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1963 (7) TMI 86
... ... ... ... ..... of an error which is apparent on the face of the record. That error must be demonstrable without the taking out of any additional evidence and without any detailed arguments pro and con." After reviewing the case law on the subject, we are of opinion that in the instant case the Tribunal has committed an error in revising its own order under section 35 of the Income-tax Act. The Tribunal has no jurisdiction to pass such an order when there is no error apparent from the record. The Tribunal having found that the department was right in levying the penalties and that there were no mitigating circumstances calling for reduction of the penalties cannot say that, because the assessee co-operated with the department, the penalties should be reduced. We entirely agree with the learned counsel for the State that the order passed by the Tribunal is illegal, void and without jurisdiction. This petition is accordingly allowed. There will be no order as to costs. Petition allowed.
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1963 (7) TMI 85
... ... ... ... ..... scale evasion of income-tax and if, under those circumstances, restriction is placed on the right of the petitioner, it cannot be said that the restriction is in its very nature unreasonable, and not in the public interest. In conclusion, however, I agree that the search and seizure of the account books made by the income-tax authorities were illegal and the petitioners are entitled to the relief claimed. These petitions are allowed with costs. The warrants of authorisation dated March 7, 1962, are quashed, and the opposite parties are directed not to in any way give effect to the seizure of the said books and documents effected on March 11, 1962, or take any steps thereunder. The opposite parties are further directed to return forthwith the books and documents seized on March 11, 1962. We assess the hearing fee at ₹ 200 in each case, but the costs will not be drawn up against the opposite parties Nos. 5 and 6 in Civil Rules Nos. 195 and 197 of 1962. Petitions allowed.
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1963 (7) TMI 84
... ... ... ... ..... since they were not income from "business" as conceded by the income-tax authorities they were not taxable as income from other sources within the meaning of section 6(vi) of the Act. This case is clearly distinguishable. There the benefit went to a small group and not to the general public. Therefore, it is not necessary to consider whether the several propositions laid down in that decision are correct. The learned counsel for the revenue next invited our attention to the decision of the King's Bench in Rex v. Special Commissioners of Income Tax 1925 10 Tax Cas. 73. That decision turns on the language of the statute concerned therein. For the reasons mentioned above, our answer to question No. 2 submitted for our opinion is in favour of the assessee. In that view we have not thought it necessary to answer question No. 1. The revenue to pay the costs of this reference. Advocate's fee ₹ 100 (one set). Question No. 2 answered in favour of the assessee.
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1963 (7) TMI 83
... ... ... ... ..... n Rehman Penkar's case 1948 16 I.T.R. 183 and the cases that followed it. At that stage, evidently, it was thought advisable to make the provision self-contained by bringing within its ambit the amounts refunded as well as those remitted and at the same time remove the difficulties created by the two systems of accounts-keeping permitted by law. Therefore, we have to hold that section 10(2A) in so far as it covers cases similar to the one before us did not introduce any new principle of law; either it is declaratory in character or it is a measure introduced out of abundant caution. For the reasons mentioned above, our answer to the question referred to us is in the affirmative and in favour of the revenue. In other words, we are of the opinion that the sum of ₹ 1,87,630 mentioned in the question referred to by its very nature is a taxable sum under the "Act". Assessee to pay the costs. Advocates' fee ₹ 250. Question answered in the affirmative.
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1963 (7) TMI 82
... ... ... ... ..... or a tax imposed on the society. In the absence of any specific provision, we have to find out whether there is any such liability under the general law. I am unable to find any. In fact, the provisions of the statute, which has created this entity, specifically provides that no personal liability should be imposed on the members of the society for judgments recovered against the society. In the light of the above, I quash exhibit P-15, but make it clear that it is open to the Income-tax Officer after giving a reasonable opportunity to the petitioners to have their case placed, to investigate the question regarding liability to the tax imposed on the society for the year of assessment 1957-58. I also direct the authorities to refrain from taking any steps pursuant to the orders of assessment passed on the society and from collecting any tax imposed on the society from the petitioners before me for the years up to 1957-58. There will be no order as to costs. Petition allowed.
