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1965 (2) TMI 95
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... ... ..... d which is not an investment in securities or property, which is its stock-in-trade. If there is investment in the popular sense in securities or property, which is its stockin-trade, it is not investment in the sense in which that word is used in the notification......" In our opinion, therefore, since the Government securities were admittedly held by the assessee in the present case as its stock-in-trade, the interest derived from them was not any income, profits or gains from investment in securities under item No. 1 of the Explanation. In the result, therefore, the Tribunal, in our opinion, was right in upholding the assessee's claim for exemption in respect of the amounts of interest received by the assessee on Government securities held by it as its stock-in-trade in the relevant assessment years. Our answer, therefore, to the question referred to us is in the affirmative. The department will pay the costs of the assessee. Question answered in the affirmative.
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1965 (2) TMI 94
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... ... ..... the relations or members of the family of Sir Sassoon David, Bart., cannot affect that public charitable trust." In this view of the matter, their Lordships held that the income of the said properties held on trust was excluded from computation of the total income of the assessee under section 4(3)(i) of the Income-tax Act. The ratio of the decision of their Lordships could equally apply to the facts of the present case. In our opinion, therefore, the Tribunal was not in error in holding that the properties held by the trustees were held by them on trust for public purpose of a charitable and religious nature. The said properties were, therefore, not liable to be included in the net wealth of the assessee, and, consequently, no wealth-tax was leviable on the assessee in respect of the trust property. In the result, our answer to the question referred to us is in the affirmative. The Commissioner shall pay the costs of the assessee. Question answered in the affirmative.
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1965 (2) TMI 93
Whether the impost in the present case is a tax on land within the meaning of entry 49 of List II of the Seventh Schedule to the Constitution?
Held that: The tax in the present case being on land would clearly be within the competence of the State legislature.
There was certainly an allegation by the appellant that Art. 14 had been infringed; but that allegation is vague and gives no facts and figures for holding that the tax imposed on the Kharma market was discriminatory. It appears that the tax was imposed for the year 1953-54. As there is no material before us by which we can judge the relative size and importance of the five markets, it is not possible to hold that there was discrimination in taxing Kharma market at ₹ 600/- per year as compared to taxing the three other markets at less than ₹ 600/-. The attack therefore on the amount actually fixed on the ground of discrimination must fail. Appeal dismissed.
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1965 (2) TMI 92
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... ... ..... vision Bench of the Kerala High Court held that such materials could not answer the description of containers to fall within the scope of the concerned taxing statute. We are unconcerned with the correctness of that opinion. But the statement of the learned Judges that, unless there be a sale of the packing materials directly or indirectly to the consignee, tax cannot be attracted, does not lend any countenance to the argument of learned counsel for the respondent. That statement implies that, if there was a sale of packing material, the tax liability could be attracted. In this case, indisputably, there was the sale of gunny bags. That being so, the packing material is liable to tax even on the basis of the rationale of West Coast Weaving Establishments v. State of Kerala 1964 15 S.T.C. 898. For these reasons, we express our respectful dissent from the view of our learned brother, and allow this appeal. The appellant will get their costs from the respondent. Appeal allowed.
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1965 (2) TMI 91
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... ... ..... sion Bench ruling in K.P. Vaidyanatha Iyer v. The State of Madras 1954 5 S.T.C. 94., wherein it was held that the sale of jaggery was not sale of agricultural produce within the meaning of the definition of turnover in section 2(i) of the Act. The last contention was that there was no violation of the conditions of the licence. But this contention was advanced on the pleas that the society was not a dealer, that the transactions were not sales by the society and that the society had not itself carried on the business. As we have found these pleas untenable, the contention that there was no violation of the conditions of the licence fails. The Tribunal has set out the conditions of the licence and which of the conditions were contravened. It is not urged that the conditions of the licence were not violated on the facts found by the Tribunal. The result is that these two Tax Revision cases fail and are dismissed with costs, one set. Advocate s fee Rs. 150. Petitions dismissed.
