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Case Laws
Showing 1 to 20 of 43 Records
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1963 (10) TMI 53 - KERALA HIGH COURT
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... ... ..... r for it in damages. The case of negligence was not pleaded in the plaint or advanced in argument in the Court below. It is raised for the first time at the time of argument here. I do not wish to make any pronouncement on the question whether there is any duty to be careful in making a statement of this character in the proclamation, or whether there is any special relationship between the State, when it puts up a property for sale, and the public, which implies a duty, to be careful in making a representation of this nature, or whether the purchaser would have a remedy in damages for negligence for innocent misrepresentation in case where there is a duty to be careful or a special relationship implying that duty in view of the recent decision of the House of Lords in Hedley Byme and Co. Ltd. v. Heller and Partners Ltd., 1963 2 All ER 575. 14. In the result, I confirm the decree of the Court below and dismiss this appeal, but in the circumstances I make no order as to costs.
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1963 (10) TMI 52 - ALLAHABAD HIGH COURT
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... ... ..... art from giving their statements as accused, one of the accused persons Ram Swarup Head Constable had also appeared as a defence witness under Section 342-A Cr. P. C. The only justification pleaded by him and other accused persons is that they were justified by law in arresting the appellant; no mistake of fact or good faith has been pleaded or made out by them. Section 79 I. P. C. has, therefore, no application to the present case. 17. In view of the above discussion, I allow the appeal, set aside the order of acquittal of the respondents recorded by the Magistrate and convict them under Section 342/109 I. P. C. I sentence Ram Swarup Head Constable (the leader of the Police party) to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for a period of one month. The other respondents Ali Abbas, Mamud Khan and Amar Nath Constables are, however, sentenced to pay a fine of Rs. 50/- each and in default to undergo simple imprisonment for a period of fifteen days.
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1963 (10) TMI 51 - SUPREME COURT
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... ... ..... eved them to be true. From the manner in which and the time when the leaflets annexures 'D' and 'E' were published, there can be no doubt that those leaflets were published as a part of a political campaign to injure the prospects of Bhanwarlal at the election, and if without making an enquiry about the collection of the amount of ₹ 28,000 and the destination therefore, it was imputed against Bhanwarlal that he had defrauded the agriculturists and misappropriated the amount collected, the inference that the statement made was to the knowledge of the maker false or was not believed by him to be true, would readily be made. The imputation was on the face of it one reasonably calculated to prejudice the prospects of the candidate Bhanwarlal at the election. The High Court was therefore right in that the corrupt practice charged against the appellant Mohan Singh under s. 123 (4) was established. The appeal fails and is dismissed with costs. Appeal dismissed.
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1963 (10) TMI 50 - SUPREME COURT
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... ... ..... of the High Court is correct. 16. As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under s. 202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think that that irregularity has resulted in any failure of justice. The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity. 17. In the result, the appeal is dismissed. 18. Appeal dismissed.
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1963 (10) TMI 49 - MADRAS HIGH COURT
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... ... ..... ng rule is stated at page 622 - "The executors of a deceased officer are not officers and were therefore not liable before the commencement of the Law Reform (Miscellaneous Provisions) Act, 1934, to misfeasance proceedings." The foot-note refers to the case in Re British Guardians Life Assurance Co., (1880) 14 Ch D 335. That case arose under Section 165 of the English Act of X862 (which was substantially in the same form as Section 333 of the 19.48 Act) and it was held that proceedings against executors must be by action and not by summons under the section. But whatever the position may be in England, as far as proceedings under Section 543 are concerned, we respectfully agree with the view taken in 1958-2 Mad LJ 167. On this ground, we are of opinion that the suit was competent. The liquidator could not have proceeded against the defendants, who are the heirs of a deceased director under Section 543. 13. In the result, the appeal fails and is dismissed with costs.
