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1962 (12) TMI 78
... ... ... ... ..... nsaction and could not be considered as an allowable loss. I do not see how this case can be of assistance, because it depended on its own facts. The facts in the present case are quite distinguishable. In the present case, the shares were dealt with at the market price and no foundation was laid for showing that the transactions were not genuine transactions. Simply because a year after the transaction the purchaser acquired the secretaryship of a company cannot be decisive of the question as to whether the transaction was an investment or a dealing in shares. In our opinion, on the facts found, the Tribunal was entitled to come to the conclusion that the transactions were in the usual course of business and not by way of investment and that the disputed amount should be allowed as a trade loss. The result is that the question asked should be answered in the affirmative. The assessee is entitled to the costs of this application. Certified for two counsel. DATTA J.--I agree.
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1962 (12) TMI 77
... ... ... ... ..... hat the rulings relied on by counsel for the department in Western India Plywood Ltd. v. Commissioner of Income-tax 1960 38 I.T.R. 533 and Nagpur Electric Light and Power Co. Ltd. v. Commissioner of Income-tax 1931 6 I.T.C. 28 are applicable. In both these cases the question was whether expenses incurred in connection with the raising of a debenture loan, though, no doubt, for the purpose of finding funds for the business carried on by the assessee, are allowable under section 10(2)(xv). It was held in these cases that the amounts cannot be deducted. These cases are clearly distinguishable. We think it is the principle laid down in Hindustan Commercial Bank Ltd., In re 1952 21 I.T.R. 353 and Commissioner of Income-tax v. Finlay Mills Ltd. 1951 20 I.T.R. 475; 1952 S.C.R. 11, already referred to, that will apply to the facts of this case. We, therefore, answer the two questions referred to us in the affirmative and in favour of the assessee. There will be no order as to costs.
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1962 (12) TMI 76
... ... ... ... ..... ng deduction of "debt owed" cannot be stretched without doing violence to the language to cover an amount reserved for a tax liability, in anticipation of assessment or future demand if assessment has been made. In this view of the matter it follows that the assessee is entitled to claim the two sums of ₹ 10,22,463 and ₹ 2,56,762 relating to advance tax under section 18A and the final assessment to tax respectively as deduction in the computation of net wealth as they were debts by reason of the demand for payment issued by the department. The other sum of ₹ 20,45,384 is not a debt owed within the meaning of section 2(m) as it is common ground that the department had not even assessed the income and levied the tax. We agree with the conclusion of the Judicial Member of the Tribunal. The question is thus answered partly in favour of the assess and partly in favour of the department. There will be no order as to costs. Question answered accordingly.
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1962 (12) TMI 75
... ... ... ... ..... and inadequate grounds and against ordinary principles." But the reasons stated in support of this by the Commissioner do not bear scrutiny or support the order which he passed; for, the assessment by the Income-tax Officer was not based on the inspection of properties conducted by his predecessor, the Income-tax Officer has not stated that there is no justification to reject the accounts, because an increase in the yield was shown in the accounts, it is not an admitted fact that the higher the income derived the lower would be the expenses, and there was nothing wrong in the Income-tax Officer's having completed the assessments for the two years. The above were the four reasons adduced for directing a fresh assessment on the lines indicated. Accordingly, in I.T.R. Nos. 13 and 14 of 1961, question No. 3 is answered thus On the facts and circumstances of the case the Commissioner had no jurisdiction to interfere with the order of the Agricultural Income-tax Officer.
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1962 (12) TMI 74
... ... ... ... ..... ax Officer did the best that he could under the circumstances having regard to the sales which had been effected by the assessee. In view of the circumstances of the case it is not possible for us to say that there was no evidence on which the taxing authorities or the Tribunal arrived at the market value of the closing stock of these goods. The question that has been referred to us in this connection is the following "3. Was there any material before the taxing authorities and the Tribunal to arrive at the conclusion that the closing stock of 3,003 maunds 32 seers was undervalued by ₹ 39,500." The question requires to be re-framed and we reframe the same as under "3. Was there any evidence before the Tribunal to arrive at the conclusion that the closing stock of 3,003 maunds 32 seers was undervalued by ₹ 39,500?" Our answer to the question as reframed is in the affirmative. The assessee will pay to the Commissioner the costs of the reference.
