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1961 (12) TMI 117
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... ... ..... of the judgment in the Kavalappara 1961 1SCR128 decision would appear to suggest that a law providing for "acquisition" and "requisition" by the State as understood in the sense indicated by Art. 31(2)(a), does not fall within Art. 19(1)(f) and that the validity of such a law is not to be tested by the criterion in Art. 19(5). Otherwise the point made in it regarding the disseverance effected between the content of Art. 31(1) and of Art. 31(2) by the Fourth Amendment would lose all significance. It would therefore appear that there is nothing in that case which would bring it into any conflict with Babu Barkya Thakur's case 1960 1 S.C.R. 887. As the only ground on which the correctness of the decision in Babu Barkya Thakur's case 1960 1 S.C.R. 887 was challenged was that it was inconsistent with Kavalappara Kochuni's case 1961 1SCR128 , that argument must fail. 10. The appeal, therefore, fails and is dismissed with costs. 11. Appeal dismissed.
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1961 (12) TMI 116
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... ... ..... the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments from public charitable trusts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa. The presumption with respect to the temple in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated. 43. We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship. We therefore allow the appeal with costs throughout, set aside the order of the Court below and restore the order of the District Judge, Vizagapatam, setting aside the order of the Board dated March 28, 1947.
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1961 (12) TMI 115
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... ... ..... ce was ₹ 4,92,119. The taxes paid during 1947-48 and 1948-49 and the dividend of ₹ 70,000, declared in the year ending March 31, 1948, came to ₹ 1,42,916 leaving a balance of ₹ 3,49,203. Provision for the estimated taxes on the book profits of this year and the two preceding years, less payments during the year, would account for ₹ 1,96,432. This amount has to be deducted from the gross profits arrived at. This leaves the sum of ₹ 1,52,771 as the available profits, which has to be considered for the application of Section 23A. The dividend declared is only ₹ 45,000. The conclusion reached by the department and the Tribunal that the conditions requisite to the making of an order under section 23A obtain in this case, hardly requires to be underlined. In the result, we answer the question in favour of the assessee for the assessment year 1947-48 and against him for the year 1949-50. There will be no order as to costs. Order accordingly.
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1961 (12) TMI 114
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... ... ..... of the Code and the related provisions would have still to consider whether the tenant had or had not qualified to be a permanent tenant by the application of the criteria enacted by s. 6. I am therefore clearly of the opinion that the entire object and purpose of the impugned enactment which is given effect to by its operative provisions enacts not a rule of evidence for determining who permanent tenants are under the pre-existing law, but to define, create and as it were, add a new class of "permanent tenants", i.e., those who satisfy the requirements of s. 4. If this were the proper construction of the impugned enactment it was not seriously contested that the enactment would be void and unconstitutional and liable to be struck down. I agree therefore that these petitions should be allowed. BY COURT In accordance with the opinion of the majority, these petitions are allowed with costs. As the petitions have been heard together there will be only one hearing fee.
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1961 (12) TMI 113
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... ... ..... two authorities acted. Furthermore, the Collector of Customs, Visakhapatnam, did not give the petitioners a hearing or an opportunity of representing their case and rebutting or explaining the material upon which he acted. There appears to me to be no adequate reason why the quotations given in the trade journal for Calcutta should be accepted as the final word in determining the prices available at Visakhapatnam. I would therefore, accept these petitions and direct that reassessment should be made in the light of the observations made in the judgment. In the Bombay case referred to above a direction was given by Chagla, C. J., that the petitioners would have an opportunity of filing appeals against the reassessment and the limitation would start from the date upon which reassessment was made. I would make a similar order in this case also. The petitioners will recover costs of these petitions which we assess at a consolidated figure of ₹ 500/-. (13) Petition allowed.
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1961 (12) TMI 112
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... ... ..... s intended to have retrospective operation and to cover cases where the right to issue notice in respect of any particular year had become barred by lapse of a period of eight years before the amendment of 1956 came into force. It will thus be seen that there is no real inconsistency or conflict between proviso (ii) in sub-section (1) of section 34 and sub-section (4) of section 34. Consequently, although in the present case the right to issue notice in respect of the assessment year 1942-43 would otherwise have become barred in 1951, still by reason of and under sub-section (4), the Income-tax Officer had the right to issue notice in respect of this (otherwise barred) year. This appears to me to be the right interpretation of this sub-section (4) of section 34 of the Act and accordingly the notice issued on 19th January, 1960, was not barred by limitation but was a good and valid notice. In the result the appeal must fail and it is accordingly dismissed with costs. I agree.
