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Case Laws
Showing 41 to 58 of 58 Records
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1961 (2) TMI 60
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... ... ..... n both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petitions were made for the exercise of the inherent powers. We, therefore, set aside the order of July 13, 1954, and the orders made subsequently. We need not send the, case back for the trial of the petition made on July 8, 1954, because that would be only productive of more delay. None has appeared to contest the appeal in this Court. We have perused the application and the affidavit, and we are satisfied that sufficient cause had been made out for extension of time. We, accordingly, set aside the dismissal of the appeal and the suit, and grant the appellant two months’ time from today for payment of the deficit court fee. We only hope that, after the lesson which the appellant has learnt, he will not ask the Court perhaps vainly, to show him any more indulgence. There will be no order about costs in this Court as the appeal was heard ex parte.
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1961 (2) TMI 59
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... ... ..... eceived on account of anyone but the assessee. These moneys were refundable on the happening of certain events but that did not make them "the moneys of those who might become entitled to the refund." Thus there can be no doubt that if the amounts in question in the present case were payments towards price of the scrap iron which was to be supplied to the constituents, then they were essentially trading receipts, with the result that "they must have a profit making quality about them." That would fix them with the character of revenue receipts for all times and it would make no difference if ultimately the assessee took upon itself the liability to pay those amounts even by means of a resolution. In this view of the matter, we answer the question in the affirmative. The respondent will be entitled to the costs which we assessee at ₹ 200 (consolidated figure for all the three references). MEHAR SINGH J.- I agree. Question answered in the affirmative.
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1961 (2) TMI 58
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... ... ..... do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons the increase in the rates has not been sanctioned by the State Government under s. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is barred by Rule 10. The result is, the appeals and the writ petitions are allowed and an appropriate direction or order is issued restraining the respondent from recovering the tax at a rate higher than 3 pies per ton and also restraining the respondent from recovering any additional tax in respect of the years for which tax has already been assessed against the appellants. The same will be the order in the other companion appeals. The appellants will be entitled to their costs, but one set of bearing fees will be taxed. Appeals and writ petitions allowed.
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1961 (2) TMI 57
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... ... ..... no help in considering whether in the circumstances of a particular case a person is an agent or seller. 15.. The learned Member, Board of Revenue, appears to have committed a slight error in holding that Sreelal was engaged to purchase not only serviceable gunny bags but also unserviceable gunny bags which were quoted at a much lower rate, viz., Rs. 9 per hundred (see exhibit C-2) but this error does not affect the real position inasmuch as the true relationship between the parties must be ascertained by a construction of the agreement, exhibit C, especially of paragraphs 5 and 6. 16.. For these reasons the application is rejected, with costs. The questions are answered as follows Question No. (1)-The answer is in the affirmative. Question No. (2)-The transaction between Sreelal (petitioner) and Orissa Cement was a sale within the meaning of the Orissa Sales Tax Act. Hearing fee is assessed at Rs. 100 (one hundred only). R.K. DAS, J.-I agree. Reference answered accordingly.
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1961 (2) TMI 56
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... ... ..... it was held that the provisions concerning the Special Tribunals in criminal cases to try sheduled offences in disturbed areas proceeded on rational classification. The territorial classification in the cases before us has arisen because of a constitutional permission and, therefore, the tax not being levied in the area, to which the permission does not extend, though the area be part of the same State, cannot be held to be discriminatory. The inequality rests on territorial classification, which, in the circumstances of the case, is proper. Mr. Subramonia Iyer has argued that the continuance of the Act was contrary to Article 254 but the Article contemplates two laws being operative in the same field, and we are not aware of any Central enactment, dealing with taxation, which clashes with the provisions impugned in these petitions. It follows that the writ petitions fail, and are dismissed with costs. We fix Rs. 200 in each petition as the counsel fee. Petitions dismissed.
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1961 (2) TMI 55
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... ... ..... res reconsideration. Relying upon Stewart Dry Goods Co. v. Lewis294 U.S. 550 79 L. Ed. 1054., a decision of the Supreme Court of America, the further contention has been advanced that the differentiation of dealers on the basis of turnover of Rs. 25,000, levying the higher tax on dealers with a turnover of Rs. 25,000 and above from dealers with a turnover of less than Rs. 25,000, is also unreasonable and has no rational relation to the object of the taxation. This point was left specifically undetermined in Krishna Iyer v. State of Madras 1956 7 S.T.C. 346. In the view that we have taken on the other arguments, it is not necessary for us to enter into this question and we do not propose to express any opinion on this contention. It follows that the amended proviso offends against Article 14 of the Constitution and has to be declared unconstitutional on that ground. The petition is allowed. The petitioner will be entitled to his costs. Counsel s fee Rs. 100. Petition allowed.