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1963 (10) TMI 48 - MADRAS HIGH COURT
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... ... ..... it does not deserve any consideration whatever. It was the petitioners case that the company was non-resident and it could not but have asserted it repeatedly and persistently. It was for the officer to examine the correctness of that assertion and if he failed to do so and reached, what is now stated to be, a wrong decision, no blame can be laid at the door of the petitioner. The case of the department that there has been suppression of material facts by the petitioner formerly is without substance. 15. It is, therefore, manifest that the proceedings now commenced under section 34(1)(a) of the Act are wholly without jurisdiction. None of the basic conditions prescribed under section 34(1)(a) of the Act is present. This is a proper case in which this court should interfere under article 226 of the Constitution. In the result, the petition is allowed and the rule nisi is made absolute. The petitioner will be entitled to its costs from the department. Counsels fee ₹ 250.
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1963 (10) TMI 47 - MADRAS HIGH COURT
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... ... ..... purposes of tax. It is no doubt true that the department has been following the procedure of splitting up the managing agency commission into portions and including such portions in the assessees income as would fall within the scope of each accounting year. But this system appears to be clearly wrong particularly in view of the decision of the Supreme court. This does not however mean that the assessee would escape taxation with regard to this amount of ₹ 72,315. It would be open to the department to reopen the assessment of the assessee to the extent to which it is permissible in law and make the correct computation of income in the light of the decision of the Supreme court in Cotton Agents Ltd. v. Commissioner of Income Tax. In the result, the question is answered in favour of the assessee. As the assessee has failed to raise the proper contention before the department and the Tribunal, it would not be entitled to costs. Questions answered in favour of the assessee.
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1963 (10) TMI 46 - MADRAS HIGH COURT
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... ... ..... ced does not refer, in any sense, to a power to prescribe time, or to lay down any rule of limitation. In the light of the tendency shown in recent times, not to consider the power to prescribe limitation as merely a part of procedural provisions, at least so far as legislative competence is concerned, we agree with the argument of the learned Advocate General that Section 96(b) will not authorise the State Government to make a rule for limitation, as for instance R. 17 which is now in controversy. The learned Government Pleader for the State has offered no arguments to counter this contention. Hence, we agree with Venkataraman J. that R. 17, as it stands, is ultra vires of the rule-making power of the State, and that, in the present case, the application by the employees of the State Insurance Corporation is not time barred in any sense, and needs no condonation. The C. M. A. is dismissed accordingly. In the circumstances we direct that the parties will bear their own costs.
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1963 (10) TMI 45 - RAJASTHAN HIGH COURT
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... ... ..... eduction can be allowed to the assessee under section 10(2)(xv) of the Income-tax Act. The circumstance that the assessee was required to make an annual and recurring payment to the State and that this payment might have varied from year to year under certain contingencies, in our opinion, does not make any substantial difference to the conclusion to which we have come. We should also like to add that it seems to us that if the assessee had sold its rights to another person-and under the Rules of 1954 it did possess such a right, subject, of course, to certain conditions-such receipt would be on account of capital and not on account of the sale of any raw material for the simple reason that the raw material had yet to come into existence and therefore could not possibly be sold as such. For the reasons mentioned above, we answer the question raised before us in the negative. Having regard to all the circumstances of the case, there will be no order as to costs in this court.
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1963 (10) TMI 44 - PATNA HIGH COURT
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... ... ..... of the Bombay High Court in Commissioner of Income-tax v. New Digvijayasinhji Tin Factory 1959 36 ITR 72 . The same view has been taken by a Division Bench of this High Court in Jitmal Bhuramal v. Commissioner of Income-tax 1959 37 ITR 528 . In view of the principle laid down by these authorities we are of opinion that the Income-tax Appellate Tribunal has taken the correct view of the law in this case in holding that "the assessee was entitled to have the expenditure incurred by him in earning his income from the firms allowed in his personal assessment" and remanding the matter to the Income-tax Officer for examining the nature of the expenses in order to find out how far those expenses are allowable. For these reasons we hold that the question of law referred to the High Court by the Income-tax Appellate Tribunal must be answered in favour of the assessee and against the department. The assessee is entitled to the costs of the reference. Hearing fee ₹ 250.
