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Case Laws
Showing 1 to 20 of 111 Records
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1978 (6) TMI 170
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... ... ..... l partner, who signed the instrument. A person merely describing himself as a partner cannot, however, bind the firm. There must be some indication in the instrument to show that he was signing on behalf of the firm. Exs. A. 2 and A.3 bring out the contrast. In Ex. A2 the signature is for M. M. Abbas and Bros. In Ex. A. 3 he has signed the instrument only as "partner of M. M. Abbas and Bros". The latter is a description and does not disclose the firm's liability. It is true that different legal result follows from the mere change in the collocation of the words. But it is inevitable, as different results are produced in law by the mere change in the collocation of the words. 15. The result is that the appellants case as regards Ex. A. 3 that it is not binding on defendants 2 to 4 has to be accepted. The appeal is accordingly partly allowed. The first respondent will be entitled to his costs, as substantially the appellants have failed. 16. Appeal partly allowed.
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1978 (6) TMI 169
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... ... ..... fore the Metropolitan Magistrate. These previous statements could be put to the complainant when she is in the witness box. 7. Therefore, in our opinion, in any case this is not a fit case where inherent powers of this Court under Section 482 of the Cr. P.C. could be exercised, It is well settled that these inherent powers of this Court should be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities. Having regard to the facts and circumstances of the present case, in our opinion no case has been made out for such an interference under these inherent powers. 8. In the result, therefore, the criminal application fails and is dismissed. Rule is discharged. 9. For the purpose of clarification, we want to make it clear that nothing said in this judgment will be binding upon the learned Metropolitan Magistrate and he is at liberty to decide the case on merits in accordance with law after appreciating the evidence produced before him.
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1978 (6) TMI 168
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... ... ..... lication for impleading a fresh application by all the trustees could very well have been filed. 7. For the reasons stated above, we are of the opinion that the Court below was not justified in rejecting the applications for impleading and the consequential amendments in these cases. Accordingly, in reversal of the orders of the Munsiff in interlocutory applications, we allow the said applications and direct that the other trustees be impleaded as co-petitioners in the three eviction petitions. The memorandum of the eviction petitions shall be suitably amended. The proceedings in the said eviction cases will thereafter proceed in accordance with law. 8. As these matters have, for one reason or the other, been pending for a long time, we direct the trial court to dispose of the three cases as expeditiously as possible. 9. In the circumstances of the case, the parties are left to bear their own costs in these civil revision petitions. Ordered accordingly. 10. Revisions allowed.
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1978 (6) TMI 167
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... ... ..... the fundamental fact that the services referred to in that sub-clause are in connection with, or incidental to the execution of any contract for the supply of goods, services or facilities outside India. On this too we, hence, confirm the decision of the AAC. 37. The AAC's finding that what is claimed by the assessee as for travelling is expenditure incurred on journeys undertaken within the country is not challenged. Under sub-clause (vii) only expenditure incurred on tarvelling outside India can be taken into account. We are unable to fix this in any of the other sub-clauses. That being so, we are convinced that the AAC rightly disallowed this. 38. It is not shown to us that the brokerage of ₹ 574 paid by the assessee was not for procuring the goods for export but for the export sales themselves. Hence, on this too we find nothing warranting interference. 39.In the result, the department's appeal is allowed in part and the assessee's appeal is dismissed.
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1978 (6) TMI 166
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... ... ..... ldquo;quantum of the concession available under each serial number representing the slab rates as aforesaid shall be computed separately and totalled up.” This proviso clearly shows that the quantum of concession available has to be worked out not for one quantity but for three different quantities for the same period otherwise the question of totalling up the quantum would not arise. If this is the intention as it appears to be, the total production of vegetable product within the period, whether containing indigenous cotton seed oil or not cannot be taken as vegetable product manufactured with certain percentage of cotton seed oil. In view of above, vegetable product which has been manufactured without any use of cotton seed oil will not be taken into consideration for determining the quantum of concession available under this notification. The appeal is allowed as far as considerations of vegetable product containing cotton seed oil for this concession is concerned.
