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Case Laws
Showing 21 to 40 of 93 Records
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1962 (2) TMI 116 - MADRAS HIGH COURT
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... ... ..... 1 of the Succession Act governed that will and if that were so, the decision of the learned judge, if we may say so with respect, is correct. There was no postponement of possession either by reason of a prior bequest or otherwise. As stated already, the possession of the joint executors and guardians in the present case was, in fact and in truth, the possession of the legatees themselves. We are clearly of opinion that though the testator made a bequest to his grandchildren by Annamalai and that such a bequest was to a class of heirs, there being no provision in the will, express or implied, indicating a period of distribution later than the death of the testator and there being no deferring of possession beyond the death, the date of ascertainment of the class must in view of section 111 of the Indian Succession Act be taken to be the date when the testator died. The question is answered in the affirmative and against the assessees who will pay the costs of the department.
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1962 (2) TMI 115 - MADHYA PRADESH HIGH COURT
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... ... ..... her order under the section cannot be constructively regarded as appealable. The reason is that there is no inherent right of appeal and that, since appeals are creatures of statutes, there can be no appeal apart from specific provisions expressly made therein. It is significant that cancellation of registration was present in the mind of the legislature and it expressly provided for appeal against such cancellation falling under section 23A of the Act. There is, however, no provision for appeal against an order of cancellation under rule 6B. In conclusion, we may refer to Agarwal and Co. v. Income-tax Officer 1956 29 ITR 342 in which it was observed that an order of cancellation of registration under rule 6B was not appealable. In our opinion, in the absence of an express provision in the Income-tax Act, an order under rule 6B cancelling renewal of registration is not appealable under section 30(1) of the Income-tax Act. The petitioner shall pay all costs of this reference.
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1962 (2) TMI 114 - CALCUTTA HIGH COURT
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... ... ..... f rumours, gossips or vague apprehensions. The Income-tax Officer was not called upon to discover the exact quality or quantity of the omission; it was sufficient if he found that there had been some omission, and it would be immaterial if it was greater or smaller than he had supposed it to be. It would be no less a discovery, when the actual omission was of some different kind to the supposed omission." If therefore the Income-tax Officer after giving notice that he had reason to believe that income during the Dewali year 2002 had escaped assessment found that the income which really had escaped such assessment fell outside the said year but was otherwise assessable to tax under the notice given he could proceed to assess the same so long as it fell within the "previous year" which in this case was the financial year 1945-46. The answer to the question must therefore be in the affirmative and the assessee must pay the costs of this reference. Ray J.-I agree.
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1962 (2) TMI 113 - PUNJAB & HARYANA HIGH COURT
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... ... ..... or other remuneration for services rendered. Secondly, it must also be established that the sum was paid to the assessee "out of, or determined with reference to, the profits of such business". Thirdly, it must be shown that the amount has not been deducted from the company's assessment. But this merely reiterates what is stated in the notification itself. This statement does not deal with the question that arises in the present references. So on the words of the notification itself the answer to the first question is in the negative and to the first part of the second question in the affirmative, as the second part of the second question whether it was necessary for the company to make the claim year after year does not arise, the matter being only confined to one assessment year. The answers to the questions are against the assessees and as the cases have been argued together, so the three assessees will pay costs of the Commissioner of Income-tax only once.
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1962 (2) TMI 112 - GUJARAT HIGH COURT
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... ... ..... in section 34(3) applies and such an order cannot, therefore, be made after the expiration of a period of four years from the end of the assessment year. Since in the present case the period of four years from the end of the assessment year 1957-58 expired on 31st March, 1962, no order under section 23A could be made against the first petitioner in respect of the assessment year 1957-58 after 31st March, 1962, and the present proceedings initiated by the Income-tax Officer against the first petitioner are, therefore, without jurisdiction. There will, therefore, be a writ of mandamus quashing and setting aside the notice issued by the respondent against the first petitioner and a writ of prohibition restraining the respondent from taking action against the first petitioner under section 23A for the assessment year 1957-1958 on the basis of the notice dated 15th November, 1961, issued by the respondent. The respondent will pay the costs of the petition to the first petitioner.
