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1960 (3) TMI 74
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... ... ..... e may appear to be a surplusage. The order of the High Court recording the conviction of the appellants for the offence under s. 409 of the Indian Penal Code is therefore not illegal. 12. It was submitted for the first appellant that the sentence passed against him was unduly severe, and that, in any event, no distinction should have been made between him and the second appellant in the matter of sentence. It is evident on the findings accepted by us that property of considerable value has been misappropriated by the first appellant. He was the Managing Director of the company and primarily, he had dominion over the property entrusted to the company. The second appellant was, though a Director, essentially a technician. Having regard to these circumstances, if the High Court has made a distinction between the two appellants, we ought not to interfere with the sentence, which by itself cannot be said to be excessive. 13. The appeal fails and is dismissed. 14. Appeal dismissed.
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1960 (3) TMI 73
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... ... ..... , passed or may pass without the sanction of the State Government into the ownership or beneficial possession of any person other than the officiator for the time being, the court shall, on receipt of a certificate under the hand and seal of the Collector, stating the particulars mentioned in the section, cancel the decree or order complained of so far as it concerns the said watan or any part thereof. The only objection against the validity of the certificate is that it has been addressed to a wrong court. Since we have overruled that objection it follows that that portion of the decree which concerns the watan properties must be cancelled. 10. In the result the petition is allowed and the decree in question in so far as it purports to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate is cancelled. Under the circumstances of this case there will be no order as to costs. 11. Petition allowed.
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1960 (3) TMI 72
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... ... ..... ut jurisdiction. That is sufficient to answer the question referred to us in favour of the assessee. We express no opinion on the question, whether the amended second proviso to section 34(3) is void under article 13 of the Constitution, though such was the view taken in Prashar v. Vasantsen Dwarkadas ( 1956 29 ITR 857.). An examination of the constitutional validity of a statutory provision should not be undertaken, if relief could be given to a party without a need for pronouncement on the constitutional validity of the impugned provision. We have also refrained from going into the question, whether the case of the assessee falls at all within the scope of the amended second proviso, because we have held that even if it did, it did not save the reassessment from the bar of limitation. We answer the question in the negative and in favour of the assessee. The assessee will be entitled to the costs of this reference. Counsels fee ₹ 250. Question answered in the negative.
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1960 (3) TMI 71
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... ... ..... on 31-3-1955, and since the notice under Section 34(1)(b) was served upon the assessee, only after expiry of that period, and further since the service of a valid notice is a condition precedent to the assumption of jurisdiction under Section 34 of the Act, we have to hold that the Income Tax Officer had no jurisdiction to reopen the assessment or to re-assess the assessee, even though there was a valid order under Section 23-A of the Act. Since the notice itself was issued beyond the period of limitation, it has to be set aside by the issue of a writ of certiorari. The writ of certiorari will also be directed to set aside the order of assessment on the basis of assessment completed after the issue of invalid notice served on the assessee on 14-9-1957. 11. The petition is allowed with costs. Though it is the writ of prohibition that has been asked for, it is the writ of certiorari that will issue, in accordance with the directions given above. Counsel's fee ₹ 250/-.
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1960 (3) TMI 70
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... ... ..... he High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that s. 17 (c) would be inapplicable. 9. At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent Besides, it was urged that this Court usually does not, and should not interfere with the decision of a single judge in a second appeal. There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection. 10. The result is, the appeal is allowed, the decree passed by the High Court is set aside and that of the lower appellate court restored with costs throughout.
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1960 (3) TMI 69
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... ... ..... rs have been set aside. In so far as the suit relates to cause of action for the recovery of money paid under mistake I have held that in fact there was no mistake and even if there had been a mistake the suit would be barred by limitation. For in such case limitation would commence from the date when the payment was made by mistake. In so far as the cause of action relates to the plaintiff being entitled to refund, on setting aside the assessment orders the cause of action is not barred by limitation. 24. In view of my decision on the question that the plaintiff is not entitled to any refund I answer the issues as follows 1A. No. 1B. Yes. 2. No. 3. In so far as it relates to cause of action for recovery of payment of money under a mistake, the answer is in the affirmative. In so far as it relates to cause of action for refund arising for setting aside of the assessment ordeRs. the answer is in the negative. 4. Yes. The suit is dismissed with costs. Certified for two counsel.
