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1961 (8) TMI 31
... ... ... ... ..... of the legislation. In the result, we hold, on a fair reading of the express provision of s.127 (a) of the Act in the light of the decisions considered, that the rental value cannot be fixed higher than the standard rent under the Rent Control Act. The next question is, what is the meaning of the phrase "at the time of assessments" occurring in s.127(a) of the Act. The majority view of the High Court was that assessment commences with the making of the valuation under B. 131 of the Act and ends with the determination of the objection under s.140 thereof, and that an event which took place during this period may be relied upon for assessing the annual value under s.127(a) of the Act. The correctness of this view has not seriously been contested before us. That apart, for the reasons mentioned by Lahiri and Sen, JJ., that conclusion is justified on the provisions of the Act. No other question is raised. The appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (8) TMI 30
... ... ... ... ..... ct is concerned, we have already dealt with the same. With regard to the remaining question in this appeal, namely, that the building has not been constructed within the meaning of the notification, it may be stated that both the Courts below have found that the building was constructed within the meaning of the notification, and, therefore, have decreed the landlord's suit. It is not disputed that the entire building has been rebuilt barring two walls. These walls the landlord could not pull down, they being party-walls. Therefore, on the admitted and proved facts or the case, it must be held that the entire building was constructed as claimed by the landlord. Therefore, the decision of the Courts below must be upheld and the tenant's appeal must fail and it is accordingly dismissed but in the circumstances of the case there will be no order as to costs. (34) The result is that all the three appeals are dismissed. Mehar Singh, J. (35) I agree. (36) Appeal dismissed.
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1961 (8) TMI 29
Whether a tax must be levied for the purpose of revenue and cannot be for purpose of control and that in the Mysore Act was really colourable legislation in that the impugned tax had been levied for the purpose of controlling prize competitions although it was given the form of a tax
Whether the assessment was provisional which was not contemplated under the Act?
Whether there should have been a fresh notification after the amendment of the Mysore Act?
Whether at the time when the recovery proceedings were taken the tax had not become due as it was payable within a week which had not expired?
Held that:- By passing the resolution the States did not surrender their power of taxation it cannot be said that clause (2) of Article 252 of the Constitution was violated by the amendment of the Mysore Act; nor can it be said that in reality to was a piece of colourable legislation by an indirect attempt to amend the Central Act and a new method of control was devised by imposing a penalty under the name of tax. We have already held that the tax imposed under the Mysore Act was not by way of penalty but was the exercise of the power which the legislature possessed of imposing tax under entry 62.The tax imposed under the Mysore Act was not by way of penalty but was the exercise of the power which the legislature possessed of imposing tax under entry 62.
As the tax was not paid the provisions of the Revenue Recovery Act were resorted to. This cannot be said to be a provisional assessment. The return submitted by the appellants as far as it went was accepted and on that the tax was demanded which was not a case of provisional assessment at all but as was held by the High Court it must be taken to be a final assessment and if and when any further assessment or a revised assessment is made the question may become relevant.
Its legality depends upon the constitutionality of amended section 12(1) (b) and if that is valid, as we have held it to be, the notification is equally valid. The notification was only in regard to the rate of taxation and had no reference to the obtaining or not obtaining of the licence.
The notice of demand called upon the appellants to pay the sum therein specified and to produce the challan in token of payment within a week. It is not the case of the appellants that they had paid or were in a position to produce the challan within a week. It was not an order making the tax payable within a week. Appeal dismissed.
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1961 (8) TMI 28
Whether a Customs Officer, either under the Land Customs Act, 1924 (Act XIX of 1924) or under the Sea, Customs Act, 1878 (Act VIII of 1878), is a:. police officer within the meaning of that expression in' s. 25 of the Indian Evidence Act?
Held that:- The Customs Officers are not police officers for the purpose of s. 25 of the Evidence Act. We further hold that the conviction of the respondent for the offences under s. 23(1) of the Foreign Exchange Regulation Act, 1947, 'and under s.167(81) of the Sea Customs Act, 1878, on the basis of his statements to the Customs Officers, was legal and was wrongly set aside by the High Court. We therefore allow the appeal, set aside the order of acquittal of the respondent for the aforesaid offences and restore the order of conviction passed by the Magistrate and confirmed by the Sessions Judge. We make it clear, however, that we do not express any opinion on the question whether officers of departments other than the police, on whom the powers of an Officer-in- charge of a Police Station under ch. XIV of the Code of Criminal Procedure, have been conferred, are police officers or not for the purpose of s. 25 of the Evidence Act, as the learned counsel for the appellant did not question the correctness of this view for the purpose of this appeal. Appeal allowed.
