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Case Laws
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1953 (9) TMI 36
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... ... ..... t;on" and not so much as on the necessity to have the order in writing. There is no such provision in Section 23(3) of the Act, though, it requires an order of assessment to be in writing. 13. As we have already pointed out, the time limit of four years for which Sub-section (2) of Section 24 provided was the period within which the Income Tax Officer had to complete one stage of the proceedings, that is, the assessment of the income and the determination of the tax payable, and that stage could be completed by the Income Tax officer himself, even if the terms of the order of assessment were not communicated within that period of four years to the assessee. The rights of the assessee aggrieved by such an order of assessment have been specifically provided for by other sections of the Act. 14. We answer the question in the affirmative and against the assessee. As the assessee has failed, he shall pay the costs of the commissioner of Income Tax which we fix at ₹ 250.
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1953 (9) TMI 35
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... ... ..... h the title of the holder it will be negligence not to heed to it and pursue the matter. In fact the evidence is that when the holder presents a bearer cheque at the counter he is asked to sign it before receiving payment and that was also done in this case and if at that stage the bank shuts its eyes to what plainly appears on the back of the cheque it would clearly be negligence, such as will deprive it of the protection under S. 131. 12. To sum up, the bank was negligent in opening an account in the name of Matha Prasad Gupta without making an enquiry; the cheque came to the possession of the bank as part, of the opening of the account and the endorsements on the cheque are sufficiently suspicious to put the bank on enquiry. On these facts it must be held that the bank had acted with negligence at all stages of this matter and they are not entitled to rely on S. 131 in answer to the claim. In the result we confirm the judgment of Mack J. and dismiss this appeal with costs.
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1953 (9) TMI 34
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... ... ..... n respect of the assessment years of 1123 and 1124. We also do not see any infirmity on the ground that the source of the information as far as the Income-tax Officer, Kottayam, is concerned was not extraneous to the department but was derived from an Officer of the department itself. 15. The further argument of the petitioners learned counsel that as Exhibit VIII relates to the assessment year 1950-51, the year subsequent to the assessment year 1124, it cannot possibly provide information leading to a discovery regarding the assessment years of 1123 and 1124 is also not acceptable. Exhibit VIII makes it quite clear that apart from the various items of information received, the transactions themselves disclosed a definite pattern of avoidance not only in respect of the year covered by the order but also spread over the years anterior to it. 16. In the light of what is stated above we dismiss O. P. Nos. 53, 56, and 57 of 1952 but in the circumstances of the case without costs.
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1953 (9) TMI 33
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... ... ..... .) "The Court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction or an appeal lies against such absence or excess." It is also argued that the immediate cause which led up to the filing of these petitions was the appointment of Executive Officers in some cases and issuing of notices in others, calling upon the petitioners to hand over possession of the temple, its properties and accounts, that they constituted an invasion of their rights as hereditary trustees and that they were entitled to move this Court under Article 226 of the Constitution, for appropriate relief. The learned Advocate General also invited us to give a decision on the questions raised, as they arise for the first time for determination and the authorities would prefer to have guidance in the matter. The petitions will accordingly be posted for further hearing on the merits.
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1953 (9) TMI 32
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... ... ..... t Bengal Act VI of 1953), the section -- or rather the proviso, -- under consideration should be construed, as far, of course, as language permits, so as to give effect to that intention. 29. It should not be forgotten further that, as, in such cases too, the limit is set by the statutory language, the construction which is more in consonance with the legislative intent is also a "literal" construction, although it may not always be strictly grammatical. It is only one amongst two or more "literal" constructions, and, as it gives effect to the object and purpose of the statute, reason dictates that it should be preferred and ought to be allowed to prevail. 30. I agree, therefore, in the view of the law, taken by my learned brother, and, with the utmost respect to Chunder, J. who held the opposite in -- AIR1953Cal770 (A)', I express my respectful dissent from his said decision. 31. This Rule, accordingly, succeeds and it is made absolute without costs.
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1953 (9) TMI 31
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... ... ..... d. It is as principle of law that this cannot be permitted and? there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment although it may be true enough, that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principles of setting parties’ rights to rest applies and estoppel occurs." Of course, these observations apply to the previous decision of a court and not to that of the Income-tax department. In view of these well-settled principles, we have no hesitation in holding that the view taken by the Appellate Tribunal that it is not res judicata is correct, and the first question is also answered against the assessee and in the negative.
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1953 (9) TMI 30
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... ... ..... um and Revenue Laws (Extension of application) Amendment Act, 1951 (Central Act XLIV of 1951), will be of no avail for the purpose as the amendment will have only prospective operation in spite of the provision in the Amending Act that sub-section (bb) "shall be deemed always to have been substituted." 21. In the result we allow the petition to the extent indicated in paragraph 18 above and direct that in the circumstances of the case the parties shall bear their respective costs. Petition allowed. Immediately after the judgment was pronounced Mr. S. Narayanan Potti on behalf of the petitioner and the Advocate-General on behalf of respondents 1 and 2 applied for certificates that the case is a fit one for appeal to the Supreme Court under Article 133 of the Constitution. We are satisfied that the case involves substantial questions of law, that it is a fit one for appeal to the Supreme Court, and we certify accordingly. Leave to appeal to the Supreme Court granted.
