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1965 (3) TMI 91
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... ... ..... nt to that year, the assessee completely went out of the partnership business. The business was carried on thereafter, by his brother, Jawaharlal, as the sole proprietor. So far as the assessee was concerned, he discontinued the business from the assessment year 1954-55. These findings have not been disputed. The Tribunal has further found that there was no evidence that the joint venture in certain transactions, which the assessee carried on with his brother, was a continuation of the business carried on by him in the assessment years 1952-53 and 1953-54. These being the facts found, in our opinion, the Tribunal was right in holding that the assessee was not entitled to have the loss suffered by him in assessment years 1952-53 and 1953-54 set off against the profits earned by him in the assessment year 1956-57. In the result, our answer to the question referred to us is in the negative. The assessee shall pay the costs of the Commissioner. Question answered in the negative.
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1965 (3) TMI 90
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... ... ..... particular mode of computation determines as the income from that property. Whether it is in the assessment of the owner of the property or the assessment of the assessee in respect of the income from that property by reason of section 16(3) of the Act, the mode of determination of the income from the property is equally applicable. It would follow therefore that the sum that can be included in the total income of the assessee in respect of the property in question must be the sum which is arrived at on the application of section 9(2) and the first proviso thereto. It would be for the departmental authorities to determine the amount on the lines indicated above. The question is accordingly answered thus The income from the house property is includible in the total income of the assessee, but the measure of the income to be so included will be subject to the first proviso to section 9(2) of the Act. Since the assessee has succeeded in part, there will be no order as to costs.
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1965 (3) TMI 89
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... ... ..... epartment, relied on the Supreme Court decision in Commissioner of Income-tax v. H. Hirjee 1953 23 I.T.R. 427 (S.C.) and the decision of the Rangoon High Court in Commissioner of Income-tax v. Gasper and Company 1940 8 I.T.R. 100. Both these decisions are clearly distinguishable and have no application to the facts of the present case. As already observed, the correct view, so far as the present case is concerned, is to be found in the decision of the Bombay High Court in Advani's case 1950 18 I.T.R. 557. In this view of the matter, we are clearly of the view that the Appellate Assistant Commissioner was correct in his view that the legal expenses in this case were a permissible deduction under section 10(2)(xv), whereas the Income-tax Appellate Tribunal has clearly gone wrong in holding to the contrary. The question referred to us is, therefore, answered in the affirmative. There will be no order as to costs. S.K. KAPUR J.--I agree. Question answered in the affirmative.
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1965 (3) TMI 88
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... ... ..... (2) of the Act in the matter of fixation of rates, for we are satisfied that there is no alteration of any condition of the agreement within the meaning of s. 21(2) thereof. We have held that under para. IV of the agreement that was entered into between the consumers and the licensee, the consumers agreed to pay the rates that were fixed by the Municipality from time to time. If the said term was a condition within the meaning of s. 21(2) of the Act, there was no change at all in that condition, for the change in the rates was not in derogation of the condition but in terms of it. To state it differently, the same condition embodied in para. IV of the agreement continued to operate between the parties even after the rates were enhanced under the impugned resolution. Therefore, no sanction of the State Government was necessary for enhancing the rates. No other point was raised before us. In the result, the appeal fails and is dismissed with one set of costs. Appeal dismissed.
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1965 (3) TMI 87
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... ... ..... ot;(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the said dividend income of ₹ 60,090.52 nP. was assessable in the assessment year 1953-54?" It may also be stated that in view of the decision of this court in Purshotamdas's case 1958 34 I.T.R. 204 Mr. Trivedi did not advance any argument on the other aspect of the question, namely, that the assessee having maintained the account on receipt basis the Tribunal was not justified in holding that the provisions of section 13 do not control the provisions of section 16(2). In the result, our answer to the first question is in the affirmative. Answer to the third question will be in the negative. As regards the second question as reframed, we direct the Tribunal to forward supplemental statement of the case, in the light of the observations hereinbefore made, on the material already on record. Order as to costs will be made when the final judgment is given.
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1965 (3) TMI 86
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... ... ..... nd allowed. As we have pointed out above, the true profit and loss of a transaction can only be worked out after allowing the commission paid in that transaction and, therefore, the speculative profits and losses can only be worked out after debiting the commission paid. The assessee's accounting is not only in conformity with the normal accountancy but is also correct inasmuch as the trading losses (whether ready or future) has been properly accounted for. The assessee's claim for the commission payments of ₹ 17,590 cannot, therefore, be upheld." After hearing the learned counsel for the assessee, we do not find any reason to depart from the aforesaid conclusion of the Tribunal. The assessee's counsel was unable to point out any error in that decision. For the reasons recorded above, we answer all the three questions against the assessee. The Commissioner of Income-tax will be entitled to the costs of this reference, which are assessed at ₹ 200.