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1961 (8) TMI 27
Does the fact that the petitioners have been granted licence approximately for 45% of the total value of the goods exported amount to discrimination entitling them to protection of Art. 14 of the Constitution ?
Held that:- On the materials placed before the Committee.-.there. evidence to show that the record produced by the petitioners was unsatisfactory ; they were not satisfied that the prices which the petitioners said they had paid for purchasing the goods were in truth paid. If there was evidence to show that in respect of other persons who were in the opinion of the Committee found also to have inflated the prices 'in the manner adopted by the petitioners and still the Controller had granted import licences to those persons for the full amount of the export value or a percentage substantially in excess of the percentage for which import licence was granted to the petitioners, a case of discrimination could have been made out ; but in the absence of such evidence, we do not think that any case of discrimination is made out. Appeal dismissed.
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1961 (8) TMI 26
... ... ... ... ..... point out that mistake, no elaborate argument or debate is required, because there is the binding Supreme Court decision, clearly bringing out that mistake. The mistake, therefore, in our opinion, is a mistake apparent from the record, within the meaning of section 35 of the Act. The authorities concerned, i.e., the respondents, were therefore clearly in error in not rectifying that mistake under section 35 of the Act. In the result, the application is allowed. The order of the Income-tax Officer of date April 2, 1958, rejecting the petitioner s application under section 35 of the Act and the order of the Commissioner dated December 15, 1960, dismissing the petitioner s revision application, are hereby quashed, and the Income-tax Officer, Companies Circle I (3), Bombay, is directed to rectify the mistake under section 35 of the Income-tax Act in the light of the observations herein made. Rule made absolute. Respondents shall pay the costs of the petitioner. Petition allowed.
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1961 (8) TMI 25
... ... ... ... ..... a final assessment shall be made. (2) Before the final assessment is made a reasonable opportunity shall be given to the petitioners to produce such evidence or other material as they may like to produce. (3) That if any information or material has been collected by the Sales Tax Officers behind the back of the petitioners the same shall be put to the petitioners and they will be required to explain the same. And (4) until a final assessment order is made the tax demand created under the provisional assessment orders would not be realised from the petitioners. This will be so if the petitioners furnish sufficient security as pointed out above. If security is not so furnished the Sales Tax Officers will be at liberty to enforce the demand under the provisional assessment orders. In the circumstances I make no order as to the costs of these writ petitions. A certified copy of this judgment shall be placed on the record of every one of these writ petitions. Petitions dismissed.
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1961 (8) TMI 24
... ... ... ... ..... ction of a new coin is involved in the equivalence. The entire provision in sub-section (2) has not been imported into subsection (3), but only the provision as to the rate. When the total amount of sales tax calculated at the rate of 6.25 nP. per rupee will have to be tendered in payment, then sub-section (2) will come into play and the fraction, if any, will have to be rounded off in the manner provided in that sub-section. The reason is obvious that it is only at the time of the tender of the entire amount of sales tax to pay off the liability for sales tax that payment will have to be made in whole coins and cannot be made in the fraction of a coin. Before then, and for the purpose of the substitution of the value in terms of the new coins in the notification, only the rate is relevant, and there is no necessity of rounding off into whole coins. I, therefore, see no force in the point taken by learned counsel and dismiss this writ petition with costs. Petition dismissed.
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1961 (8) TMI 23
... ... ... ... ..... t after the enactment of the Act of 1955 the power of the State Government to levy excise duty on medicinal preparations terminated and such articles, therefore, ceased to be leviable with excise duty under the Excise Act. Accordingly, entry 32 in Schedule II of the Sales Tax Act no longer applied to such preparations and the petitioner was liable to pay sales tax on the sale of these preparations. 14.. Shri. H.L. Khaskalam had also contended that the proper course to be followed by the petitioner was to file an appeal before the Commissioner of Sales Tax against the order of the respondent and as he has not done so, the petition should be rejected as premature. It is not necessary for us to examine this contention, as we find no substance in the petition on merits. 15.. The petition is dismissed with costs. Hearing fee is fixed at Rs. 100 only. The outstanding amount of the security deposit, after deducting the costs, shall be refunded to the petitioner. Petition dismissed.
