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1951 (3) TMI 50 - HIGH COURT OF PATNA
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... ... ..... s largely circumstances of the case; but where the facts found indicate that it could not regarded as income the inference would be one of law. As already observed above, prima facie, salami was not income unless the Income Tax authorities show that there were circumstances to indicate that it was so. In the present case no such circumstances has been indicated by the revenue authorities. On the contrary the indentures which are on the record indicate that the salami was not in payment of advance rent. In my opinion, therefore, the two items of salami in the present case could not be assessed as revenue and therefore had to be excluded from the assessment. For these reasons the questions formulated have opt be answered in favour of the assessee and are answered accordingly. The assessee is entitled to his costs of this reference. Hearing fee, in the circumstances of this case, is assessed at ₹ 100 only. Vaidynathier Ramaswami, J. I agree. Reference answered accordingly.
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1951 (3) TMI 49 - BOMBAY HIGH COURT
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... ... ..... to tax for the assessment year 1942-43 is the same entity and the same assessee as the Hindu undivided family which was assessed for the year 1941-42. The mere fact that the registered firm consists of the same partners as the coparceners who constituted the Hindu undivided family does not lead to the conclusion that under the Income tax Act an identity has been established between the two assessees. In fact these two assesses are entirely different, and, therefore, it is not competent to the present assessee before us to claim a set off in respect of a loss incurred by an altogether different assessee who was assessed in 1941-42. The Tribunal has taken the same view and in our opinion that view has been rightly taken. 5. The result is that we must answer the questions as follows Question 1 in the negative. Questions 2 and 3 do not arise. Assessee to pay the costs. 6. The assessee has taken out a notice of motion which is not pressed by Mr. Kolah. Motion dismissed with costs.
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1951 (3) TMI 47 - ALLAHABAD HIGH COURT
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... ... ..... ch the learned Advocate for the respondent relied, a Division Bench held that, inspite of a change in the Tenancy law the civil Court still had jurisdiction to dispose of a suit of the nature which it was trying. Obviously, in such a case, no question arose of the return of the plaint to the proper Court because the civil Court was itself the proper Court. 12. It must, therefore, be held that the civil Court had no jurisdiction to proceed, with the trial of this case after the legislature had amended Section 180, U. P. Tenancy Act, in such a way as to confer jurisdiction on the rent Court even in cases instituted by tenants against trespassers. This appeal is allowed, the decrees of both the Courts below are set aside and the case is remanded to the trial Court with the direction that it shall return the plaint to the plaintiff for presentation to the proper Court. The defendant appellant is entitled to his costs of this appeal and of both the Courts below from the plaintiff.
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1951 (3) TMI 46 - MADRAS HIGH COURT
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... ... ..... different persons. The sale price was realised in London by the buyer's bank paying it to the Eastern Bank Ltd. who was acting on behalf of the sellers. That was the first receipt. It cannot be said that by subsequent adjustment towards the debt there was further receipt of the sale price by the sellers so as to attract the provisions of the Income-tax Act. The situation probably might have been different, and it is unnecessary to go into that, if the person who paid and received the sale price in the first instance happens to be one and the same person. That is not the case here. It is clearly a case where a receipt of the sale proceeds was in London exclusively and the subsequent adjustments made by the Eastern Bank would not at all affect the legal position and would not make the adjustment a further receipt in British India. We therefore think that the second question referred to us must also be answered in the affirmative, and against the Commissioner of Income-tax.
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1951 (3) TMI 45 - BOMBAY HIGH COURT
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... ... ..... ust property out of the possession of the joint family and it ceased to be the property of the joint family and the income derived from that property which went to Ratilal did not go to him as a member of the family but in his individual capacity and other members of that family ceased to have any interest in that property as members of the joint family. Frankly I must confess the interpretation of this section is not free from doubt. Perhaps it is possible to take the view for which the Advocate-General contends in which case it may be unnecessary to consider in what capacity any one of the settlors receives the benefit contemplated by the first proviso, but if the interpretation of this proviso is not free from doubt the benefit of that doubt must go to the subject rather than to the taxing authority. The result therefore is that we hold that the income in question is not the income of the joint Hindu family and the question referred to us will be answered in the negative.
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1951 (3) TMI 44 - PATNA HIGH COURT
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... ... ..... equirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications. The object is salutary and in their lordships' judgment the High Court will be well advised, before they entertain any question under the section, always to see that the preliminary statutory conditions have been fully observed." 11. It is necessary to state that the provisions of the corresponding section of the English Income Tax Act (8 and 9 Geo. 5 Ch. 40, Section 149) are different from those contained in Section 66 of the Indian Income-tax Act and the interpretation of Section 66 must depend upon a consideration of the language in which that section is couched and a reference to English practice is not apposite. 12. In the result I hold that the question referred to the High Court should be answered in the affirmative. The assessee must pay the cost of this reference. Sarjoo Prosad, J.-I entirely agree and have nothing to add.
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1951 (3) TMI 43 - MADRAS HIGH COURT
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... ... ..... ion, the agent immediately reported it for approval to the partners at Trichinopoly. The partner at Trichinopoly was giving directions to the Superintendent as to what should be done in connection with the management of the estate. The fact that the action of the superintendent has generally been approved by the partners only shows that the superintendent was doing his work properly and without giving occasion for complaint, The cumulative effect of the correspondence above referred to as well as the other circumstances adverted to by us clearly point to the fact that the control and management of the affairs of the assessee firm were not situated wholly out of British India. It is quite clear that some part of the control and management and the supervision of the affairs of the firm abided in Trichinopoly where all the partners resided. For these reasons, we answer the question referred to us in the affirmative and hold that the assessee firm is a resident in British India.