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1953 (9) TMI 29
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... ... ..... a reduced salary. It was looked upon as a revenue receipt which was subject to tax. In our opinion the present case falls under the second aspect which the House of Lords considered and not the first aspect. Whatever considerations may attach to a case where a party accepts a lump sum for commutation of pension, entirely different consideraiion would apply where a party accepts a lump sum in consideration of the reduction of the assessee's salary from a higher amount to a lower amount, and if we take the view that ₹ 7,50,000 represent a lump sum paid by the managed company in consideration of the reduction of the assessee's remuneration fixed under the original agreement to a lower remuneration, then clearly the decision of the House of Lords, far from helping the assessee, is directly and clearly against its contention. In our opinion, therefore, the Tribunal was right in the view that it took and we must answer the question submitted to us in the affirmative.
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1953 (9) TMI 28
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... ... ..... cannot possibly construe the section against the assessee and hold in favour of the department that the different language used by the Legislature must mean the same thing although obviously and patently they mean entirely different things. It may be pointed out that the finding of the Tribunal itself in the order which it passed is that there have been remittances from Bhavnagar to Bombay on behalf of the assessee. Now, if in Section 4(1)(b)( iii) the language used by the Legislature had been that the receipt may be not only by the assessee himself directly but on his behalf, undoubtedly there would have been no difficulty in this case. But the Tribunal itself realised that the receipt was not directly by the assessee himself but at best on his behalf by the Bombay Mills, and if the receipt was not by the assessee but on his behalf, under Section 4(1) (b) (iii) the amount received is not subject to tax. We will therefore answer the question submitted to us in the negative.
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1953 (9) TMI 27
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... ... ..... "convey and transfer all the benefit of the said mortgage" (it being a mortgage of leaseholds by sub-demise). Their Lordships pointed out that the words in the deed did not imply the intention to part with the possession. The following observation in the judgment appears to me to be Important for our present purpose "It is argued that those words were intended to pass the legal estate in the mortgaged leaseholds; but, in my opinion, it is quite open to argument whether the words were not designedly used to give the transferee the pecuniary benefit of the mortgage only, without putting him in the position of an underlessee." This ruling has got no application in this case, and there is no substance in the contention that the property transferred has not been clearly described in the deed of transfer. 12. In the result, therefore, I must dismiss this appeal with costs. The petition for taking additional evidence will stand rejected. Imam, C.J. 13. I agree.
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1953 (9) TMI 26
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... ... ..... ion 36(4) of the Industrial Disputes Act of 1947 has been enacted. There is, therefore, considerable force in the contention of the appellants that the section as it stands, must result in hardship. But this, however, is a matter for the Legislature to consider, and not a ground for holding that the section is unconstitutional, as it makes no distinction between the employers and the employees and there is, therefore, no discrimination. It was suggested by Mr. D. Narasaraju that in fact the labour unions have persons with legal education as their chief officers and that in effect the labourers have legal assistance and that it is only the employer that is at a disadvantage. This, however, is not a matter which can be taken into account in deciding whether the section, as it stands, is repugnant to Article 14 of the Constitution. 10. In the result, both the contentions raised by the appellants must be overruled and this appeal dismissed but in the circumstances without costs.
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1953 (9) TMI 25
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... ... ..... rnment with regard to Disciplinary Proceedings Tribunal. What we are concerned here is the meaning to be given to the expression "reduction in rank" which occurs in Article 311, Clause (2). If there has been a contravention of any compelling provision of the Constitution, then, in my view, the statutory authority has acted without jurisdiction, or in excess of jurisdiction; and in such matters interference by this Court would be called for. But, as I have stated already, in the present case there has been no contravention of any provision of the Constitution. 7. Both the points on which the learned counsel for the petitioner relied to show that the order of suspension is 'ultra vires' and without Jurisdiction have failed. On the merits both Mr. Narasaraju and the learned Government Pleader refrained from addressing any arguments, because the matter is pending enquiry, and I do not want to express any opinion about the charges. (8) The petition is dismissed.
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1953 (9) TMI 24
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... ... ..... t it is patently inarguable, there is no reason why the time of the Commissioner or of the Court should be wasted in asking the Commissioner to refer to us questions of law. Ingenuity of lawyers will always suggest questions of law arising out of the findings of, the Commission. It is only when the Court is satisfied that a question of law arises and that it requires consideration by the Court that the Court would direct the Commissioner to raise a question of law. In that strictly technical sense Mr, Kolah may be right that the questions he has argued before us are questions of law. But on a careful consideration of the points Mr. Kolah has urged before us, we have come to the conclusion that there is no substance whatever in the questions of law and no useful purpose will be served by our asking the Commissioner to refer these questions to us. The result is that the notice of motion fails and must be dismissed. We have already answered the question raised on the reference.
