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Case Laws
Showing 21 to 40 of 40 Records
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1954 (10) TMI 38
Whether the fact of the repeal of the Ordinance being followed by reenactment would make the provision of section 6 of the General Clauses Act inapplicable to the present case?
Held that:- The provisions of section 6 of the General Clauses Act will, in our opinion, apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. The result is that the appeal is allowed and the judgment of the High Court set aside. Appeal allowed.
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1954 (10) TMI 37
Whether the appellants could claim any fundamental right under article 19(1)(g) of the Constitution which can be said to have been violated by the impugned legislation?
Whether the Act has deprived them of any ’property’ which would attract the operation of article 31 of the Constitution?
Held that:- Appeal allowed. The Australian Constitution indeed has no provision like article 19(1) (g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in article 19(1) (g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression ’only the free passage of persons and goods’ within or without a State to be dealt with under article 301 and the following articles.
We have thus indicated only the points that could be raised and the possible views that could be taken but as we have said already, we do not desire to express any final opinion on these points as it is unnecessary for purposes of the present case. The result is that in our opinion the appeals should be allowed and the judgment of the High Court set aside A writ in the nature of mandamus shall issue against the respondents in these appeals restraining them from enforcing the provisions of the U. P. State Road Transport Act, 1951, against the appellants or the men working under them.
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1954 (10) TMI 36
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... ... ..... inion in respect of supplies made by the opponents to third parties or in respect of soda ash utilised by themselves in manufacturing their own by-products. But as the Tribunal s order in revision is clear that the Sales Tax Officer should examine how much quantity of by-products containing soda ash is sold or supplied to others, we take it that the Tribunal wants our opinion in respect of soda ash sold or supplied to others. But we have held above that soda ash utilised by the opponents in the manufacture of the by- products is not at all liable to assessment for sales tax and therefore this question does not arise and we express no opinion on it. Question No. 2.-In the affirmative. Question No. 3.-Assessment was not lawfully made. Question No. 4.-First part in the affirmative.-Second part in the affirmative. Question No. 5.-Soda ash utilised by the opponents in manufac- turing their own by-products cannot be taxed at all. SHAH, C.J.-I agree. Reference answered accordingly.
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1954 (10) TMI 35
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... ... ..... en laid down in similar circumstances in Commis- sioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas(1). (4) The only argument given by the State Government is that section 27 (i) read with the preamble to the Act gives them the necessary power. I am afraid, I do not concur in this view. If that view is accepted the State Government could also provide for second appeal which is of course not desirable. In this connection I quote the following extract from the Supreme Court ruling quoted above The view that unless expressly prohibited a legislature has a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle. 3.. The learned counsel for the respondent conceded that if rule 63 was valid, assessment could be reopened under the rule. 4.. In the circumstances the petition for revision is dismissed. 5.. Orders should issue accordingly. Petition dismissed. (1) 1938 6 I.T.R. 414 A.I.R. 1938 P.C. 175.
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1954 (10) TMI 34
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... ... ..... hey show invoices made out to their own branch at Tirunelvely for the goods despatched. No doubt the invoices also show sales tax but this entry by itself creates no claims. Despatches from one branch to another do not make out a sale. Unless there is evidence of the sales having been completed during this transaction, these despatches cannot create any evidence of sale. So on the facts produced there was evidence to show that the transaction amounting to Rs. 1,35,028-4-0 was transaction of mere despatches to their own branch outside the State. This is not taxable in the Sales Tax Act. The assessing officer should have considered this in making his assessment. He has not done so and there is clearly a right of appeal and revision on this fact. I, therefore, allow the petition and order that a rebate of tax should be allowed on the transactions for Rs. 1,35,028-4-0 which constitute mere transfer of property from the Ambadola branch to the Tirunelvely branch. Petition allowed.