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1978 (6) TMI 165
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... ... ..... (4) can be interfered with on the principle initiated by their Lordships of the Supreme Court in the case mentioned earlier. The Madras High Court in the case of Chesebrough Pond s Inc. v. Appellate Assistant Commissioner(2) has, with respect, rightly held that although the power of stay under the Sales Tax Act is discretio We accordingly allow the writ petition and quash the impugned order. As the appeal filed by the petitioner has been pending before the appellate authority for a considerable length of time, we direct the appellate authority to dispose of the appeal within a month of the receipt of this order. The said period to run as from the date on which the order is communicated to it by the assessee and on the assessee putting in appearance. The stay order is discharged. No order as to costs. This order will govern Writ Petitions No. 756 of 1976, 250 of 1977, 233 of 1977, 187 of 1977, 323 of 1977, 334 of 1977, 7 of 1977, 219 of 1977 and 231 of 1977. Petition allowed.
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1978 (6) TMI 164
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... ... ..... n 3(3) of the Act. It follows that the petition should fail and that it is unnecessary to consider whether the amendments effected to the General Sales Tax Act, 1125, by the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, and by the General Sales Tax (Amendment and Validation) Act, 1962, subsequent to the Constitution (Sixth Amendment) Act, 1956, are invalid and of no effect as contended by counsel for the petitioner. The decision was carried in appeal to the Supreme Court-vide E.J. Mathew v. State of Kerala 1970 25 S.T.C. 15 (S.C.). Nothing was said by the Supreme Court against the position of the scope and purpose of the rule as given by the Division Bench. The decision was sustained. 4.. We are of the opinion that rule 6 does not travel beyond the scope of the power delegated by section 3(2) of the Act and cannot be attacked as being in excess of the power conferred by the said section. We dismiss these writ petitions. No order as to costs. Petitions dismissed.
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1978 (6) TMI 163
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... ... ..... o such direct or telling finding by the assessing authority. It is not even contended to be so before us. It was in those circumstances that the Tribunal, in the appeal filed by the aggrieved assessee for cancellation of the penalty levied by the Deputy Commissioner, who did so in exercise of his revisional authority, cancelled the penalty. The Tribunal would say that the Deputy Commissioner exceeded his limits of revisional jurisdiction, when, as revisional authority, he was only reviewing the order of assessment made by the original authority and that, in the circumstances, he exceeded the power to impose penalty, as if he was the original authority. It was in that light that the Tribunal corrected the order of the Deputy Commissioner. As ultimately we are satisfied that this is not a case in which it could be reasonably said that there was a wilful suppression of taxable turnover, we are not inclined to interfere. The tax case is accordingly dismissed. Petition dismissed.
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1978 (6) TMI 162
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... ... ..... odities which were specifically mentioned in Schedule D at the time when the Himachal Pradesh General Sales Tax Act was passed and, hence, any subsequent addition of commodities in that schedule would not result in the disallowance of this deduction. Even this contention is not acceptable because even when the Himachal Pradesh General Sales Tax Act was enacted, Schedule D contained entry No. 3 stating that all other declared goods would automatically fall within the ambit of this schedule. No other point was raised on behalf of the petitioner during the course of the arguments. In view of what is stated above, we see no force in this writ petition, which is summarily dismissed. Learned Advocate of the petitioner made an oral request for certifying this case as fit for being taken to the Supreme Court. Since in this case there is no substantial point of law which, in our opinion, is required to be decided by the Supreme Court, the said request is rejected. Petition dismissed.
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1978 (6) TMI 161
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... ... ..... nting or performing the agreement cannot determine the matter. In any event, by reason of the frame of the question as referred to us we are only to interpret the agreement and determine the relationship of the parties therefrom. For the above reasons, we hold that the relationship between the applicant and the said M/s. V. D. Swami and Co. Pvt. Ltd. is that of a principal and an agent and answer question No. (1) in the negative and in favour of the assessee. We decline to answer question No. (2) for several reasons. Firstly, it appears to us the question as framed is unintelligible. Secondly, it appears to us that the said question as framed was neither mooted nor argued before the Tribunal. Thirdly, it seems that the appellant did not ask the Tribunal to refer this question but the Tribunal referred the same suo motu. The reference is disposed of accordingly. The applicant will be entitled to the costs of this reference. BANERJI, J.-I agree. Reference answered accordingly.
