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Case Laws
Showing 1 to 20 of 34 Records
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1960 (7) TMI 68 - ASSAM HIGH COURT
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... ... ..... lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself The right of pre-emption is an incident of property and attaches to the land itself. It was also held that when the existence of a custom under which the Hindus claim to have the same rights of pre emption as Muhammadans, in any district, is generally known and judicially recognised, it is not necessary to prove it by further evidence. A long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujurat. 9. The counsel for tire respondents has also tried to support the decision of the trial court on the ground that proper demands had not been made. As I have indicated above, in the view which I have, taken, it' is not necessary to decide these points. In the result therefore, there is no force in this appeal and it is dismissed without costs.
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1960 (7) TMI 67 - GUJARAT HIGH COURT
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... ... ..... s a Court of co-ordinate jurisdiction with that predecessor. (11) It is lastly argued by the learned Advocate General that decisions of the Bombay High Court prior to the appointed date are binding on this Court because the systems of law in the new States of Maharashtra and Gujarat are derived from the parent State of Bombay of which each formed a part. That decisions of the predecessor Court or the parent Court in any such situation should be accepted with all the respect due to them is not in doubt or dispute. The question is whether the decisions of that Court are binding but since we have already reached our conclusion on a reading of the Sections of the Reorganization Act and particularly that of S. 87, we need not burden this judgment with any further discussion of the same. (12) For reasons already given it is the opinion of this Court that decisions of the High Court of Bombay given prior to the appointed day are binding on this High Court. (13) Answered accordingly.
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1960 (7) TMI 66 - ANDHRA PRADESH HIGH COURT
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... ... ..... ted in establishing privity of contract between the parties. His position may be that of an agent for purposes of negotiation. He is not concerned with the actual fulfilment of the contract nor does he incur any personal liability in that behalf. That being the position in law the plaintiff cannot sue the defendant as a broker for the breach of contract. The trial Judge has on evidence also held no liability attaches to the 2nd defendant. He has in para 23(2) of the judgment observed that both P. W. 1 and P. W 2 admitted that the defendant being a broker is not liable for breach of contract and that it is also so stated in Ex. B. 3 the specimen contract form. It would appear from this the action against the 2nd defendant has not been made to rest on any fraud of 2nd defendant nor is it fought on that basis. On that ground also, the suit against him would fail. It follows that there is no force in these appeals. They are accordingly dismissed with costs of the 1st respondent.
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1960 (7) TMI 65 - MADRAS HIGH COURT
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... ... ..... sed on him personally, makes no provision for any deduction from that share in respect of any part of the partnership profits having arisen outside British India. They proceeded to point out the difficulties that would be encountered in determining what part of the income of the firm was such that if it were income of a person not resident or not ordinarily resident in British India would not be part of his total income within the meaning of the Income-tax Act. Apart from these difficulties, such a contention, in the view of their Lordships, would involve reading into the section things which are not there, which would complicate its application and would lead to practical difficulties. But they clearly laid down that in the case of a non-resident partner of a resident firm, his share of the firm's income is not liable to be reduced in any manner by resort to section 4(1)(c). The result, is that both the questions are answered in the affirmative and against the assessee.
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1960 (7) TMI 64 - CALCUTTA HIGH COURT
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... ... ..... the basis of which the value was arrived at, were found defective and had to be corrected. I do not see any law or rule whereby a second show cause notice is precluded. Of course, a second show cause-notice on identical terms would have been without sense, and if it was issued after the adjudication consequent upon the first notice was complete, that would have been barred by principles analogous to res judicata. Otherwise, I do not see why a second notice could not be given and indeed, the company must have been very badly advised not to have contested the same. However, the result is that the position remains just as it was, and the company lost an opportunity of putting forward additional grounds, which it has now thought fit to agitate for the first time before me. 10. For the reasons aforesaid, no grounds have been made out for my interference and the application fails. The Rule must be discharged. Interim orders, if any, are vacated. There will be no order as to costs.