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1954 (10) TMI 33
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... ... ..... merits. 7.. The question arising on this aspect of the case can be formulated as follows (1) Can the petitioner s averment that the collection was made solely as a precautionary measure and on the understanding that the amounts collected will be refunded if no liability to sales tax accrued in this State or the State of Madras be accepted as true and (2) If the answer to question No. (1) is in the affirmative, will such a collection amount to a collection by way of tax within the meaning of Section 11 of the Travancore-Cochin General Sales Tax Act, 1125? 8.. These two questions have not been considered by the Appellate Assistant Commissioner and in view of this his order in appeal must be quashed and the papers sent back to him for fresh determination on the basis of his conclusions on the questions mentioned above. 9.. The original petition will stand allowed in the manner and to the extent indicated above but in the circumstances of the case without any order as to costs.
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1954 (10) TMI 32
Company – Incorporation of ... ... ... ... ..... ) of the Madras General Sales Tax Act or section 386, Criminal Procedure Code, any bearing on the present enquiry. Section 15(h) only directs the Magistrate convicting a person for contravention of any of the provisions of the Act to specify in the order that the tax or fee which such convicted person has failed or evaded to pay or wrongfully collected shall be recoverable as if it were a fine. That does not enable a Magistrate to give such a direction in respect of tax which is not personally payable by a director. Section 386 of the Criminal Procedure Code provides only the mode of collecting the fine imposed. That also does not throw any light on the present enquiry. For these reasons, I must hold that the petitioner, the managing director, cannot be made personally liable for the arrears of tax due by the company. The taxing authorities could proceed against the assets of the company. If the tax has been collected from the petitioner personally it will be refunded to him.
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1954 (10) TMI 29
Service on Foreign Company ... ... ... ... ..... oceedings against him. If service of a writ or some other document is effected at the place of business which a foreign corporation actually has in this country, or on a nominee whom it has registered, the probability is that service at such place of business, or on such nominee, will become known to the corporation but service at a place which has ceased to be the place of business, and which may well have passed, and probably will have passed, into the ownership of some third person, would seldom come to the notice of the foreign corporation, and this consideration, as against the general background of the substituted service procedure, supports the view, if any support be needed, that the proviso to section 412 must be given the meaning which its language naturally bears, and not the artificial meaning which the plaintiff sought to attribute to it in this case. I, accordingly, agree that the appeal should be allowed. Solicitors Waterhouse and Co. Parker, Sloan and Pinsent.
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1954 (10) TMI 12
Whether the estimate of profit made by the Income-tax Officer was excessive or whether it was justified on the material on the record?
Held that:- Both the Income-tax Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under Article 136.
In the result we allow this appeal, set aside the order of the Tribunal and remand the case to it with directions that in arriving at its estimate of gross profits and sales it should give full opportunity to the assessee to place any relevant material on the point that it has before the Tribunal, whether it is found in the books of account or elsewhere and it should also disclose to the assessee the material on which the Tribunal is going to found its estimate and then afford him full opportunity to meet the substance of any private inquiries made by the Income-tax Officer if it is intended to make the estimate on the foot of those enquiries.
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1954 (10) TMI 11
Whether there is any evidence before the Tribunal to support the conclusion that the main purpose of the transactions was the avoidance of excess profits tax ?
Whether on the facts admitted or proved the share of income of Dr. Surmukh Singh in the firm of Ram Singh & Co., can be legally included along with the share of income of Ram Singh and Gurdayal Singh ?
Whether on the facts and circumstances of the case the leasing of machinery, etc., by the assessee firm to the company was a business within the meaning of Section 2(5) of the Excess Profits Tax Act ?
Held that:- The High Court should have, after answering question No. 3 in the negative, reframed the referred question No. 1 by restoring question No. 1 as suggested by the assessee firm in its petition and should have answered the question so restored in the negative and in favour of the assessee.
For the reasons stated above, we allow this appeal, reframe question No. 1 by restoring the first question suggested by the assessee firm, namely :--
" Whether under the facts and circumstances of the case the application of Section 10A with a view to amalgamating the income of the firms Uppal & Co., and Ram Singh & Co., with the income of the appellant firm was correct and valid in law ? "
And we answer the question so reframed in the negative. Question No. 2 must be answered in the negative and in favour of the assessee by way of necessary corollary. We also answer question No. 3 in the negative. Appeal allowed.
