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Showing 21 to 40 of 73 Records
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1961 (9) TMI 87 - SUPREME COURT
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... ... ..... es can be invoked are cases falling under s. 84 and s. 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument. Since the present case is entirely outside s. 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies. Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplated by respondents 1 and 2 had been effectively carried out and that in the carrying out of the fraud both the parties were equally guilty. The appeal must, therefore, be allowed and the suit instituted by respondent 1 must be dismissed. In the circumstances of this case we direct that the parties should bear their own costs, throughout. Appeal allowed.
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1961 (9) TMI 86 - SUPREME COURT
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... ... ..... relating to accounts which might involve misconduct amounting even to dishonesty on the part of some partner might arise in the arbitration proceedings and even cases where moral dishonesty or moral misconduct is attributed to one party or the other might be referred to arbitration. It seems to us that every allegation tending suggest or imply moral dishonesty or moral misconduct in the matter of keeping accounts would not amount to such serious allegation of fraud as would impel a court to refuse to order the arbitration agreement to be filed and refuse to make a reference. Looking to the allegations which have made in this case we are of opinion that there are no such serious allegations of fraud in this case as would be sufficient for the court to say that there is sufficient cause for not referring the dispute to arbitration. This contention of the appellant must also therefore fail. 16. The appeal therefore fails and is hereby dismissed with costs. 17. Appeal dismissed.
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1961 (9) TMI 85 - CALCUTTA HIGH COURT
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... ... ..... e petitioner was not entitled to any remedy. This decision does not deal with the question as to the legal position when a person has an alternative legal remedy and is actually following the same. In my opinion the legal position has been well established by the decisions cited above, and must be held against the petitioner. While" it is deliberately pursuing the alternative remedy provided for in the Sea Customs Act, it is not entitled to make an application under Article 226 of the Constitution. There are no special facts in this case which make it desirable that this application should be decided while parallel proceedings are pending before a tribunal constituted under the Sea Customs Act. Therefore, on this preliminary point, this application should fail. 6. The result is that this application fails. The Rule is discharged. Interim orders if any, are vacated. There will be no order as to costs. I must make it clear that I have not gone into the merits of the case.
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1961 (9) TMI 84 - BOMBAY HIGH COURT
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... ... ..... lant". In our view even the extended meaning, which has been given to the word "plant" in these observations, does not take it beyond the apparatus or instruments as are used by a businessman in carrying on his business. In order that the assessee may succeed it must be held that not only the instruments or the apparatus used in connection with the business but even the container of the stock-in-trade would come within the meaning of the word "plant". Neither on the dictionary meaning nor on the meaning given in the judicial decision, to which Mr. Pandit has referred, can we give such an extended meaning to the word "plant", as to cover the container or the storage place of the stock-in-trade of the assessee. In our opinion, therefore, the view which was taken by the Tribunal is correct and the question, which has been referred to us, must be answered in the negative. We answer accordingly. The assessee will pay the costs of the department.
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1961 (9) TMI 83 - MADRAS HIGH COURT
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... ... ..... ot; and the section might have to he strictly construed. More importantly, it is limited to a presumption which applies to the transferor alone. I know of no principle of law, including any part of Madras Act I of 1955, which can inhibit or prevent a third party from obtaining an assignment, merely because the vendor who assigned the right to obtain a reconveyance, was also a lessee who owed some arrears. It is true that Venkataswami Naidu is not a party to the present action. But, obviously, upon the facts as stated by me, he would be estopped from claiming that his assignee could not enforce the right to reconveyance of which he took the assignment. (5) In this view, the second appeal succeeds, and the decision of the first appellate court is set aside, the decision of the first court (District Munsif) being restored. The costs as originally awarded by the first Court will stand, but, otherwise the parties will bear their own costs throughout. No leave. (6) Appeal allowed.