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1960 (7) TMI 63 - PATNA HIGH COURT
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... ... ..... It does not exempt them from all responsi bility." The same view has been affirmed in other cases and it is accordingly clear that the only question for consideration in the present case would be the validity of the risk notes in question; and if it is once established that they were duly executed, the question of misconduct or negligence cannot arise in the case. In view of the above finding, it is unnecessary to go into the question as to whether the plaintiff can maintain the suit after having received a sum of ₹ 30,000/- from the Free India General Insurance Company of Calcutta with which the consignment was assured. All the points raised on behalf of the plaintiff-respondent having failed, and the contentions advanced on behalf of the appellants having been found to be substantial, the appeal must be allowed, the judgment and decree of the Court below set aside and the plaintiff's suit dismissed with costs throughout, Anant Singh, J. 16. I entirely agree.
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1960 (7) TMI 62 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... an show that his debt was not barred on the day the application for winding up was made. 11. It seems to me that there is a close analogy between the insolvency law and the law under the; Companies Act by virtue of the provisions of Section 229 of the Companies Act, and since in a large number o£ cases Courts have held that under the insolvency law a debt, which is provable on the date of the filing of the application for insolvency, is to be deemed a provable debt within the meaning of Section 34(2), it must be held that the same rule would apply to cases under the Companies Act, and that being so, I would hold that the debt of the appellant is provable, and not barred by limitation, 12. I would, therefore, allow this appeal and setting aside the order of the learned Company Judge hold that the claim of the appellant in respect of ₹ 2,359/7/9 has been proved. The appellant will recover costs in appeal. Gurdev Singh, J. 13. I agree with my Lord the Chief Justice.
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1960 (7) TMI 61 - MADRAS HIGH COURT
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... ... ..... doubtedly treates alike all those shareholders of a company who borrow from it when there are accumulated profits. Further a legislation embodying a system of taxation on the basis of a rational distinction even between individuals would be proper and valid. There is a substantial distinction between a person who draws monies in a controlled company whether by himself or his nominee while undistributed profits are available and a person who draws monies therefrom when there are no undistributed profits. Taxing the former on the basis of the fiction enacted, takes note of the fact that even on that day he having the control of the company could declare the dividend and draw the money; while in the other case it cannot be so done. There is, therefore, no substance in the argument that the enactment is in any way discriminatory. The petition fails and rule nisi is discharged. The petitioner will pay the costs of the respondent. Counsel's fee ₹ 250. Petition dismissed.
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1960 (7) TMI 60 - MADRAS HIGH COURT
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... ... ..... sment Rules were satisfied. We reverse the finding of the Tribunal on this point, and we direct that the excise duty paid by each of the assessees be excluded from the computed taxable turnover of that assessee. He is entitled to the rebate under rule 5(1)(i) of the Turnover and Assessment Rules. T.C. Nos. 62 to 65 of 1959 and T.C. Nos. 32 to 34 of 1960 will stand allowed to the extent indicated above, and the assessments will be revised accordingly to give relief to the assessees with reference to the excise duty paid by them. T.C. Nos. 49 and 50 of 1960 and T.C. Nos. 79 and 80 of 1960 will stand dismissed, as the only question raised there was the liability to tax of the sales of chewing tobacco in packets effected by the assessees, already dealt with in disposing of T.C. Nos. 62 to 65 of 1959. No order as to costs in any of these petitions. T.C. Nos. 51 to 53 of 1960 and T.C. Nos. 66 and 67 of 1960 will be posted separately for orders as to admission. Ordered accordingly.