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1963 (10) TMI 43 - SUPREME COURT
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... ... ..... ific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under Art. 311(2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or removal. The same view has been taken in Jagadish Mitter v. Union of India (1964)ILLJ418SC . 22. We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants; services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311(2) applied. It was in our opinion an order which was justified under r. 5 of the rules and the appellant was not entitled to the protection of Art. 311(2) in the circumstances. The appeal therefore fails and is hereby dismissed. In the circumstances we pass no order as to costs. Appeal dismissed.
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1963 (10) TMI 42 - MADRAS HIGH COURT
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... ... ..... t family cannot gain a pecuniary advantage by utilising the family assets or funds, and claim that advantage as his own separate property, merely on the ground that in the process of gaining that advantage an element of personal service or skill or labour is involved. The character of the income has to be determined, taking into account the basic foundation from which it emanates. In all cases where the income is traceable to family property, it must partake of the joint family character, and it would not be open to the manager or any other member of the family to claim it as his own individual and separate income. In our opinion, the Tribunal is in error in following the decision in Sankaralinga Iyer's case (supra), after the categoric pronouncement of the Supreme Court in Commissioner of Income-tax v. Kalu Babu Lal Chand 1959 37 ITR 123 . In the result, the question is answered in favour of the department; the assessee will pay its costs. Counsel's fee ₹ 250.
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1963 (10) TMI 41 - SUPREME COURT
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... ... ..... law upon it, and by wrongly deciding that a tenant is or is not entitled to protection, the Court does not assume to itself jurisdiction which is not vested in it by law or refuse to exercise a jurisdiction which is vested in it by law. Nor does the Court by arriving at an erroneous conclusion on the plea of the tenant as to his readiness and willingness act illegally or with material irregularity in the exercise of its jurisdiction. 26. The High Court was in error in setting aside the decree of the District Court in exercise of the powers in revision under s. 115 Code of Civil Procedure. The appeal must therefore be allowed and the order passed by the District Court restored. If any amount has been deposited as standard rent since the order passed by the District Court, the same should be paid over to the plaintiff at the rate of ₹ 70 per month. We direct, having regard to the circumstances, that there shall be no order as to costs in this appeal. 27. Appeal allowed.
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1963 (10) TMI 40 - ALLAHABAD HIGH COURT
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... ... ..... 61 41 I.T.R. 191 ; 1961 2 S.C.R. 241., it is the duty of the court to prevent even if there is an alternative remedy available. For these reasons, apart from the writ of certiorari which has admittedly to issue quashing the notices under section 22(4) annexures "D", "D-1" and "K", "K-1", the penalty notices under section 28(1)(a) "F", "F-1" and "G", "G-1" and the notices under section 46(5A) annexures "L" and "L-1", a writ in the nature of mandamus will also issue to the opposite party No. 1 requiring him not to proceed any further with the assessment proceedings on the basis of the voluntary returns filed by the assessee under section 23 as more than 8 years have already passed since the end of the relevant assessment years 1953-54 and 1954-55. Accordingly, the writ petition is allowed; but in the circumstances of the case there will be no order as to costs. Petition allowed.
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1963 (10) TMI 39 - BOMBAY HIGH COURT
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... ... ..... before the Liquidator for showing that the undertaking of the mill's company was closed down on account of unavoidable circumstances beyond the control of the employer will have to be brought in due course before the Liquidator. The liquidator should in this connection give appropriate directions so that the objections are filed within a very short period. The objections must contain all necessary particulars so that the claimants can put forward their case in connection with such objections and can meet with the same. 20. The order in appeal is set aside. The matter is remanded to the Liquidator for further investigations in the light of the above directions. The Liquidator should expeditiously dispose of claims of all the claimants. The Liquidator will pay costs of the Applicant Appellant from out of the company's assets. The Liquidator's costs will come out of the assets. The Appellant's costs are fixed at ₹ 150/-. AK/JHS/D.V.C. (21) Order set aside.