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1960 (3) TMI 68
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... ... ..... by section 2(16). Such an argument cannot be entertained nor can it have any force because at the time of the death of the deceased what could pass was only the verified claim which has been held not to fall within the definition of the word "property". It is also common ground that no duty could be levied on the agricultural lands and immovable properties of the deceased in Pakistan by virtue of the provisions contained in section 3 and 21 of the Estate Duty Act as also the rules framed thereunder. (6) For the reasons given above, the answer to the question referred to us must be given in the negative. Ordered accordingly. We fix the costs of the assessee at ₹ 300. D. Falshaw, J. (7) I agree. (8) Reference answered in negative. In Wharton's Law Lexicon (Fourteenth End.) "property" is stated to be "the highest right a man can have to anything being used for that right which one has to lands for tenements, goods or chattels, which does not de
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1960 (3) TMI 67
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... ... ..... e them. The result is that, taking their eyes off the ball, so to speak, they came to a conclusion which is not, when the facts are looked at, tenable. The appeal must, therefore, be dismissed, though not quite on the ground on which the judge below dismissed it, for he decided upon the footing that the directors had the right to choose the method of costing for Income Tax purposes. In fact, of course, they have the right to choose the method vis-a-vis their shareholders and for the good of the company, but it cannot be that they are the arbiters when it comes to assessing the costs from any Income Tax point of view. It is, of course, well known that many things-reserves, and so on-which are not allowable as deductions for Income Tax purposes are proper deductions when setting out the profits of the company. But although we do not agree with all the reasoning of the judge, we do agree with his conclusion. Appeal dismissed with costs. Leave to appeal to House of Lords Refused.
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1960 (3) TMI 66
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... ... ..... ; leave as enjoyed by the clerks. We are unable to see anything that would justify our interference with the Tribunal's decision on this point. 8. As regards sick leave and casual leave however the position is that Section 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal. The fact that clerks are allowed sick and casual leave more than maximum mentioned in Section 22 does not entitle the Tribunal to disregard these provisions. In our opinion the Tribunal has acted illegally in directing the grant of sick and casual leave more than the maximum fixed by Section 22. 9. We accordingly set aside the award in so far as it directs casual and sick leave more than this maximum i. e., a total of 12 days in a year. 10. The appeal is therefore allowed in part and the Tribunal's award modified as indicated above. There will be no order as to costs.
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1960 (3) TMI 65
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... ... ..... to alter this item nor is it the case of the assessee that the liability should be at a higher figure. The matter in dispute relates only to the quantum of the reserve fund and the dispute is confined to its valuation. It is not denied that if the securities are to be valued at the figure stated by the Income-tax Officer, then a sum of ₹ 1,89,185 must be reduced from the permissible deductions. I would, therefore, find that the Income-tax Officer was not obliged to consult the Controller of Insurance before he corrected the valuation of the securities and that he had full jurisdiction to deal with the matter in the manner employed by him. The question referred to us, therefore, must be answered in the affirmative. In the result, the petition (Income-tax Case No. 8-D of 1957) is dismissed and the question referred to us by the Tribunal is answered in the affirmative. The assessee will pay the costs of these proceedings which we assess at ₹ 200. Grover, J.-I agree.
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1960 (3) TMI 64
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... ... ..... ficates will not be executable against the plaintiff respondent. In the result, we summarise our conclusions in the following terms The certificates which were filed in the office of the Certificate Officer, Alipore, and which were impugned by the plaintiff as invalid and inoperative are good certificates. To that extent we reverse the decision of the trial court. We, however, hold that unless and until the certificates are amended on the lines mentioned above, and until a notice -under section 7 of the Public Demands Recovery Act is served upon the respondent in his personal capacity, the certificates cannot be executed against the respondent. To this extent we allow this appeal, and modify the judgment and decree passed by the trial court. In view of the circumstances of this case we direct that both parties will bear their own costs in this court and in the court below. Let the records be sent down to the court concerned at an early date. Kamalesh Chandra Sen, J.-I agree.
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1960 (3) TMI 63
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... ... ..... ource altogether, denies the maintenance of accounts in respect of that source and denies that any income at all was earned from that source, could not possibly exercise the option that, in respect of that source, the previous year should be a period different from the financial year. We fail to see how a person can exercise option in respect of something entirely nonexistent according to him. That is the additional reason why this amount could only be taxed by the Income-tax Department for the assessment year next succeeding the financial previous year ending on 31st March, 1944. The inclusion of this amount in the assessment proceedings for the year 1945-46 was, therefore, not justified. In this connection, we may refer to a decision of the Patna High Court in CIT v. Darolia & Sons 1955 27 ITR 515 which supports our view expressed above. For the reasons given by us above, we answer the question referred to us in the negative. The assessee will be entitled to the costs.
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1960 (3) TMI 62
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... ... ..... it is pointed out that Section 8 of the Act enables the appropriate Government to realise as arrears of land revenue, any monies that are due from the employers. But I do not see how it follows that penal action under Paragraph 76 of the Scheme-should not be invoked. One can find dozens of enactments which provide both for punishment after prosecution and for the realisation by a certificate or similar process, all the monies outstanding. In fact, such prosecution deals with the contumacious conduct of the wrong-doer while the realisation is by way of collecting the dues. 18. In the result, the reference by the learned Addl. Sessions Judge is disposed of with a direction that the learned Magistrate should hold further enquiry into the subject-matter of the complaints in view of the prima facie case made out under Section 406, I. P. C., and Paragraph 76(a) and (c) of the Employees Provident Fund Scheme, 1952, read with Section 14(2) of the Employees Provident Funds Act, 1952.