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1965 (2) TMI 90
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... ... ..... raduated fees are not unknown to law. A reference in this connection may be made to the fees chargeable for registration of documents depending on the quantum of consideration which a transaction involves. That the State Government intended to give a complete sales tax holiday to the commission agents stands negatived by the nature of the conditions subject to which an exemption is granted. The answer to the question, therefore, in our opinion, is that the sales tax in respect of the sales amounting to Rs. 99,992 and odd of hydrogenated vegetable edible oils belonging to the assessee effected in the year 1955 by his commission agent Messrs. Peerdan Premchand, exempted under section 4(2) of the Act is chargeable from the assessee who as a dealer effected the sale thereof through his exempted commission agent. This reference is, therefore, answered as above. The assessee shall pay a sum of Rs. 100 by way of cost to the State for this reference.. Reference answered accordingly.
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1965 (2) TMI 89
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... ... ..... 57-section 5(1) of the Bengal Act, which was in excess of the limit of 2 laid down by the Central Act, became ultra vires and invalid and remained to be so until that provision was amended by the West Bengal Act XIII of 1959. In respect of the period relevant in the instant case, therefore, the respondents had no power to tax snuff at 5 , according to the Bengal Act, as has been done in the instant case. The assessment and demand notices in annexures B-D to the petition must accordingly be quashed and the opposite parties should be restrained from enforcing them. In the result, the Rules in both the cases 617 and 618 (W) of 1962 should be made absolute. The impugned notices, referred to earlier be quashed and the opposite parties be restrained from enforcing them against the petitioner. The petitioner will get a cost of 5 gold mohurs in each case. Let the petitioner be allowed to withdraw the security deposited in terms of the order of 7th January, 1963. Rules made absolute.
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1965 (2) TMI 88
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... ... ..... And added The substance of the decision of the Supreme Court is that the benefit of a single point assessment was available only to licensed dealers or tanners as prescribed by the Rules, and that the unlicensed dealers and tanners came under the general charging section of the Act, inevitably, by reason of the nonobtaining of the licence. It is clear that Abdul Salam and Co. v. Government of Madras(1) does not come to the rescue of the appellant. On the contrary, it furnishes an answer to the argument advanced by him. On the language of the material provisions of the Act and on the authority of the decided cases, the conclusion is inescapable that the turnover of an unlicensed dealer is exigible to multi-point tax and that he could not plead non-liability on the ground of absence of sub-rule (5) for the relevant assessment year. Under these circumstances, we have to uphold the decision under appeal and dismiss the appeal with costs. Advocate s fee Rs. 250. Appeal dismissed.
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1965 (2) TMI 87
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... ... ..... and revision under section 20 and 21 of the Act cannot prevail. The petitioners alleged in paragraph 7 of the writ petition that the Assessing Authority had disallowed their claim in accordance with the instructions received by him from the Excise and Taxation Commissioner. This has not been controverted by the respondents and so has to be accepted as correct. In these circumstances the right of appeal had been reduced to a mere formality, if not rendered farcical. The petitioners would not have gained anything substantial by preferring an appeal. Their failure to file the appeal or revision is no bar to the filing of the present writ petition. This finds support from the decision in the case, Messrs New Rajasthan Mineral Syndicate, Nizampur v. The State of Punjab and Another 1965 16 S.T.C. 534 67 Punj. L.R. 155. For the reasons given above, the civil writ is allowed with costs and the assessment order dated 1st February, 1963, (copy annexure A) is quashed. Petition allowed.
