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Showing 21 to 40 of 65 Records
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1961 (12) TMI 96
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... ... ..... s been in default for any three years. If the interpretation put by the High Court were to be accepted, then a landlord wishing to recover possession of his land would have to wait till the tenant has committed default for three years, for if he took steps earlier and relief was granted to the tenant, he would not be able to recover possession after two more years of default by the tenant. We see no justification for thinking that the Act intended to put so much difficulty in the way of landlords. We, therefore, come to the conclusion that these appeals must succeed. We set aside the orders of the High Court in the cases in which that Court had been moved and of the Revenue Tribunal and other authorities under the Bombay Act refusing to make an order for possession in favour of the landlords. We direct that the respondent tenants make over possession of the lands held by them to their respective landlords. The appellants will be entitled to costs throughout. Appeals allowed.
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1961 (12) TMI 95
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... ... ..... Officer to impose or not to impose a liability for payment of penal interest. Accordingly, when on March 10, 1953, the Income-tax officer did not impose liability for payment of penal interest, he could not be said to have disregarded the mandatory duty. It may very well have been that, having regard to the circumstances of the case, the Income-tax Officer took the view that it was not right in the circumstances of that case to impose liability for payment of penal interest. Accordingly, there was no such error in the assessment order dated March 10, 1953, which could be rectified under section 35 as "an error apparent on the face of the record". From these facts it will be clearly seen that the Bombay decision has no relevance to the facts of the case before me. Accordingly, I see no force in the second ground also urged before me by the learned counsel for the petitioner. The result is that the writ petition fails and is dismissed with costs. Petition dismissed.
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1961 (12) TMI 94
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... ... ..... ty to the assessee to explain the circumstances including comparable cases which were taken into consideration. This procedure, it is urged, is opposed to the principle laid down in the two unreported decisions of this court in Siddamsetti Ramanandam v. Commissioner of Income-tax Judgment in R.C. No. 38/1957 dated 5-3-1959 (unreported) and Koduri Butchirajalingam Oil Mills, Warrangal v. Commissioner of Income-tax, Judgment in R.C. No. 39/1959 dated 1-2-1961 (unreported). But this point, if true, does not seem to have been taken at any stage of the proceedings before the Appellate Assistant Commissioner or the Appellate Tribunal. It does not arise out of the reference either. There is no occasion, therefore, to entertain such a plea. The result is that the plea now taken on behalf of the assessee fails. The question referred to is answered in the affirmative. The assessee shall pay the costs of this reference which are fix at ₹ 250. Question answered in the affirmative.
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1961 (12) TMI 93
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... ... ..... income-tax purposes there could equally be no transfer of goodwill by a person to himself. Secondly, as already pointed out, the members of the firm were not giving up the right to carry on business in land development and, therefore, the transfer of goodwill by them in the absence of an undertaking not to compete meant nothing. As the assets of the firm transferred to the company have been itemised and as there can be no question of variation of the figures given in items Nos. 3 to 8 in the agreement for sale, it must be held that ₹ 2,50,000 shown as the value of the goodwill must be represented by surplus on the sale of lands which was the stock-intrade of the assessee company. So far as question No. 3 is concerned, even if the value of the stock-in-trade taken over by the company was greater than the figure shown therefore in the agreement for sale, in view of the answer to question No. 4, there was no profit which could be taxed. RAY J.-- agree. Order accordingly.
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1961 (12) TMI 92
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... ... ..... y forward of loss. In this view I am of the opinion that the decision of the Supreme Court referred to above cannot be distinguished. The only question which remains to be considered is whether, in the circumstances which have been stated above, the returns filed by the petitioner can be considered to be returns filed before an assessment was made. The assessment having been cancelled by the order of the Tribunal became non-existent and the effect is as if no assessment had ever been made. It follows that returns having been filed and the return no having been acted upon, the provisions of section 34 are excluded by reason of the decision of the Supreme court. The notices under that section were, therefore, invalid. The result is that the petition must be allowed. A writ of certiorari shall issue rushing the notice under section 34(1)(a) for the two years in question, namely, 1953-54 and 1954-55. The petitioner shall be entitled to the cost of the petition. Petition allowed.