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1961 (9) TMI 82 - ALLAHABAD HIGH COURT
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... ... ..... eedings by way of appeals before the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. To my mind there was no justification at all for wasting time in filing those useless appeals. Since this court had decided in the year 1953, that no appeal was maintainable, the clear duty of the petitioner was to have approached this court for relief under article 226 at least in 1953. It is settled that he who seeks relief in proceeding under article 226 must come with expeditiousness. In this particular case it appears to me that the petitioner came to this court only as a last resort in the year 1956 after the futile proceedings launched by him resulted in failure. I cannot help thinking that launching and pursuing these futile proceedings is evidence of gross negligence. In the circumstances, I am of the view that this petition is liable to be dismissed on the ground of delay and latches also. The petition is accordingly dismissed with costs. Petition dismissed.
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1961 (9) TMI 81 - SUPREME COURT
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... ... ..... as the prosecution case is that it is the respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him. The fact that the respondent may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature. Further, as the respondent has been committed for trial to the Court of Session, it is not likely now that the trial will take a long time. In the circumstances we are of opinion that the order of the High Court granting bail to the respondent is erroneous and should be set aside. We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent. As he has already been arrested under the interim order passed by this Court, no further order in this connection is necessary. We, however, direct that the Sessions Judge will take steps to see that as far as possible the trial of the respondent starts within two months of the date of this order. Appeal allowed.
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1961 (9) TMI 80 - KERALA HIGH COURT
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... ... ..... ion 46(1) an have held that it will not take anybody else but the assessee pure and simple. No doubt, Mr. G. Rama Iyer, learned counsel for the revenue, urged that there are other decisions where the expression "assessee" has been understood to include also a legal representative and recognising a right of appeal against the order passed under the Act. But we are not inclined to embark upon an enquiry regarding that controversy in these proceedings because our decision on the first point completely concludes the case as against the department and in favour of the assessee. Therefore, so far as the second contention that has been raised, namely, that the provisions of section 46(2) of the Act cannot be invoked for recovering the amounts due from persons like the petitioner, we express no opinion whatsoever one way or the other. In view of our conclusions arrived at on the first point the writ petition is allowed. There will be no order as to costs. Petition allowed.
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1961 (9) TMI 79 - BOMBAY HIGH COURT
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... ... ..... se, quite unconnected with his trade. That the fault which he has committed, has connection with his trade is not sufficient to make the expenses incurred for getting out of it expenses incurred for the purpose of his trade. Before the Tribunal, it was also contended that it was the practice of the income-tax department to allow income-tax consultant's fees up to the assessment stage and since the fees paid in the present case were also up to the assessment stage, they should have been allowed following the said practice. This connection was not accepted by the Tribunal, and rightly in our opinion, on the ground that the departmental practice cannot be made the foundation of a claim which was not legally admissible as a permissible deduction under section 10(2)(xv) of the Act. In our opinion, therefore, the question referred to us must be answered in the negative. We answer accordingly. The assessee will pay the costs of the department. Question answered in the negative.
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1961 (9) TMI 78 - SUPREME COURT
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... ... ..... ial in its nature, then it is difficult to appreciate how it can be said that its decision would offend Art. 14. In any case, it seems to me quite clear that the co-operative societies form a class by themselves and a provision giving preference to such a class, would be a good provision because the object of the Act would be better served thereby for the reasons earlier mentioned; such provision would have a clear nexus with the object of the Act and therefore satisfy the test of Art. 14. Looking at the matter from any point of view it seems to me that the Order of the licensing authority giving preference to the co-operative Societies is not open to any objection. In my view that was a fair Order to have been made in the circumstances of this case. I would for these reasons dismiss this petition. MUDHOLKAR, J.-I agree with the judgment delivered by Sarkar, J. By Court-In accordance with the opinion of the majority this Writ Petition is allowed with costs. Petition allowed.