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1961 (8) TMI 22
... ... ... ... ..... agree with the contention of the learned counsel for the petitioner that the enhanced levy under clause (i) can only be in respect of cloth which is adulterated with cotton and other material. It seems to us that all cloth will be subject to the 8 per cent. levy except (i) cloth woven on handloom whether of silk, artificial silk, wool, flax or any other material and (ii) cloth which is wholly of cotton. Though the words which is not made wholly of cotton are placed outside the bracket they were intended to operate as exception from the category of cloth so as not to attract the enhanced levy. The wording of the clause is neither elegant nor simple, but its true meaning is clear and unmistakable. The silk choli bits and saris do not fall within the exception provided for in clause (i) and are therefore subject to the additional levy as prescribed under section 3(2) of the Act. The revision petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1961 (8) TMI 21
... ... ... ... ..... Subramania Iyer in these three writ petitions raised also a contention regarding the vires of section 16A of the General Sales Tax Act, 1125, as well as rules 28A and 28B of the General Sales Tax Rules. In the view that we that we take on the main contention urged before us regarding the validity of the notice issued by the Sales Tax Officer, it is not really necessary for us to consider that aspect. 16.. In the result, the notices which are under attack in all these writ petitions are set aside with liberty to the officers to take further action according to law and in the light of the observations and directions contained in this judgment. There will be no order as to costs. 17.. Mr. T. N. Subramania Iyer has urged that if the action of the officers itself is illegal and beyond the jurisdiction of the officers, his clients may have a cause of action for recovery of the value of the goods, We are not concerned with those aspect in these writ petitions. Ordered accordingly.
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1961 (8) TMI 20
... ... ... ... ..... f the High Court under section 2 of the Summary Jurisdiction Act, 1857. Before the case was stated one of the Justices died and the case was signed by the surviving two Justices only. It was held that the obligation of the Justice to sign the case was created by law and as his failure to fulfil that obligation was due to his death, and not to any act on his part, the court had jurisdiction to proceed with the matter. One of the learned Judges Shearman, J., observed that Justices come and go but justice itself should endure. The learned Judge added I see no reason to uphold an objection which would result in justice coming to an end owing to the death of a Magistrate . Thus, non-compliance is excusable only in such an extreme case as where death supervenes and prevents compliance. The appellant company cannot be heard to say that non-compliance with the proviso in question was induced by some such cause. In my opinion, the appeal fails and must be dismissed. Appeal dismissed.
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1961 (8) TMI 19
... ... ... ... ..... en served on the petitioner after the best judgment assessment was made under section 14(1). The learned counsel for the petitioner then fell back upon the argument that the order levying penalty does not reveal that the omission to disclose the turnover in question was intentional or deliberate. We do not think that there is any substance in this point. The order clearly discloses that the petitioner suppressed several taxable items with the dishonest intention of evading sales tax. The officer remarks Had it not been for the detection of these private set of accounts on 14th January, 1958, the above company would have successfully evaded tax due on the above items to the State. There is, therefore, no force in this submission either. In the result, this writ petition is dismissed with costs. Advocate s fee Rs. 75. W.P. No. 915 of 1959.-For the reasons mentioned in W. P. No. 127 of 1959, this petition is also dismissed with costs. Advocate s fee Rs. 75. Petitions dismissed.
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1961 (8) TMI 18
... ... ... ... ..... s collected from the customer was in substance and fact the charges for converting the old metal into new sheets and rings and that there was no liability on the part of the assessee to pay sales tax. This decision has direct application to the facts of the present case. We are clearly of opinion that the decision of the taxing authorities and the Tribunal estimating the turnover of Rs. 1,35,355-13-0 in respect of the supply of aluminium circles on the footing that it constituted sale cannot be upheld. It follows that the exemption claimed and allowed by the assessing authority in respect of labour charges amounting to Rs. 44,855-9-9 cannot properly be granted to the assessees as there is no assessment on the transaction of the supply of aluminium circles. The revision petition is allowed and the matter is remitted to the Sales Tax Appellate Tribunal for disposal in the light of the observation contained in this judgment. There will be no order as to costs. Petition allowed.