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1954 (10) TMI 10
Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights under Articles 31(1) and 19(1)(f) of the Constitution filed
Held that:- From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. Petition dismissed.
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1954 (10) TMI 9
Whether the Excess Profits Tax Officer was justified in splitting up the standard period as he did in order to arrive at the standard profits of the assessee?
Whether the business profits of the assessee had to be determined first under Section 10 of the Income-tax Act?
Whether the assessee was a resident or non-resident under Section 4A of the Act was to be considered after the determination of those profits?
Held that:- The Excess Profits Tax Officer was in error when he excluded the foreign profits for the assessment year 1936-37 from computation. Rule 1 of Schedule I to the Excess Profits Tax Act provides that business profits during the standard period are to be computed on the principles on which business profits are computed for purposes of income-tax under Section 10 of the Income-tax Act. Business profits under Section 10 may comprise Indian as well as foreign profits. All these profits would come within the computation of business profits and they would be determined as such in the income-tax assessment for the particular assessment year. The question whether Indian or foreign profits are greater would become relevant for determining the status of the assessee, whether he is a resident or non-resident, and would be considered later when the assessable income came to be determined.
It is only after the business profits are determined under Section 10 that the question can be considered whether the assessee is a resident or non-resident and that question can certainly not be determined unless and until the Indian and foreign profits of the assessee have been in the first instance determined under Section 10 - The decision of the Excess Profits Tax Officer was therefore wrong and the Tribunal and the High Court were right in the view they took - Appeal allowed.
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1954 (10) TMI 8
Whether on the facts and circumstances of the case the assessee was doing business in shares in the account year?
Whether there is any material on record on the basis of which it could be held that the assessee was doing the business in shares in the account year?
Held that:- both the Tribunal and the High Court were in error in the view that no issue of law arose in the case and that the Tribunal could not be called upon to state a case and to refer to the High Court any issue of law. The two questions framed by the appellant and which he wanted the High Court to ask the Tribunal to refer to it are comprehensive enough to embrace the issue of law that, in our opinion, arises out of the order of the Tribunal. But we think that it would clarify the position if these two questions were re-stated in the following form :--
" Whether the finding of the Tribunal is not vitiated by reason of its having relied upon suspicions and surmises not supported by any evidence on the record or upon partly inadmissible material ? "
Allow this appeal, set aside the order of the High Court dismissing the application of the appellant under Section 66(2) of the Indian Income-tax Act, and remand the case to the High Court
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1954 (10) TMI 7
Appellate Assistant Commissioner, Penal Interest ... ... ... ... ..... perhaps in view of the decision of this Court in Suraj Mal Mohta s case the petitioner was advised to prefer this application on the allegations that the procedure taken against him and resulting in the imposition upon him of the liability of Rs. 1,96,175 was wholly illegal, ultra vires, void and unconstitutional. The grounds on which these allegations were made are the same as were raised by the petitioner in Petition No. 315 of 1954 (Dewan Bahadur Seth Gopal Das Mohta v. The Union of India and Others). For the reasons given by us in our judgment in that petition we are of the opinion that this petition is misconceived. As pointed out therein, the liability of the petitioner to pay evaded tax arises now under the settlement voluntarily entered into by him with the Central Government and such a settlement cannot be questioned by preferring a petition under Article 32 of the Constitution. The result is that this petition fails and is dismissed with costs. Petition dismissed.
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1954 (10) TMI 6
Petition under Article 32 of the Constitution of India filed
Held that:- Petition is wholly misconceived. Whatever tax the petitioner has already paid, or whatever is still recoverable from him, is being recovered on the basis of the settlement proposed by him and accepted by the Central Government. Because of his request for a settlement no assessment was made against him by following the whole of the procedure of the Income-tax Act In this situation unless and until the petitioner can establish that his consent was improperly procured and that he is not bound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under Article 32 of the Constitution. Article 32 of the Constitution is not intended for relief against the voluntary actions of a person. His remedy, if any, lies in other appropriate proceedings. Appeal dismissed.
