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Case Laws
Showing 21 to 40 of 54 Records
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1959 (12) TMI 46 - KERALA HIGH COURT
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... ... ..... ection 66(2). Even if section 66(2) is inapplicable for the reason that there was no refusal or that the refusal was not on the ground stated in it, we are of the view that section 66(4) being inapplicable, it is then a case of omission on the part of the Legislature, and the assessee cannot succeed. When the hearing was about to conclude, we were told that the petitioner had just put in a petition under article 226 of the Constitution for a writ of mandamus to compel a reference; the petition was not posted before us, and we do not propose to say anything further about it. The question referred are both answered in the affirmative. On the reference, the assessee shall pay costs, including advocate's fee ₹ 100. The Civil Miscellaneous Petition is dismissed without costs. A copy of this judgment under the seal and the signature of the Registrar of this court shall be sent to the concerned Appellate Tribunal. Questions answered in the affirmative. Petition dismissed.
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1959 (12) TMI 45 - SUPREME COURT
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... ... ..... by the Controller on December 10, 1949, violate the respondents' fundamental rights under Arts. 19(1)(f) and (g), and so their validity cannot be successfully challenged. 14. The orders passed by the High Court on the writ petitions filed by the respondents before it would, therefore, be set aside and the said petitions dismissed. Subba Rao, J. 15. I have had the advantage of perusing the judgment of my learned brother, Gajendragadkar, J. I agree with his conclusion. 16. The question raised in this case is whether clause 11B of Iron and Steel (Control of Production And Distribution) Order, 1941, violates the fundamental rights enshrined in Art. 19(1)(f) and (g) of the Constitution. In view of the decision of this Court in Harishankar Bagla v. The State of Madhya Pradesh , which is binding on us, I agree with my learned brother that clause 11B of the said Order is valid. I do not propose to express my view on any other question raised in this appeal. 17. Appeals allowed.
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1959 (12) TMI 44 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... , was owing to the destruction of the assets which formed a fixed, as opposed to circulating, capital. The liquor contracts were the vehicles by means of which the assessee could enter into that business. As the entire field has been covered by the above decisions of the Supreme Court, it is not necessary, in order to find an answer to the question referred to us, to review the English decisions which have been considered in great detail by their Lordships. Applying the tests laid down by their Lordships of the Supreme Court, this question must be answered in the affirmative. We are, therefore, of the view that on the facts and in the circumstances of the case, the Tribunal was right in holding that the amount of ₹ 15,040 represented compensation for loss of business and was receipt of a capital nature. The contention of the assessee, therefore, prevails and he is entitled to his costs which we assess at ₹ 250. Khosla CJ - I agree. Reference answered accordingly.
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1959 (12) TMI 43 - SUPREME COURT
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... ... ..... inst the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. Whether opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case. The enquiry in this case was held by the Enquiry Commissioner who occupied the high office of Chief Justice of the East Punjab High Court. The appellant himself examined 82 witnesses and produced a large body of documentary evidence and submitted an argumentative defence which covers 321 printed pages. An opportunity of making an oral representation not being in our view a necessary postulate of an opportunity of showing cause within the meaning of Art. 311 of the Constitution, the plea that the appellant was deprived of the constitutional protection of that Article because he was not given an oral hearing by the President cannot be sustained. The appeal therefore fails and is dismissed with costs. Appeal dismissed.
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1959 (12) TMI 42 - HOUSE OF LORDS
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... ... ..... to property the interest in which pertained to the holder of an office, or recipient of charitable benefit, or a corporation sole, and fell to be enjoyed by a succession of such persons. In such cases it could not be said that there was any true passing of property on death, but there would be an interest in property within the meaning of subsection (1)(b). This would satisfy the limited meaning that Lord Macnaghten thought should be put on section 2(1). I do not, however, fail to not that there may be hereditary and remunerative offices of which it may be said that there is a true passing of property under section I. If so, I cane see no reason why there should be any exemption from duty in the case of such property. This leads me to think that the exemption should be given a limited effect which does not apply to the facts of this case. In the result I am of opinion, for the reasons, which I have endeavoured to express, that the appeal should be dismissed. Appeal allowed.