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1962 (12) TMI 73
... ... ... ... ..... ence of sub-r. (6) and other consequential provisions makes it clear that the State Government which made r. 23 provided for the decision of the dispute by the arbitrator or arbitrators subject to an appeal against the award. It will be sheer speculation to say that the State Government would have made provision for the dispute to be settled by arbitrators if it had known that it could not make any provision for an appeal against that order. I am therefore of opinion that the entire r. 23 is to be struck down both because in its present for it is discriminatory and because sub-r. (6) is void inasmuch as the State Government had no power to enact it and it is not servable from the rest of the rule. I would therefore allow the appeal with costs and order the issue of a writ quashing the proceedings pending before the Cane Commissioner and prohibiting him to continue those proceedings. By COURT In accordance with the opinion of the majority, this Appeal is dismissed with costs.
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1962 (12) TMI 72
... ... ... ... ..... eral certificates. On the objection of the petitioners those certificates were pronounced by the Certificate Officer by his order dated February 11, 1957, to be invalid in so far as they related to the penalties. But on subsequent objections filed by the petitioners the entire certificates were cancelled on the ground that they were not in the prescribed form and, thereupon, fresh certificates were filed. The present certificate proceedings arise out of these fresh certificates. There is no binding adjudication that the present certificates are invalid in so far as they relate to penalties. Nor is it shown that the present certificates are invalid on any ground. The demands of the Union of India both as to the tax and the penalties are sufficiently identified in the certificates. No other arguments were advanced before us. There is no merit in this rule. The rule is discharged with costs, hearing fee being assessed at five gold mohurs. R.N. DUTT J.--I agree. Rule discharged.
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1962 (12) TMI 71
... ... ... ... ..... tion, it is agreed between parties that it should be considered by the Receiver when the assets are distributed. We may also mention that during arguments it was stated before us on behalf of Banarsidas that he had installed some new machinery for the efficient running of the mill and that before the mill is sold he should be allowed to remove the machinery. It was suggested that perhaps it would be in the interest of all the parties if the mill is sold along with the new machinery at the date of sale. The other parties, however said that it would be best if Banarsidas removes the machinery before the expiry of the lease. In the circumstances, we can give no direction in the matter. It will be open to the parties, however, to agree upon the course to be adopted when the Receiver sets about selling the machinery, or if they do not agree, to obtain directions from the High Court. While we dismiss the Civil Miscellaneous Petitions, we make no order as to costs. Appeals allowed.
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1962 (12) TMI 70
... ... ... ... ..... ourt. Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is, for the first time, in a position to claim the benefit of s. 6. We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender. In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge, s. 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal. The appeal is accordingly allowed in part i.e., in regard to the second appellant-Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisions of s. 6 of the probation of offenders Act, 1958. Appeal allowed in part.
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1962 (12) TMI 69
... ... ... ... ..... t the tenant, he has nothing to lose by the order of the Rent Controller. These proceedings cannot affect the interest of one who is not a party to the present case. Furthermore, a second appeal lay from the appellate order of the Rent Control Tribunal dismissing the appellant's appeal against the order striking out his defence. No such second appeal was taken to the High Court, though as already stated a second appeal was preferred against the order of the Rent Control Tribunal dismissing his appeal against the order of eviction. The position is that the appellate order of the Rent Control Tribunal, dated March 6, 1962, dismissing the appeal against the order striking out his defence became final between the parties and is no more open to challenge. Hence, it is no more open to the appellant to challenge the jurisdiction of the authorities under the Act. In our opinion, therefore, there is no merit in his appeal. It is accordingly dismissed with costs. Appeal dismissed.
