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Showing 41 to 60 of 62 Records
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1958 (3) TMI 64 - BOMBAY HIGH COURT
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... ... ..... le of the judgment of the Tribunal, with respect, is that it has taken into consideration aspect which may have been relevant if they wanted to decide whether the gift was a bona fide gift and whether the transaction was in reality effected. But having come to the conclusion that the transaction was genuine and the gift was bona fide, all these considerations which seem to have weighed with the Tribunal have nothing whatever to do with the question as to whether the gift was a valid gift in law. The niceties and subtleties of the Transfer of Property Act and novatio and chose in action may be considered in a proper case, but certainly not in a case like this, which is a simple transaction of a constituent of a bank ordering his bank to pay sums of ₹ 5 lakhs and ₹ 2 lakhs to his son and daughter. We must answer the first question submitted to us in the affirmative. Question No. (2) In the negative. The Commissioner to pay the costs. Reference answered accordingly.
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1958 (3) TMI 63 - BOMBAY HIGH COURT
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... ... ..... eference and we cannot go into it. But when the matter goes back to the Tribunal for final disposal, it may be that the assessee may be in a position to point out to the Tribunal what deductions he is entitled to, which have not been allowed to him. All that we can say on this reference is that we are sure that the Tribunal will dispose of the matter under section 66(5) according to law. It is perhaps not strictly necessary to decide whether the case falls under section 10 or 12. The view taken by the tribunal is that the assessee practises a vocation. We are inclined to accept this view. Even a practice of religion can become a vocation and more so, when it brings in a steady income. If the assessee does practise a vocation then the case falls under section 10; but even otherwise the income would fall in any case under section 12 of the Income-tax Act. We answer the question submitted to us in the affirmative. Assessee to pay the costs. Question answered in the affirmative.
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1958 (3) TMI 62 - BOMBAY HIGH COURT
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... ... ..... tween the two sections is sound, it makes no difference as far as section 41 is concerned. Whether the assessee carries on business or is the owner of a property or owns shares and receives dividend, if he is a trustee and if he is being assessed as a trustee then section 41 must come into play and his liability to pay tax must be determined according to the provisions of section 41. The sole question, which should be easy to answer, would be Is the assessment being made upon a trustee or not? If the assessment is made upon a trustee, whatever the nature of the property, whatever the nature of the income, whatever the mode of computation, his liability to pay tax must be determined in accordance with section 41. The first question is in the alternative. Our answer to the latter part of this question must be in the affirmative. In view of this answer, it is unnecessary to answer questions Nos. (2) and (3). No order as to costs of the reference. Reference answered accordingly.
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1958 (3) TMI 61 - BOMBAY HIGH COURT
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... ... ..... been fixed at ₹ 4,85,354 as we just said, the written down value of the assets continues to be ₹ 3,81,848. We understand that the assessee company has claimed depreciation on the basis of the value of the assets being ₹ 4,85,354 and we also understand that depreciation has been allowed by the Department on that basis. Mr. Palkhivala fairly concedes that he cannot have it both ways. If he can persuade us to hold that the Tribunal was wrong in the view that it took, it must follow that his clients were equally wrong in claiming depreciation on the basis that the value of the assets was ₹ 4,85,354 and not ₹ 3,81,848. We must answer the question submitted to us in the negative. Commissioner to pay the costs. Mr. Palkhivala says that he has no objection to necessary proceedings being taken by the Department for the purpose of correcting the assessment of the assessee company under the appropriate provisions of the Act. Reference answered accordingly.
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1958 (3) TMI 60 - BOMBAY HIGH COURT
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... ... ..... trust deed to which reference has been made, about the anxiety of the settlor to control the voting power, to see that the concern in which he was vitally interested and which he helped to build up should be conducted in a particular manner, those are all side issues which do not affect the question of property or income. They undoubtedly help as to understand what the intention of the settlor was and although it may be conceded that he was greatly interested in the employees of the Premier Construction Co. Ltd., the trust deed as drafted, in so far as it does not compel the trustees to make the employees the sole beneficiaries of the bounty of the settlor, the trust deed cannot be struck down as a trust deed for a purpose other than a charitable purpose the income from which is not entitled to exemption under section 4(3)(i). We must, therefore, answer the question submitted to us in the affirmative. The Commissioner to pay the costs. Reference answered in the affirmative.