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1962 (2) TMI 111 - CALCUTTA HIGH COURT
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... ... ..... continues in him so long as the transfer is not registered and, although in one sense the shares may be said to belong to the transferee, in that he holds the beneficial interest therein, the legal title still continues in the transferor. If and when the transferee seeks to sell the shares he will have to ask the transferor to execute a deed of transfer in favour of the new purchaser as he himself cannot execute any deed of transfer. Therefore, in considering whether the shares of the assessee company are freely transferable one cannot lose sight of the fact that the directors have the unqualified right to reject any transfer and the mere fact that they have not so far objected to any transfer placed before them does not mean that they cannot use the power given to them by article 39 of the articles of association of the assessee company. The question referred to us must therefore be answered in the negative. The assessee must pay the costs of this reference. Ray J.-I agree.
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1962 (2) TMI 110 - MADRAS HIGH COURT
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... ... ..... year of the acquisition, and which is not of a recurring nature. We are not able to appreciate this contention. The subject has a right to claim the development rebate so long as his claim is within the plain words of the statutory enactment. Whether the legislature intended to grant development rebate in cases where old engines are replaced by new in respect of a motor vehicle need not be conjectured as we are satisfied that the engine is a machinery and that the fitting of the engine into the vehicle amounts to installation. There is nothing compelling in the context of section 10(2)(vib) to construe the words "machinery" and "installation" differently from the interpretation received by those words in the decision of this court already referred to in dealing with section 10(2)(via) of the Act. We are, therefore, of the opinion that the question has to be answered in favour of the assessee. The department will pay the costs of the assessee, ₹ 250.
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1962 (2) TMI 109 - MADRAS HIGH COURT
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... ... ..... 952, the estimate submitted by him was not in accord with the book results. We have, therefore, to proceed on the footing that the assessee made an honest and fair estimate in September, 1952, upon which he paid the advance tax under section 18A. The assessee's failure to submit a revised return in March, 1953, towards the end of the financial year, is not a relevant consideration as the mens rea of the assessee at the time when he made the estimate cannot be adjudged by his subsequent conduct. The charge against the assessee now is not that he failed to submit the revised return in March, 1953, but that he knew or had reason to believe the estimate submitted by him to be untrue at the time when he made it. In our opinion the levy of penalty on the assessee was not warranted in law on the facts and circumstances set forth above. We answer the question in the negative and in favour of the assessee, who will get his costs from the department. Counsel's fee ₹ 250.
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1962 (2) TMI 108 - SUPREME COURT
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... ... ..... followed the principle set out in Davis. v. Thomas (2). We accept the view of the majority enunciated in Shanmugam Pillai's case. The decree passed by the High Court must therefore be set aside and the decree passed by the trial Court restored. 'But the property in dispute is valuable. Even on the defendant's case it was on the date of the institution of the suit worth ₹ 15000/-. The defendant purchased it only about a year and seven months prior to the date of the institution of the suit for ₹ 1500/-. He appears to have overreached the plaintiff and taken a document of sale conveying the property when a mere loan was intended on the security of the property. It is unfortunate, having regard to the provision of s. 58(c) of the 'Transfer of Property Act, that the plaintiff is debarred from proving that (,he transaction was in the nature of a mortgage. In the circumstances we direct that there will be no order as to costs throughout. Appeal allowed.
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1962 (2) TMI 107 - KERALA HIGH COURT
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... ... ..... slative language used in the present Act must then be of the same legislative intent as in the Madras Act. In looking up for a precedent for the enactment and adopting the Madras Act as the model the legislature has also to be presumed to have been aware of the judicial interpretation of its provisions. I would therefore presume that in enacting Section 87(2) of the new Act, the legislature approved the judicial interpretation thereof made in A.I.R. 1956 Mad 597, especially since no change has been made in its diction. It then follows that all proceedings like Vakalaths, Miscellaneous Petitions and Copy Applications in appeals from suits instituted before the commencement of the Act shall be governed by the old Act, the Travancore-Cochin Court Fees Act II of 1125, or the Madras Act XIV of 1955, as the case maybe, the operation of the new Act X of 1960 being confined to proceedings arising from suits instituted on or after February 1, 1962. The reference is answered as above.
