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1964 (1) TMI 55
... ... ... ... ..... e. These are no doubt provisions relating to the manner or measure of assessment, but as they are a clear recognition of the common commercial experience of a business, continuing through several hands, they indicate that 'the trade', when used in the statutes, has to be construed as an entity in itself" These observations make it clear that whether the ownership of the business is in the hands of A or B, it makes no difference to the business, and it is not a case whether the business itself or any of its assets is jeopardised, so that an expenditure incurred in maintaining that asset can be said to be a revenue expenditure. It accordingly seems abundantly clear to us that in the present case, the expenditure was not one which was incurred wholly or exclusively for the purpose of the businessThe question is answered in the negative and against the assessee, which will pay the costs of the department. Counsel's fee ₹ 250. Question answered in negative.
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1964 (1) TMI 54
... ... ... ... ..... he previous year. Regard being had to the above decision, the last submission by Mr. Meyer that the case should be dealt with under section 66(4) of the Act, as the Tribunal has failed to make any statement whether the relinquishment of commission was made on the ground of commercial expediency need not be taken into consideration. It appears to us that the matter was considered by the Tribunal in its judgment and it found that such a plea was not sustainable on the evidence adduced. We are of opinion that no step under section 66(4) is required to be taken, as this court is satisfied that the statements in this case are sufficient to enable it to determine the question raised thereby. Apart from this consideration it appears that the assessee never raised any question. On this point in his application under section 66(1) of the Act. In the result the question is answered in the affirmative. The applicant will pay the costs to the respondent. SANKAR PRASAD MITRA J.--I agree.
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1964 (1) TMI 53
... ... ... ... ..... or deliberate furnishing of inaccurate particulars of such income. We, accordingly, hold that, in the facts and circumstances of this case, the failure of the assessee to disclose the value of the closing stock to the extent of ₹ 5,655 for the assessment year 1945-46, and a similar failure on the part of the assessee in disclosing the value of the closing stock to the extent of ₹ 10,645 for the assessment year 1946-47, are not tantamount to concealment or deliberate furnishing of inaccurate particulars within the meaning of section 28(1)(c) of the Income- tax Act, and, therefore, the penalty imposed upon the assessee is not legally valid so far as the order of penalty is based upon these two items. We accordingly answer the questions of law referred to the High Court in favour of the assessee and against the income-tax department. In the circumstances of the case we do not propose to order any costs of this reference. Question answered in favour of the assessee.
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1964 (1) TMI 52
... ... ... ... ..... d that without ascertaining the (1) A.I.R, (1952) Cal. 198. Truth of the plea that a large sum had been, spent on repairs, an order to deposit the entire arrears of rent ought not to have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancycould not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and the allegation about the special agreement has been held to bean after-thought and false. It is therefore difficult to apply the ruling to the present circumstances. The appeal is wholly devoid of merit and it is dismissed with costs. By the consent of parties, a period of two months from the date of hearing (20-12-1963) was granted to the appellant to deposit the arrears of rent from 1st. April, 1958, in the Court of the Rent Controller. Appeal dismissed.
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1964 (1) TMI 51
... ... ... ... ..... diction from continuing such action.....When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons." If Pt. Hazari Lal's case 1960 39 I.T.R. 265 lays down the law correctly and it must be taken to lay down the law correctly until such time it is not overruled by a larger Bench or the Supreme Court, then there is no escape from the conclusion that there was a patent error of law and the issue of notice by the Income-tax Officer under section 34(1)(a) in the teeth of that decision had inevitably caused failure of justice. For the reasons given above the notices issued under section 34(1)(a) dated the 27th of September, 1958, are directed to be quashed and the Income-tax Officer is restrained from proceeding any further. The writ petition is accordingly allowed with costs. Petition allowed.