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1961 (9) TMI 77 - BOMBAY HIGH COURT
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... ... ..... herefore, the first assessment order had equally become final against the assessee though the assessee on record was Jeevansingh Grewal. The principle in the aforesaid decisions, therefore, would equally be applicable to the facts of the present case. In our opinion, therefore, the assessee was not entitled to claim reopening of the computation of income of his Bombay property. As regards the third question, the Tribunal, in rejecting the contention of the assessee, has observed "We are not aware of any commercial practice or principle which lays down that tax paid by one on one's income is a proper deduction in determining one's income for the purpose of taxation." No good reason has been shown to us to differ from the conclusion to which the Tribunal has reached. For the reasons stated above, our answer to all the three questions is in the negative. The assessee shall pay the costs of the revenue of both the references. Questions answered in the negative.
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1961 (9) TMI 76 - SUPREME COURT
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... ... ..... of the same Volume of Halsbury's Laws of England to the' following effect settles the controversy against the appellants "Result must not be ultra vires-A party cannot by representation, I any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has 'entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do...... In view of these considerations it must be held that there was no relationship of landlord and tenant between the parties and that, therefore, the applications under s. 8 of the Act made by the appellants had been rightly dismissed by the High Court as incompetent. The appeals are accordingly dismissed with costs, one set of hearing fees. Appeals dismissed.
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1961 (9) TMI 75 - SUPREME COURT
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... ... ..... the contract itself was intended to be executed expeditiously. The tender shows that the appellant represented that the earliest date by which delivery could be effected would be within twenty days from the date of the receipt of the order and it also said that full quantity of cocoanut oil required was held by it. Therefore, to begin with the tender treated the security deposit as a subsequent condition, the contract was for the immediate supply of goods and the acceptance purports to be in accordance with the relevant government rules and uses the expression that the contract was concluded by the said acceptance. Therefore, in our opinion, reading the letter as a whole it would not be possible to accept the appellant's argument that the letter was intended to make a substantial variation in the contract by making the deposit of security a condition precedent instead of a condition subsequent. In the result the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (9) TMI 74 - BOMBAY HIGH COURT
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... ... ..... such an argument in this case. At no time it had been stated that the assessee, the partners of the partnership firm and the two grandsons came together and agreed that the debt due by the partnership to the assessee should be treated as partly satisfied if the partnership paid ₹ 50,000 to his two grandsons, ₹ 25,000 each. This contention is founded on assumption of facts which have not been established in this case. It has therefore to be rejected on the material on record. In the result, the answer to the first question will have to be in the negative, and the answer to the second question will have to be that the transfer of the amount of ₹ 50,000 from the account of the assessee to the accounts of his two grandsons amounts to transfer of an actionable claim, and therefore mere book entries do not constitute a valid assignment in respect thereof. We answer accordingly. The assessee shall pay the costs of the department. No order on the notice of motion.
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1961 (9) TMI 73 - BOMBAY HIGH COURT
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... ... ..... third explanation, which is an explanation to sub-section (1) of section 4, relates to this subject-matter. That being the position, in our opinion, the third explanation would have application only to the cases where the dividend is paid to non-resident shareholder by an Indian company without the taxable territories. The assessee admittedly is a resident within the meaning of the Act. The case of the assessee, therefore, does not fall within the purview of the third explanation. The provisions of sub-section (1) of section 42 are applicable to her case. The aforesaid income of ₹ 47,120 is, therefore, an income deemed to have accrued to the assessee in British India. In the result, our answer to the question is that the net dividend income of ₹ 47,120 though, in fact, accrued to the assessee in the former Baroda State, is an income deemed to have accrued to her in British India. The assessee shall pay the costs of the department. Questions answered accordingly.