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1962 (12) TMI 68
... ... ... ... ..... de to refer only to such notification issued by the Government under s. 4 or 6 of the Land Acquisition Act. I would, therefere, hold that when- ever the Trust seeks to acquire land for the purpose of the implementation of the scheme for which it was constituted, it can only acquire land in the manner prescribed by the Act, that is to say, in accordance with the land acquisition provisions incorporated in the Act by reference. As in the present case the notifications issued by the Government under s. 4 of the LandAcquisition Act, 1894, for the acquisition of the land in question for trust purposes 'do not fall under the exemption, the said notifications were void. The High Court was right in quashing the said notificatonsunder Art. 226 of the Constitution.The appeals fail and are dismissed with costs. By COURT In accordance with the majority view the appeals are allowed and the case remitted to the High Court. The costs will abide the event. One hearing fee in this court.
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1962 (12) TMI 67
... ... ... ... ..... sustaining or protecting their action. So understood, it must be held that the petitioner’s freedom under Art. 19 (1) (a) of the Constitution is also infringed. It is not necessary in this case to express our view whether some of the other freedoms enshrined in Art. 19 of the Constitution are also infringed by the said Regulation. In the result, we would issue an order directing the respondents not to take any measure against the petitioner under Regulation 236 of Chapter XX of the U. P. Police Regulations. The respondents will pay the costs of the petitioner. By COURT In accordance with the opinion of the majority this Writ Petition is partly allowed and Regulation 236 (b) which authorises “domiciliary visits” is struck down as unconstitutional. The Petitioner would be entitled to the issue of a writ of mandamus directing the respondent not to continue domiciliary visits. The rest of the petition fails and is dismissed. There will be no order as to costs.
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1962 (12) TMI 66
... ... ... ... ..... s of October, November and December, 1955, in consonance with the prior agreement to pay remuneration before the directors' resolution. In our opinion, the accrued liability in December, 1955, of the assessee to pay its legal advisers was only the sum of ₹ 3,000, that being the remuneration from January 1, 1955 to October, 1955, and that the whole of ₹ 4,000 claimed by way of deduction in addition to the sum of ₹ 6,000 paid during the accounting year cannot be sustained. The assessee should get the benefits of a further allowance of ₹ 3,000. Question No. 2 in T.C. No. 90 of 1960 is therefore answered in this way the assessee will be entitled to claim as deduction the sum of ₹ 3,000 and not ₹ 4,000 as remuneration paid to the lawyers in the assessment for the year 1957-58. The assessee will get its costs in T.C. No. 119 of 1962 from the department. Counsel's fee ₹ 250. There will be no order as to costs in T.C. No. 90 of 1960.
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1962 (12) TMI 65
... ... ... ... ..... ng that the industrial undertaking represented by the spinning mill constituted a reconstruction of the existing business. Section 15C(2) denies exemption only when there is such a reconstruction of a business already in existence. It is not the case of the department that the business that was already in existence, viz., that represented by the weaving mill, was so reconstituted. On the other hand, the weaving mill continues to exist, though in a moribund condition. Nor it is a case where the building, machinery or plant used in business which was already in existence were transferred to this new business. If the spinning mill is in itself an industrial undertaking, it is not denied by Mr. Ranganathan, learned counsel for the department, that this assessment year falls within the period during which the benefit of section 15C is available to the assessee. The question is accordingly answered in favour of the assessee, which will get its costs. Counsel's fee ₹ 250.
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1962 (12) TMI 64
... ... ... ... ..... Court has the constitutional power and the correlative duty-a difficult and delicate one to prevent encroachment, either overtly or covertly, by the Union of State field or vice versa, and thus maintain the balance of federation. The present is a typical case where the Court should stop the Union from overstepping its boundary and trespassing into the State field. I would, therefore, hold that the impugned Act, in so far as it confers a power on the Union to acquire the lands owned by the State, including coal mines and coa bearing lands, is ultra vires. I find on issues 1, 2 and 3 against the defendant; In view of my findings on the said issue, I do not propose to express my opinion on the additional issue. In the result, there will be a decree in favour of the plaintiff in terms of cls. (a), (c) and (d) of paragraph 11 of the plaint. The plaintiff is entitled to costs. By COURT In view of the judgment of the majority, the suit stands dismissed with costs. Appeal dismissed.