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1978 (6) TMI 160
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... ... ..... hat the legislature was competent to give retrospective effect to the definition of business introduced in that Act by an amendment. So far as this Court is concerned, the matter stands concluded by the decision in Shew Bhagwan Goenka 1973 32 S.T.C. 368., whereby the retrospective operation of the extended definition was struck down. No other decision in respect of the statute with which we are concerned has been cited. The decision is binding on us and we are only concerned with the statute as it stands after this judgment. In this view of the matter it cannot be said that the transactions effected by the respondent in the instant case by effecting sales in its canteen and by effecting sales of its old surplus and discarded materials were exigible to sales tax. The question is accordingly answered in the affirmative and in favour of the respondent. In the facts and circumstances, there will be no order as to costs. BANERJI, J.-I agree. Reference answered in the affirmative.
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1978 (6) TMI 159
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... ... ..... times the amount collected, it is contended that the levy of penalty at one and a half times at all times should not be automatic. Though it is not necessary for us to express any opinion on this question in this case, yet, we are not satisfied that the Board of Revenue, when it imposed penalty which the assessing authority itself thought of, was acting in any unreasonable way or in an arbitrary way. The argument on the quantum of penalty is, therefore, not sustainable. It is now rather wellsettled that in cases where there is a violation of the provisions of a taxing statute, the State has power not only to forfeit the amount collected, but also to levy a penalty as provided for in the taxing statute. This is what has been done by the revisional authority in the exercise of its suo motu power. We are, therefore, unable to interfere with the order of the Board of Revenue which sustained the penalty imposed by the original authority. The appeal is dismissed. Appeal dismissed.
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1978 (6) TMI 158
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... ... ..... takes a contrary view has been cited before us. We are of the opinion that in the absence of express power granted by the legislature to act retrospectively it is not open to a subordinate legislative body like the State Government to issue a notification either taking away vested rights or imposing obligations with retrospective effect. The third notification dated 29th September, 1972, to the extent it operated adversely against the petitioners in so far as the sales turnover of hand-made washing soaps relating to the period between 1st July, 1971, and 31st December, 1971, is concerned has therefore to be declared as ultra vires and we do so accordingly. The decisions of the Commercial Tax Officer, the Deputy Commissioner of Commercial Taxes and the Tribunal are therefore set aside. The Commercial Tax Officer is directed to revise the assessment in accordance with the notification dated 31st May, 1971. 5.. The petitions are accordingly allowed. No costs. Petitions allowed.
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1978 (6) TMI 157
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... ... ..... ve years before such commencement. Since section 8 of the Amendment Act contains a non obstante clause, the provisions of this section override the provision of section 25-A of the Act. Assuming for the sake of argument that section 25-A provides a time-limit of 5 years for completing rectification proceedings and not merely for initiating such proceedings, such time-limit of 5 years does not apply for completing rectification proceedings in respect of orders coming within the ambit of section 8 of the Amendment Act. 10.. In the present cases, the show cause notices had been issued before the commencement of the Amendment Act, that is, within the time-limit provided in section 8 of the Amendment Act. Hence there was no time-limit for completing the rectification proceedings by making the orders of rectification. 11.. In the result, these appeals fail and are dismissed. 12.. In the circumstances of these cases, we direct the parties to bear their own costs. Appeals dismissed.
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1978 (6) TMI 156
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... ... ..... ts deduction could not have been refused on the irrelevant ground that the contract was not entered into inside the forest or that the delivery was not made at the spot where the fuel had been collected. Whatever be the place of the contract, so long as in the invoices prepared by the petitioner freight was shown as an independent item and charged as such and it did not form part of the sale price specified in the invoices, the deduction which was otherwise claimable under rule 6(4)(f)(i) could not have been refused. 6.. We are of the opinion that no grounds have been made out for distinguishing the principles of our decision in Kutty and Co. v. State of Kerala(1) (T.R.C. Nos. 64, 65 and 66 of 1976). On the terms of the contract and incidents of the transaction disclosed, we are of the opinion that the deduction in respect of the freight or transportation charges was rightly allowed by the Tribunal. We dismiss these tax revision cases, but without costs. Petitions dismissed.