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1961 (12) TMI 91
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... ... ..... observation of the Supreme Court in Govindarajulu Mudaliar v. Commissioner of Income-tax 1958 34 I.T.R. 807 (S.C.), where it was observed that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of assessable nature. When it is once clear that the sale consideration was the sale proceeds of the patti which stood in his name, in the absence of proof as to the source from which this bullion came, it is open to the Income- tax Officer to draw an inference that it is from an undisclosed source within the meaning of sub-section (5) of section 6 of the Income-tax Act and is assessable to tax. The order of the Tribunal, therefore, was quite in accordance with law. The reference is answered accordingly in the affirmative. The assessee shall pay the costs. Advocate's fee ₹ 250. Reference answered in the affirmative.
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1961 (12) TMI 90
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... ... ..... n by a learned Judge of the Calcutta High Court in E.O, Line Incorporated v. Jasjit Singh . There the Additional Collector of Customs passed an order of confiscation of a steamer under Section 167(12A) of the Sea Customs Act without taking into consideration the factors bearing upon the knowledge or intention of the owner in contravening the provisions of the Act. The learned Judge held that such a defect in the order was an error apparent on the face of the record and the High Court had jurisdiction in quashing such an order on this ground. I respectfully agree with this view, and, in this case, the order of confiscation of the boat is liable to be quashed on that ground. 16. In the result the petition is allowed in part and a writ of certiorari will issue quashing that part of the order imposing a penalty of ₹ 500 on the petitioner under Section 167(8) of the Sea Customs Act, and, confiscating the boat under Section 168 of the Act. There will be no order as to costs.
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1961 (12) TMI 89
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... ... ..... til the price was paid. Counsel for the Commissioner finally contended that on January 1, 1947, the assessee had the right to receive money and it was not necessary that the assessee should have received the money then. He relied on the decision in T.V. Sundaram Iyengar and Sons Ltd. v. Commissioner of Income-tax 1959 37 I.T.R. 26 . On the facts of that case, it was held that there was nothing to show that price was to be paid at any future time and the price became payable forthwith. In the present case, the agreement of April, 1947, is entirely different. The price became payable at the time of the execution of the conveyance. The agreement for sale was subject to acceptance of title. It was not until the assessee performed his part of the agreement that he would have the right to receive the price. The question is, therefore, answered in the negative. The assessee is entitled to costs. Certificate for 2 counsels. G.K. MITTER J.--I agree. Question answered in the negative.
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1961 (12) TMI 88
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... ... ..... t in the conduct of the parties that the assessee did not advance the money for the purpose of income or profit at all. When the purpose of the transaction is so obvious, the argument that the assessee should have been called upon to lead evidence as to the financial circumstances of the corporation as at the time of waiver must fall flat. It is clear that the case was not within section 12(2). Now, when we consider the agreement as to the assessment year 1955-56 relating to the allowance of tax paid on the interest in 1952-53 it is shown as accrued due. This allowance seems to have been claimed on the basis that it was a bad debt. The Tribunal has held that it could not be considered as a debt much less a bad debt in the circumstances of the case. We do not think that this Tribunal was wrong in holding so. On the above discussion, it follows that the question referred must be answered in the negative. We answer accordingly. The assessee will pay the costs of the department.
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1961 (12) TMI 87
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... ... ..... ference by the High Court is not, in my opinion, restricted to proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. It is very much wider than that. When, in the opinion of the High Court, the decision is erroneous on a question of law which affects the merits of the case or decision is manifestly unjust the High Court is entitled to interfere. The error may not necessarily be as to the interpretation of a provision of law, it may be in regard to evidence on the record. Thus when material evidence on the record is ignored or a finding is such that on the evidence taken as a whole no tribunal could, as a matter of legitimate inference arrive at. It is neither possible nor desirable to enumerate all cases which would fall within the jurisdiction of the High Court under s. 35(1) of the Act but it is not to be narrowly interpreted nor to be so widely interpreted as to convert the revision into an appeal on facts. Appeal allowed.