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1960 (7) TMI 59 - PATNA HIGH COURT
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... ... ..... in Federal Commissioner of Taxation v. Riley53 Com. L.R. 69., where it was held that photographs taken of and supplied to clients for reward in the course of a photographer s business were goods manufactured within the meaning of the Sales Tax Assessment Act (No. 1) of 1930-35, and that having regard to the whole process of what is done in the production of the photograph it cannot be regarded as being in the nature of an artistic service of a personal character. For these reasons I hold that in the circumstances of this case, the petitioner is liable to pay sales tax with regard to sale of photographs of customers taken by him for the purpose of supplying printed copies of photographs to them on payment. I would accordingly answer the question of law referred by the Board of Revenue against the petitioner and in favour of the State of Bihar. The petitioner must pay the costs of this reference. Hearing fee Rs. 250. KANHAIYA SINGH, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 58 - ORISSA HIGH COURT
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... ... ..... ct an order of assessment which has become final under the provisions of the Sales Tax Act. Dobutless the right of a party to apply for refund under section 14 of the Act is slightly wider, as pointed out by me in Orient Paper Mills Ltd. v. The State of Orissa 1957 8 S.T.C. 749.But here the Tribunal was not purporting to act under section 14 of the Act, nor was any application under that section made before him. He was functioning only as a second appellate authority over the order of the Assistant Collector and his powers are strictly limited by sections 22 and 23 of the Act. 5.. The questions are therefore answered as follows Question No. 1 This question is answered in the negative. The Tribunal was not right in admitting additional grounds for granting relief. Question No. 2 The order of the Tribunal in directing refund of the tax was not proper, on the facts and circumstances of this case. There will be no order for costs. DAS, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 57 - ORISSA HIGH COURT
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... ... ..... section 5(2)(a)(ii) are not found-irrespective of whether a declaration was obtained under rule 27(2) of the Orissa Sales Tax Rules. (b) Rule 27(2) of the Orissa Sales Tax Rules is not ultra vires of the Orissa Sales Tax Act. (c) The letter of the Assistant Sales Tax Officer dated 2nd January, 1950, will not absolve the petitioner from liability to pay sales tax if he is otherwise liable, under the law, to pay the same. (d) A declaration under rule 27(2) of the Orissa Sales Tax Rules is not always obligatory on the part of the selling dealer. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of section 5(2)(a)(ii) of the Orissa Sales Tax Act. 10.. As the petitioner was misled by the letter of the Assistant Sales Tax Officer the only concession we can show him is to exempt him from payment of costs. Both parties will therefore bear their own costs of this reference. DAS, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 56 - ORISSA HIGH COURT
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... ... ..... liabilities arising out of the registration of the firm under the Act and the omission to modify the registration certifi- cate, as required by section 18(a) of the Orissa Sales Tax Act. 5.. This finding must necessarily be fatal to the petitioner s case. Admittedly the Madras business was run by Fazl Bhai Dhala in his individual capacity and in his books of account the transactions in question were shown as sales . A partnership firm may enter into a transaction of sale with an individual businessman even though the latter may be one of the partners of that firm. 6.. Question No. (6) is therefore answered as follows On the findings of fact of the Collector of Commercial Taxes it must be held that the partnership firm continued to exist for the purpose of the Orissa Sales Tax Act. The other questions do not arise for decision and need not be answered. The reference is disposed of accordingly. There will be no order for costs. DAS, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 55 - ORISSA HIGH COURT
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... ... ..... ption under section 5(2)(a)(ii). Similarly, the right of the Sales Tax Department to assess the purchasing dealer by virtue of the aforesaid proviso cannot be restricted by the provisions of rule 27(2). 9. On the facts as admitted, therefore, it must be held that the purchasing dealer, viz., Messrs S. Lal and Co., used the goods for purposes other than those specified in the certificate of registration , i.e., for the purpose of resale outside Orissa and as such that firm is liable to pay sales tax by virtue of section 5(2)(a)(ii) of the Act. The answer to the question referred to this Court is therefore as follows The proviso to section 5(2)(a)(ii) of the Orissa Sales Tax Act will operate if the facts as mentioned in the said proviso are found to exist irrespective of whether the purchasing dealer gave a declaration under rule 27(2) of the Orissa Sales Tax Rules . Both parties will bear their own costs of this reference. G.C. DAS, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 54 - PUNJAB HIGH COURT
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... ... ..... chedule attached to the East Punjab General Sales Tax Act is All goods on which duty is or may be levied under the Punjab Excise Act, 1914, or the Opium Act, 1878. Such goods are exempted from sales tax. The excise duty, which is being charged by the Punjab State by virtue of Article 277, is clearly a duty which is being levied under the Punjab Excise Act of 1914, even though item (c) of sub-section (6) of section 3 was omitted by the Adaptation of Laws Order, 1950. Article 277 was intended to provide continuity in the fiscal law of the State, and the power given by it was the power derived under the Punjab Excise Act. Therefore, it is clear that the duty, which is being levied on the finished goods prepared by the assessee, is being levied under the Punjab Excise Act. That being so, the articles prepared by the assessee are exempt from the sales tax. We answer the reference accordingly. There will be no order as to costs. MAHAJAN, J.-I agree. Reference answered accordingly.