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1961 (2) TMI 54
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... ... ..... n section 14(vi) of the Central Sales Tax Act includes coconut and copra. The result of that view would be that the maximum sales tax which could be demanded on the sale or purchase of coconut or copra is two per cent. of the sale or purchase price thereof. That maximum tax was imposed by section 5(4) of the Mysore Sales Tax Act, 1957, read with Schedule IV to it. It was no longer therefore possible for the State, without infringing the provisions of Article 286(3) of the Constitution and sections 14 and 15 of the Central Sales Tax Act, to demand any further sales tax on the sale or purchase of copra and coconut under section 11 of the Madras Commercial Crops Markets Act. The demand in this case which is therefore without the authority of law is liable to be quashed. This writ petition therefore succeeds. A mandamus as prayed for by the petitioner will now issue. The respondent must pay the costs of this writ petition, Advocate s fee being fixed at Rs. 100. Petition allowed.
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1961 (2) TMI 53
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... ... ..... 27 of the Constitution and direct that the revision filed by the petitioner should be heard on the merits, according to law and in the light of the observations made above. Before finally parting with the case, I cannot help observing that the respondents did not create a happy impression on this Court by contesting this petition after having come to know positively that the order of the learned Financial Commissioner is based on an unfortunate misapprehension as to an actual fact having a material bearing on the merits of this petition. Such an attitude is wholly inconsistent with the fundamental principles on which our form of democracy is based. For the reasons given above, I set aside the impugned order of the Financial Commissioner, in the terms stated above, under Article 227 of the Constitution, and direct him to hear and dispose of the revision filed by the petitioner, in accordance with law. The petitioner is entitled to costs of these proceedings. Petition allowed.
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1961 (2) TMI 52
Whether the partnership in this case is a partnership at will and it is necessary to refer to the terms of the partnership agreement to determine this question?
Whether the managing agency has been terminated legally; for if that is so the partnership would also be determined?
When the managing agency can be said to have been terminated, i.e., whether on March 22, 1943, or on September 29, 1943?
Held that:- In the circumstances the partnership was not at will and it was pointed out that only when all the partners except one retired that the partnership would come to an end because there could not be a partnership with only one partner. We are, therefore, in agreement with the High Court that the contract in this case disclosed a partnership the determination of which is implied, namely, the termination of the managing agency and, therefore, under section 7 of the Act it is not a partnership at will. In the circumstances it is unnecessary to consider whether the case will also come under section 8 of the Act.
The resolution of the board of directors terminating the managing agency agreement, confirmed by the general meeting of the shareholders, did legally terminate the managing agency between the mills and Muthappa and Company. It is true that in these resolutions a second reason was given for the termination, viz., that Muthappa and Company had come to an end because of the notice of March 4. That legal position is in our view incorrect; but that apart there were otherwise sufficient reasons for the mills to terminate the managing agency in the circumstances with which it was faced.
There was an implied term in the contract of partnership that it will determine when the managing agency agreement with the mills terminates, the partnership in the present case must under the contract be deemed to have determined on March 22, 1943. Therefore, the respondent will be entitled to an account only from November 15, 1939, to March 22, 1943.
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1961 (2) TMI 51
Whether the property in the goods represented by the pucca delivery orders can be said to have passed to the holders thereof, when they receive them?
Whether the Government of India is also estopped from challenging that the title passed to the holders of the pucca delivery orders as soon as they got the delivery orders?
Whether due notice was given to the mills under rule 75A(2)?
Held that:- In the present case so far as the question of title is concerned, there can be no doubt in view of section 18 of the Sale of Goods Act that title in these cases had not passed to the holders of the pucca delivery orders on September 30 1946, for the goods were not ascertained till then, whatever may be the position of the holders of the pucca delivery orders in a suit between them and the mills to enforce them.
It cannot be said that the Government of India when it takes action under rule 75A (2) is claiming through anybody; it acquires the totality of the rights in the property by virtue of the power vested in it by the statute, eliminating all subsisting private rights. There can, in such a case, be no estoppel against the Government of India qua the holders of the pucca delivery orders, for the Government of India is not stepping into the shoes of the mills but is acquiring title which is paramount in nature.
In consequence rule 75A(3) would apply and the property in the goods passed to the Government of India on September 30, 1946. The appeal of the Union of India therefore is allowed and a declaration is granted that the goods were validly requisitioned and acquired and that the orders of requisition and notices of acquisition were valid and binding on the respective defendants, and the goods specified therein vested in the Government of India on September 30, 1946.
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1961 (2) TMI 36
Winding up – Settlement of list of contributories and application of assets ... ... ... ... ..... ear without going through the formalities prescribed by the rules relating to the settlement of the list of contributories, that would be the sort of case in which the court could properly dispense with the settlement of the list under section 257 (1), but it should not do so, in my view, in the case of a company with a large number of shares held widely by a large number of shareholders. Indeed, one of the things which the liquidator might discover when settling the list of contributories would be that a number of those shareholders were dead so that he would have to discover who were their personal representatives before he could satisfy the court to whom he should make payment. Those are the kind of matters which the settlement of the list of contributories is calculated among other things to elucidate. Accordingly, I think that this is not a case in which the court should dispense with the settlement of the list, and the matter should proceed in accordance with the rules.
