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Case Laws
Showing 21 to 40 of 44 Records
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1959 (11) TMI 55 - HOUSE OF LORDS
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... ... ..... o close scrutiny, it was found to be studded with ambiguities and defaced by exceptions. It would, if accepted, put a greater burden on the taxpayer than ever the statute warrants, and it would introduce more confusion into a subject where enough already exists. I would ask your Lordships, therefore, to put on one side the proposition submitted by the Crown and to go back to the words of the statute. I do not find much help in any of the previous decisions; and the speeches in them cannot rule the day. They show the way in which judges look at cases, and in that sense are useful and suggestive, but in the last resort each case must be brought back to the test of the statutory words. So tested the question simply is Was this ? 350 received by Mr. Mayes a "profit" from his employment? I think not, for the simple reason that it was not a remuneration or reward or return for his services in any sense of the word. I would therefore dismiss this appeal. Appeal dismissed.
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1959 (11) TMI 54 - SUPREME COURT
Validity of the award made by the arbitrators to whom the matters in dispute between the parties were referred pending the present- litigation questioned
Held that:- High Court was right in answering the question against the appellants. Therefore the award is not open to the attack that it deals with immoveable properties out of the jurisdiction of the court.
The award is not and does not purport to be a final decree in the proceedings and the proceedings before the arbitrators substantially correspond to the proceedings of the enquiry which the Commissioner would have held even under the order of the High Court. Therefore this, contention must also fail.
The fact that a preliminary decree had been drawn up in the present case and it was based upon a judgment delivered by the court cannot exclude the application of s. 21. The judgment which had been delivered by the court not a final judgment contemplated by s. 21. The trial court would, therefore, have jurisdiction to make the order of reference. In the present case proceedings subsequent to the preliminary decree were pending before the trial court and so we must hold that the trial court was competent to act under s. 21. On that view the objection against the validity of the reference based on the provisions of s. 21 cannot succeed Appeal dismissed.
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1959 (11) TMI 53 - ANDHRA PRADESH HIGH COURT
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... ... ..... and the movement of the goods thereafter would largely depend upon certain circumstances and conditions which in no way form part of the sale transaction and with which the seller is in no way connected. In these circumstances the plea taken under Article 286(2) which fetters the legislative powers of the State to tax the sale in the course of interState trade and commerce is wholly devoid of force. That apart, even if it be assumed that the sale was in the course of inter-State trade, the transactions for the questioned period were protected by the President s Sales Tax Laws Validation Act (VII of 1956) which Act was brought into question in Sundararamier and Co. v. State of Andhra Pradesh 1958 9 S.T.C. 298 1958 S.C.J. 459. and was found to be quite valid and intra vires the powers of the Parliament. No further question now remains to be determined. Both the petitions would fail. They are, therefore, dismissed with costs. Advocate s fee Rs. 250 in each. Petitions dismissed.
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1959 (11) TMI 52 - ANDHRA PRADESH HIGH COURT
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... ... ..... ate of the final assessment. We therefore agree with the court below that the suits were filed in time and that they were not barred by limitation. The last question that remains for decision is whether the suits were barred under section 18-A of the Act. We are clearly of the opinion that section 18-A does not apply inasmuch as the suits are not to set aside or modify the assessment as contemplated by the section. What the plaintiff in each of the suits contends is that the Deputy Commercial Tax Officer had no jurisdiction to collect the assessment having regard to the clear terms of Article 286(1)(a) of the Constitution. That such suits are cognizable by civil courts is clearly laid down by the Privy Council in Secretary of State for India v. Mask and Co. 1940 2 M.L.J. 140 I.L.R. 1940 Mad. 599 L.R. 67 I.A. 222 (P.C.). We, therefore, overrule the contention that the suits were not maintainable. In the result, the appeals fail and are dismissed with costs. Appeals dismissed.
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1959 (11) TMI 51 - ANDHRA PRADESH HIGH COURT
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... ... ..... not in any way concerned with the export of goods though the purpose of purchasing so far as the assessee was concerned may be for export. The export of goods was not occasioned under the contract of sale. It is subsequent to the sale and the assessee on his own account sent the goods. The seller had nothing to do with the export nor was he interested in seeing that the movement of goods took place. The movement is regulated as per the terms agreed upon between the assessee and his principal with which the seller is not at all concerned. Thus having regard to the fact that the transactions were in substance intra-State sales and the movement of goods was not a direct result of the sale transaction, the sale is not a sale in the course of inter-State trade within the meaning of Article 286(2). On this basis the plea of the petitioner is without substance. The result is that this petition fails and it is hereby dismissed with costs. Advocate s fee Rs. 200. Petition dismissed.
