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• 1961 (11) TMI 47
  
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  ... ... ..... ed. Some produce may still retain its original character at least partially in spite of the manufacturing process, so as to be still recognizable and still describable as it originally used to be whereas in the case of other produce it may be so changed by the manufacturing process as to become an altogether different product, e.g., flour in the case of wheat and rab in the case of sugarcane, and may thus cease to be recognizable or describable by its original name. The precise form of words with which we are concerned and this very question came up for consideration in two cases before the Madras High Court, one a Division Bench case reported in K.P. Vaidyanatha Iyer v. The State of Madras(1) and the other a single Judge case reported in State of Madras v. V.R.B. Gopalarathnam Gupta(2). I respectfully agree with the decision in those cases. The result is that the writ petitions fail and are dismissed but in the circumstances I make no order as to costs. Petitions dismissed.

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• 1961 (11) TMI 46
  

  Whether the additional tax can be included in the turnover relating to the special goods and the resultant sum taxed at 6 pies for every rupee?

  Held that:- Appeal dismissed. What the Deputy Commercial Tax Officer has ordered, and the High Court was right in setting aside the order of the Sales Tax Appellate Tribunal, and restoring the order of the Deputy Commercial Tax Officer. The tradesman pays tax at the rate of 3 pies for every rupee on all the goods and an additional tax of 6 pies on every rupee of the turnover relating to certain classes of goods. But, though he pays tax on the tax charged by him in the price, the tax at different rates goes into different turnovers, and there is no additional tax at 6 pies on those goods on which such tax is not imposed by the Act.

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• 1961 (11) TMI 37
  

  Winding up - Company when deemed unable to pay its debts

  
  
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  ... ... ..... te of the judgment something is paid off. There is a genuine bona fide dispute whether the sum paid off is pound 10 or pound 20. The creditor then presents a petition to have the company wound up. Is the company to be entitled to say It is not disputed that you are a creditor but the amount of your debt is disputed and you are not, therefore, entitled to an order ?. I think not. In my judgment, where there is no doubt (and there is none here) that the petitioner is a creditor for a sum which would otherwise entitle him to a winding-up order, a dispute as to the precise sum which is owed to him is not of itself a sufficient answer to his petition. In the present case, being, as I have said, satisfied that the company is insolvent, I think that it would be wrong to put these petitioners to the trouble and expense of quantifying the precise amount which is owing to them in other proceedings and, in all the circumstances of this case, I propose to make the usual compulsory order.

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• 1961 (11) TMI 36
  

  Meetings and proceedings – Contents and manner of service of notice and persons on whom it is to be served

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• 1961 (11) TMI 35
  

  Winding up – Power of Tribunal to make calls

  
  
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  ... ... ..... least some reasonable period after the clarification of the position should, in equity, have been afforded to the appellant. I regret my inability to sustain this contention. It is not for this court under the cloak of interpretation to legislate and to prolong the life of section 19 beyond ten years from August 15, 1947, when the Parliament has, in its wisdom, fixed in unambiguous terms its life to ten years, and the appellant s argument amounts to no more than a prayer to extend the life of this section. But then it is urged that the present is a very hard case. This may be so, but, as is well known, hard cases make bad laws, and courts are not empowered to misinterpret or unduly extend the provisions of law for giving relief in cases which it may consider to be hard. For the foregoing reasons, this appeal is dismissed and the decision of the learned single judge affirmed. In the peculiar circumstances of the case, however, there will be no order as to costs of this appeal.

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• 1961 (11) TMI 34
  

  Whether foreign creditors of a firm which was incorporated in England and carried on business in India can prove their claims in the winding up proceedings of the firm as an unregistered company in India?

  Held that:- It is clear from the observations that the winding up of the dissolved company incorporated in Russia was deemed to be the winding up of that very company and not of any fictitious company composed of the branch of that company in England. The main question before us, however, was deliberately left open for consideration later. The observations, however, go against the appellant's contention that the so called unregistered company which is being wound up should be deemed to be a separate entity from the original company incorporated in England.

  Thus both on account of the specific provisions of the Act and of the general principles, the view taken by the court below that foreign creditors can prove their claims in the winding up of the unregistered company is correct. Appeal dismissed.