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1964 (1) TMI 50
... ... ... ... ..... ithin the period of limitation provided for in section 34. The Tribunal was also justified in law in finding that there was a definite nondisclosure by the assessee at the time when the first assessment was made for the assessment year 1948-49. (3) In the absence of any specific question being referred to us that the Tribunal's finding was based on no evidence or it was perverse, there is no scope for reversing the findings of facts as pointed out to us by the learned counsel for the assessee. If the assessee was really aggrieved by such a finding, it was necessary for him to proceed under section 66(2) of the Act. As the assessee did not take recourse to such a procedure, this court is bound to accept the findings of the Tribunal and to decide the question of law arising therefrom. In the above premises, our answer to the question is in the affirmative. The applicant will pay costs to the respondent. SANKAR PRASAD MITRA J.--I agree. Question answered in the affirmative.
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1964 (1) TMI 49
... ... ... ... ..... onditions requisite for obtaining the allowance, it will not be for the court to embark upon what the general object of the exemption was, and whether the conditions imposed were of a theoretical or technical nature, which, in the interests of justice, should be dispensed with. We are, therefore, of opinion that the assessee, not having set apart in his accounts 75 per cent. of the amount claimable as development rebate, could not claim the benefit of section 10(2)(vib) of the Act. We are also of opinion that it will not be open to the Tribunal to give a direction to the assessee, who had not made the necessary book entries by the time he produced his accounts before the Income-tax Officer, that he should be allowed to rewrite them by making the requisite entries. We, therefore, answer the two questions referred to us in the negative and against the assessee. The assessee will pay the costs of the department. Counsel's fee ₹ 250. Questions answered in the negative.
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1964 (1) TMI 48
... ... ... ... ..... had not been considered as it could not have been by the Tribunal, then my answer to the question would have been against the assessee and in terms of the Explanation, viz., that depreciation would have to be worked out on the legal fiction enacted therein which provides that even though no depreciation was in fact allowed under the State Income-tax Act but it must be deemed to have been allowed for the purpose of computing the depreciation and the written down value allowable under the Income-tax Act of 1922 for the year when it first came to be applied to the State of Rampur. As I have already said the Explanation has to be ignored because its consideration cannot be said to arise out of the order of the Tribunal and my answer to the question referred, therefore, will be the same as proposed by my Lord the Chief Justice, that the written down value of the assets is the original cost to the assessee. I also respectfully agree with the order proposed in respect of the costs.
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1964 (1) TMI 47
... ... ... ... ..... y apply in the present case. But even on the basis that the junior-most should first be reverted in case reversion has to take place on account of exigencies of service, it cannot be said that the reversion of the petitioners is an act of discrimination, for the affidavit on behalf of the State Government shows that they are really junior-most in the provisional list though they might have in the exceptional circumstances indicated above acted longer as officiating circle inspector than others who have not been reverted. We are therefore of opinion that the charge of discrimination based on the violation of r. 2(c) cannot in the special circumstances of this case be sustained, for it is not in dispute that they were the juniormost according to the provisional list, when the orders of reversion were made. The appeals and the writ petitions therefore fail and are hereby dismissed. In the circumstances of this case, we make no order as to costs. Appeals and petitions dismissed.
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1964 (1) TMI 46
... ... ... ... ..... as rent. We should also like to emphasise that in no year the lessee was or could be required to pay both the dead rent and royalty either according to the terms of the lease or the Mineral Concession Rules of 1949 and that all that he was required to do was to pay the higher of the two amounts and not both. Learned counsel for the assessee strongly urged before us that he would not have offered the bid price of ₹ 1,55,000 for this lease if he was required to pay rent for the very first year of the lease. At the best, this argument appears to us to be entirely conjectural, and, at the worst, as we have already shown, it is futile for him to argue that no rent had been paid by the assessee for the first year, for the assessee's liability to pay royalty was unquestionable. For the reasons mentioned above, our answer to the question referred to us is in the negative. The respondent will pay the costs of the department in this court. Question answered in the negative.