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1959 (12) TMI 41 - SUPREME COURT
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... ... ..... y are severable from the rest of the Act. As a consequence of excision of that portion and of s. 8 from the Act the operation of the remaining portion of the Act remains unimpaired. R. M. D. Chamarbaughwala v. The Union of India( 1957 S.C.R. 930). As a result of s. 8 being declared invalid, all the goods seized from the petitioners having been seized without the authority of law must be returned to the respective petitioners. It will be for the Government to take such action in regard to the proceedings taken or prosecutions commenced as is in accordance with the law laid down in this Judgment. We declare the portion of cl. (d) of s. 3 indicated above and s. 8 unconstitutional and direct therefore that a writ of mandamus shall issue directing the respondents to return the goods seized. As the petitioners' challenge to the constitutionality of the Act is partially successful the proper order as to costs is that the parties do pay their own costs. Petitions partly allowed.
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1959 (12) TMI 40 - CALCUTTA HIGH COURT
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... ... ..... rom the carrying on of the business and was not incidental to the business. The liability for the interest was not incurred in the running of the business, but was one to which all assessees are exposed whether they do business or not. On this part of the argument Mr. Mitra strongly relied upon the decision of Badridas Daga v. Commissioner of Income-tax 1958 34 I.T.R 10. Having regard to the principles enunciated by Venkatarama Aiyar, J., at page 16 of the report of that case, I am satisfied that the loss cannot be said to be a trading loss or a loss which us deductible under section 10(1) for the purpose of computing and ascertaining net profits and gains of the business. In my opinion the expenditure is not allowable as a deduction while computing the profits of the business. I, therefore, propose that the question be answered in the negative. The Commissioner of Income-tax is entitled to the costs of the reference. LAHIRI, C.J.- I agree. Question answered in the negative.
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1959 (12) TMI 39 - SUPREME COURT
Whether the Act in question is a law with respect to the matters enumerated in item 45 of List 1 or to the matters enumerated in item 27 and 29 of List 11?
Held that:- The various provisions of the Act and the Rules made thereunder were, in our opinion, essentially connected with the levying & collection of excise duty and in its true nature and character the Act remains one that falls under item 45 of List 1 and the incidental trenching upon the provincial field of items 27 or 29 would not affect its constitutionality because the extent of invasion of the provincial field may be a circumstance to determine the true pith and substance but once that question is determined the Act, in our opinion, would fall on the side of Central field and not that of the provincial field.
If the tribunal is to act judicially it must confirm to the principles of natural justice of audi alteram partem and there is no dispute that in the instant case there was no breach of this rule. Not only this, there is a right of appeal and a revision is also provided and both these remedies the petitioner availed himself of. The argument of unreasonable restriction because of this ground must also fail. The Collector was acting within his powers if he asked for the deposit of cash security of ₹ 10,000. This is not a matter with which we can, in the circumstances of this case,' interfere. Appeal dismissed.
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1959 (12) TMI 38 - SUPREME COURT
Whether cl. 4 of the Order read with the principles is within the Act or not is not free from difficulty?
Held that:- Petition partly allowed. The petitioners are therefore entitled to relief only in respect of cl. 4 of the order. We direct that an order be issued restraining the respondents from enforcing cl. 4 of the Non-ferrous Metal Control Order, so long as principles in accordance with law, are not published in the Official Gazette and laid before the Houses of Parliament in accordance with sub-s. (5) and subs. (6) of s. 3 of the Essential Commodities Act. As the petition has succeeded in part and failed in part, we order that the parties will bear their own costs.
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1959 (12) TMI 37 - ANDHRA PRADESH HIGH COURT
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... ... ..... ent of a Division Bench of this Court consisting of Chandra Reddy, C.J., and Srinivasachari, J., in Manepalli Venkata Narayana v. State of Andhra Pradesh 1959 10 S.T.C. 524. The learned Judges there were also considering the powers of a revisional authority vis-a-vis original assessing authority under rule 31(5) framed under the powers vested in the Government under the Andhra Pradesh General Sales Tax Act (VI of 1957) which is almost analogous to rule 14-A. In our opinion, there- fore, rule 14-A cannot justify the re-assessment made by the Deputy Commissioner in the present case. For these reasons, we hold that the view taken by the Appellate Tribunal cannot be sustained. These revision cases are allowed and the orders of assessment made by the Deputy Commissioner are set aside. The tax, if paid, shall be refunded to the petitioners. The petitioners will have their costs from the Government. Advocates fee is fixed at Rs. 250 in each of the revision cases. Petitions allowed.