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1962 (2) TMI 106 - CALCUTTA HIGH COURT
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... ... ..... tion 10 of the Act is noteworthy of acceptance. In effect it would allow a businessman to reduce his business income to nil by buying up speculative losses and avoiding payment of tax. Tendolkar J., who did not deliver a separate judgment in Keshavlal Premchand's case 1957 31 I.T.R. 7, had to consider that judgment again in the case of Jamnadas Daga v. Commissioner of Income-tax 1958 33 I.T.R. 274 and has in the last mentioned case given reasons for coming to the conclusion that the proviso was a substantive enactment. I do not think it will serve any useful purpose to consider the cases which were examined by the learned Chief Justice of the Bombay High Court in coming to the conclusion he did in Keshavlal Premchand's case 1957 31 I.T.R. 7 and for the reasons given above the answer to the question in this case must be given in the negative and against the assessee. The assessee must pay the costs of this reference. RAY J.--I agree. Question answered in the negative.
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1962 (2) TMI 105 - CALCUTTA HIGH COURT
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... ... ..... #39;Mahoney's case 1952 33 Tax Cas. 259 is, in my opinion, an authority for the proposition that foreign taxes are not paid for the purpose of earning profits and, therefore, they are not deductible. Lord Normand said in Smith's Potato Crisps case 1948 A.C. 508; 30 Tax Cas. 267"...a payment out of profits after they have been earned is not within the purposes of the trade carried on by the taxpayer. But excess profits tax also is levied on profits after they are earned and, apart from the statutory provision, is in pari passu with income tax." I am therefore of opinion that business profits tax paid in Burma is not deductible as a business expense under the Indian Income-tax Act nor is it deductible under the Income-tax Act on the analogy of the Business Profits Tax Act in India. The question is therefore answered in the affirmative. The assessee is to pay the costs. Certificate for two counsel. G.K. MITTER J.--I agree. Question answered in the affirmative.
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1962 (2) TMI 104 - CALCUTTA HIGH COURT
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... ... ..... ounsel for the department further contended that in order to sustain a claim under section 12 of the Act it would have to be shown that there was income before the assessee could claim deduction for loss in respect of such heads of income under section 12. He relied on the recent Bench decision in the case of (I.T. Ref. No. 52 of 1955) Madanlal Sohanlal v. Commissioner of Income-tax 1963 47 ITR 1 . It has been held there that section 12 operates on the field where there is some kind of income against which deduction can be claimed and further that profit and income are not the same thing though the concept of profit includes the concept of income. Taking into consideration all these circumstances I am of opinion that the answer to both the questions must be against the assessee and I, accordingly, answer question No. 1 in the negative and question No. 2 in the affirmative. The assessee is to pay the costs of this reference. Certified for two counsel. G.K. Mitter, J.-I agree.
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1962 (2) TMI 103 - SUPREME COURT
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... ... ..... s the power to refer the matter to the High Court along with its opinion. and the question has to be decided by a Bench of three Judges, where undoubtedly the hearing could not but be judicial. If therefore the hearing under s.57 is judicial it would in our opinion be proper to infer that the hearing under s.56(2) which deals with similar questions must also be judicial. We are therefore of opinion that, considering the totality of circumstances and the nature of the matter to be determined by the Board of Revenue under s.56(2), the Board has to act judicially when proceeding under s.56(2) and must therefore on principles of natural justice give a hearing to the other party, namely, the executant of the instrument. The Board of Revenue therefore, acts as a quasi-judicial body under s. 56(2) and the respondents were entitled to a hearing. We therefore uphold the order of the high Court, though on a different ground. The appeal is hereby dismissed with costs. Appeal dismissed.
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1962 (2) TMI 102 - SUPREME COURT
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... ... ..... of administrative nature; but where quasi- judicial duties are entrusted to administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct. We therefore dismiss the appeal. No order as to, in the circumstances. Appeal dismissed.