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1964 (1) TMI 45
... ... ... ... ..... es pointed out that it was credible that the persons in ultimate control of all the associated companies should desire to pay off the foreign company and to obtain another financier for the Indian company, as that would have the effect of saving the tax. But those or similar circumstances do not exist here. The only question in the present case is whether it was the assessee who enabled his wife to make the deposit in question, or it was his father. That question has to be decided on the materials available, with reference to the comparative means of the two persons. The Tribunal, in affirming the view taken by the department, has found as a fact that it was the husband who gave the money. In our opinion, there was sufficient material in the case to reach that conclusion. The question referred to us is, therefore, answered in the affirmative and against the assessee. He will pay the costs of the department. Counsel's fee ₹ 250. Question answered in the affirmative.
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1964 (1) TMI 44
... ... ... ... ..... fits were also added back. The question that this court had to consider was whether the disallowed amount so added back could be regarded as part of the commercial profits, and whether the profits revealed by the books of account should be treated as profits for the application of section 23A. While the distinction between the assessable income of a company and the profits made by it was held to be a real one, this court decided that the Income-tax Officer has jurisdiction in applying section 23A of the Act to add any amount which he discovers to be suppressed profits in order to arrive at the final figure of profits. Such suppressed profits was also distinguished for this purpose from disallowed depreciation added back to the profits. We are satisfied that the circumstances of the case fully justify the application of section 23A of the Act. This question is also answered against the assessee. The assessee will pay the costs of the department. Counsel's fee ₹ 250.
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1964 (1) TMI 43
... ... ... ... ..... ssion to withdraw his appeal filed before the Tribunal and that permission is granted there is a clear indication that he does not want his grievance ventilated and determined by the Tribunal but by the Commissioner. That right or choice cannot be denied to him on any technical or theoretical grounds. So long as no decision has been given on the merits or even on the question of limitation by the Tribunal, the case cannot, in my judgment, be said to have formed the subject-matter of an appeal to the Tribunal. For the reasons given above, I would direct that a writ in the nature of certiorari will issue quashing the order of the Commissioner of Income- tax and Gift-tax dated September 12, 1960, holding that the petitioner's application for revision under section 24(1) of the Gift-tax Act was incompetent and with the direction that he will entertain the revision and dispose it of in accordance with law. The writ petition is accordingly allowed with costs. Petition allowed.
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1964 (1) TMI 42
... ... ... ... ..... et off against the gross proceeds of realising the stock the identifiable cost of acquiring it. However that may be, neither of the determining elements in the John Smith case is present here. Nchanga did not pay for Bancroft's business nor did it pay for the benefit of its contracts. Bancroft remained a potential producer and in fact, as was intended, resumed production with enlarged capacity at the end of the year. The compensation paid to Bancroft resembled much more closely, to use Lord Sumner's words, an outlay of a business, "in order to carry it on and to earn a profit out of this expense as an expense of carrying it on." For these reasons, which are substantially the same as those given by Chief Justice Sir John Clayden, and agreed in by his colleagues in the Supreme Court, their Lordships are of opinion that the appeal must fail, and they will humbly advise Her Majesty to this effect. The appellant must pay the respondent's costs of the appeal.
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1964 (1) TMI 41
... ... ... ... ..... eing sold to others. In the present cases of writs of M. A. Khader, the articles were purchased by him through his branch within Andhra Pradesh State and sent to himself in Madras State for tanning and in W. P. No. 929 of 1961 the purchasing agent purchased the untanned skins within the Andhra Pradesh State and sent them to his principal outside the Madras State. But this difference in facts as compared to the facts in Government of Andhra v. Nagendrappa 1956 7 S.T.C. 568. is not material. The principle of that decision is applicable to this case and we find that it is not possible to hold that the sale occasioned movement of the goods from Andhra Pradesh State to Madras State or that they come under section 3(a) of the Central Sales Tax Act. The first contention also fails. In the result, we find that all the contentions actually urged before us are untenable. We dismiss each of the writ petitions with costs. Advocate s fee Rs. 50 in each writ petition. Petitions dismissed.
