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Case Laws
Showing 41 to 60 of 82 Records
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1965 (3) TMI 71
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... ... ..... es their wives and unmarried daughters. Its fundamental principle is the tie of sapindaship arising by birth, marriage or adoption. The Hindu undivided family with all its incidents is purely a creature of Hindu law and cannot be created by act of parties. It is because of the peculiar characteristic of the institution which distinguishes it from an association of persons or a firm or a company that the taxation laws which want to treat it as a unit for taxation have mentioned it as a distinct unit. We do not therefore think that the argument can be advanced that the mention of the Hindu undivided family as a unit of taxation under section 3 of the Wealth-tax Act is intended to exclude other groups or associations of persons which are capable of being treated as a unit. In the result, therefore, our answers to both the questions, which have been referred to us, are in the affirmative. The assessee will pay the costs of the Commissioner. Questions answered in the affirmative.
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1965 (3) TMI 70
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... ... ..... and after it was allowed the position became what it would have been if the amount of the overdraft had already been included in the balance of the creator of the trust. The decision does not deal with the question of delivery by book entries and as regards the question whether a gift of money can be made by book entries when the credit balance is of a smaller amount, it is to be distinguished from the instant case because there is no overdraft here to make up the deficit in the credit balance. Therefore, none of the authorities relied upon by the assessee is relevant or helpful. My answer to the question is in the negative. A copy of the judgment shall be sent to the Tribunal under the signature of the Registrar and the seal of the court as required by section 66(5) of the Income-tax Act. The Commissioner of Income-tax, U.P., shall get his costs of the reference which we assess at ₹ 200. Counsel's fee is assessed at ₹ 200. Question answered in the negative.
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1965 (3) TMI 69
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... ... ..... ons given to the clerks and accountants. The essential thing is the nature and texture of the activities said to constitute one business. Selling shares and selling petrol both involve transfer and delivery. Yet a petrol dealer's business is as far removed from a share dealer's as Digboi is from Dalal Street. The test whether the cessation of one activity will affect the texture of the other is a fairly useful test in such cases. In my opinion, the subordinate tests as to whether there was employment of common staff and unity of control, or whether there was user of common finance and common books of account, are only to be applied when it has been found that there is such interconnection or coherence between the different activities that they appear so linked together as to form a composite whole. The answer to the question posed is in the negative and against the assessee who must pay the costs of the reference. MASUD J.--I agree. Question answered in the negative.
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1965 (3) TMI 68
Whether the Land Acquisition Officer can, after making the award under s. 12 of the Land Acquisition Act, 1894, fixing the compensation for the land acquired and apportioning the same among the persons interested in the land, refer the question of apportionment under s. 30 of the Act to the decision of the Court?
Held that:- Unable to agree with counsel for Dr. Grant that the reference made by the Collector under s. 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested' in the compensation money before the date of the award, but because of the right which has arisen since the award was made. Appeal dismissed.
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1965 (3) TMI 67
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... ... ..... tification referred to above did not provide nor was it laid down in Krishnaiah Setty and Sons v. Deputy Commercial Tax Officer, Hindupur 1963 14 S.T.C. 1., that exemption could only be claimed in respect of goods on which additional duty of excise has been levied. In fact, while construing the effect of the proviso to the notification mentioned above, the Supreme Court in Innamuri Gopalam and Others v. State of Andhra Pradesh 1963 14 S.T.C. 742., came to a definite conclusion that as the proviso could not apply to cases where additional duty of excise was not leviable, the operation of the exemption was unaffected by the proviso and the appellants in the case were entitled to relief from sales tax granted by the notification. Thus in any view of the matter we are of opinion that zarda is not exigible to sales tax by virtue of the Amending Act 3 of 1958 of Schedule 5 of the Andhra Pradesh General Sales Tax Act. The revision is accordingly allowed. No costs. Petition allowed.
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1965 (3) TMI 66
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... ... ..... h has been paid by Messrs. Burmah Construction Co. shall be refunded by the State of Orissa to the Burmah Construction Company if the order of assessment pursuant to which payment was made was within 24 months of the date on which the petition was filed in the High Court, namely, 9th of August, 1954. It is thus clear that the provision in section 20A of the Bihar Act enacting that the application for refund must be filed within the period of limitation allowed by law cannot be struck down as invalid. I must, however, make it clear that I am saying nothing in regard to whether the purchasers who paid the sales tax which has been held to be ultra vires will be entitled, in the circumstances of this case, to a refund. They are at liberty to make an application to the State Government which will decide whether the application is within the period allowed by law or not. 13.. In the result, this application also fails and is dismissed. G.N. PRASAD, J.-I agree. Petitions dismissed.