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1978 (6) TMI 155
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... ... ..... the Andhra Pradesh High Court in Seetharamaswamy and Co. v. Commercial Tax Officer 1960 11 S.T.C. 581 A.I.R. 1960 A.P. 451. If, therefore, it could not be said that there was prosecution of a dealer when penalty was sought to be imposed on him under section 16, the entire foundation of the contention of Mr. Padia must disappear and the applicability of article 20(2) must be rejected. We are, therefore, of the view that rule 51 in so far as it made it penal for any person to contravene the provisions of rule 10 was not violative of article 20(2) and the challenge levelled against its validity must fail. 3.. In the light of the above principle, with which we are in agreement, we cannot accept the contention of the counsel for the assessee that as a result of the order of composition under section 47 of the Act, the imposition of a penalty under section 19(2) would be barred. We dismiss this tax revision, in the circumstances, without any order as to costs. Petition dismissed.
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1978 (6) TMI 154
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... ... ..... r cutting or slaughtering goats or sheep can be said to have been manufactured after consuming the goat or sheep. The meat exposed for sale is still of goat or sheep, in the same way as dressed chicken is still chicken, or the sliced, canned and packed pineapple is still pineapple prepared from the raw fruit after the minimal process for making it marketable. To use the technical or commercial expression seen employed in the judicial decisions-it is only a case of meat on hoof having been prepared as meat or dressed meat for the purpose of sale in the market. ( Meat on hoof seems only to be the commercial expression for the live animal.) We are of the opinion that the conclusion and the reasoning of the Tribunal cannot be supported. We allow this tax revision case, set aside the orders of the Appellate Tribunal and the other authorities and hold that the assessee is not assessable to sales tax under section 5A of the Act. There will be no order as to costs. Petition allowed.
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1978 (6) TMI 153
Oppression and Mismanagement – Right to apply under section 397 and 398 ... ... ... ... ..... osed to be claimed in the petition. Therefore, the consent contemplated under section 399(3) is an intelligent consent, in the sense, a consent given for the purpose of making a particular allegation in the petition and for the purpose of claiming a particular relief therein and, therefore, a blanket consent as in the present case cannot be a consent as contemplated by section 399(3). Thus, a combined reading of section 399(1) and (3) will also reinforce the conclusions we have already reached. Under these circumstances, it is clear that the requirements of section 399(3) of the Act are not satisfied and, therefore, the company petition filed by the appellant herein was not maintainable and consequently was rightly dismissed. In this view, it is unnecessary to consider the effect of the affidavits filed by 73 out of the 147 persons who have subscribed their signatures to the annexure to the petition. Consequently, there is no substance in the appeal and the same is dismissed.
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1978 (6) TMI 152
Company – Incorporation of ... ... ... ... ..... injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty was resolved in his favour at the trial but the plaintiff s need for. such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff s undertaking in damages if the uncertainty were resolved in the defendant s favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies. The whole question for determination is whether the petitioner in law is entitled to act as a director and not whether he has been de facto functioning as a director. In view of the facts and the law as stated above, I am inclined not to pass any order on this application as such I dismiss the present application with costs.
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1978 (6) TMI 151
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... he company to voluntarily wind up the company in due course and distribute the surplus among the shareholders, it will be unjust and unequitable to allow any other course to be adopted after the lapse of about 4 frac12 years. Further, as I have already observed that the company still being a banking company in respect of which certificate under section 44(1) of the Banking Regulation Act having been granted by the Reserve Bank of India, it is just and equitable to wind up the company and nothing else. In that view of the matter, which I am bound to take on the facts which can hardly be disputed, in my view, it cannot be said at this stage that the winding-up petition is an abuse of the process of the court. Therefore, I am passing the following order The winding-up petition is admitted. There will be an advertisement once in the Statesman, once in the Basumati, and once in the Calcutta Gazette and the matter to appear in the list on 24th July, 1978. Stay asked for is refused.
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