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• 1961 (11) TMI 33
  

  Winding up - Preferential payments

  
  
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  ... ... ..... se cases fall outside the general presumption that the relationship between a bank and persons dealing with it are that of an ordinary debtor and creditor (I might add that a purchaser of a demand draft can scarcely be called a customer of the bank in his mere capacity as purchaser, even if he is otherwise a customer). These are cases, where money was paid to the bank for the specific purpose of transmission to the place where the draft was made payable and for payment to the person named therein or his order, and the agency or trust created thereby is not discharged until the money is so paid. The cases fall within the exception in the second paragraph of the quotation I have made from the judgment of Chakravartti CJ in Birbkum Central Co-operative Bank v. Pioneer Bank Ltd. AIR 1956 Cal. 615 as summarising the principles laid down by the several High Courts. I allow the applications and direct that the applicants be given the priority they claim. I make no order as to costs.

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• 1961 (11) TMI 3
  

  Whether on the facts and circumstances of the case the payment of the sum of ₹ 6,111 made by the assessee under the terms of the agreement entered into with the Director of Industries and Commerce, Madras, on 9th November 1945, was not an item of revenue expenditure incurred in the course of carrying on the business of the assessee and, therefore, allowable under the provisions of section, 10 of the Indian Income-tax Act?

  Held that:- This is not a case of so much clay or so much salt-petre or a dump of tailings or leaves on the trees in a forest. The two modes in which the respondent did the business furnish adequate distinguishing characteristics. Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock-in-trade but which, in situ, were no more the firm's than a shell in the deepest part of the ocean beyond the reach of its divers and nets. The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers. But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err.

  The rights were not transferable, but if they were and the firm had sold them, the gain, if any, would have been on the capital side and not a realising of the chanks as stock-in-trade, because none had been bought by the firm, and none would have been sold by it. In our opinion, the decision of the High Court, with all due respect, was, therefore, erroneous, and the earlier decision of the Full Bench of the same High Court was right in the circumstances of the case. In the result, the appeal is allowed

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• 1961 (11) TMI 2
  

  Whether the Customs authorities are entitled to the custody of records seized by them under a search warrant issued under Section 172 of the Sea Customs Act, and the Magistrate cannot deny them the right to carry away the documents for their scrutiny?

  Whether the order of the Chief Presidency Magistrate gave inadequate facilities to the Customs authorities for inspection and scrutiny of the documents?

  Held that:- We must discharge the order of the learned Judge that the documents be handed over to the Customs authorities. The Magistrate is right in keeping these documents in his immediate custody; but we must direct that due facilities for inspection should be afforded to the Customs authorities in the shape of a separate room and suitable furniture and time extended beyond the ordinary Court hours. Inspection should be carried on in the presence of a Court official, and adequate privacy for questioning witnesses etc., should be afforded to the Customs authorities, whenever they find it necessary. In our opinion, if these facilities are granted—and we direct that they be granted—a period of four months from the date of this order reaches the Magistrate should prove enough. We, therefore, set aside the order for the handing over the documents to the Customs authorities, and make a direction for the disposal of the records, as stated above. We may add that this order does not apply to the 63 documents, which the Customs authorities have already agreed to return to the party.

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• 1961 (11) TMI 1
  

  Whether the possession obtained by the Customs Department by goods being "conveyed to and deposited at the nearest Customs-house" within the last words of the second paragraph of Section 180 are goods which have been seized under the Act within the opening words of Section 178A?

  Held that:- The delivery to the Customs authorities under Section 180 is not a seizure under the Act within Section 178A it would follow that the judgment of the High Court cannot be upheld for it has proceeded on the sole basis of the provisions of that section being attracted.

  The learned Sessions Judge had upheld the conviction of the appellants by an independent finding that the prosecution had positively established that the goods were smuggled and that the accused had knowingly done the acts referred to in Section 167(81) with which they were charged. This part of the case of the prosecution has not been considered by the learned Judge in the High Court and this would have to be done before the revision petition of the appellants could properly be disposed of. The appeal is accordingly allowed and the order of the High Court set aside. The case will be remitted to the High Court for the revision petition of the appellants being disposed of in the light of this judgment and in accordance with law

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