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1959 (11) TMI 50 - MADHYA PRADESH HIGH COURT
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... ... ..... s ability to recover the tax from the customer or his willingness to do so. 7.. In this view of the matter, it is not necessary to consider whether the time taken by the opponent in registering the petitioner as a dealer under the Act was due to the petitioner s own default or was due to the inaction of the opponent. It must be noted that the cement which the petitioner sold was a controlled commodity subject to price control. Under the law of price control governing it, the amount of the sales tax could not be recovered by the petitioner from the purchaser. The question, therefore, of the petitioner sustaining any loss on account of the delay in his registration under the Act and his consequential disability to recover the amount of the sales tax from the purchaser does not arise. 8.. In consequence, this petition is dismissed with costs. Counsel s fee is fixed at Rs. 75. The outstanding amount of the security deposit shall be refunded to the petitioner. Petition dismissed.
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1959 (11) TMI 49 - ANDHRA PRADESH HIGH COURT
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... ... ..... te (Vide Doorga Prosad v. Secretary of State 1945 13 I.T.R. 285 at 286 (para. 6).). Apart from the question of the assessee being exposed to criminal prosecution under section 15 for non-payment of any fee due from him, it becomes a debt which can be recovered under section 52 of the Madras Revenue Recovery Act II of 1864, as amended by Act XV of 1939 under which all sums due to the State Government including compensation for any loss or damage sustained by them as a consequence of a breach of contract, may be recovered in the same manner as arrears of land revenue under the provisions of the Act, unless the recovery thereof shall have been or may hereafter be otherwise specially provided for. In the circumstances, the contention that the licence fee does not become due and the nonpayment of the same ends only in forfeiture of the privileges cannot be accepted. These revisions, therefore, fail and are dismissed with costs. Advocate s fee Rs. 100 in each. Petitions dismissed.
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1959 (11) TMI 48 - BOMBAY HIGH COURT
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... ... ..... rch, 1949. The verification in support of the petition and of the further affidavit of Dhirendra Nath Banerji show that the statements and the statement (exhibit C) annexed to the further affidavit are based on information derived from the records kept at the office of the petitioner. The records relied upon are not before this Court. The materials on the record do not show clearly whether the deduction claimed on this ground was at all disallowed and if so, on what ground. I have no doubt that it the points were pursued before Sinha, J., he would have called for further materials. In these circumstances, it will be a travesty of a justice if we allow Mr. Das to raise this point. We have, therefore, decided that Mr. Das ought not to be allowed to raise this point in this appeal. No other point has been argued before us. It must follow, therefore, that the appeal must fail. The appeal is dismissed with costs. Certified for two counsel. LAHIRI, C. J.-I agree. Appeal dismissed.
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1959 (11) TMI 47 - ANDHRA PRADESH HIGH COURT
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... ... ..... specified in sub-section 1955 S.C.J. 672 6 S.T.C. 446. of section 3 of the Andhra State Act, 1953, and the territories specified in sub-section (1) of Section 3 of the States Re-organisation Act, 1956, in the State of Andhra Pradesh and as a consequence of the re-organisation, the State of Hyderabad ceased to exist. Thereafter both the Telangana and Andhra areas constituted the territory of the State of Andhra Pradesh. The preservation of the pre-existing sales tax laws by reason of section 119 of the States Re-organisation Act has not the effect of constituting the movement of goods from one area of the State into another area an inter-State transaction. The territory of the State of Andhra Pradesh being one, the transaction in question must be held to be an intra-State sale and not an inter-State sale. That being the position of law, the petitioners contention is unsustainable. The revision case is therefore dismissed with costs. Advocates fee Rs. 100. Petition dismissed.