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1963 (7) TMI 81
... ... ... ... ..... n Ltd. 1951 1 K.B. 768; 1950 2 All E.R. 1191 (C.A.). is more in point. In January, 1943, the plaintiff, a Polish subject, entered into the service of the defendant--an official body under the Polish Government in London. The oral agreement of service, as evidenced by a letter from the plaintiff to the defendants was that "my remuneration will amount to £ 201 net per month payable in advance...without any deductions which will be borne by the association". Interpreting this agreement the court held that in order to find out the real remuneration of the plaintiff, the remuneration fixed should be grossed to that sum which would leave the plaintiff the stipulated remuneration, tax-free. From the foregoing, it follows that the decision of the Tribunal is correct. That being so, our answer to the question referred is in the affirmative and in favour of the revenue. The assessee to pay the costs. Advocate's fee ₹ 250. Question answered in the affirmative.
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1963 (7) TMI 80
... ... ... ... ..... oss of ₹ 11,888 is the book loss which in the manner the assessment has proceeded has not yet been scrutinised and suitably adjusted and finally computed." In these circumstances we can only direct that the figure should be scrutinised, and the correct amount ascertained and allowed to be set off. The reference is answered as follows Question No. 1 In the affirmative and against the assessee. Question No. 2 In the negative and against the department. Question No. 3 In the affirmative and against the assessee. Question No. 4 In the affirmative and against the department. Question No. 5 In the affirmative and against the assessee. We make no order as to costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (5) of section 66 of the Indian Income-tax Act, 1922. Questions Nos. 1, 3, 4 & 5 answered in the affirmative and question No. 2 in the negative.
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1963 (7) TMI 79
... ... ... ... ..... ore the expiry of the assessment year. The contention of counsel for the assessee is that the fact that the Act came into force only after the expiry of the accounting period precludes its application to the case before us. It is true that the subject of the charge is the income of the previous year. But, as pointed out by the Supreme Court in Commissioner of Income- tax v. Isthmian Steamship Lines 1951 20 I.T.R. 572 (S.C.), the law to be applied in income-tax matters is the law in force in the assessment year unless otherwise stated or implied. There is no such statement or implication available and it must follow that the second question referred has to be answered in the affirmative and against the assessee. The reference is answered as above. No costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (6) of section 60 of the Agricultural Income-tax Act, 1950.
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1963 (7) TMI 78
... ... ... ... ..... the shares in these three companies were not part of its trading stock, I do not see how such a decision could have stood, having regard to the evidence, and to the decision of the House of Lords in Griffiths v. J.P. Harrison (Watford) Ltd. Sir Frank Soskice, however, has reserved the point. I reach the conclusion, therefore, that the appeal must be dismissed. Subject to any time limit that may be applicable, the special commissioners presumably remain free to consider the company's position as regards surtax on the footing that for the period in question it had a trading income of some £ 800,000. RUSSELL L.J. I also agree, for the reasons given by Donovan L.J., that the appeal should be dismissed, but in connection with the reference by Sellers L.J. to enrichment without service and without taxation, I am quite ready to countenance a substantial sweepstake win provided the winning ticket is mine. Appeal dismissed with costs. Leave to appeal to the House of Lords.
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1963 (7) TMI 77
... ... ... ... ..... ction 10(2)(vi) but also the depreciation allowances provided under clause (via) or under any Act repealed hereby or under the Indian Income-tax Act, 1886 (Act II of 1886). Hence the ingenious construction tried to be placed by Sri Srinivasan cannot be accepted. For the reasons mentioned above, our answers to the questions submitted to us are in favour of the revenue ; in other words, our answer to question No. (1) is that the initial depreciation allowed under section 10(2)(via) should be taken into account in ascertaining the written down value for the purpose of computing profits under section 10(2)(vii) of the Indian Income-tax Act, 1922, and our answer to question No. (2) is that, on the facts and circumstances of the case, the assessment order dated February 29, 1960, which was communicated to the assessee on April 4, 1960, is not barred by limitation under section 34(3) of the Indian Income-tax Act, 1922. The assessee to pay the costs. Advocate's fee ₹ 250.