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1965 (3) TMI 65
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... ... ..... would assist the department s contentions in the present cases. It is true that different classes of goods can be taxed differently by the State, but the feature that vitiates the taxation in the present cases is that tanned hides and skins as one category has been taxed differently in the hands of the local tanner and in the hands of a person who imports them, either dressed or undressed, tans, and sells them. That that is discriminatory has been clearly laid down in Firm A. T. B. Mehtab Majid and Company v. State of Madras and re-affirmed in W. P. Nos. 201 to 203 of 1963. 15.. It follows that the basis of taxation of the petitioners in regard to the sales of imported hides and skins being invalid, the assessments have to be set aside to that extent. 16.. Mr. Kareem did not press his contentions with respect to the licences under sections 5 and 8 of the Act. 17.. The revisions are allowed to the extent indicated above. There will be no order as to costs. Petitions allowed.
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1965 (3) TMI 64
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... ... ..... mmercial Tax Officer, exercising his appellate powers, could not have assessed the assessee as an unlicensed dealer under section 6-A, for the assessee only had a right of appeal and the department had no right to ask for the enhancement of the assessment. To permit the revising authority to enhance the assessment which the appellate authority could not have done, is not in consonance with the scheme of the Act. The power of revision conferred under section 12 is restricted and can only be exercised by the authority for satisfying itself of the legality or propriety of the order and the regularity of the proceedings before the inferior tribunal. While purporting to satisfy itself about the legality or propriety of the order, the revising authority cannot pass an order which the appellate authority could not have legally passed. In the result, we see no reason to interfere with the order of Veeraswami, J. The appeal fails and is dismissed with costs Rs. 250. Appeal dismissed.
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1965 (3) TMI 63
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... ... ..... he Constitution came into force. The appeal was filed subsequently but was pending on 26th January, 1950. On the basis of these facts he contended that the revision application was maintainable. We fail to see the connection between the facts and the conclusion sought to be drawn by him. Whether the revision application was maintainable or not depends solely on the provision of section 10(3). There is no other provision dealing with this question and section 10(3) does not take into consideration the facts stated above and applies despite them. We direct that copies of this judgment, under the seal of the Court and the signature of the Registrar, shall be sent to the Judge (Revisions) Sales Tax, U.P., and the Commissioner, Sales Tax, U.P., as required by section 11(6). We further direct that the assessee shall pay to the Commissioner, Sales Tax, U.P., his costs of this reference which we assess at Rs. 200. Counsel s fee is assessed at Rs. 100. Reference answered accordingly.
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1965 (3) TMI 62
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... ... ..... contrary intention appears, be regarded as references to the re-enacted Act. It would therefore follow that in construing references to the Madras General Sales Tax Act or the Principal Act in Act XVII of 1954, we have to hold it as if the references were to Madras Act I of 1959, and if that is so, whether or not a different interpretation of the legal position with regard to the inclusion of sales tax collections in the turnover of a dealer is possible on the terms of Madras Act I of 1959, Madras Act XVII of 1954 prohibits the inclusion of such sales tax amounts in the assessable turnover of the dealer. Whether this the Legislature intended or not, by retaining Madras Act XVII of 1954 on the statute book, that result is inescapable. It follows that the assessments made or sought to be made in these cases are illegal. The rules are accordingly made absolute. In the circumstances of the case, there will be no order as to costs in any of the writ petitions. Petitions allowed.
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1965 (3) TMI 61
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... ... ..... that, if the documents or account books have been seized which is unconstitutional, it may make a difference to their admissibility. The observation relied on is this Suffice it to say that there appears to be considerable difference of opinion among the Judges both in the State and Federal Courts as to whether or not the rejection of evidence obtained by illegal means depends on certain articles in the American Constitution. Suffice it to say that we have no provision in the Indian Constitution corresponding to the Fourth Amendment to the Constitution of the United States. In fact, learned counsel for the petitioner has not been able to invite the attention of this Court to any particular article in the Indian Constitution which the admission of such evidence has violated. In my view, therefore, the assessment orders are not vitiated, merely because the account books or other records seized were relied on in support of them. The petitions are dismissed. Petitions dismissed.
