently interpolated by the plaintiff or at his instance. The notice was a notice to quit expiring with the month of the tenancy. 8. The result is that there is no reason to interfere with the decision of the lower Court in this matter. The appeal is accordingly dismissed with costs. 9. The appellant is allowed six months time from to-day to vacate the premises.
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1951 (8) TMI 26
... ... ... ... ..... ial Government because the notification makes no mention at all of Section 112. When the rules were framed, this provision of Section 112 Factories Act, 1948, was lost sight of altogether and consequently there could be no question of the Provincial Government making the rules after coming to a finding that it was expedient to make the rules in order to give effect to the provisions of the Act. Section 112 also cannot, therefore, make these rules valid. The rules are obviously ultra vires of the Provincial Government and consequently, in respect of these rules, the petitioners are entitled to the remedy, they have asked for. 6. As a result, we dismiss both the petitions in so far as they relate to Rule 6 and allow them with regard to Rules 5, 7, 8 and 9. A writ of mandamus shall issue to the opposite-party, restraining them from enforcing the latter rules, The petitioners will be entitled to their costs in both the applications which we fix at ₹ 200 in each application.
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1951 (8) TMI 25
... ... ... ... ..... e (a) or (e) of Sub-section 1 of Section 47. 12. It is next contended that there is an obvious error on the face of the record, because at the time the Government passed the order the appellant had only one permit, the other permit having already been transferred after the order of the Regional Transport Authority. The second respondent contends that the said transfer was benami because the transferee is the son-in-law of the appellant. We are not called upon to decide that question in this appeal because at the time the Regional Transport Authority passed its order, the appellant was in possession of two permits and whatever happened subsequent to that date is not a matter relevant for consideration when the Government passed its order. It seems to us, therefore, that the order of the learned Judge is perfectly correct and cannot be interfered with. 13. This appeal falls and is dismissed. Since the preliminary objection has failed we direct each party to bear his own costs.
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1951 (8) TMI 24
... ... ... ... ..... as falling within the ambit of the Act. Now, that is obviously not the scheme of the third proviso. The scheme of the third provison according to me is totally and for all purposes to exclude the business of the nature described in that proviso, and, as I said before, that business is a business in which, if it made profits, such profits would accrue or arise in an Indian State. Therefore, in my opinion, the Tribunal was not right in coming to the conclusion that the principle which is deducible from our decision in Murlidhar Mathurawalla Mahajan Association' s case (supra ) was applicable to a case that fell under the Excess Profits Tax Act. The two Acts, although in a sense they are complementary to each other, are based on different principles. And Vjjuiew of the third proviso to Section 5, the principle of that decision does not apply to a case falling under the Excess Profits Tax Act. The result is, we will answer the question in the negative. Tendolkar, J.-I agree.
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1951 (8) TMI 23
... ... ... ... ..... can be treated as pending observed thus What is the meaning of the word "pending" ? In my opinion, it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of this word 'pending'. A cause is said to be pending in a Court of justice where any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. "Pending" does not mean that it has not been tried. It may have been tried years ago. In our opinion, therefore, Section 20 of Madras Act VIII of 1951 applies to this case. 4. In the result the order of the learned Subordinate Judge of Tenali is hereby quashed. Having regard to the fact that on the date when this application was filed in this Court, the new Act had not been passed and on that date the order of the Subordinate Judge was unassailable, we think the petitioner must pay the costs of this application to the respondent. Advocate's fee ₹ 100.
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1951 (8) TMI 22
... ... ... ... ..... case to have appeared merely for the purpose of elucidating his own judgment and pointing oat the errors in the judgment of the Court below. That is not the proper function of the Court of first instance, and in this case the Registrar is nothing else except the Court of first instance. He must submit to the judgment of lower appellate Court if there is no appeal from that judgment. If there is an appeal, he must submit to the judgment of the final Court of appeal. If his judgment is right, it will be restored by the final Court and the errors of the lower appellate Court will be rectified; if his judgment is wrong, that the lower appellate Court's judgment will be confirmed by the final Court of appeal. But, as I said before, this Court neither need a illumination nor guidance from the Judge of the first instance as to what are the errors in the judgment of the lower appellate Court. 13 We, therefore, make no order as to costs of the Registrar. Bhagwati, J. 14 I agree.