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1961 (12) TMI 86
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... ... ..... ntal right of the appellant infringed by the State Transport undertaking plying its buses without permits, and a petition under Art. 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed. Nor is there any substance in the last contention. The orders passed under. ss. 68F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi-judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge. It is not the case of the Petitioner in W. P. 209/61 in which alone this contention is raised that the order unauthorised. what is contended above this contention is raised that the order is being quasi-judicial, power to make it cannot be delegated. But for reasons already set out the order is not quasi-judicial; it is purely administrative. In our view, therefore, the appeal and the petitions must fail, and are dismissed with costs.
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1961 (12) TMI 85
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... ... ..... t statement of the law. We are dealing with a case where the business itself is held under a trust for religious or charitable purposes; we are not dealing with a case where the business is conducted on behalf of the religious or charitable institution. This is abundantly clear from the memorandum of association. The first object of the company, as stated therein, is "to raise funds by conducting kuries with the company as the foreman; receiving donations and subscriptions; and by such other means as the company deems fit." In the light of what is stated above we must hold that the proviso is not attracted and that the question referred has to be answered in the affirmative and in favour of the assessee. We do so. A copy of this judgment under the seal of the High Court and the signature of the Registrar shall be forwarded to the Appellate Tribunal as required by sub-section (5) of section 66 of the Indian Income-tax Act, 1922. Question answered in the affirmative.
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1961 (12) TMI 83
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... ... ..... ment of information and the Income-tax Officer comes to the conclusion that any one or more of the partners shown as partner or partners is a mere name-lender and has no beneficial interest in the share specified in the instrument and the application and thus the information given in the application is incorrect, the fact that some of the partners may not be aware of this or that it was a term of the agreement of partnership, would not affect the powers of the Income-tax Officer to refuse the instrument of partnership which is indeed exercisable when the instrument of partnership or the application does not reflect the true state of affair. We however prefer to follow the view taken by the Madras and Bombay High Courts as the correct view. We therefore answer question No. 2 in the affirmative. In this view it is necessary to answer question No 1. The assessee will pay the cost of the department. The advocate fee is fixed at ₹ 200. Questions answered in the affirmative.
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1961 (12) TMI 82
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... ... ..... ty of the Federation or of a Province shall be expressed" in a certain manner and "shall be executed on behalf of the Governor- General or Governor by such person and in such manner as he may direct or authorise". It therefore applies to consensual contracts which the Government makes and not to something which is also called a contract but which the law brings into existence by a fiction irrespective of the parties having agreed to it. Now, by its terms s. 70 of the Contract Act must be applied where its requisites exist, if it is necessary to imply a contract or to contemplate the existence of a quasi-contract for applying the section that must be done and we do not think that s. 175(3) of the Government of India Act prevents that, nor are we aware of any other impediment in this regard. This argument must also fail. We, therefore, feel that s. 70 of the Contract Act applies to this case and the decree of the High Court should be confirmed. Appeal dismissed.
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1961 (12) TMI 81
Whether s. 4 of Orissa Municipal Act, 1950 Orissa (XXXIII of 1950) offends the equality before law guaranteed by Art. 14?
Whether s. 5(1) is invalid?
Whether the Governor was not competent to issue an Ordinance with a view to over-ride the judgment delivered by the High Court in its jurisdiction under Art. 226 of the Constitution?
Whether the Ordinance having lapsed on April 1st 1959, the appeals themselves have become infructuous?
Held that:- We do not think there is any substance in the alternative argument urged in support of the plea that s. 4 is ineffective even if it does not contravene Art, 14.