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1954 (10) TMI 5
Whether Section 5(1) of Act XXX of 1947 infringes Article 14 of the Constitution inasmuch as it is not based on a rational classification ?
Whether, after the coming into force of the Indian Income-tax (Amendment) Act, 1954, which operates on the same field as Section 5(1) of Act XXX of 1947, the provisions of Section 5(1) of Act XXX of 1947, assuming they were based on a rational classification, have not become void and unenforceable, as being discriminatory in character ?
Held that:- Assuming the provisions of Section 5(1) of Act XXX of 1947 could be saved from the mischief of Article 14 of the Constitution on the basis of a valid classification, that defence is no longer available in support of it after the introduction of the new sub-section in Section 34 of the Income-tax Act, which sub-section is intended to deal with the same class of persons dealt with by Section 5(1) of the impugned Act. The result is that proceedings before the Investigation Commission can no longer be continued under the procedure prescribed by the impugned Act. We therefore direct that an appropriate writ be issued against the Commission prohibiting it from proceeding further with the cases of these petitioners under the provisions of Act XXX of 1947
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1954 (10) TMI 4
Agricultural Income
... ... ... ... ..... on, the gross profit rate works Out to 33 1/3 per cent. on the enhanced sales for both these years. The lists of cases of other cotton mills filed with us by the departmental representative show that profits during these two years were a little less than the profits during the assessment year 1944-45. Considering all the facts of these cases, we are of opinion that the additions made during these two years be reduced to ₹ 14,00,000 in 1945-46 and ₹ 14,10,000 in 1946-47. This would reduce the gross profits to about 28 per cent. on enhanced sales during both these years." No separate arguments were addressed by the learned counsel for either side in this appeal, and for the reasons given by us in our judgment in Appeal No. 217 of 1953 this appeal is also allowed, the decision of the Tribunal set aside and the case remanded to the Tribunal with similar directions as given in Appeal No. 217 of 1953. Costs of this appeal will also abide the result. Appeal allowed.
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1954 (10) TMI 3
Whether the revised assessments for the chargeable accounting periods 1941, 1942 and 1943 are liable to be cancelled an the ground that the Excess Profits Tax Officer erred in invoking the provisions of section 15 of the Excess Profits Tax Act?
Held that:- Having regard to the nature and scope of the provisions of the Excess Profits Tax Act and in particular section 26 (3), we are of opinion that the word " discovers " in section 15 of the Act is of sufficient amplitude to take in subsequent events which have a material bearing on the facts and circumstances on which assessment had been made or relief granted, and that when the Excess Profits Tax Officer finds that an assessee to whom relief had been granted under section 26(3) has utilised the buildings, plant or machinery in business after the termination of the war, he is entitled to proceed under section 15 of the Act. Appeal dismissed.
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1954 (10) TMI 2
Whether 60% of the dividend amounting to ₹ 2,750 received by the assessee from the two tea companies is agricultural income and as such exempt under section 4(3) (viii) of the Act?
Held that:- It is true that the agricultural process renders 60% of the profits from land which is used for agricultural purposes exempt from tax in the hands of the company but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them, such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes? Such a position if accepted would extend the scope of the vital words " revenue derived from land " beyond its legitimate limits.
The policy of the Act as gathered from the various sub-clauses of section 2(1) appears to be to exempt agricultural income from the purview of the Income-tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom, but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls, however remote the receiver of such revenue may be, is hardly warranted. Appeal dismissed.
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1954 (10) TMI 1
Whether the profits on the sale of goods to the Government of India accrued or arose in British India?
Whether the profits on the sale of goods through the company's paid employees in British India accrued or arose in British India?
Held that:- The High Court was in error in giving the directions it did to the Tribunal. It moreover abjured its advisory function and asked the Tribunal not to submit to it any further statement of the case but to dispose of the matter according to law and in accordance with directions given by it. This in our opinion the High Court was not entitled to do.
We therefore allow the appeal, quash the order made by the High Court and direct that the Tribunal do submit to the High Court a further statement of the case in regard to questions 1 and 2 which were referred by them to the High Court. Appeal allowed.
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