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1961 (12) TMI 111
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... ... ..... The analogy of section 8 and the cases decided thereunder were held inapplicable, because they deal with the meaning of the word "receivable" in that section and the mercantile method of accounting, as far as that section is concerned, is not applicable because interest on securities only becomes "income" when it is actually received and not when it is due or capable of being received by the assessee. Section 12B, however, uses the-word "arise" and as such the income is deemed to have been received in the previous year. It is apparent from the entire transaction and the method of accounting adopted both by the assessee and the company that the income had arisen to the assessee in the year of account and there is no justification even for the contention that at least immoveable assets should be deemed to have been transferred only in the year in which the actual sale deed was executed. We accordingly answer both the references in the affirmative.
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1961 (12) TMI 110
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... ... ..... The State of Orissa v. Ram Narayan Das (1) where it was said, "The third proposition in the latter case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed." We would repeat that in the present case the enquiry was concerned with ascertaining the suitability of the respondent for the higher rank and was not a punishment. At one stage Mr. Anthony was inclined to argue that the enquiry was really a part of the original order of reversion and that it had been deliberately postponed to as to avoid the applicability of s. 240(3) of the Government of India Act, 1935 No such case is made in the plaint. Neither was it made in the courts below nor can it be based on their findings. Such a case cannot now be made. We think, therefore, that the appeal must be allowed with costs throughout and we order accordingly. Appeal allowed.
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1961 (12) TMI 108
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... ... ..... ides of their applications and we have only to decide whether the forfeiture effected by the company is valid or not. The Act makes ample provisions for seeking appropriate reliefs in case of oppression (S. 397) in case of mismanagement (S. 396) and for winding up for just and equitable cause (S. 433). It is true the shareholder are succeeding in the appeals on mere technical grounds such as omission of minute details in the notice issued to them. But they are entitled to ask the court to set aside the forfeiture of their shares on the principle of strictissimi juris. We are constrained to uphold the contention of the shareholders and to set aside the forfeiture effected by the company in spite of the fact that the conduct of the share-holder is not above board. 33. Accordingly the appeals are dismissed. But in the circumstances we direct the first respondent in the appeals to pay to the company its costs, ₹ 500. I. E., ₹ 250 in each appeal. 34. Appeal dismissed.
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1961 (12) TMI 107
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... ... ..... he formation of the partnership in a deed. In such a case the rights of the partners accrue from the date of the formation of the partnership, and need not be deferred to the date of the written instrument R.C. Mitter & Sons v. Commissioner of Income-tax 1959 36 I.T.R. 194 ; 1959 Supp. 2 S.C.R. 641. We accept the finding of the Tribunal that the partnership began to function only from the date of the written instrument in the absence of any evidence of its formation at any time anterior to it. We are, therefore, of opinion that the partnership cannot be given retrospective operation as and from 1st July, 1955. The revision petition is allowed and the order of the subordinate tribunals is set aside. The Agricultural Income-tax Officer is hereby directed to restore the application for registration to his file and dispose it of in accordance with law and in the light of the observations herein contained. There will be no order as to costs in this petition. Petition allowed.
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1961 (12) TMI 106
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... ... ..... r collected from Lababedi Company the purchase price minus the amount of the commission. In other words the amount of commission due to Pioneer Consolidated Company was left in the hands of Lababedi Textiles when the petitioner collected from Lababedi Company only the price of the cloth supplied minus the commission. Leaving of the amount of commission in the hands of the Lababedi Company, to my mind, clearly amounted to payment of commission to Lababedi Company as agent of Pioneer Consolidated Company. From this it follows that the payment was to the Pioneer Consolidated Company through its agent for collection of commission and the position was the same as if the payment had been made directly by the petitioner to the Pioneer Consolidated Company. Upon this view it seems to me that the requirements of section 18(3B) regarding actual payment were complied with. It follows that there is no force in this petition and it is accordingly dismissed with costs. Petition dismissed.
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1961 (12) TMI 105
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... ... ..... eply to any of them either. In its application the petitioner, it may be stated, did not apply for opening new mines. Since the necessary permission was not received, it did not commence any operations. We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past. Even so, we do not think that any different considerations could apply to the petitioner's case from those which apply to the case of the Burrakar Coal Co. The petitioner's colliery was also dormant for too long a period and was thus an "unworked mine". The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakar Coal Co., Ltd. The writ petition thus fails and is dismissed with costs. 35. Cost of the hearing be paid half and half by the two petitioners. There will be only one hearing fee, to be divided equally between the two petitioners. 36. Petitions dismissed.
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1961 (12) TMI 104
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... ... ..... e possession of the mortgagee was unatfected ana the period of limitation prescribed for redemption of the mortgage could not be shortened by such a sale and hence the possession of the. mortgagee even after the sale could not be adverse to the tarwad. 103. In view of the foregoing discussion hold that the sale impugned in the suit was a nullity as far as the tarwad was concerned and the suit to redeem the mortgage, ignoring the sale, brought within the time allowed by the law of limitation for such redemption, was competent and not barred- The result is the decision of the lower appellate court is upheld and the Civil Miscellaneous Appeal is dismissed. By Court. 104. In view of the majority opinion, the Civil Miscellaneous Appeal is allowed, and setting aside the order of remand the cours below is directed to restore the appeal to its file and dispose of the same in accordance with law. 105. The costs of this C.M.A. will follow the result of the decision in the court below.