We do not think that the High Court was justified in holding that s. 5(1) was void to the extent of its repugnancy to the existing laws dealing with matters in the Concurrent List. There is no repugnancy to any existing laws and so, there is no contravention of Art. 254(2) of the Constitution at all.
It is true that the judgment delivered by the High Court under Art.226 must be respected but that is not to say that the Legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of the High Court under Art. 226 with Art 226 itself and confer upon it all the attributes of the said constitutional provision.
The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr. Chetty against the competence of the appeals can be upheld. Appeal allowed.
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1961 (12) TMI 80
Whether the Statutes framed by the University under s. 20 of University of Bihar Act have or have not the force of law?
Whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e., whether the appellant has a legal right to the performance of a legal duty by the respondents?
Held that:- According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to Court and ask for a writ to issue. It is therefore not necessary to go into any other question. Appeal dismissed.
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1961 (12) TMI 79
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... ... ..... adopt in relation to the matter of making best judgment assessment in this case. 12.. The officer admittedly has not done anything, after the books of account have been filed and produced before him except stating that the books of account are rejected and that the assessment is made on a best judgment basis. In my view, the order, apart from being asbitrary, suffers also from the infirmity of violation of the principles of natural justice under Article 226 of the Constitution and therefore, the order has to be set aside by this Court. 13.. The order under attack, exhibit P-1, is therefore set aside. But it is open to the officer to take up the question of making a fresh assessment for the period in question, after giving a full and fair opportunity to the assessee to place all his objections that may be available to him, both on law and on facts. Subject to the directions mentioned herein, the writ petition is allowed and parties will bear their own costs. Petition allowed.
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1961 (12) TMI 78
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... ... ..... n appellate authority, the Commercial Tax Officer, from enhancing the assessment in the course of an appeal preferred by him. It may be that there was always the peril of the Commercial Tax Officer, who was also the revising authority, revising the assessment to his prejudice in exercise of his revisional power. But that peril effectively disappeared when under the new Act, the revisional power was conferred upon the Deputy Commissioner for Commercial Taxes and not upon the Appellate Assistant Commissioner. Any interference by the Appellate Assistant Commissioner with the assessment order passed by the Deputy Commercial Tax Officer to the prejudice of the assessee, in the purported exercise of his appellate power, is clearly violative of his vested rights. We agree with the conclusion of the Appellate Tribunal that the order of the Appellate Assistant Commissioner was erroneous in law. The petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1961 (12) TMI 77
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... ... ..... valid if the Government had in fact purported to exercise their undeniable power to grant an exemption from the incidence of the tax liability. What appears to have happened is that the order of the Government left the liability to pay tax unaffected, for the Government only stated that in respect of transactions during a certain period, they would not enforce the collection against a dealer if the dealer had not in fact collected the tax from his customers. That being the narrow extent of the scope of the waiver of the collection by the Government, the liability to tax of the dealer was left unaffected. The Tribunal had jurisdiction only to examine any exemption from liability to tax of a dealer under the provisions of the Act and if it declined to consider and apply the Government order which had been issued under the abovestated circumstances, the Tribunal was, to our minds, correct The petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1961 (12) TMI 76
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... ... ..... ed their writ petition so as to include a prayer for the cancellation of that sale. But the fact that no such relief has been prayed cannot, in my opinion, prevent us from declaring that if the sale has been held on a Sunday in contravention of Land Revenue Code, that sale is not a valid sale. The petitioners assert that the day on which the sale was held was a Sunday and that is what they say in their affidavit. We have, however, no material on which we can come to the conclusion that that allegation is a true allegation. All that we need say, in my opinion, is that if as contended by the petitioner the sale was held on a Sunday that sale should be set aside, and that that sale will have no efficacy or effect, and it would be for the Revenue Authorities to proceed to conduct another sale in accordance with law. The Revenue Authorities are directed to act accordingly. In the circumstances. there will be no order as to costs. MIR IQBAL HUSSAIN, J.-I agree. Petition dismissed.
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