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1961 (9) TMI 72 - MADRAS HIGH COURT
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... ... ..... n the business as planters, they did not engage in any one of those other objects. Though, as their Lordships of the Supreme Court point out, even if an intention to trade existed and a presumption that the sales were in the course of adventure in the nature of a trade may be drawn, it is not a conclusive presumption. When facts and circumstances clearly show that the sales were rendered necessary for the purpose of better management of the estate as a plantation, which was the sole business in which the assessee was engaged, we may well regard any such initial presumption as satisfactorily rebutted. The total effect of all the relevant factors and circumstances clearly negative any conclusion in favour of an adventure in the nature of a trade. In the light of the above conclusion, the question referred to us is answered in the negative and in favour of the assessee. The assessee will be entitled to his costs. Counsel's fee ₹ 250. Question answered in the negative.
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1961 (9) TMI 71 - CALCUTTA HIGH COURT
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... ... ..... ld be proved to have actual bias. It would be enough if circumstances sufficiently pointed to the likelihood of bias. There can be no doubt there was such likelihood in the present case. We think on a consideration of the whole of the circumstances of this case that the appellant may justly complain that there was likelihood of bias on the part of the officer who made the order of adjudication against him. We must, therefore, hold that the order under appeal is bad on this ground as well. In the result, this appeal is allowed, the judgment and order under appeal are set aside, and we direct a Writ of Certiorari to be issued quashing the order of S.K. Srivastava. Additional Collector of Customs, Calcutta, dated June 19, 1956. Nothing that we have said in this judgment will, however, prevent the Customs authorities to proceed against the appellant in accordance with law. Parties will bear their own costs throughout here and below. Certified for two Counsel. Bose, C.J. I agree.
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1961 (9) TMI 70 - SUPREME COURT
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... ... ..... ted as a result of excessive speculation and unhealthy trade practices, the spot-price prevailing on the closing day would not represent the reasonable price at which contract should be closed out.. And this was precisely the case of the respondent7 State as the reasons which compelled it to depart from the principle of fixation, on the basis of the spot-Price on the closing day. We see, therefore, no sufficient ground for holding that the power conferred on the Central Government to fix the price at which contracts 'could be closed out is either legislatively incompetent or constitutionally invalid. What we stated earlier should suffice to' show that the actual price at which the contracts were required to be settled out fixed in the impugned notification conformed to. the requirement of reasonableness in Art. 19 (6) and that underlying,the relevant prosions of the statute. The petitions fail and are dismissed with costs one set of hearing-fees. Petitions dismissed.
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1961 (9) TMI 68 - SUPREME COURT
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... ... ..... strictions which may be imposed on the, rights of an individual under Art. 19(1)(a) are those which cl. (2) of Art. 19 permits and no other. Coming to Writ Petitions 67 and 68 of 1961, considering that the relief granted by us in the main petition will redress the grievance of the petitioners in these two petitions it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference with their right under Art. (19) (1) (a). We, therefore, refrain from making any Order on their petitions. Upon the view we take it would follow that s. 3(1) of the Act, which is its pivotal provision, is unconstitutional and therefore, the Daily newspaper (Price and Page) Order, 1960 made thereunder is also unconstitutional. If a. 3(1) is struck down as bad, nothing remains in the Act itself. Accordingly we allow this petition with costs. 'The petitioners in W. Ps. 67 and 68 of 1961 as well as the interveners will bear their respective costs.
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1961 (9) TMI 67 - PUNJAB HIGH COURT
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... ... ..... against the company except by leave of the court and subject to such terms as the court may impose. The language of this section is wide enough to include proceedings under the Income-tax Act. No leave of the court has been obtained. In view of this, the claim of the petitioner for ₹ 4,000 on account of the penalty order passed on 14th April, 1956, cannot be entertained. In the result, the petitioner is entitled to succeed so far as its claim up to ₹ 12,500 is concerned. The official liquidator is, therefore, directed to admit the petitioner's claim to the extent of ₹ 12,500 in consequence of the penalty orders referred to above. This will be in addition to the claim already admitted by the official liquidator. The petitioner will be deemed to be an ordinary creditor with respect to the amount of ₹ 12,500. To the extent to which the official liquidator has already admitted the petitioner's claim his action is confirmed. Order accordingly.
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