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1962 (12) TMI 63
... ... ... ... ..... ncome is computed by making additions. Such an assessment is perfectly within the four corners of the Act and there is no reason to suppose that it is in any way inequitable or unjust. We are also unable to understand the real scope of a sympathetic treatment of the assessee in the matter of assessment to tax. The assessee is either liable to tax or not, and if he is really liable to tax he cannot get rid of it by pleading equity or by invoking the sympathy of the assessing authority. The faulty reasoning of the Tribunal was certainly not conducive to a correct conclusion in the matter. In our opinion, there are no materials for the addition of ₹ 40,000 and ₹ 12,230 in respect of the two assessment years 1949-50 and 1950-51 respectively, and that the order of the Tribunal cannot be sustained. The questions are answered in favour of the assessee who will get his costs from the department. Counsel's fee ₹ 250. Questions answered in favour of the assessee.
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1962 (12) TMI 62
... ... ... ... ..... indirect benefit from the agricultural income is satisfied. But the first condition that the settlement is not to be revocable for the period specified is not complied with. The third proviso has thus no application. We may also mention that in this decision there was some difference of opinion between the two learned judges, Kania and Chagla JJ., but the ultimate decision in the case was not rested on that point. In a later decision, Behramji Sorabji Lalkaka v. Commissioner of Income-tax 1948 16 I.T.R. 301, Chagla C.J. reaffirmed the view that he took in the earlier case that even a power for retransfer which was contingent would bring such a case within the scope of the first proviso. We are satisfied that, in this case, the settlement clearly comes within the scope of the first proviso and answer the question in the affirmative and against the assessee. The assessee will pay the costs of the department. Counsel's fee ₹ 150. Question answered in the affirmative.
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1962 (12) TMI 61
... ... ... ... ..... to be property of the joint Hindu family of which Kannan Chetty is the karta and which, in the absence of an order under section 25A, is deemed to continue in existence, and an assessment can very properly be made in respect of the income from those properties in the hands of the karta, Kannan Chetty. What we have said above is sufficient to establish that by the creation of a trust in respect of Kannan Chetty's own half share, the half share of the joint family properties and of his separate properties, they have ceased to be property belonging to the joint Hindu family, the creation of the trust by Kannan Chetty being a perfectly valid transaction. It would follow that the income from those properties will have to be assessed not in the hands of the deemed Hindu undivided family but in the hands of the trustees of the trust. The question is accordingly answered partly in favour of the assessee and partly in favour of the department. There will be no order as to costs.
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1962 (12) TMI 60
... ... ... ... ..... Gowri Shankar Bagdy. The assessee has been able to point out a source for this sum of ₹ 15,000 and this cannot be refuted by a mere steady disability on the part of the department or the Tribunal. After the lapse of ten years the assessee should not be placed upon the rack and called upon to explain not merely the origin and source of his capital contribution but the origin of origin and the source of source as well. In our opinion the Tribunal and the department had no material to hold that the sum of ₹ 15,000 credited to the capital account of the assessee with the Coonoor firm represented income from undisclosed sources. The question is therefore answered as follows There are no materials to hold that the sum of ₹ 15,000 was income from undisclosed sources in the year of assessment 1948-49 but there were materials to hold that the sum of ₹ 10,000 was income from undisclosed sources. There will be no order as to costs. Question answered accordingly.
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1962 (12) TMI 59
Whether a draft-scheme under the Act has to be approved as a whole and the procedure of approving a part of the scheme once and another part later is illegal, and therefore, the approval given to the draft-scheme by the Legal Remembrancer does not result in approving the scheme, as required by law.
Whether it was not open to the Legal Remembracer to review his order dated May 31, 1962 even after the decision of the High Court, and insofar as the Legal Remembrancer did so in obedience to the order of the High Court he abdicated his own judgment, and the approval therefore after such abdication of his own judgment, is no approval in law.
Whether there was discrimination inasmuch as the operators of the twelve partially overlapping routes were left out of the scheme?
Held that:- in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground must be rejected.
No ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected. Appeal dismissed.
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