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1959 (12) TMI 36 - MADRAS HIGH COURT
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... ... ..... here, since the other bans imposed by Article 286 of the Constitution were in force during the period, the tax liability under section 22 was unenforceable. It is on this ground that we have to allow T.R.C. No. 21 of 1957 and direct that the turnover of Rs. 3,54,152-9-9 be excluded from the taxable turnover of the assessee. Since neither party has wholly succeeded in this batch, we direct the parties to bear their respective costs. The learned Government Pleader urged with reference to T.R.C. No. 21 of 1957 that an opportunity should be given to the department to establish, if it could, that the transactions between 26th January, 1950, and 31st March, 1950, came within the scope of the taxing provisions other than section 22. We see no justification for complying with that request as we pointed out all along both the department and the assessee proceeded on the basis that these were explanation sales which became taxable only under section 22 of the Act. Ordered accordingly.
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1959 (12) TMI 35 - ANDHRA PRADESH HIGH COURT
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... ... ..... meaning of Article 20(2) of the Constitution of India and will not bar a criminal prosecution under section 167(8) of the Sea Customs Act in respect of such smuggling. In view of the foregoing authorities, there is no substance whatever in the contention that the provision for the levy of the penalty under section 16(3) and the starting of the prosecution under section 30(1) or section 30(3) as the case may be is violative of the guarantee given under Article 20(2) of the Constitution. I have no doubt in my mind that in this case the petitioner has failed to prove that there has been any excess of jurisdiction in what the respondent has done. The terms of the notice which is impugned in this writ petition are clearly within the scope and ambit of the statutory jurisdiction of the respondent. No case whatever has been made out why a writ of prohibition should be issued. In the result, the petition fails and is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1959 (12) TMI 34 - MYSORE HIGH COURT
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... ... ..... the Act and therefore invalid. Our view receives support from the language of section 12(2) of the Act, under which the assessing authority has to make a final assessment. That sub-section reads 12. (2) If the assessing authority is satisfied that any return submitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. The words on the basis occurring in this section and in section 5(8) should, in our opinion, be given the same meaning. So construed, the only basis on which the tax may properly be determined under section 5(8) can be either the estimate furnished by the dealer of that afforded by his transactions in the previous year and no other. In the view that we take, the order made by the Assistant Commercial Tax Officer has to be and is set aside. The Assistant Commercial Tax Officer will however be at liberty to make a fresh provisional assessment in accordance with law. There will be no order as to costs. Petition allowed.
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1959 (12) TMI 33 - MADHYA PRADESH HIGH COURT
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... ... ..... ssued forbearing the sales tax authority from collecting the tax amount impugned in that case. In Chhotabhai Jethabhai Patel and Co. v. The Union of IndiaA.I.R. 1952 Nag. 139. also a writ restraining the Union of India from recovering duty on tobacco under a demand made, was issued. 17.. For the foregoing reasons, we declare that the imposition of sales tax on the petitioners on sales of imported tobacco during the material years was repugnant to Article 304(a) of the Constitution and they are entitled to be paid back the amount of tax already paid by them. We, therefore, direct the issue of a writ enjoining the opponents to refund to each of the petitioners the amount of tax collected from him. Having regard to the circumstances in which the assessment was made and the tax was collected from the petitioners, we think the petitioners should not be allowed any costs. The outstanding amount of security deposited by each of the petitioners be refunded to him. Petitions allowed.
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1959 (12) TMI 32 - MADRAS HIGH COURT
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... ... ..... hable, and it is not therefore necessary for us to go into the question whether correct principle of law was laid down in that case. There, the learned Judge was apparently satisfied that the course of transactions was that, when a customer purchased the silver article from Jayarama Chettiar, the purchaser paid for the purchase partly in cash and partly in silver. As we said, the facts of that case are easily distinguishable, and the principle laid down in that case cannot be extended to cover the transactions of the assessee. Since we have come to the conclusion, that there was no sale of sheets and rings to the customers of the assessee, and what the assessee collected was only towards the labour charges, the assessee was not liable to be taxed on the turnover of Rs. 2,61,356-11-6. That turnover shall be excluded from his assessment. The petition is allowed to the extent indicated above. The petitioner will be entitled to his costs. Counsel s fee Rs. 100. Petition allowed.