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1961 (2) TMI 35
Winding up - Preferential payments ... ... ... ... ..... nsolvency. The decision of the income-tax authorities, therefore, that the amount of Rs. 1,460-1-0 was available for being set off under the provisions of section 49E of the Income-tax Act is clearly erroneous and unsustainable. Since, in our opinion, the view that the income-tax authorities have taken is not possible on the material and relevant provisions of law, there is an error apparent on the face of the record in the decision of the income-tax authorities, and the petitioner, therefore, is entitled to a writ under article 226 of the Constitution. We will accordingly set aside the orders passed by the Department in so far as they set off the amount of the refund towards the tax remaining payable, and direct the third respondent to deal with and dispose of the claim of the petitioner for the refund and pass appropriate orders in respect of the said amount of refund under the provisions of section 48 of the Income-tax Act. The rule is accordingly made absolute with costs.
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1961 (2) TMI 34
Winding up - Power of registrar to strike defunct company off register ... ... ... ... ..... the company was struck off the register, the very long period since the year 1940 when there was last any effective control by directors, the fact that the register of the company has been destroyed and that, as I am told, the shareholders of the company consist in the main of a very large number of small shareholders residing in France and that the latest records of their identity and their addresses is now over 20 years old, the court ought, in my judgment, to require more cogent evidence that some really substantial benefit would accrue to members and creditors of the company from the restoration of the company s name to the register than I have before me in the present case. Therefore, even if I were wrong on my first ground, in the present case I should be inclined to regard this as a case in which I ought not to exercise my discretion under section 353 (6) to restore the company s name to the register. Accordingly, I take the view that this petition should be dismissed.
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1961 (2) TMI 33
Compromise and arrangement ... ... ... ... ..... er section 126, of the Act, for a pending bankruptcy hellip hellip hellip . In view of this, I am not persuaded by this argument of the learned counsel for the bank, that the scheme of arrangement should be treated as a species of liquidation. I am, therefore, satisfied that this court has jurisdiction to entertain the petition and to pass appropriate orders in view of the provisions of section 392 of the Companies Act read with section 391. It is hardly necessary to point out that even if jurisdiction vested in the subordinate courts, this court had in exercise of its extraordinary civil jurisdiction the power to transfer proceedings pending in a court subordinate to it vide Peoples Insurance Company Limited v. Sardar Sardul Singh Caveeshar AIR 1961 PUNJ. 87. For the reasons stated above, I do not find any force in the objections of the respondents which cannot be entertained. These three cases will now proceed on their merits. Evidence shall be recorded on 21st April, 1961.
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1961 (2) TMI 32
Kinds of share capital - Two kinds of share capital ... ... ... ... ..... ing to voting rights. Neither counsel before me really sought to argue that question 5 of the originating summons ought not to be answered in the sense of paragraph (a). The increase of the ordinary shareholders voting rights resulting from the subdivision of their shares did not alter the rights attached to the preference shares, although it decreased their effectiveness. The increase of the preference shareholders voting rights effected in 1911 did not deprive the preference shareholders of any existing right it conferred additional rights on them. Consequently, in my judgment, it did not vary or abrogate any right conferred on the preference shareholders by the memorandum of association it reinforced such rights. Similarly, the increase in the ordinary shareholders voting rights which was effected at the same time did not deprive them of any rights but conferred additional rights. In these circumstances I will make a declaration in the terms of paragraph (a) of question 5.
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1961 (2) TMI 3
Whether on the facts it can be said that income had been brought into or received in Bombay by the assessee?
Held that:- This being a case of receipt, there can be no doubt that income etc. was received by the respondent and the indirect method employed in this case for receiving the money would none the less make it a receipt by the respondent himself. We are, therefore, of opinion that the respondent is liable to pay income-tax on the sum of ₹ 50,000 under section 4(1)(b)(iii) of the Act and the question framed, therefore, must be answered in the affirmative. The result is that the appeal is allowed and the order of the High Court set aside.
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1961 (2) TMI 2
Appellate Assistant Commissioner ... ... ... ... ..... y, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered and that in our opinion is the effect of the proviso to section 30(1) read with sub-section (2) of section 30 of the Act. It is unnecessary, therefore, to refer to the two cases referred to by the High Court, i.e., Raja of Venkatagiri v. Commissioner of Income-tax and Kamdar Bros. v. Commissioner of Income-tax. The appeal is without force and is, therefore, dismissed with costs. Appeal dismissed.
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1961 (2) TMI 1
Whether on October 31, 1951, the Income-tax Officer, Warrangal Circle, had the power to impose a penalty under section 40(1) of the Hyderabad Income-tax Act in respect of the assessment for the year 1357 F. ?
Held that:- Unable to agree with the High Court that because of the repeal of the Hyderabad Income-tax Act by the Finance Act, 1950, the power to impose a penalty in respect of the years preceding the date of repeal was lost.
The High Court erred in holding that the proceedings for imposing the penalty could not be continued after the enactment of section 13(1) of the Finance Act, 1950. The appeal will, therefore, be allowed and the answer to question will be recorded in the affirmative. Appeal allowed.
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