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1965 (3) TMI 60
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... ... ..... er must be made by the court which passed the decree it cannot be an order made in the course of execution. Boys, J., also agreed that the execution court has no power to pass such an order. In view of these Full Bench decisions the question is no longer open. It must be held that Order XX, rule II, Civil Procedure Code, does not authorise the execution court to pass an order of payment of the decretal amount in instalments. The Additional Collector who passed the order dated 18th September, 1964, is at best in the position of an execution court. His order cannot be treated to be an order under Order XX, rule 11(2), Civil Procedure Code, even though the Civil Procedure Code may apply to the recovery proceedings which are being conducted under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, by virtue of section 341 of that Act. In the result the petition fails and is dismissed, but under the circumstances without any order as to costs. Petition dismissed.
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1965 (3) TMI 59
Compromise and arrangement ... ... ... ... ..... efused and the parties could have been directed to approach the company judge under section 392. I cannot, however, agree that, on the facts of the case, the income-tax department was not a creditor of the company within the meaning of section 391. It is not in dispute in the case before me that if the sales tax department was a creditor of the company within the managing of section 391, as-held by me it w as an unsecured creditor and is, therefore, entitled to recover only 25 per cent, of its claim. It is also not in dispute that 25 per cent, of the total amount of the assessment orders has already been deposited by the company with the sales tax department. It must, therefore, be held that the respondents are not entitled to recover the amounts for which the impugned demand notices were issued on the company. In the result, the petition is granted and the remand notices (exhibits I and J to the petition) are quashed. The respondents will pay the petitioner s costs as taxed.
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1965 (3) TMI 50
Company when deemed unable to pay its debts ... ... ... ... ..... a moratorium under section 37 of the Banking Companies Act, the court had already got an enquiry made by the Reserve Bank and on receipt of the report the court was satisfied that the affairs of the bank and the conduct of its directors were such as not to admit of any scheme under section 391 of the Companies Act, 1956. We, are, therefore, in full agreement with the finding of the learned company judge that the scheme submitted by some of the depositors of the bank did not deserve any consideration and was not at all fit to be given effect to. The only option in the circumstances left to the learned judge was to order the winding up of the bank as required under section 38(1) of the Banking Companies Act. It follows, therefore, that on merits also there is no substance in this appeal. Thus, regard being had to all these circumstances, this appeal fails both in point of law and in point of fact and accordingly it must be dismissed with costs. Narasimham, C. J. mdash I agree.
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1965 (3) TMI 44
Certificate of registration, Winding up – Fraudulent preference 7560. ... ... ... ... ..... the point under section 101. That is the power to rectify the register. Mr. Bowyer contends that that section is wholly inapplicable to the present circumstances, with the remarkable consequence, it seems to me, that even in the case of fraud the certificate would be conclusive and there would be no means of putting the matter right. I do not accept that contention. On the other hand, the power to rectify is one, which is not to be lightly exercised, particularly after liquidation has crystallised the rights of the parties see per Buckley J. in In re Mechanisations ( Eaglescliffe) Ltd. 1965 2 WLR 702, 713 1965 35 Comp Cas 478 . In the present case the mistake was not on the part of Richards but on the part of the company. I do not think I ought to say how I would exercise a discretion upon a matter which has not in fact arisen. Perhaps I may say this that if I were required to exercise a discretion under section 101, I do not think I should exercise it adversely to Richards.
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1965 (3) TMI 43
Company when deemed unable to pay its debts ... ... ... ... ..... ice of motion is addressed to the company and Col. Joynes, but, again, not to Smith, who is obviously a necessary party to any proceedings with regard to the ownership of this share. Those difficulties could, however, be cured by amendment and I do not base my decision on that point. The difficulty is a fundamental one, that a winding-up petition is not the appropriate procedure in which to determine the beneficial ownership of the share. That being the position, again I see no ground for the appointment of a provisional liquidator at this stage, and that contention has not been pressed by Mr. Monroe. It seems to me that my proper course is to dismiss the motion and stand over the winding-up petition for a short time in order that evidence in answer can be filed. The further progress of the winding-up petition will, or may, depend on any further action which Mrs. Joynes may take as to the ownership of the share. Meanwhile, I propose to stand over the petition for three weeks.