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1959 (12) TMI 31 - PUNJAB HIGH COURT
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... ... ..... ate 1954 5 S.T.C. 250 A.I.R. 1954 Mad. 980. It may incidentally be observed that in Hiralal Jitmal v. Commissioner of Sales Tax 1957 8 S.T.C. 325 A.I.R. 1957 M.P. 37. , another Bench of the same High Court took a view which may seem, at first sight, to be slightly at variance with the view taken by the Bench which decided G.R. Kulkarni v. State 1957 8 S.T.C. 294 A.I.R. 1957 M.P. 45. But, as already stated, this matter need not be pursued any further. 12.. It appears to me that this petition is wholly misconceived and the proper course for the petitioner to adopt was to pursue the remedy given to him by the East Punjab Sales Tax Act by way of appeal and, if possible, revision and/or reference to this Court. On the existing record it is not possible for us to give any relief to the petitioner and we have no option but to disallow this petition. 13.. For the reasons given above, this petition fails and is hereby dismissed with costs. MEHAR SINGH, J.-I agree. Petition dismissed.
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1959 (12) TMI 30 - ANDHRA PRADESH HIGH COURT
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... ... ..... lows The estimation made by the Sales Tax Officer is very high and quite arbitrary without any basis on the records. And a similar ground has been urged in the appeal before the Deputy Commissioner of Sales Tax. We consequently hold that the plea urged in this Court before us cannot be said to be entirely new and not thought of in the earlier stages by the assessee. So, we hold as follows Point No. 1 The assessment by best judgment is bad in that no material is disclosed to the assessee as the basis of the assessment and that no effective opportunity has been given to him in fixing that quantum. Point No. 2 In view of our finding on question No. 1, the assessment is bad and liable to be set aside. In accordance with our finding on the two points of law, we set aside the assessment which has already been made on the petitioner and direct that fresh assessment be made according to the rules. The revision petition is allowed with costs. Advocate s fee Rs. 100. Petition allowed.
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1959 (12) TMI 29 - ANDHRA PRADESH HIGH COURT
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... ... ..... at date it should be deemed to be a part of the State of Madras. We do not agree with this interpretation. In our opinion, 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. Having regard to the clear pronouncement of their Lordships of the Supreme Court we must hold that there is no substance in the contention urged on behalf of the petitioner. The learned counsel for the petitioner then sought to raise certain subsidiary contentions which have a bearing on the facts. As in this revision case we find that these contentions were not raised before the Tribunal which is competent to entertain questions of fact and the petitioner having failed to do so, we do not think we are justified in entertaining these contentions on the merits involving determination of facts. This revision case therefore fails and is dismissed with costs. Advocate s fee Rs. 250. Petition dismissed.
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1959 (12) TMI 28 - MADRAS HIGH COURT
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... ... ..... ase, and those vegetables came packed in gunny bags. When he sold them, he sold the vegetables in gunny bags. It should be obvious that the price of gunny bags was included in the purchase price as well as in the sale price. That the petitioner did not deal separately in gunnies did not make him any the less a dealer for the purpose of the Sales Tax Act. There was a sale of vegetables packed in gunny bags. It has been well settled by decisions of this Court that where there is a sale of an article, the container and the contained article are both sold and as there was an element of sale when the property in the gunny bags was passed by the petitioner to those who purchased from him, the Tribunal was right in holding that on the turnover of gunny bags also the petitioner was liable to be taxed. The order of the Tribunal is modified to the extent indicated above. As neither party has wholly succeeded there will be no order as to costs in this petition. Petition partly allowed.
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1959 (12) TMI 27 - MADRAS HIGH COURT
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... ... ..... rking the lathe the lathe itself is machinery, dependent no doubt on electricity in this case, but which could easily be designed and altered for use with other types of power. We have mentioned this only to indicate that the prima facie view, that a lathe even when driven by electric power is not electrical goods, is left intact, despite the finding of the Tribunal, which in effect was that this was a lathe designed primarily for use with electrical energy. On a proper application of the test formulated in William Jacks and Co., Ltd., Madras v. The State of Madras,(1) the lathe in question ought to have been excluded from the category of electrical goods. The petition is allowed and the turnover in question, Rs. 2,60,236-13-0, will be held liable to sales tax only at the normal rate of three pies in the rupee. It is not subject to the additional rate for which section 3(2)(viii) provides. The petitioner will be entitled to its costs. Counsel s fee Rs. 100. Petition allowed.
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