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1963 (7) TMI 76
... ... ... ... ..... one upon which we can express no immediate view, nor is any such view called for. Finally, we may point out that when a learned judge of this Court has been convinced, after a scrutiny of the particular facts that a petitioner who seeks to obtain relief under Article 226 of the Constitution at the hands of this Court has done so in such belated manner, and being guilty of such laches, as would disentitle him to that relief, a different view would be taken in appeal, only where the facts truly and abundantly establish the justification for the delay, or the necessity for condonation of the laches that is for the simple reason that the exercise of writ jurisdiction is a discretionary power and a petitioner does not approach the Court as a matter of a vested right, irrespective of his own conduct. With these observations, we entirely concur in the view of the learned Judge (Ramachandra Iyer, J.), and dismiss the writ appeal. There will be no order as to costs. Appeal dismissed.
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1963 (7) TMI 75
... ... ... ... ..... on was that the tax admitted should have first been deposited. As to what is amount of tax admitted to be due is a matter which the Legislature has left to the good sense of the assessee. If a return has been filed then, undoubtedly, the tax liability as per the return would be the admitted tax, but where no return has been filed and the very liability to tax is denied it becomes difficult, if not impossible, to hold that the admitted tax would be something which the Assessing Officer may have determined in the course of assessment proceedings or which such officer may consider to be the admitted tax. For the reasons given above a writ in the nature of certiorari will issue quashing the order of the Sales Tax Officer dated the 18th January, 1963, under section 30 of the Act and he is directed to dispose of the application de novo, in accordance with law. The writ petition is allowed. In the circumstances of the case parties are left to bear their own costs. Petition allowed.
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1963 (7) TMI 74
... ... ... ... ..... us dealer means any person who carries on the business of selling goods, and includes a Government which carries on such business. From the history of the legislation as well as from the context it is clear that when the Legislature used the expression dealer not registered under this Act in clause (ii) of explanation I of section 5(4) it used that expression dealer as defined in section 2(b) of the Central Sales Tax Act. It is urged by the counsel for the State that the scheme of section 5(4) was to tax the last purchases of all declared goods unless the same is used in inter-State trade or used for consumption in the State. There is force in this contention. But we refrain from pronouncing on the same as we have not heard full arguments on that question. We think that the Tribunal is right in holding that the petitioner is liable to tax under section 5(4) of the Act. Hence this petition fails and the same is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1963 (7) TMI 73
... ... ... ... ..... 58, in substance and in essence the Board was only concerned to say that the order of the Special Commercial Tax Officer dated 3rd March, 1958, was erroneous and unsustainable in law. The Board was not competent on 10th March, 1962, to revise the order of the Commercial Tax Officer as four years had elapsed by that time. This bar of limitation cannot be got over under the pretext of revising the order of the Deputy Commercial Tax Officer which has no existence independently of the appellate order and which cannot operate proprio vigore. The Board cannot do indirectly what it cannot do directly. It is plainly impossible for the Board to rely upon the later consequential order of the Deputy Commercial Tax Officer for purpose of saving limitation. The Board therefore acted in excess of its jurisdiction. In the result, the appeal is allowed and the order of the Revenue Board is set aside. The appellants will have their costs from the State. Counsel s fee Rs. 150. Appeal allowed.
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1963 (7) TMI 71
... ... ... ... ..... . That being so, there can be no justification for treating it as a medicinal preparation merely because the assessee manufactures the oil following a formula given in an Ayurvedic treatise and because the fragrance of the oil is disagreeable to some people. It is common knowledge that many Sharbats and cool drinks are manufactured by concerns dealing in the sale and manufacture of Ayurvedic preparations. These beverages do not become medicines merely because they are manufactured by a person manufacturing and selling Ayurvedic medicines or according to a certain formula. 5.. For all these reasons, our answer to the question referred to us is that the Maha Bhringraj Hair-oil manufactured by the assessee is a toilet article falling under entry No. 11 of Schedule I, Part I, of the Act, and, therefore, liable to tax at the rate of one anna in a rupee under section 5(1)(a) of the Act. In the circumstances of the case, we make no order as to costs. Reference answered accordingly.