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1951 (8) TMI 21
... ... ... ... ..... r under Section 46(1) which does not even specify what is the amount of the penalty which the assessee has got to pay. Under Section 46(1) there must not only be a formal order which imposes a penalty but it must also specify the actual amount of the penalty which the assessee is liable to pay. After that order is passed then consequential upon that order a notice of demand may be served under Section 29 and the assessee has a right of appeal against such order under Section 30 of the Act. Inasmuch as the order passed by the Income-tax Officer in this case under Section 46(1) does not specify the amount of the penalty the order is bad and the notice of demand is equally bad as it follows upon an invalid order of the Income-tax Officer. In the result the penalty imposed by the Income-tax Officer is not valid in law and we shall therefore answere the question referred to us in the negative. The Commissioner to pay the costs of the reference. Reference answered in the negative.
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1951 (8) TMI 20
... ... ... ... ..... tax paid by the company in the United Kingdom. Now, fortunately, we are not called upon to consider Section 49B. As I said before, that section deals with a question of refund, and here we are not dealing with a case of refund we are dealing with a case where the assessee is entitled to credit in respect of the tax paid by the company under Section 18(5). Sections 16(2) and 18(5) constitute self-contained provisions with regard to grossing up of dividend income and with regard to relief to be given to an assessee in respect of that grossing up. Section 49B deals with an altogether different matter, and that is a case where a refund is asked for by the assessee. This is not a case where the assessee is asking for any refund under Section 49B, and, therefore, Section 49B does not fall for interpretation at our hands. I would, therefore, answer the question put to us in the negative. The Commissioner to pay the costs. TENDOLKAR, J.--I agree. Reference answered in the negative.
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1951 (8) TMI 19
... ... ... ... ..... cer, subject to appeals such as lie. The assessee has failed to satisfy the appellate authorities, and this Court must, therefore, accept the decision rendered. As we have pointed out, there is foundation for the application of the proviso. Whether or not profits or loss could, in the books as they stand, have been calculated is not for this Court to decide. The officer concerned has expressed his inability and the appellate authorities have concerned with him. This concludes the matter, and no question of law arises. Indeed, the question as framed shows that the assessee's contention is that there is no foundation for the action taken. The appropriate authorities have found the stock books to be defective, and we cannot say that that matter was not within their special and exclusive powers, in view of the provisions of the Act. The applications accordingly fail and are dismissed with costs. Counsel's fee ₹ 50 in each case, if certified. Applications dismissed.
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1951 (8) TMI 18
... ... ... ... ..... carefully examine the particular ray of hope on which the Lahore High Court relied in that case we find that the debtor had become insolvent and his estate had become vested in the Official Assignee and the creditor was receiving small dividends from the Official Assignee. On these facts the Lahore High Court held that the debt was in the process of realisation and it could not be considered a bad debt. These are entirely different facts from the facts before us. Here when the High Court delivered the judgment on the 29th of September, 1941, the debt became incapable of realisation and, therefore, according to me the Tribunal was right in fixing that date as the date on which the debt became a bad debt. The result is that we must answer the questions referred to us by the Tribunal as follows - Question No. 1 -In the affirmative. Question No. 2 -In the affirmative. Question No. 3 -In the negative. The assessee to pay the costs of the reference. Reference answered accordingly.
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1951 (8) TMI 17
... ... ... ... ..... ed by Section 30(2). Therefore the judgment of the Appellate Assistant Commissioner falls in two parts. There is a dismissal of the appeal on the ground that it is barred by limitation and there is also an order refusing to condone the delay as no sufficient ground was made out. To the extent that the appeal is dismissed on the ground that it is barred by limitation the order is appealable and the Tribunal was competent to hear the appeal. To the extent the order refuses to condone the delay that order is made by him under Section 30(2) and is final and cannot be challenged before the Tribunal. Therefore, the answer that we give to the question referred to us is that the appeals before the Appellate Tribunal were competent only to the extent the Appellate Assistant Commissioner held that the appeals were barred by limitation and were not competent in so far as he refused to condone the delay. The Commissioner to pay the costs of the Reference. Reference answered accordingly.
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1951 (8) TMI 16
... ... ... ... ..... cases arising out of our Act. (1) 1949 1 S.T.C. 193 53 C.W.N. 278. It has been pleaded on behalf of the applicant firm that they had no option but to show separately the two items referred to earlier in this order, as their principals, namely, the cigarette manufacturers, insist on the actual catalogue price being shown clearly in cash memo- randums or bills. This trade practice-for it is nothing more-cannot help the applicant in getting over the definition of sale price and turnover as contained in the Act. The essence of the scheme it embodies is that the tax is payable by the dealer, calculated at a specified rate on the totality of his receipts from the purchaser, minus certain items particularised in Section 2(j). Among these items is not to be found any element which the dealer may have recovered from the purchaser in lieu of the sales tax due from him (the dealer) to the State. In the result, this application for revision fails and is dismissed. Application dismissed.