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1958 (3) TMI 59 - BOMBAY HIGH COURT
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... ... ..... ce and Mr. Justice Beasley, interpreting this very section in Commissioner of Income-tax v. Somasundaram A.I.R. 1928 Mad. 487, takes the view that "if necessary, I should be prepared to hold that the only reasonable construction of the section is to construe 'capital borrowed for the purposes of the business, as meaning capital borrowed and used for the purposes of the business." But it should be noted that what the learned Chief Justice is emphazising is the user of the capital, not what Mr. Joshi is emphazising--the user of the asset which has come into existence as a result of the borrowed capital. But it is true that on the facts of this case this question would not strictly arise because the interest which is claimed by the assessee is in respect of capital which was actually used in the year of account. The result, therefore, is that we must answer the question raised in the affirmative. Commissioner to pay the costs. Question answered in the affirmative.
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1958 (3) TMI 58 - BOMBAY HIGH COURT
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... ... ..... Dwarka Prasad Sheokaran Das v. Commissioner of Income-tax . What the Allahabad High Court held was that although the findings in the assessment proceedings may constitute a material on which the Income-tax Officer may act, in any penalty proceedings they do not constitute res judicata. Therefore, it is perfectly open to the Income-tax Officer in the penalty proceedings to consider his own finding that this receipt constituted an income for the assessment year, but he is not bound by that finding. If for instance, any other evidence was produced in the penalty proceedings, it would be open to him to come to a different conclusion. If it was open to the Income-tax Officer to come to a different conclusion, clearly equally it was open to the Tribunal to come to a different conclusion on this point. The result is that the assessee must succeed and we must answer the question, as we have reframed, in the affirmative. Commissioner to pay the costs. Reference answered accordingly.
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1958 (3) TMI 57 - SUPREME COURT
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... ... ..... stly a point is raised that the notification is bad because it violates Art. 23 of the Constitution. It is frankly stated by the learned counsel. that this point is rather premature at this stage and that he desires to reserve his client’s right to raise it in future. No other point has been urged before us and for reasons stated above the appeals Nos. 455, 456 and 457 of 1957 are dismissed with costs. Appeals Nos. 656, 657 and 658 of 1957 succeed only in part, namely, to the extent that only the word-, " by way of redress or punishment " occurring in the latter portion of el. (10) will be deleted so that the latter portion of cl. (10) will read as " and the action which in the opinion of the Commission should be taken.................. to act as a preventive in future cases " as indicated above. We make no order as to the costs of these three appeals. C. A. Nos. 455, 456 and 457 of 1957 dismissed. C. A. Nos. 656, 657 and 658 of 1957 Partly allowed.
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1958 (3) TMI 56 - BOMBAY HIGH COURT
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... ... ..... as to the proper meaning to be given to the expression " credited ". The whole of the reference is based on this reference on the contention of the Department that this is a case where a dividend has been paid within the meaning of section 16(2). It was never suggested or contended that the dividend was credited or distributed, and, therefore, we must confine our decision to holding that under the facts and circumstances of this case the dividend was not paid in the year previous to the assessment year 1953-54. We, therefore, answer the first question submitted to us in the negative. Questions 2 and 3 must be answered in the light of the decision in Commissioner of Income-tax v. Shanti K. Maheshwari ( 1958 33 I. T. R. 313). Question No. 2 in the affirmative. Question No. 3 in the affirmative in the light of the judgment in that case. No order as to costs. No order on the notice of motion. No order as to costs on the notice of motion. Reference answered accordingly.