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1963 (7) TMI 70
... ... ... ... ..... re can be no question of condoning the delay in such an application as the law does not prescribe any period of limitation for an application of that description. It is open to the Court to accept the petition or dismiss it. But, in any event, the question of delay does not arise. Inasmuch as this application wants the Court to condone the delay in filing the other application we must observe that it is wholly misconceived. A question of delay can come in only if it were to be held that T.C.M.P. No. 65 of 1961 is not in substance an application for leave to file additional grounds, though in form it purports to be so. We have already taken the view that the application T.C.M.P. No. 65 of 1961 cannot be maintained. It follows that this application should also fail. In the result, T.C. No. 51 of 1961 is dismissed with costs. Counsel s fee Rs. 100. T.C.M.P. No. 65 of 1961 and T.C.M.P. No. 88 of 1962 are also dismissed but in the circumstances without costs. Petitions dismissed.
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1963 (7) TMI 69
... ... ... ... ..... n be said to have been contravened. Section 14A consists of two parts both of which are put in the negative form. The second part with which we are concerned in effect means nothing more than this, that a registered dealer can make collections of such tax only as is payable by him in accordance with the restrictions and conditions as may be prescribed. If the argument is that the first respondent was not liable to pay any tax and as such was not entitled to make any corresponding collection, then the collection made by him may fall outside section 14A and be otherwise unjustified or improper but it does not amount to the contravention of any provision of section 14A as such.............. These observations apply mutatis mutandis to the facts of the present case. In the result, these petitions are allowed and the impugned demands made under section 18(3) of the Act are quashed. In the circumstances of the case, we direct the parties to bear their own costs. Petitions allowed.
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1963 (7) TMI 68
... ... ... ... ..... h matters can be satisfactorily determined by any court or tribunal. Though difficulties in the way of working an Act should not affect the plain meaning of the statutory language, they have a bearing when there is at least a doubt regarding its true meaning. In our opinion, it would be proper to construe the words customs frontiers as customs barriers in the Central Act. The contention urged by the State therefore fails. In the result, T.C. No. 29 of 1961 is dismissed with costs. Counsel s fee Rs. 100. (T.C. Nos. 47, 132 and 160 of 1961) It is not necessary to set out the facts of these cases as they have been fully set out in the judgment of the Tribunal. The only question urged on behalf of the State, which is the petitioner in all these cases, is the one that was raised in T.C. No. 29 of 1961. We have repelled its contention in that revision petition. These revision petitions also fail and are dismissed with costs. Counsel s fee Rs. 100 in each case. Petitions dismissed.
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1963 (7) TMI 67
... ... ... ... ..... te of Bombay 1958 9 S.T.C. 133., where the questions, whether hair oil, talcum powders and Badshahi soap and Badshahi powder respectively could be held to be cosmetics or toilet articles, came up for consideration. In our opinion, these cases will not help us in deciding the question whether tooth-powder would come under the goods mentioned in item 51 of the First Schedule. As stated already, tooth-powder is only used for rubbing or cleaning the teeth and not for beautifying or enhancing the appearance. Such cleansing of the teeth should be regarded as an indispensable daily hygiene intended to protect the teeth and preserve them in good condition. We are therefore of opinion that tooth-powder cannot be included in the goods enumerated in item 51 of the First Schedule. We accordingly allow the revision with costs, Advocate s fee Rs. 100. Petition allowed. Since reported as Deputy Commissioner of Commercial Taxes, Madras Division, Madras 7 v. Ambika Stores 1963 14 S.T.C. 688.
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1963 (7) TMI 66
Requirements with respect to memorandum, Memorandum and articles of association – Registration of
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