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1951 (8) TMI 15
... ... ... ... ..... accordingly heard at Tezpur on 6th May, 1950 an advocate appeared on behalf of the petitioners on that day. On 9th May, 1950, the petitioners also submitted a statement of their sales of jute. The enhancement was made on the materials furnished by the petitioners, and it could not be said that it was done without any basis and without giving the petitioners a reasonable opportunity of being heard. All these are questions of fact, in my opinion, and no reference is competent on these questions. We think the learned Commissioner is right in saying that the proviso to Section 31 of the Assam Sales Tax Act, 1947, has been complied with. It was conceded by the petitioners advocate that if the proviso to Sec- tion 31 has been complied with by the Commissioner, his decision to enhance the assessment rests on facts and not on any point of law. The result is that the petition is dismissed with costs. The Rule is discharged. RAM LABHAYA, J.-I agree. DEKA, J.-I agree. Rule discharged.
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1951 (8) TMI 14
... ... ... ... ..... -3 to P-5 and even if it is taken to be true, will not amount to an offence in the circumstances of this case where the Assistant Commercial Tax Officer went to the peti- tioner s shop on a holiday and during the lunch interval, which he had no right to do under Section 14(2), and also illegally insisted on the petitioner s showing him some private papers and cash and signing in an unauthorised statement prepared by himself. Of course, actual use of physical force is not necessary for obstruction or prevention under Section 14(2). Words causing an apprehension of violence, or acts pre- venting or obstructing the inspection, like locking the premises to pre- vent inspection, or running away with the goods and registers will do, in a proper case where there is a right of inspection under Sec- tion 14(2). In the end, therefore, the conviction and sentence of the petitioner are set aside, and the petitioner is acquitted. The fine, if paid, will be refunded. Conviction set aside.
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1951 (8) TMI 13
... ... ... ... ..... itioner paid the amount due and therefore he is not guilty of the offence under Section 15(b) of the Sales Tax Act. The conviction and sentence are therefore set aside and the amount if it has been paid shall be refunded to the petitioner. Crl.R.C.No. 788 of 1950 In this case the amount involved is Rs. 440-8-0 and it has been paid by cheque dated 24th September, 1948, which was cashed on 6th October, 1948. For the reasons mentioned in my judgment in CrI.R.C.No. 787 of 1950 the conviction and sentence of the petitioner are set aside and the amount if it has been paid shall be refunded to him. CrI.R.C.No. 1327 of 1950 In this case the amount involved is Rs. 344 and it has been paid by cheque dated 13th October, 1948, which was cashed on 11th November, 1948. For the reasons mentioned in my judgment in CrI.R.C.No. 787 of 1950 the conviction and sentence of the petitioner are set aside and the amount, if it has been paid, shall be refunded to the petitioner. Conviction set aside.
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1951 (8) TMI 12
Prospectus – Registration of ... ... ... ... ..... at that was a serious difficulty which may be met by reference to the Commissioner for Taking Accounts. There is only one further point which may be referred to, and which I have already referred to shortly, and which I may refer to again, namely, as regards the change in capital structure. I have already referred to the resolution of July 20, Exhibit F, which was duly filed, but a reference to Exhibit 0 may also be made, and in these circumstances, to my mind, there is no substance in this allegation. The capital structure was changed at the end of July, 1946, and the share scrips issued on December 3, 1946, clearly indicate on the face of them what the capital structure of the company was, and there is no evidence whatever before the court that any single shareholder lodged any protest against that position. The suit stands dismissed with costs. The costs of the suit to include the costs of the notice of motion and the chamber summons. Interim injunction to stand dissolved.
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1951 (8) TMI 8
Winding up – Powers of liquidator ... ... ... ... ..... ence caused to litigants, however much it might be regretted, must be looked upon as unavoidable in the larger interest of society which requires that the affairs of banking companies should not be unduly delayed and the winding up should be completed as soon as possible. I am therefore of the opinion that with great respect the learned Judge was in error in the conclusion he came to and this court has jurisdiction under section 45B to decide this matter and the jurisdiction of the City Civil Court has been ousted under section 45A of Act XX of 1950. Therefore, the order of dismissal passed by the learned Judge will be set aside and the appeal will be allowed. The liquidator s costs as between attorney and client will come out of the assets of the banking company. There will be no order as to costs on respondent No. 3. The suit was filed as a summary suit and therefore it will go back to the learned Judge in Chambers for disposal according to law. Bhagwati, J.- mdash I agree.
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