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1961 (8) TMI 17
... ... ... ... ..... cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. 24.. Parties are not agreed as to the date on which the initiation of proceedings took place. According to the appellant the initiation of proceedings took place on 26th April, 1950, while according to the State the earliest action which can possibly be deemed as an initiation of proceedings was in July, 1951. As there was no evidence to show the exact date of the initiation of proceedings, the learned District Judge was right in remanding the case to the trial Court for a finding on this question and for fresh disposal in the light of the finding. 25.. The appeal, therefore, fails and is dismissed with costs. Being a very old suit the Munsiff is directed to dispose of the case as expeditiously as possible. Appeal dismissed.
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1961 (8) TMI 16
Oppression and mismanagement ... ... ... ... ..... -Greek Steam Company 1866 LR 2 EQ 1 and In re Diamond Fuel Company 1879 13 Ch. D. 400, 408. Therefore, even on the assumption that the petitioners had successfully proved the misconduct of the directors during the earlier three years of the company s incorporation in 1950, that would not furnish a justification for the winding up of the company for just and equitable reasons. As the petitioners have failed to satisfy the two conditions mentioned above required for taking action under section 397 of the Companies Act, the petition must fail and is consequently dismissed. It may also be mentioned that there was reference in the petition to section 398 as well, but its requirements have not been satisfied and this provision was not seriously pressed in arguments. I do not otherwise think that any ground is made out for the removal of Ram Sarup, respondent No. 4, as the manager of the company. As the dispute is between the brothers, I will not award costs against the petitioners.
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1961 (8) TMI 8
Whether the appropriate Legislature had the competence to enact section 16(3)(a)(i) and (ii) of the Indian Income-tax Act, 1922 (XI of 1922)?
Whether the husband is statutorily made to pay certain amount as tax on the income of his wife, to that extent, he is deprived of his property by the State action and, therefore, his fundamental right under section 19(1)(f) is infringed?
Held that:- The reasonableness or otherwise of a classification has to be decided with reference to all the circumstances of the case including the social and economic structure prevalent in the area where the taxing statute is in operation. An attempt to prevent by legeislation an evasion of just tax liability and the necessary classification to give effect to that object cannot, in our view, be termed unreasonable.
Mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife, or minor children, but that is offset, to a large extent, by the beneficient results that flow therefrom to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of section 16(3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under article 19(1)(f) and (g) of the Constitution. Appeal dismissed.
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1961 (8) TMI 7
Whether on the facts and in the circumstances of the case, the sums received as salami by the assessee for granting sub-leases were trading receipts in its hands and the amount of profit therein is assessable under the Indian Income-tax Act " in the affirmative and against the assessee-company?
Held that:- The relevant clauses of the memorandum of association of the assessee-company show that the various objects for which the assessee-company was incorporated.
It is clear from these operations that the assessee-company having secured a large tract of coal-bearing land parcelled and developed it into a kind of stock-in-trade to be profitably dealt with. The assessee-company extended its business along these lines acquiring fresh fields. In the circumstances, the nature of the business was trading within the objects of the company and not enjoyment of property as landowner. There was also no sale of its fixed capital at a profit. In our opinion, the High Court rightly answered the question against the assessee-company. Appeal dismissed.
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1961 (8) TMI 6
Whether on the facts and circumstances of the case there was a change in the persons carrying on the business within the meaning of section 8(1) of the Excess Profits Tax Act ?
Held that:- The appellant submitted to the assessment of income-tax of the income from all the three businesses only at Virudhunagar, and held that these factors clearly indicated that the dominant motive in forming the partnerships was the avoidance or reduction of liability to the excess profits tax. It is in the light of these facts that the attack made by the appellant is against the answer given by the High Court to the question referred to it has to be judged. Thus considered we must hold that there is no substance in the appeal. It accordingly fails and is dismissed
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1961 (8) TMI 5
Whether, on the facts and circumstances of the case, the first proviso to section 41 is applicable ?
Held that:- section 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income-tax from a trustee in respect of income of the beneficiaries. In express terms it equates the muthawalli of a wakf to a trustee. For the purpose of section 41 the muthawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries. There is no scope for importing the Mahomedan law of wakf in section 41 when the section in express terms treats the muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan law. If the argument of learned counsel for the respondent be accepted, it would make section 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative.
Set aside the order of the High Court and hold that the respondent was rightly assessed by the Income-tax Officer at the maximum rate. Appeal allowed.
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