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1965 (2) TMI 86
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... ... ..... oner alleges which the first respondent has not denied, he produced that account book, the first respondent could have carefully looked into it to see whether the goods in question were or were not accounted for. The proceedings of the first respondent disclosed that he was somewhat in a hurry and did not look into the account books of the petitioner. It is, therefore, obvious that these orders, which the petitioner impugned, cannot be sustained as valid. The petitions are allowed with costs in each of them except in W.P. No. 1496 of 1964. Counsel s fee Rs. 250 in each of the petitions in which we have allowed costs. We direct that the documents, things and goods covered by these petitions are returned to the respective petitioners along with photo copies, photo negatives, translations and notes referred to in the amended prayer in C.M.P. No. 8724 of 1964 which is allowed. The rest of the civil miscellaneous petitions in the main petitions are dismissed. Ordered accordingly.
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1965 (2) TMI 85
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... ... ..... t cannot be permitted to stand in the way of the petitioner obtaining refund as aforesaid it has to be quashed whether the line of reasoning contained in it is right or wrong as to which it is unnecessary to express any opinion. Hence we grant both the above prayers in Writ Petition No. 1375 of 1964. The petitioner will also have his costs from the respondents. Advocate s fee is fixed at Rs. 100. The prayers in Writ Petitions Nos. 1665 to 1670 of 1964, though worded elaborately, actually amount to a prayer for striking down sub-sections (1), (2) and (3) of section 28-A and rule 23-B, either generally or at any rate in the case of petitioners engaged in the trade of transporting bricks, jelly, size stones, boulders, sand and mud. Because we have held that the said sub-sections and the rule are valid, the prayer of the petitioners cannot be granted. Writ Petitions Nos. 1665, 1666, 1667, 1668, 1669 and 1670 of 1964 are therefore dismissed but without costs. Ordered accordingly.
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1965 (2) TMI 84
Method of valuing the slow moving and obsolescent stock at a price below the cost was a recognized method in India.
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1965 (2) TMI 83
Whether the time limit under sub-rule (2) of rule 39 of the Bihar Sales Tax rules, 1949, for review has expired?
Held that:- Appeal dismissed. The Commissioner can review his own order without the limit of time and it is for the Commissioner, after the expiry of 12 months, to determine whether review should or should not take place in other cases. The free power is curtailed by the passage of a year in respect of not the initiation but of the making of the order of review. In the present case, as the Commissioner has himself moved for review, the requirements of sub- rule (2) as also of sub-rule (3) are fully satisfied and express consent is also available if the order is required to be reviewed.
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1965 (2) TMI 81
Whether the petitioner was a dealer within the meaning of section 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said section 2(f)?
Whether the sales had taken place in the course of import?
Held that:- Appeal allowed and remitted. we have come to the conclusion that the High Court should not have decided disputed questions of fact, but should merely have quashed the assessment order on the ground that the Sales Tax Officer had not dealt with the question raised before him, and remanded the case. Accordingly, we allow the appeal, set aside the order of the High Court, quash the assessment order in so far as it relates to the turnover of ₹ 23,92,252-75 nP., and remit the case to the Sales Tax Officer to decide the case in accordance with law.
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1965 (2) TMI 67
Winding up – Power of court to assess damages against delinquent directors, etc. ... ... ... ... ..... on or a deeming provision cannot be extended beyond the purpose for which it was made. Further, sub-section (4) of section 45L itself makes it clear that by reason of it all that would be attracted from the Companies Act is only section 543. Quite apart from these considerations, it should be remembered that the suit was filed by the first plaintiff long before its amalgamation and when it was filed, it was maintainable and constituted a proper remedy. There is no statutory provision under which it has ceased to be a remedy and the jurisdiction has been shifted from one forum to another in respect of it. Nor do we think that a changeover has been brought about so that not a suit, but an application for misfeasance alone would lie at this stage. The appeal is allowed, and the decree of the court below is set aside. The suit is remitted to it for trial and disposal. Costs of this appeal will be costs in the cause. The court-fee paid on the memorandum of appeal will be refunded.