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1958 (3) TMI 55 - BOMBAY HIGH COURT
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... ... ..... id make payments either to its employees or to their dependants and in respect of rent. But mere payments made in respect of a non-existent business is not sufficient to justify the assessee in claiming them as permissible deductions. It has got to go further and establish, according to the principle laid down in the above two English cases, that the liability was initially incurred in respect of rent and salaries for the purpose of the business and that liability could not be put an end to when the business came to an end. As no such fact has been established by the assessee, in our opinion, the Tribunal was right in the conclusion it came to with regard to these expenses. The result is that we will answer the first question in the negative. As stated in the judgment, the assessee is entitled to claim the loss of Rs. 1,82,500. The answer to question No. 2 is in the affirmative. The assessee is not entitled to claim the expenses mentioned in the petition. No order as to costs
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1958 (3) TMI 54 - CALCUTTA HIGH COURT
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... ... ..... ous on the face of it. The order is a speaking order, the reasons having been given, which, in law, are not sufficient. The matter must go back and the Commercial Tax Officer must investigate the position, giving the petitioner right to adduce evidence upon this point and the decision must be after a careful consideration of the Colliery Control Order. The result is that the assessment order as made cannot stand. The rule, therefore, is made absolute and the assessment order dated 18th December, 1956, must be quashed and set aside and it must go back to the Commercial Tax Officer to investigate the second point, namely, whether sales were made in course of export or not as indicated in my judgment, and thereafter to make an assessment order in accordance with law. The Commercial Tax Officer will be at liberty to hear the petitioner also on the ground as to exemption under section 5(2)(a)(v) but will not be compelled to do so. No order as to costs. Assessment order set aside.
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1958 (3) TMI 53 - KERALA HIGH COURT
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... ... ..... . Grout 1897 2 Ch. D. 306. and in Hamilton Gell v. White 1922 2 K.B. 442. Therefore, it follows that there was already a liability under the Cochin Act and that liability has not been destroyed by the Travancore-Cochin Act, XI of 1125, and the principles enunciated in section 4 of the General Clauses Act applied and the liability of the assessee can be enforced by the Sales Tax Department notwithstanding the repeal of the Cochin Act. It further follows that the order of assessment of the 3rd respondent dated 16th March, 1954, Ext. P, and the appellate and revisional orders, Exts. P1 and P2, are all passed with jurisdiction and they cannot be quashed as prayed for. When the order of assessment stands, it cannot be said that any tax has been illegally levied and collected from the petitioner to justify an order for refund and, therefore, that prayer also cannot be granted. In the result, the application fails and is dismissed with costs fixed at Rs. 250. Application dismissed.
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1958 (3) TMI 52 - MADHYA PRADESH HIGH COURT
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... ... ..... must be strictly construed, and accordingly, unless the order under appeal is exclusively an order of assessment with or without penalty, prior payment of the tax is not compulsory. I am not satisfied with this contention because if an appeal involves a challenge to an order of assessment, with or without penalty, the proviso will come into effect. The question of the cancellation of the registration certificate may be a ground for exemption from assessment. It cannot, therefore, be urged that because this order is also under challenged in appeal, the appeal is not against the assessment of sales tax. In this view, it is not necessary to consider whether or not the petitioner had taken proper steps for getting the registration certificate cancelled. 5. The result is that the petition fails and is dismissed with costs. Hearing fee Rs. 50 which shall be paid out of the security amount. The balance of the security deposit shall be refunded to the petitioner. Petition dismissed.
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1958 (3) TMI 51 - CALCUTTA HIGH COURT
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... ... ..... ords, while the rest of the assessment is upheld, the respondents must specifically consider whether the petitioner s tailoring business during the period under assessment executed orders of customers in respect of materials supplied by such customers direct, that is to say, whether they belonged to group No. (1). These transactions cannot be made the subjectmatter of sales tax. The rule is therefore made absolute in part and the impugned assessments are set aside and/or quashed to the extent that the matter will go back and the respondents will consider as to whether any of the transactions of the petitioner during the assessment period come within group (1) mentioned above, and exempt the same from payment of sales tax, but otherwise the calculations as made are declared to be correct. The further assessment will be made upon this footing and in accordance with law. Nothing in this order will prevent such assessment. There will be no order as to costs. Ordered accordingly.