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1965 (3) TMI 26
Account Books, Real Income ... ... ... ... ..... efore, right in regarding the entry as a mere book entry not representing true income. Counsel for the Commissioner urged that as the amount of interest was allowed as a permissible outgoing in the assessment of the association, a corresponding amount should be regarded as received by the respondent as income. But an error in the assessment of the association cannot be permitted to be perpetuated by repeating it in the assessment of the respondent. It is true that the interest debited to the profit and loss account of the association to the two members is not in proportion to their respective shares in the profit and loss according to the terms of the agreement. But apportionment of loss suffered by the association, in proportion to the investments of the two members and not in proportion to their stipulated shares in profit and loss, does not convert the debit items into real income accruing to the two members. The appeal fails and is dismissed with costs. Appeal dismissed.
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1965 (3) TMI 25
Whether in determining the 'smallness of profits' made by the applicant for the purpose of section 23A, the Tribunal correctly included the commission of ₹ 41,842 and ₹ 1,16,690 in the applicant's profits of the accounting periods ended 31st March, 1952, and 31st March, 1953, respectively ? and
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the orders under section 23A ?
Held that:- It follows that the Income-tax Officer, in proceedings under section 23A, must determine commercial profits. In proceedings under section 23 he is not concerned with this. There he is concerned with assessable income or profits. Therefore, it is difficult to appreciate why a finding in the assessment order that a particular income is assessable income or profits necessarily means that that assessable income must form part of the accounting profits.
It seems to us that the Appellate Assistant Commissioner was right in going into the question and holding that under the managing agency agreement the assessee-company did not have any right to receive the commission till the general meeting of the managed company was held and, therefore, it could not form part of its accounting profits.
We accordingly accept the appeals, set aside the order of the High Court and remand the cases back to the High Court to dispose of the reference in accordance with law and in the light of this judgment.
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1965 (3) TMI 24
Status of the assessee - Status of partnership firm after the demise of a Partner, the Karta of HUF - association of persons or a firm within the meaning of section 16(1)(b) of the Income-tax Act, 1922 - Who can be Karta of HUF - whether the widow of Nandlal could under Hindu law be a karta of the joint Hindu family consisting of three widows and two minors.
Held that:- In the case of a partnership consisting of only two partners, no partnership remains on the death of one of them - In law and in fact there is an interregnum between the death of one and the succession to him. We accept the view of the Allahabad [1951 (9) TMI 49 - ALLAHABAD HIGH COURT] and Madras High Courts [1958 (12) TMI 46 - MADRAS HIGH COURT] and reject the view expressed by the Nagpur and Calcutta High Courts. - The partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on December 9, 1945
Widow as Karta of HUF - HELD THAT:- The Madras [1949 (12) TMI 36 - MADRAS HIGH COURT] and Orissa High Courts [1957 (9) TMI 78 - ORISSA HIGH COURT] held that coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qualifications to become the manager of a joint Hindu family. - We are clearly of the opinion that the Madras view is correct.
Status of HUF and Firm after the minor son becomes major - HELD THAT:- After Venkatlal became a major, there was no obstacle in his representing his branch of the family in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal attained majority. Having regard to the said circumstances and the concession, we must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family.
For the assessment year 1950-51 the status of the assessee was that of a firm within the meaning of section 16(1)(b) of the Income-tax Act, 1922.The Tribunal misdirected itself in law in reaching the conclusion that the parties could not be regarded as partners. Appeal dismissed.
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1965 (3) TMI 23
Whether a reference would lie to the High Court against an order of the Commissioner?
Held that:- If a tax is due in consequence of an order from an assessee, the Income-tax Officer is under a duty to serve on him a notice of demand. Pursuant to the directions given by the Tribunal the Income-tax Officer made fresh calculations under the head " Capital gains " and ascertained the amount due from the assessee. In the circumstances, pursuant to the said calculation, he should have passed an order and issued a notice of demand to the assessee. In not doing so, it must be held that the Income-tax Officer did not discharge his duty which he was bound to do under the Act ; with the result he had become amenable to a writ of mandamus directing him to do what he should have done under the Act.
In the result, the order of the High Court is set aside and we issue a writ of certiorari quashing the order of the Commissioner and a writ of mandamus directing the Income-tax Officer to pass an order and issue a notice in accordance with law.
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