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1965 (2) TMI 66
Winding up – Suits stayed on winding-up order ... ... ... ... ..... the official liquidator fails, the official liquidator will return the said sum to the person or persons directed by the applicant when depositing the money or if no such direction is given to the solicitor of the applicant or in such other manner as the official liquidator thinks fit and proper. The above directions will, however, have no effect if the court, in case the plaintiff fails as against the official liquidator, and the Small Cause Court, Bombay, assess the costs of travelling and residence of the official liquidator and/or his representative. In that event, the official liquidator will be entitled to set off this amount pro tanto against costs awarded to him in that suit and refund the balance, if there is any, to the applicants, whether it be above or below Rs. 300. Costs of this application is costs in the proposed suit. In case, the proposed suit is not filed, the official liquidator will get the costs of this application. Leave to file suit in Bombay granted.
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1965 (2) TMI 65
Shares – Allotment of ... ... ... ... ..... appears in section 50 of the Companies Act, in the Finance Act of 1956 the expression is issue to the shareholders . In my view, it is not tautology. It is not a case of issue of shares to the world at large. The difference between issue and allotment is not a matter of mere form but really of substance. Actual issue cannot be complete only on resolution to allot shares. Resolution is not necessarily the issue of them. It is not a mechanical act. Non-participation of dividend is a factor to be kept in view, as the shareholders only are entitled to participate in dividend. Consent of the Reserve Bank again is necessary. Clause (b) in the agreement in the instant case modifies clause (a) and the shareholders were not on the register on the relevant date. In my judgment, therefore, the assessee is not entitled to rebate and both the questions should be answered against the assessee. I respectfully agree with the order including the order for costs proposed by my learned brother.
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1965 (2) TMI 45
Investigation of the affairs of a company ... ... ... ... ..... s done so, and that one Inspector could not conduct either the investigation or approach the Tribunal as he has done. The learned counsel is of the opinion that both the Inspectors must have acted in union and as a body. This is obviously incorrect, for there would be no point in empowering them to carry out the investigation jointly and severally if every time they are compelled to sit jointly. The object of thus appointing two inspectors with power to conduct the investigation jointly and severally is apparent that each one of the inspectors may be able to carry on a part of the investigation by himself on a particular aspect of the affairs of the company. So that nothing turns upon this argument. There were, as stated, a number of other arguments before the Tribunal, none of which has been urged at the hearing here, and all the arguments that have been urged have been found to be unsound and unsupportable. This appeal fails and is dismissed with costs. Falshaw CJ.-I agree.
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1965 (2) TMI 44
Admission of petition and directions as to advertisement ... ... ... ... ..... y was heard on the question of advertisement. As the petition is admitted and the advertisement is issued, the matter will have to be heard on merits. The learned judge will be free on the materials before him to come to his own conclusion as to the allegations made in the petition and he would be free to exercise any of the powers as are vested in him under section 443 of the Companies Act necessitated by his own conclusions on facts. We have disposed of all legal contentions on law by our previous judgment. We may also make it clear that the mere admission of a petition would not necessarily mean that a provisional liquidator should follow as a matter of course. Both the parties are agreed that the matter should be heard as expeditiously as possible. Both the parties will have liberty to file further affidavits if they so choose within such time as the trial judge may allow. The matter should be heard as early as possible. Costs of the appeal would be costs in the petition.
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1965 (2) TMI 43
Winding up - Information as to pending liquidation and Jurisdiction to try offences ... ... ... ... ..... n. The court in determining the sentence must have regard for the extent of the prejudice caused to the company in liquidation and its creditors in cases where the accused is a liquidator. Examining the situation from that point of view, I think that the ends of justice will be met by imposing a nominal fine of Rs. 25 The conviction of the petitioner by the courts below confirmed, but the sentence is reduced to a fine of Rs. 25 with a default sentence of two days simple imprisonment. I find from one of the memos filed on behalf of the petitioner in this court that, while asking for stay of operation of the sentence, he had made mention of the fact that the assets of the company are only Rs. 300 compared to which the fine imposed by the trial court is excessive. I have been assured by Mr. Narayana Rao that his client understands that the fine has to be paid by him personally and not out of the assets of the company. I make a record of that because that is the correct position.
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