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1959 (11) TMI 46 - MADHYA PRADESH HIGH COURT
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... ... ..... axed, no matter whence they have come. But they must be taxed alike with all other such goods in the State. The tax must be general, and laid equally on all goods of the kind to be taxed, whether their State of origin be the taxing State or another. And what I say of tax applies to other imposts and burdens. The Supreme Court of America has laid down a similar rule under the American Constitution under its commerce clause (see Welton v. State of Missouri91 U.S. 275 23 L.Ed. 347. 9.. We are, therefore, of opinion that the provision in the Madhya Bharat Sales Tax Act (No. 30 of 1950) permitting the imposition of sales tax on sales of imported bura sugar in Madhya Bharat is discriminatory and unconstitutional and cannot be enforced against the petitioner. A writ shall accordingly issue prohibiting the respondents from levying or recovering any sales tax on the sale of bura sugar by the petitioner. 10.. The petition is allowed with costs. Counsel s fee Rs. 100. Petition allowed.
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1959 (11) TMI 45 - MADRAS HIGH COURT
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... ... ..... authority may appeal to the Commercial Tax Officer concerned . It is not necessary to set out the proviso or the other subrules of rule 13. Rule 1(1) specifically makes any original order of an assessing authority appealable. The order passed under rule 17(1) is an original order of assessment, and, in this case, it is an order of the assessing authority, because, as we have pointed out, it was the Deputy Commercial Tax Officer who came within the scope of the definition of assessing authority in section 2(a)(2). Therefore, the order passed under rule 17(1) was appealable under rule 13(1), subject, of course, to the other conditions specified in section 11. There was certainly nothing to indicate that any of the other provisions of section 11 barred the appeal by the assessee. The view of the Tribunal that the appeal preferred to the Commercial Tax Officer was maintainable is correct. The petition fails and is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1959 (11) TMI 44 - MADRAS HIGH COURT
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... ... ..... nstituted. The Port Trust Act does not constitute the Board of Trustees of the Port Trust for the purpose of carrying on any business in buying and selling with a view to make a profit. There would, therefore, be no liability on their part to pay sales tax on the charges collected in respect of the water supplied by it to the ships. The view of the lower court on this point cannot, therefore, be sustained. But on the other question, namely, the scope of section 18 of the General Sales Tax Act, we agree with the lower court that the provisions of the section would not be applicable to suits for recovery of amount illegally collected as sales tax, and that the rule of limitation applicable therefor is that contained in Article 62 of the Limitation Act. Vide State of Madras v. Abdul Kader 1953 4 S.T.C. 202 (1953) 2 M.L.J. 181.. The appellant would, therefore, be entitled to a decree for the entire amount claimed. The appeal will be allowed with costs throughout. Appeal allowed.
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1959 (11) TMI 43 - MADRAS HIGH COURT
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... ... ..... uld be deemed to have been made under a mistake of law. If ex hypothesi the refund was due it was due because of the judgment of this court upholding the objection to the validity of the charging provision there could be no mistake in law in making the refund and the mere fact that the proviso has been re-enacted with retrospective effect cannot have the effect of rendering the refund then made either illegal, unlawful or one under a mistake of law. If authority were needed for what I consider so obvious a proposition I might refer to the decision of Rajagopalan, J., in Soundarapandian and Bros. v. Agricultural Income-tax Officer (1957) 2 M.L.J. 434. . I consider that the demand for the repayment of the amount refunded is not justified by law, and that the petitioners are entitled to the reliefs which they seek by these petitions. The petitions are accordingly allowed and the rules nisi made absolute and the notices of demand quashed. No order as to costs. Petitions allowed.
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1959 (11) TMI 42 - MADRAS HIGH COURT
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... ... ..... ly a rule framed by the Government cannot conflict with a specific statutory provision vesting jurisdiction to assess escaped turnover in a specified authority, the assessment authority. We have already pointed out that the Madras Act did not contain any specific statutory provision either prescribing the officer who should assess escaped turnover or even specifically providing for the conditions under which escaped turnover could be assessed. Thus the position is that rule 17(1-A) and rule 17(3-A) of the Madras General Sales Tax Rules do not conflict with any express statutory provision in the Madras General Sales Tax Act. There is therefore no scope for applying to this case the principle laid down by the learned Judges of the Andhra High Court. Since the validity of rule 17(3-A) was the only substantial point taken in the proceedings before us and that fails, the petition has to be dismissed. The petition is dismissed with costs. Counsel s fee Rs. 100. Petition dismissed.