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1962 (2) TMI 101 - MYSORE HIGH COURT
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... ... ..... an be deducted as business expenditure, it must be remembered that sub-section (2)(xv) is a part of section 10 and at the time of the computation of the income of a business, though that income may be nil, the expense incurred wholly and exclusively for the purpose of that business may be a permissible deduction; but in order to be deductible under this clause the expenditure must be incurred for the purpose of the business which was in existence in the accounting year and the profits of which are under assessment." In our opinion, the expenditure incurred at the time or for the purpose of closing the business cannot be considered as "expenditure incurred for the purpose of such business". Similar is the position in the present case. For the reasons mentioned above, we answer the reference in the negative (in favour of the revenue). The assessee shall pay the costs of the revenue in this case. Advocate's fee ₹ 250. Reference answered in the negative.
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1962 (2) TMI 100 - MADRAS HIGH COURT
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... ... ..... payment of consideration for transfer of permits is nothing short of sheer hypocrisy. We can almost take judicial notice of the fact that whenever a bus with a permit is transferred a fair portion of the consideration would represent the value attributable to the pecuniary gain derived by operating on the route. In the instant case we cannot say that the department went wrong in allowing depreciation only on the amount of ₹ 85,000 as representing the value of the vehicles deducting ₹ 40,000 representing the "route value" from the total consideration of ₹ 1,25,000. The answer to the question is as follows The Tribunal acted erroneously in fixing the route value at ₹ 60,000 but the error has been rectified and corrected. The decision of the Tribunal affirming the decision of the department fixing the route value at ₹ 40,000 cannot be said to be unsupported by the materials on record. There will be no order as to costs. Order accordingly.
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1962 (2) TMI 99 - PUNJAB HIGH COURT
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... ... ..... ion had taken place even up to 5th June, 1955. From what has been stated above, it is difficult to resist the conclusion that the accumulated profits as dividend were deemed to have been distributed in the assessment year 1956-57, because the debits of refunds were actually made in the accounts of the shareholders and the refunds were actually granted to the shareholders during the accounting period of the assessment year 1956-57. The contention of the assessee company that the dividend was deemed to have been distributed in the accounting year 1954-55, corresponding to the assessment year 1955-56, cannot prevail and must, therefore, be rejected. Question No. 4 of the reference would, therefore, be decided, as stated above, in favour of the Commissioner of Income-tax and against the assessee company. In the circumstances, the Commissioner of Income-tax is entitled to costs which are assessed at ₹ 250. S.B. CAPOOR J.--I agree. P.C. PANDIT J.--So do I. Order accordingly.
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1962 (2) TMI 98 - MADRAS HIGH COURT
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... ... ..... firms under section 26A which have reached this court have left the impression in us that the taxing authorities do not favour applications for registration and are prone to dismiss such applications on inadequate grounds. The department no doubt owes a duty under the statute to scrutinise every application for registration and to satisfy itself that the firm has been genuinely constituted as otherwise the flood gates will be opened for escapement of tax. It is quite true that the mere existence of a deed of partnership is not passport for obtaining registration. But an undue scepticism in the matter and suspicion that every partnership put forward is only a device to escape tax cannot be the basis for the disposal of the applications. In our opinion, the application of registration was improperly refused in this case. The question is answered in favour of the assessee, who will get his costs from the department. Counsel's fee ₹ 250. Reference answered accordingly.
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1962 (2) TMI 97 - MADRAS HIGH COURT
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... ... ..... grammer of manufacture and sale of cars and tractors the assessee had to incur the contractual obligations as laid upon it under the terms of the above agreement. But this contractual obligation cannot really constitute the business of the assessee by purchase and sale of spares as part of the industrial undertaking by binding that business into that undertaking. The business in spare parts is not essential to the subsistence of the industrial undertaking of the assessee and it cannot be pretended that a failure or a cessation to carrying on such business would put an end to the undertaking itself. We are of opinion that the decision of the Appellate Assistant Commissioner and that of the Appellate Tribunal are incorrect and that the Income-tax Officer took the right view in the matter. The question is answered against the assessee and in favour of the department. The assessee will pay the costs of the department; counsel's fee ₹ 250. Question answered accordingly.
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