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1958 (3) TMI 50 - SUPREME COURT
Whether in a given case there was proper exercise of judicial discretion by the trial Judge?
Held that:- Appeal dismissed. The High Court thought rightly that as the appellant had kept double sets of account books, it was eminently a case in which a substantive sentence ought to have been imposed. The Magistrate has improperly exercised his discretion within the meaning of the aforesaid observations of this Court and, therefore, the High Court was certainly within its right to enhance the sentence. High Court committed a mistake in awarding a sentence of rigorous imprisonment for a period of one month, which it is not entitled to do under the provisions of section 24(1) of the Act. Under that section the Court had jurisdiction only to give a maximum sentence of simple imprison. Be it as it may we change the sentence from rigorous imprisonment to simple imprisonment for a period of one month in each case. With this modification the appeals are dismissed.
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1958 (3) TMI 49 - SUPREME COURT
Whether the sales proposed to be taxed by the respondent took place in the course of inter-State trade and were therefore not liable to be taxed by reason of Article 286(2) of the Constitution?
Whether on the facts the sales in question did not fall within the Explanation to section 33 of the Bihar Sales Tax Act?
Held that:- These are questions which have to be determined by the appropriate Sales Tax Authorities on materials to be placed before them, and cannot be raised in these proceedings. Appeal dismissed.
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1958 (3) TMI 40 - SUPREME COURT
Whether the Andhra (Madras) Act, in fact, imposes a tax on the class of sales falling within the Explanation to Article 286(1)(a)?
Whether the impugned Act is ultra vires on the ground that it is not authorised by the terms of Article 286(2)?
Whether section 22 of the Andhra (Madras) Act is within the protection of the impugned Act, and
Whether the impugned Act validates only levies and collections made during the specified period, or whether it authorises the imposition and collection of taxes on such sales in future?
Whether section 22 of the Madras Act was null and void on the ground that it was in contravention of Article 286(2), and whether the proceedings sought to be taken thereunder on the strength of the impugned Act are incompetent?
Whether tax on inter-State sales is within the exclusive competence of Parliament, and whether the impugned Act is, in consequence, bad as authorising the States to levy tax?
Whether the proposed imposition of tax is illegal on the ground that successive sales of yarn are subject under the law to be taxed at only one point, and as the State of Madras has already taxed the present sales, the State of Andhra cannot again levy a tax on them?
Whether the proposed imposition of tax on yarn by the Andhra State is hit by the Essential Commodities Act (LII of 1952) read with Article 286(3) and is illegal?
Held that:- The contention urged on behalf of the States that the Explanation to Article 286(1)(a), being a provision of the Constitution, operated by its own force to impose a tax on the sales covered by it, and did not require to be sup- plemented by any State legislation to become effective, does not call for any detailed consideration. Suffice it to say that it cannot be maintained if the true scope of Article 286 is to define and limit the powers of State Legislatures with reference to imposition of sales tax and not to itself impose it.
If conditional legislation is valid, as we have held it is, then section 22 is clearly intra vires, and the foundation on which this contention of the petitioners rests, disappears and it must fall to the ground. In the result, we are of opinion that the impugned Act is intra vires, and is not open to challenge on any of the grounds put for- ward by the petitioners.
We are disposed to think that the concluding words of Article 372(2) preclude an attack on the Adaptation Order only on the ground that it does more than merely bringing the State law into conformity with the Constitution and is, in consequence, ultra vires the powers conferred by that Article. In the result, we must hold that section 22 of the Madras Act is within the protection afforded by section 2 of the impugned Act.