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1960 (7) TMI 53 - MADHYA PRADESH HIGH COURT
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... ... ..... cts have been accepted as final. The question whether the assessee is or is not a guarantee-broker or a dealer depends on the legal effect of the findings reached by the sales tax authorities and on the construction of the terms of the agreement dated the 10th September, 1952, and the ultimate conclusion reached by us is on the application of legal principles to the basic findings as to the course of business. The question posed by the Board of Revenue is, therefore, clearly a question of law (see Sree Meenakshi Mills Ltd. v. Commissioner of Income-taxA.I.R. 1957 S.C. 49 31 I.T.R. 28. ). 13.. Our answers to the questions referred to are, therefore, as follows (a) Clauses 2 and 4 of the agreement do not relate to different types of transactions. (b) The assessee is a dealer within the meaning of section 2(c) of the M.P. Sales Tax Act, 1947, in respect of the transactions under clause 4 and those in question. There shall be no order about costs. Reference answered accordingly.
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1960 (7) TMI 52 - KERALA HIGH COURT
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... ... ..... the dealer lies only against the order that is against the dealer, and not for reasons given in the order, the dealer could not have appealed against the earlier order. The order of 18th October, 1954, it may be recalled, had set aside the assessment, and had remanded the case for fresh disposal. The dealer obviously could not have appealed, because there was no assessment order, against which he could have appealed. In these circumstances, we feel that the assessee could not be said to have let any decision in the order of remand become final by letting his right of appeal lapsed. At best, the part of the order against him may be treated as a finding, and we think that such a finding, where no appeal can be filed, does not become final, so as to preclude its being reversed by higher appellate authority, when an appeal is property filed. For these reasons, we feel the revision petition has no force, and it is dismissed. The parties will bear their costs. Petition dismissed.
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1960 (7) TMI 51 - ANDHRA PRADESH HIGH COURT
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... ... ..... r which it has been made. The expression dealings is, in my view, capable and comprehensive enough to take in, not merely the sale of the castor oil and like products, but also the purchase of the castor seeds without which it is obvious oil cannot be extracted. There is no warrant, therefore, in my view, for holding that the exemption refers only to the tax on sale of castor oil and not to the tax on the purchase value of the castor seeds. It seems to me that this is a case in which the proposed assessment is not warranted and a writ of mandamus will issue restraining the Commercial Tax Officer from enforcing the demand in pursuance of the assessment of the tax only with respect of the purchase value of the castor seeds from out of which castor oil has been pressed in the year of assessment. The petition, therefore, is allowed with costs. Advocate s fee Rs. 50. Since the same points govern the other writ petitions they are also allowed. No advocate s fee. Petitions allowed.
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1960 (7) TMI 50 - KERALA HIGH COURT
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... ... ..... sales or purchases must take place. It further follows that the absence of any express limitation in column 3 does not help the petitioner. 5.. The Advocate then argued that the intention of the authority is to notify the person who incurs the liability, and it would be incorrect to hold his client liable when the last purchaser by clear evidence is some other person. The answer is simple. Last purchaser in the context means such a person within the specified period, and that is the inevitable consequence of the assessment year being a unit. Were we to relax the rule, any cancellation of the last purchase after the assessment year would be available to prove the transaction not to be such. We do not think the Notification varies the general principles of annual taxation, and should the inevitable consequence of the principle be hardship to the taxpayer, he must bear it. For these reasons, the revision petition fails and we dismiss it with costs, Rs. 100. Petition dismissed.
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1960 (7) TMI 49 - PATNA HIGH COURT
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... ... ..... this definition either in the language or in the context of the Bihar Government notification dated the 14th December, 1957. For these reasons we hold that petitioner No. 2 is exempt from payment of sales tax with regard to the sale of hand-made biris for the period from the 14th December, 1957, to the 30th June, 1958, and there is no liability cast upon the petitioner to sales tax on hand-made biris for this period because of the exemption given by the notification of the Government of Bihar dated the 14th December, 1957. For the reasons we hold that this application must be allowed and a writ in the nature of mandamus must be granted under Article 226 of the Constitution, commanding the respondents not to take proceedings for realising sales tax from petitioner No. 2 with regard to the sale of hand-made biris for the period from the 14th December, 1957, till the 30th June, 1958. We accordingly allow this application. There will be no order as to costs. Application allowed.
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