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1963 (10) TMI 38 - ALLAHABAD HIGH COURT
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... ... ..... on made in the assessment would necessarily by virtue of section 18A(6) also enhance the penal interest. The enhancement of the penal interest, in such circumstances, was only consequential in nature and as such there was no necessity of again issuing a specific notice, when a general notice under section 35 proposing an enhancement of the assessment had already been given. There is, therefore, no force in this contention. As the amount of excess dividend on the basis of correct computation will now have to be reduced, the penal interest will also stand to be reduced proportionately. For the reasons given above a writ in the nature of certiorari will issue quashing so much of the order of the Income-tax Officer under section 35, dated the 31st of March, 1962, as determined the excess dividend to be in excess of the correct amount of ₹ 8,92,500. The petition is partly allowed. In the circumstances of the case there will be no order as to costs. Petition allowed in part.
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1963 (10) TMI 37 - MADRAS HIGH COURT
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... ... ..... aids. Where a literal meaning leads to absurdity or contradiction, the spirit prevails over the letter. In such cases the presumption is that the legislature did not intend to lay down a measure which is oppressive and unreasonable to an uncommon degree. We would, therefore, prefer the view that the words "may become due" mean "may become payable" and not "may become entitled". This would be a just and fair interpretation, harmonious with the scheme of collection of tax. With respect, we follow the view indicated by Rajagopala Ayyangar J. in Adam v. Income-tax Officer 1958 33 I.T.R. 26 and we are of opinion that the department is not entitled to call upon the petitioner to make good the sum of ₹ 20,000 already paid to Baliah as such payments did not contravene the notice under section 46(5A) dated June 18, 1959. In the result, the petition is allowed and the rule nisi is made absolute. There will be no order as to costs. Petition allowed.
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1963 (10) TMI 36 - SUPREME COURT
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... ... ..... propriate court. The Division Bench of the Bombay High Court in Begum v. State(1) no doubt held that the portion of s. 20 of the Act which enables the Magistrate to direct a prostitute to remove herself from the place where she is living to a place without the local limits of his jurisdiction unreasonably encroaches upon the fundamental right guaranteed under Art. 19(1)(d) and (e) of the Constitution and is, therefore, invalid. For the aforesaid reasons, we cannot agree with this view. We, therefore, hold that the provisions of s. 20 of the Act are reasonable restrictions imposed in public interest within the meaning of s. 19(5) of the Constitution and, therefore, do not infringe the fundamental rights of the respondents under Art. 19(1)(d) and (e) thereof. In the result, the appeals are allowed. The orders of the High Court are set aside and those of the Additional Sessions judge are restored. The City Magistrate will now proceed with the enquiry on merits. Appeals allowed.
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1963 (10) TMI 35 - MADRAS HIGH COURT
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... ... ..... the profit as between capital assets consisting of buildings, plant and machinery, and the assets being land upon which coffee was grown, for the profit arising from the sale of the latter will not be capital gains and will not, therefore, stand included within the expression "accumulated profits" according to the Explanation. We are not entering into the question as to the quantum of the accumulated profits; that lies within the province of the assessing authority who should compute it in the light of what we have stated above. It is, however, clear that the demand as made is not in conformity with law. A writ of prohibition will accordingly issue restraining the Income-tax officer from enforcing the demand. It will be open to the Income-tax officer to examine the question afresh and determine what should be regarded as the correct amount of dividend within the meaning of section 2(6A)(c) in the light of the above observations. There will be no order as to costs.
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1963 (10) TMI 34 - SUPREME COURT
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... ... ..... ppeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject-matter in dispute and if he himself succeeds in the appeal in regard to the main subject-matter, automatically he will expect to succeed with regard to the costs." 23. We therefore hold that the amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject-matter in dispute in appeal' for the purposes of art. 1 of Schedule I of the Act unless the appellant specifically challenges the correctness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. The appellant here has not specifically challenged the decree in that respect and therefore the High Court is right in holding the memorandum of appeal to be sufficiently stamped. The appeal is therefore dismissed with costs. 24. Appeal dismissed.
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