The true construction of section 2 is that the two clauses therein are, as indicated by the conjunction, distinct and independent in their operation, and that the laws of the States are kept in force in respect of sales which had taken place during the specified period, and that proceedings in respect thereof for assessment are within the protection of the Act. The fallacy in this contention of the petitioners lies in mixing up the period, the sales during which are brought within the operation of the Act, with the period of the operation of the Act itself. The former may be said to be temporary, but the latter clearly is not.
Whether we consider the question on broad principles as to the effect of unconstitutionality of a statute or on the language of Article 286(2), the conclusion is inescapable that section 22 of the Madras Act and the corresponding provisions in the other statutes cannot be held to be null and void and non est by reason of their being repugnant to Article 286(2) and the bar under that Article having been now removed, there is no legal impediment to effect being given to them.
If the States had the power under Entry 54 to impose a tax on inter-State sales subject only to the restriction enacted in Article 286(2), then by virtue of the impugned Act such law is rendered operative and proceedings taken thereunder are valid. We have reached this conclusion on a construction of the statutory provisions bearing on the question without reference to the Sixth Amendment of the Constitution which, proceeding on the view that the States had the power to tax inter-State sales under Entry 54, has amended the Constitution, and has vested the power to tax inter- State sales in the Centre.
Section 53 merely provides that the laws in existence in the territories which were constituted into the State of Andhra should continue to operate as before. In fact, by an Adaptation Order issued on November 12, 1953, even the name of Andhra was substituted for Madras in the Madras General Sales Tax Act. There is no substance in this contention.
The Madras Act was in force in the territories which now form part of the Andhra State until October 1, 1953, and thereafter that Act continues to be in operation by force of section 53 of the Andhra State Act. Moreover, the Madras Act became operative in the new State of Andhra not under any law passed by the Legislature of the State of Andhra but under section 53 of a law enacted by Parliament and therefore Article 286(3) has no application. We should add that the Essential Commodities Act (LII of 1952) has itself been repealed and is no longer in operation. This contention of the petitioners also should be rejected. Appeal dismissed.
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1958 (3) TMI 32 - HIGH COURT OF CALCUTTA
Shares – Power, to issue of at discount, Validity of acts of directors, Directors – Power of and Board’s sanction to be required for certain contracts in which directors are interested
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1958 (3) TMI 24 - HIGH COURT OF MADRAS
Oppression and Mismanagement ... ... ... ... ..... ny, it is inexpedient to start an inquiry into the charges. We cannot, however sustain the direction contained in paragraph 4 of the decretal order (schedule) under which the directors are exonerated from all liability in respect of the various allegations against them. We delete that clause from the decretal order. In doing so we also modify the clause 3 under which respondents Nos. 2 to 8 give up their claim to Rs. 1,38,000 by declaring that if at any time proceedings are taken against respondents Nos. 2 to 8 in respect of the charges mentioned in O.P. No. 159 of 1956, their giving up of this claim of Rs. 1,38,000 will not disentitle them from pleading a discharge of their liability to the extent of that sum. This right would be without prejudice to the right of the company to show that the credit of Rs. 1,38,000 was itself not binding on it. Subject to these modifications we dismiss the appeal. There will be no order as to costs. C.M.P. No. 523 of 1958 dismissed. No costs.
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1958 (3) TMI 23 - IN THE CHANCERY DIVISION
Publication of name of company ... ... ... ... ..... on to allow this petition to be properly amended. The amendments in the petition which are required are not only to get the name Sussmann correctly spelt wherever it appears, but also to word the reference to the judgment as follows The company is indebted to your petitioner in the relevant amount the amount of a final judgment obtained by your petitioner against the company in an action in the High Court of Justice described as J. and P. Sussman Ltd. It will then state the judgment correctly, but it will indicate that it was obtained in the wrong name. I think that I am entitled to allow the matter to be put in order in that way and a winding-up order to be made under the authority of In re L Industrie Verriere Ltd. 1914 Wn 222, and to treat the petition as amended. That case justifies me in making, as I do make, the original order for the winding up the company as of today. The petition need not be re-advertised. I do not give the leave to appear which has been applied for.
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