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1953 (9) TMI 23
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... ... ..... er the Act. Therefore it is not a case of multiplicity of assessments in respect of one assessee. What Sir Nusserwanji overlooks is that each agent in respect of each business or each head under Section 42 is a separate assessee and there must be a separate assessment in respect of every assessee under the Indian Income- tax Act. Therefore we see no objection on principle to several agents of the non-resident being assessed and there being separate assessments. Therefore, in our opinion, the Tribunal, with respect to it, was in error when it took the view that the assesses can be charged in respect of all the income earned by the non-resident which fell under Section 42. We will therefore answer the question submitted to us as follows "In view of the provisions of Section 42(1) the agent Ramnarayan Rajmal is liable to be charged only on income accruing to Shivnarayan Brothers through dealings with him." Commissioner to pay the costs. Reference answered accordingly.
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1953 (9) TMI 22
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... ... ..... price but there was nothing on the record from which it could be deduced that, in those years, the market price was less. In the circumstances, it does not appear to be possible to draw an inference that the assessee had adopted the regular method of valuing his stock at cost price even if the market price was lower and, consequently, in valuing his stocks in the accounting year in question at the lower market price, it cannot be said that the assessee was changing the regular method of accounting employed by him in the past. It cannot, therefore, be held that the assessee was not entitled to value his closing stock at market rate. This is our answer to the question referred to us for decision. We do not think that this is a case in which the assessee should get his costs as the plea taken by him that he had always been valuing his stock at cost or market price, whichever was lower, had been rejected by the Tribunal and no reference was asked for specifically on that point.
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1953 (9) TMI 21
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... ... ..... ich pays that amount to its representative, it may not be for the purpose contemplated by Section 10(2)(xv). In this particular case, in a sense, Section 4(3)(vi) and Section 10(2)(xv) are complementary. The assessee company pays a certain amount to its representative and that amount is paid because it is necessary that the representative should spend that amount in the performance of his duties. It is established that that amount is necessary for the performance of his duties. How could it possibly be said that when the assessee company pays that amount, it is not wholly and exclusively expended for the purpose of business from the point of view of commercial necessity or commercial expediency? In our opinion, therefore, the assessee was entitled to deduction of this amount as a permissible allowance under Section 10(2)(xv). The question, therefore, submitted to us must be answered in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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1953 (9) TMI 20
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... ... ..... ecause they carry on the business as the business belonged to them, then also the department is bound to fail, because in this particular case it is the guardians who carry on the business under the order of the Court and not the minors. Therefore, the assessee is entitled to succeed and the question we will answer is the question which the assessee has raised on the notice of motion, and the question is whether each minor being entitled to one half of the properties and business the income of each minor should have been separately assessed on the minor by her guardians and managers the applicants; and the answer we will give is in the affirmative. We have not thought it necessary to call for a settlement of the case with regard to this question because the facts submitted to us on this reference are sufficient to answer the question raised by the assessee. The Commissioner must pay the costs of the reference including the costs of the motion. Reference answered accordingly.
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1953 (9) TMI 19
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... ... ..... oks at the matter, it is difficult to understand how the department could possibly have taken up the stand which it has done in this case. The Appellate Assistant Commissioner's order on which Sir Nusserwanji strongly relies says this - "The assessment orders determining the result as 'nil' have to be taken to mean that the Income-tax Officer has determined the result as neither loss nor income." When the loss was actually submitted in the return at a certain amount, when the Income-tax Officer has not computed what the loss is, when all that the Income-tax Officer says is that his income is "nil", yet the Appellate Assistant Commissioner considers it possible to come to the conclusion that the Income-tax Officer has determined that the assessee company did not suffer any loss. The result, therefore, is that we must answer the question submitted to us in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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1953 (9) TMI 18
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... ... ..... income and determination of the tax payable, and that stage could be completed by the Income-tax Officer himself, even if the terms of the order of assessment were not communicated within that period of four years to the assessee. The rights of the assessee aggrieved by such an order of assessment have been specifically provided for by other sections of the Art. We answer the question in the affirmative and against the assessee. As the assessee has failed, he shall pay the costs of the Commissioner of Income-tax which we fix at ₹ 250. Reference answered in the affirmative.
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1953 (9) TMI 17
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... ... ..... which he has debited to the profit and loss account. In respect of one, viz., Rs. 57,358, he has credited it to Ashami Khad Khata account, which means a person who is civilly or financially dead and in respect of other, viz., Rs. 9,125, he has credited it to the Shah account which is a suspense account. Sir Nusserwanji further forgets that Section 10(2)(xi) does not require that the amount should be written off in the account of the debtor. What the section requires is that the amount should be written off in the books of the assessee and there could not be the slightest doubt that looking to the books of the assessee the amount has been written off. There is no more striking or significant way of writing off the amount than by debiting the amount to the profit and loss account. In our opinion the Tribunal was right in the view it took, and we must answer the question submitted to us in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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