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1961 (12) TMI 103
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... ... ..... No. 354 of 1960 decided on May 13, 1960) given by the Chief Justice and Chaudhuri, J., which they had applied the Privy Council case, and made a distinction between a route which was longer than the notified route, though running for part of the way along the notified route and the notified route. In the judgment from which Civil Appeal No. 434 of 1961 arises, the learned Chief Justice has declined to follow his earlier ruling which, he considers, was given per incuriam , because the provisions of s. 68F(2)(c)(iii) of the Motor Vehicles Act were not taken into account. After considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail. 13. In the result, the appeals are dismissed, but in the circumstances of the case, we make no order about costs. 14. Appeals dismissed.
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1961 (12) TMI 102
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... ... ..... nciple and for reasons which I have already mentioned 1 am of the opinion that the four decisions to which I have just referred lay down the correct law and that I should follow those decisions. I therefore take the view that in a case where the tenancy of the tenant is determined by any mode other than forfeiture the tenant in order to be entitled to protection from dispossession must bring his case within the four corners of the Rent Act and that if he cannot do so there is no discretion in the Court to grant or refuse a decree for possession to the landlord against the tenant and that the decree for eviction must in such case go against the tenant. In this view of the matter the contention of Mr. B.R. Shah that the defendant should be granted relief against dispossession even if he did not comply with the conditions specified in Sub-section (3)(b) of Section 12 must be negatived. The result therefore is that the Revision Application fails and will be dismissed with costs.
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1961 (12) TMI 101
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... ... ..... rustee. So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta. It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore. That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff. The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab. In that view of the case the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (12) TMI 100
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... ... ..... es presented by this case are, In my opInion, so formidable that the conclusion that the bank realised a profit by an act done In what is truly the carryIng on or carryIng out of a busIness becomes impossible. Although, ordInarily, it might have been possible to come to the conclusion that the cash asset of a bank which is generally expended for the realisation of a profit produces a revenue exertion' when it appreciates In value In the course of bankIng operations, what makes that conclusion difficult In the present case is the sterilisation of that cash asset and the undisputed fact that it was not used at any material stage In a bankIng operation. I would, therefore, answer the question referred to us In favor of the bank. My answer is that the exchange difference of ₹ 1,70,746 is not assessable under any of the provisions of the Indian Income-tax Act. ( 39. ) The bank is entitled to the costs of this reference. Advocate's fee ₹ 250. Order accordIngly.
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1961 (12) TMI 99
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... ... ..... ntains a definition of an "estate" and that definition excludes the interest of a roytwari proprietor, the very words ofArt.31A(2)(a) which I have extracted earlier would negative the applicability of its provisions to that tenure. Art. 31A being out of the way I agree that the provision in (1) s. 2 (39) of the Act which by definition excludes pepper and areca plantations from the category of the plantations which are named in it which are exempted from the operative provisions of the impugned Act, (2)s. 58 for the determination of the ceiling in respect of different individuals who are brought within the scope of the enactment, and (3) ss.52 and 64 for determining the compensation payable to the several classes of persons whose lands are acquired under Act, all these are violative the guarantee of the equal protection of laws under Art. 14 of the Constitution. I therefore agree in the order proposed that the petitions be allowed, and with costs. Petitions allowed.
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1961 (12) TMI 98
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... ... ..... s of this general character, he can repel the claim to tax by proving that the persons who gave him the sums alleged to be taxable gave them to him on some entirely different account. But then I think the first test would still hold good what was the quality of the payment from the point of view of the recipient ? In the case put, from the point of view of the recipient, the payment would have nothing to do with his employment at all; it would have been made for the wholly extraneous purpose I am postulating." The true character of the receipt in any given case is really one of fact depending upon the circumstances of that case. We entertain no doubt that the assessee received the payment only as a reward for work done by him by contributing articles to and by writing in the columns of the journal. We agree with the conclusion of the Tribunal, though not with its reasoning, and answer the reference against the assessee. The assessee will pay the costs of the department.
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1961 (12) TMI 97
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... ... ..... hat in certain circumstances the fact is not patent but even then it appears that it will be the duty of a court to take judicial notice and it does so by requesting the Government to enlighten it on the point. So Lawrence L. J. said in Fagernes, "It is the duty of the Court to take judicial cognisance of the extent of the King's territory and, if the Court itself is unacquainted with the fact whether a particular place is or is not within the King's territory, the Court is entitled to inform itself of that fact by making such enquiry as it considers necessary." It is only in cases where the Court is not aware of the facts that the question of referring to the Government will arise and therefore no occasion can possible arise where the Government might have the chance of distorting a patent fact. This is all that we desire to say. As the majority of the learned Judges of the Bench have taken a different view, the order to be made will follow their decision.
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