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1959 (11) TMI 41 - BIHAR
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... ... ..... nsiderably, by as much as 50 per cent. or so, an assessment to the best of judgment on a figure of Rs. 35,000 cannot be supported. Even the Inspector s report which is available on this occasion, although it does not deal with any transaction during the year in question, contains no basis of his estimate of a daily sale of Rs. 200. The reasons given about the location of his shop and the period during which it is kept open, are factors which have remained constant throughout the 6 year period, and offer no explanation for any significant increase over the -turnover assumed in the past. Taking all the circumstances into account, it appears to the Board proper that the turnover on which the assessment against the petitioner should be based, should be reduced to a figure of Rs. 24,000. The slight increase over the last year is justified by the higher amount returned by the assessee, as compared with the last year. 3. The petition is allowed on the above terms. Petition allowed.
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1959 (11) TMI 40 - MADRAS HIGH COURT
EXEMPTION SALE IN THE COURSE OF IMPORT SALE OF IMPORTED MILK POWDER ASSESSEE TAKING DELIVERY OF DOCUMENTS OF TITLE AFTER PAYING TO BANK CLEARING AGENT DELIVERING GOODS TO BUYERS WHO PRODUCE DELIVERY ORDERS ISSUED BY ASSESSEE WHETHER SALE BY ASSESSEE TO BUYERS A SALE IN THE COURSE OF IMPORT.
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1959 (11) TMI 39 - SUPREME COURT
Appeals filed by the State of Bihar (hereinafter called the appellant) against three separate registered dealers with a certificate issued by the Patna High Court under Article 132(1) of the Constitution that they involve a substantial question of law as to the interpretation of Article 20(1) of the Constitution
Held that:- In dealing with the question we cannot ignore the fact that the relevant provisions which fall to be construed in the present appeal impose a serious penalty on the registered dealer, and so, even if the view for which the appellant contends may perhaps be a possible view, we see no reason why the other view for which the first respondent contends and which appellant contends may perhaps be a possible view, we see no reason result we hold that the proviso to section 14A cannot be invoked against the first respondent and so the order of forfeiture passed against him by the second respondent is unjustified and illegal.
In view of this conclusion it is unnecessary to consider the objections raised by the first respondent against the validity of the proviso on the ground that it contravenes Articles 20(1) and 31(2) of the Constitution. We may incidentally add that during the course of the arguments before us we have also heard all the learned counsel on the question as to whether the said proviso contravenes the provisions of Article 19(1)(f) as well. Appeal dismissed.
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1959 (11) TMI 30 - HIGH COURT OF KERALA
Winding up Overriding preferential payments ... ... ... ... ..... in respect of any portion of the chitty debts due to the company left after satisfying the charge, since, in respect of that surplus, no third party has an interest and the matter is entirely one of an account between the chitty debtor concerned and the creditor foreman. It is said that the foreman should realise only so much of the chitty debts due to him as will suffice to satisfy the charge of his chitty creditors leaving balance in the hands of his chitty debtors so as to be available for set-off against the ordinary debts due to them. Alternatively, that he should rateably distribute any available surplus amongst his chitty debtors in payment of the ordinary debts due to them. To this extent, it is said my earlier statement that the surplus would be available to the general body of creditors requires qualification. This, I apprehend is something which will never actually happen and therefore I leave the question entirely open to decision against that most unlikely event.
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1959 (11) TMI 24 - HIGH COURT OF KERALA
Winding up Suits stayed on winding-up order, Debts of all descriptions to be admitted to proof and Avoidance of certain attachments, executions, etc.
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1959 (11) TMI 23 - HIGH COURT OF MADRAS
Amalgamation ... ... ... ... ..... e disclosure of the facts relating to the promotion, formation and working of joint stock companies and secondly, by enactment of such suitable provisions for the holding and conduct of company meetings as will enable active and competent shareholders to take an effective part in the business transacted in them. . . . (See T.R. Srinivasa Aiyangar s Companies Meetings, Accounts, Audit and Investigations 1957 page 14 and following T.R. Srinivasa Aiyangar s Companies Administration 1958 page 1 Gore-Browne s Handbook of Joint Stock Companies, 41st Edition, page 410 and following Buckley on the Companies Acts, 13th Edition, page 319 and following Ghosh s Indian Company Law, 10th Edition, Part II, section 789 and following). Therefore the applicant is directed to hold an extraordinary general meeting of the shareholders as contemplated by section 391 of the Companies Act as per rules, and then move this court under section 394 of the Act and which will be considered then on merits.
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