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1965 (3) TMI 85
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... ... ..... his Court on this matter is not, in my opinion, properly framed. The real question is whether the registering authority, in the instant case, can, after registration of the instrument, impound the same under Section 33 of the Stamp Act and send it to the Collector under Section 38 of that Act for further proceedings under Section 40 thereof. 14. Since the view of the majority constituting this Bench is to prevail 1 need not answer the second question. BY THE COURT 15. In view of the majority opinion, our answer to the first question is that after the registration of the 'Takseemnama' on 31st October 1956 the registering authority had no power to hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duty. This answer to the first question renders it unnecessary for us to answer the second question. 16. In the circumstances of the case, we leave the parties to bear their own costs of this reference.
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1965 (3) TMI 84
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... ... ..... learned counsel for the department that the profit and loss account is an account which can be said to be a book of account. It is only a statement representing the state of business as at the end of the accounting year and the details contained in the statement are culled out from such other books of account which may be called primary books which a businessman generally maintains. It does not appear to us that this argument, that for lack of preparation of a profit and loss account the allowance should be refused, can be accepted. We are satisfied that the Tribunal misconstrued the scope of section 10(2)(vii). It follows that the assessee would be entitled to the allowance as granted by the Income-tax Officer. The question is answered accordingly. In view, however, of the fact that this reference was rendered necessary through the shortcomings of the assessee's own method of maintaining accounts, we do not see fit to award him any costs. Question answered accordingly.
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1965 (3) TMI 83
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... ... ..... ion." In the present case also the finding which it was necessary for the Appellate Tribunal to give was that the proper year of assessment in regard to the sum of ₹ 56,000 was not the assessment year 1945-46. In giving its reason in support of this finding the Appellate Tribunal stated that the proper year of assessment for the said amount was 1944-45. But that statement of the Appellate Tribunal cannot be regarded as a "finding" given by them. Mr. R.J. Joshi placed reliance on a decision of a Division Bench of this court in General Construction and Supply Co. v. The Income-tax Officer (8th), C-Ward, Section III, Bombay 1962 44 I.T.R. 16. Obviously, I cannot rely on this decision in preference to the authority of the Supreme Court mentioned above. In the result this petition must be allowed and the impugned notice set aside. Accordingly, the rule is made absolute in terms of prayer (a). The respondent to pay the petitioner's costs. Petition allowed.
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1965 (3) TMI 82
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... ... ..... ommissioner of Income-tax v. Sheikhupura Transport Company Limited 1961 41 ITR 336 , the decision of the Nagpur High Court in R.B. Bansilal Abirchand Spinning and Weaving Mills v. Commissioner of Income-tax 1957 31 ITR 427 and the decision of the Allahabad High Court in In re Hindustan Commercial Bank Limited 1952 31 ITR 353. These decisions have been merely referred to by way of illustration. In fact, all of them proceeded on their own peculiar facts. On the facts and in the circumstances of the present case, we are clearly of the view that the expense incurred by the assessee in fixing the wooden panels is an expense of a "revenue nature" and is not an expense of a "capital nature". In our view, the Appellate Assistant Commissioner had come to a correct decision and the Tribunal has gone wrong in reversing his well-considered decision. The question referred to us is answered in the negative. However, there will be no order as to costs of this reference.
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1965 (3) TMI 81
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... ... ..... and Ors. v. Abdul Rahim and Abdul Aziz(3), it is superfluous in the present day to say, is not the law. When the two deeds are examined and their provisions considered in the light of these principles, it is easily seen that they are not exclusively for charitable purposes. They do provide in part for objects which are religious or charitable or both but mingled with those purposes are some which are secular and some which are family endowments very substantial in character. If the latter benefits had ceased or the families had become extinct leaving only the charities or if the provisions were for poor and needy though belonging to the wakif's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion. The deeds as they stand cannot, however, be said to come within the exemption claimed. The appeals must, therefore, fail. They are dismissed but in the circumstances we direct parties to bear their own costs. Appeals dismissed.
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1965 (3) TMI 80
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... ... ..... de lands which are actually acquired as well as those which might not have been acquired but are, nevertheless, required for carrying out the provisions of the Improvement Act. But having specified respective authorities or bodies in clause (a) & (b) of s. 30, the Legislature may have thought that it would be better to refer to the Improvement Act and lands required for carrying out its provisions, specifically and expressly. Having regard to the considerations on which our interpretation of s. 30(c) is based, we are not prepared to attach undue significance to the argument based on the assumption that the Board is a local authority within the meaning of s. 30(b)(iv) and that would make the provisions of s. 30(c) either superfluous or would deprive the said provision of any significance or importance. The result is, the appeals are allowed, the decrees passed by the Division Bench are set aside and those of the trial Judge restored with costs throughout. Appeals allowed.