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1960 (3) TMI 61
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... ... ..... n or fine. 39. We place on record our high appreciation of the able and lucid arguments of the learned Advocate-General, assisted ably by the learned Public Prosecutor and of Mr. Mohan Kumaramangalam, learned counsel of the defence. This case coming on for hearing after the expression of the Opinion of the Full Bench, before Somasundaram, J., on 15-4-1960, the Court, made the following Orders 40. The decision of the Full Bench on the points of law raised by the petitioner is against the petitioner. On the merits their is absolutely no ground for interference as the evidence establishes the guilt of the accused. The only one question is the sentence. In view of the fact that the entire sum of ₹ 25000/- has been confiscated and a further penalty of ₹ 5000/- has been levied and paid by the petitioner, I do not think that the ends of justice require that he should be sent back to jail. The sentence is therefore reduced to the period undergone. 41. Answer accordingly.
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1960 (3) TMI 60
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... ... ..... nds received. It is not denied that the dividend monies were given to him. It is unnatural to expect that as between a husband and wife there should be adjustment of accounts or striking of balance etc. It is no doubt true that the assessees case in regard to the receipts issued by Mr. Jackson cannot be accepted; it is not unusual to find false evidence being given to support a true case; but that circumstance may raise at best a suspicion such suspicion being insufficient to displace or even shift the onus of proof which lies on the Department. On the materials available it cannot be held that the shares are held by the assessees wife for his benefit. Nor is there any material to support the finding that the assessee was entitled to 5/6th share in the property. 16. We answer the question referred to us in the negative and in favour of the assessee. The assessees legal representative will be entitled to his costs. Advocates fee ₹ 250. Question answered in the negative.
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1960 (3) TMI 59
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... ... ..... there, are several difficulties in adopting the principle of that decision in the present case. The release deed states that the consideration paid was only for the giving up of the rights by the assessee in the picture. There are no materials to show that the restrictive covenant was independent of the main contract of release. No facts were placed by the authorities to evaluate the consideration referable to the covenant contained in clause 7. The question was not even raised before the Tribunal or the officers. The question referred to us does not comprehend a subsidiary position whether any part of the sum of ₹ 32,683 would amount to a capital asset. The new case that the consideration paid for the release should be allocated between the two heads of capital and revenue cannot now be allowed. Our answer to the question referred to us is against the assessee, that is, that the sum of ₹ 32,683 would not represent a capital receipt, and is liable to be assessed.
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1960 (3) TMI 58
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... ... ..... t revived thereby. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation. It may also be observed that the Parliament has, by the Constitution (1st, Amendment) Act, included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Art. 31(B), the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution. The appeal therefore fails and is dismissed with costs. Civil Appeal No. 686 of 1957. This appeal raises the same question which has been decided in the companion Appeal No. 392 of 1956 and for reasons set out therein, this appeal must fail and is dismissed with costs. Appeals dismissed.
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1960 (3) TMI 57
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... ... ..... t or ex gratia, would make no difference. Nor is it necessary that something should exist in the year of account which ultimately led to the receipt to enable the reopening of the account. In the present case, the amount of ₹ 12,447 was paid expressly for the loss incurred in connection with the supply of bread during the year 1948-49. The receipt would be analogous to a trading receipt of the year 1948-49. The account of that year could be reopened for the purpose of assessment. Being a receipt of an earlier year, the amount could not be included in the assessment for the year 1951-52. In the result, we answer question No. 1 in the affirmative and against the assessee; the amount is assessable for the year 1948-49 in the assessment year 1949-50 by reopening the account; question No. 2 in the negative and in favour of the assessee. As the assessee has succeeded only on one of the two question referred, there will be no order as to costs. Reference answered accordingly.
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1960 (3) TMI 56
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... ... ..... n put by him on clause 8 is not correct. The words "payable in that particular year" only govern the rent and not the balance of the unpaid instalment of premium. After the execution, the entire amount of premium becomes payable. It is the amount which the lessee pays for the transfer of the right in his favour and thus it is an amount which is paid before the relationship of a lessor and a lessee comes into existence and is recoverable irrespective of the question of the determination of the lease. I do not think that there are any circumstances which go to suggest that the amount of ₹ 2,25,000 payable by six-monthly instalments of ₹ 11,250 was of a revenue nature. In my opinion therefore, the sum of ₹ 11,250 received by the assessee during the year of account is a capital receipt. The question is answered accordingly. The assessee is entitled to his costs, which we assess at ₹ 200. C.P. SINHA, C.J.--I agree. Reference answered accordingly.
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1960 (3) TMI 55
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... ... ..... t. 3 is included in the list of entrenched provisions of the Constitution enumerated in the proviso. It is not for us to enquire or consider whether it would not be appropriate to include the said two Articles under the proviso. That is a matter for the Parliament to consider and decide. 54. We would accordingly answer the three questions referred to us as follows - Q. 1. Yes. Q. 2. (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent; (b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary; (c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the agreement. Q. 3. Same as answers (a), (b) and (c) to Question 2. 55. Reference answered accordingly.
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