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1964 (1) TMI 40
... ... ... ... ..... de. But in a case like the present, I do not think it is possible for this Court to convert itself into a tribunal of fact or of appeal in the present proceedings. In this connection, I must point out that whenever an aggrieved party decides to by-pass or ignore the statutory remedies provided by law and comes to this Court for redress of grievances under Article 226 of the Constitution, he runs a considerable risk, and if the ultimate decision goes against him, he has only to thank himself for the consequences. It can scarcely lie in his mouth to insist on his controversy being settled by this Court, merely because he may have been disabled from availing the statutory remedy on account of lapse of time due to his own deliberate and conscious act, when according to law this function should more appropriately be performed by the statutory Tribunal. For the foregoing reasons, this petition fails and is hereby dismissed but without costs. KHANNA, J.-I agree. Petition dismissed.
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1964 (1) TMI 39
... ... ... ... ..... e less final even if the Commissioner had the right to examine its legality or propriety. Once it is held that the assessment order had become final and its finality did not depend on the revisional powers of the Commissioner, the rule laid down in Ghanshyamdas case 1963 14 S.T.C. 976. fully applies to the facts of the present case. The fresh proceedings which the Assessing Authority started after the lapse of four years would necessarily be proceedings under section 11-A and thus would be without jurisdiction as they were initiated after the prescribed period for the purpose had elapsed. In this view of the matter, it is not necessary to examine the third contention though in a way I have already dealt with the same while dealing with the second contention. For the reasons given above, this petition is allowed, and the order of the Assessing Authority dated 4th November, 1963, is quashed. In the circumstances of the case there will be no order as to costs. Petition allowed.
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1964 (1) TMI 38
... ... ... ... ..... ed, we cannot presume that his prayer would not have been granted. A discretion to enlarge the time having been expressly conferred by the notification, it must be presumed that the discretion would be properly exercised. In the present case, moreover, it is admitted that although a number of applications were made by the petitioner under section 7-E, he did not at any stage apply for extention of time for making the applications. For all these reasons, we are of the opinion that the impugned provisions of Notification No. ST. 349/X dated 28th January, 1958, are not ultra vires and that the Sales Tax Officer acted within his jurisdiction in passing the orders which he did upon the application made by the petitioner under section 7-E and in taking proceedings to recover from the petitioner the sales tax assessed for the period 14th December, 1957, to 31st March, 1958. There is, therefore, no force in this petition which is accordingly dismissed with costs. Petition dismissed.
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1964 (1) TMI 37
... ... ... ... ..... ensation Act is concerned. From what we have said above, it is clear that the petitioner was merely to carry out mechanically the orders of the Administration, whether it be under the agreement or otherwise. The fact that his remuneration is called a commission cannot mean that he is an agent. No discretion in the matter of execution of his duties is vested in him. The existence of a right to give direction in the performance of the duties and of a power to take disciplinary action would, in our opinion, decisively show that the petitioner was nothing more than a servant. He will not, therefore, be a dealer . The sale of food packets etc., to the passengers must, in the circumstances of the case, be regarded as one directly made by the Railway Administration through its servant, the petitioner, and that the latter will not be liable to be assessed to sales tax on the turnover. The order of assessment will be set aside with costs. (Counsel s fee Rs. 100). Ordered accordingly.
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1964 (1) TMI 36
... ... ... ... ..... a sales tax law. It is true that under the various sales tax laws in force in this country, provisions are made for passing on the tax liability to the purchasers. But this is because the Legislature so willed it. But that has nothing to do with the competence of the Legislature to impose sales tax on the dealer without giving him any power to pass on that liability to anyone. This position is now placed beyond controversy by the decision of the Supreme Court in Konduri Buchirajalingam v. The State of Hyderabad and Others 1958 9 S.T.C. 397., wherein the Supreme Court laid down that sales tax can be a sales tax though the primary liability for it is put upon a person without giving him any power to recoup the amount of tax payable from any other party. For the reasons mentioned above, we allow these petitions and set aside the order of the Tribunal and restore that of the Deputy Commissioner. In the circumstances of this case, we make no order as to costs. Petitions allowed.
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