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1965 (3) TMI 79
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... ... ..... acted negligently they did not give the appellant a hearing before rejecting his application for a licence, and did riot even inform him about its rejection. They continued to accept the returns submitted by him from time to time, and there is no reason to disbelieve the statement of the appellant that the Inspector had given him assurances from time to time that a licence would be issued to him. I am, therefore, of the view that no serious view of the contravention of the provisions of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1958, may be taken, and a fine of ₹ 50 would meet the ends of justice. The order forfeiting the stocks of foodgrains must be set aside. ORDER 11. Following the judgment of the majority, the appeal is allowed, the order of the High Court convicting the appellant is set aside and '' the appellant is acquitted of the offence with which he was charged. The bail bond is discharged. If any fine has been paid, it shall be returned.
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1965 (3) TMI 78
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... ... ..... rejected by my learned brother in a separate judgment. I agree with his conclusions. BY THE COURT The appeal is dismissed. Counsel for the appellant submitted that in the circumstances of this case neither the fifth defendant M/s Sethiya and Co. nor the State of Assam should be awarded costs. He pointed out that the Assam Government had described him as their agent not only in the agreement but to the Textile Commissioner, and they were morally, if not legally, responsible for having misled the appellant. As regards Sethiya, Mr. Misra pointed out that Loon Karan Sethiya (defendant) had made statements which were untrue a fact admitted by his counsel and he was under a moral obligation to deliver the goods though he had escaped legal liability for lack of proof, and his conduct was reprehensible. There is some substance in counsel's submission and we direct the fifth defendant Sethiya and Co., and the eighth defendant the State of Assam to bear their own costs throughout.
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1965 (3) TMI 77
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... ... ..... of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life insurance fund; but on the interpretation urged on behalf of the appellant even 96 of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corporation if the words "life insurance fund" are given the wide meaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words "life insurance fund" as used in cl. (d) of the aforesaid 4th paragraph have the same meaning as that given to them in s. 10(2) of the Insurance Act read with s. 1 1 and form D of the Third Schedule to the Insurance Act. In this view of the matter, the appeal must fail. We therefore dismiss the appeal with costs to the respondent. The respondent will be at liberty to withdraw the money deposited in this Court towards compensation. Appeal dismissed.
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1965 (3) TMI 76
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... ... ..... td. v. Commissioner of Income-tax. 1953 24 I.T.R. 375, not having been brought to our notice. That, however, in our opinion, would not be a good ground for consciously departing from the uniform practice, especially in this case where after reviewing all the relevant provisions, a very elaborate judgment has been given by Bhagwati J. and where more than one view is possible on the construction of this section. The relevant provisions of law have been, at page 425 of the report, described by the learned judge as "The question is primarily one of construction and is certainly not free from difficulty, arising as it does on one of the least happily drafted sections in an Act not remarkable for perspicuity. It may be possible but we doubt whether it would be easy to compress into one single section more fertile opportunities for doubt and error." In the result, our answer to the question is in the affirmative. No order as to costs. Question answered in the affirmative.
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1965 (3) TMI 75
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... ... ..... nt. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment. Mr. Pathak. no doubt, seriously contested the validity of Mr. Desai's argument. He urged that the adjustments on which Mr. Desai has rounded his claim for discharge do not really support his case. We proposed to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it. For these reasons we allow this appeal, set aside the judgment and decree of the High Court of Kerala dated July 18, 1962 in A.S. 561 of 1961 and order that the case should go back for being reheard and redetermined by the High Court in accordance with the observations made in our judgment. The parties will bear their own costs upto this stage. Appeal Allowed.
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1965 (3) TMI 74
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... ... ..... The argument that the Government would be acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act. A fair construction of the proviso to s. 5 of the Act removes all the anomalies. Further, in the substantive part of s. 5 of the Act the fiction takes effect unless the subject-matter or the context otherwise requires. The proviso in terms as well as by necessary implication brings the subject-matter of the sums payable under the agreements both under the substantive and procedural aspects within the scope of the said exception. The fiction in s. 5 of the Act shall yield. to that extent, to the terms of the contract. On such a construction we hold, as we have indicated earlier, that both the right to the said sums payable and the procedure of arbitration are saved thereunder. In the result, we agree with the view expressed by the High Court and dismiss the appeal with costs. Appeal dismissed.
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1965 (3) TMI 73
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... ... ..... properly arising from the facts. On the facts and circumstances of that case, their Lordships came to the conclusion that the only proper inference was that the receipt in question must be treated as income in the hands of the assessee. That was again not a case where the disputed amount stood in the name of the third party in the accounts of the firm. On a careful consideration of the facts and circumstances of the case and the law applicable thereto, we are satisfied that there is no justification for the conclusion reached by the Tribunal that the sum of ₹ 10,719, which stood in the name of Smt. Munni Devi Daga, the wife of the petitioner, was not shown to be her money but the money of the assessee himself and that therefore the decision of the Tribunal is clearly unsustainable in law. We, accordingly, answer the question referred to us in the negative. In the entire circumstances of the case, we wish to make no order as to costs. Question answered in the negative.
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1965 (3) TMI 72
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... ... ..... tam Pimputkar's( 1964 1 S.C.R. 200) case. It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is rounded on healthy principles of Judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself. The result is, the appeal fails and is dismissed. There will be no order as to costs. Appeal dismissed.
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