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1951 (3) TMI 42 - BOMBAY HIGH COURT
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... ... ..... nd not distributed amongst the shareholders as dividends. No question of distributing any of the profits between the 1st of January and the 1st of April, 1946, to the shareholders ever arose or could arise and, therefore, no question could arise of these profits constituting reserves during this period. The directors were never called upon to consider the question and in fact they did not consider the question as to whether part of the profits earned during this period should not be distributed as dividends but should be kept back for the purposes of the company. Therefore, we are unable to agree with the view taken by the Tribunal that the profits of the assessee company from the 1st of January to the 1st of April, 1946, should be included in the reserves contemplated by Rule 2 of the second Schedule. The result, therefore, is that we answer the first question referred to us in the affirmative and the second question in the negative. No order for the costs of the reference.
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1951 (3) TMI 41 - MADRAS HIGH COURT
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... ... ..... adopted the suggestion of the Tribunal as his own and proceeded to assess afresh on the basis of the Tribunal's opinion. This we consider he was not entitled to do under Section 34 and his order reopening the assessment under that section was therefore unauthorised. The question whether the requisites of Section 34 are fulfilled in a particular case must depend upon the facts and circumstances of each case and in our opinion the facts of the present case are fairly clear and the decision of the Tribunal is correct. It is unnecessary for us to examine the decisions that have been referred to us the more especially because the section has been radically amended in 1948 and much larger powers of revising the assessment have been given to the Revenue authority possibly because the provisions of the section as it stood were found to be inadequate to prevent escape of taxation. The question referred to us is answered in the negative and against the Commissioner of Income-tax.
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1951 (3) TMI 40 - MADRAS HIGH COURT
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... ... ..... iness during the chargeable accounting periods that are sought to be charged and assessed under the Excess Profits Tax Act, and if by the time the notice is issued the joint family ceased to exist there is no provision under the Act to assess that undivided family which has become defunct and there is no procedure by which service of notice requiring the undivided family to submit a return can be effected. It is no doubt a lacuna in the Act and the result may be unfortunate from the point of view of the department. But it cannot be helped as we have to construe the language of the section as it stands and it is not open to us to fill up the gaps in the legislation with a view to catch the profits of an assessee like the present, who taking advantage of the omission in the Act escapes assessment. We think therefore that the view taken by the Appellate Tribunal is correct and the question referred to us must be answered in favour of the respondent and against the Commissioner.
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1951 (3) TMI 39 - MYSORE HIGH COURT
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... ... ..... to have dealings to the extent of three or four lakhs of rupees & are not unfamiliar on their own showing with proceedings in Cts. They should have taken care to avoid suspicion being raised against them on account of the date being tampered with. So long back as 1884 it was held by Lord Den-man C. J. in Davidson and Cooper (1844) 67 R.R. 638 "that a party who has the custody of an instrument, made for his benefit is bound to preserve it in its original state & that any material alteration will vitiate the instrument." On the principle ex turpi causa non oritur actio (from a base cause no action arises) the pltfs. cannot seek any relief in Ct. on a document which is found to be materially altered. 8. The appeal is dismissed with costs. The defts. have in their written statement pressed for the pltfs. being prosecuted for altering the month with a view to make illegal gain. Let notices be issued to the applts. to show cause why they should not be prosecuted.
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1951 (3) TMI 38 - MADRAS HIGH COURT
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... ... ..... h India and that the price was paid in British India cannot be brushed aside. An unexecuted contract under which a person is entitled to buy or sell goods at advantageous prices has pecuniary value as a business asset -- 'See John Smith and Son v. Moore', (1921) 2 AC 13. The contract made by the assessee firm in British India in the course of its trade or business was a source of the profits made by the assessee, though the performance of the contract in an Indian State also contributed to the accrual of such profits. 10. Our answer to the questions referred to us is that the profits apportioned and attributed to that part of the business of the assessee carried on in Mysore and Cochin States would alone be exempt from excess profits tax under the third proviso to Section 5 of the Excess Profits Tax Act and that the rest of the profits would be liable to such tax. As each party has succeeded and failed in part there will be no order as to the costs of this reference.
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1951 (3) TMI 37 - BOMBAY HIGH COURT
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... ... ..... 9;abadi'. If that be so, there could not have been any mistake about his right to build. The Defendant as D.W. 1 does not say that he was either mistaken as to his rights or misled by the inactivity of the landlord. Nor is there anything to suggest that the landlord kept quiet knowing that the tenant was acting on a 'mistaken view' of his rights. It cannot therefore be held that the landlord acquiesced in the acts of the Appellant. 17. The Appellant tried to derive some support from the 'wajib-ul-arz'. But it does not help him. In fact Clause 7 is clear that the house sites are not transferable save under conditions applying to the transfer of holdings i.e. with the consent of the landlord. 18. The appeals are allowed with costs throughout. In each case the decree of the lower appellate Court is set aside and that of the trial Court is restored. 19. The Respondent is granted six months from the date of the decree of this Court for removing the structures.
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1951 (3) TMI 36 - SUPREME COURT
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... ... ..... exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. As already pointed out, there has been no such error in the present case; on the other hand, it seems to us that on both the previous occasions, the Chief Presidency Magistrate was right in holding that the accused was not guilty of any offence under sections 25 and 26 of the Indian Merchant Shipping Act. The order of the High Court is set aside and that of the Chief Presidency Magistrate is restored. The accused will stand acquitted of the charge. Order set aside.
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1951 (3) TMI 35 - MADRAS HIGH COURT
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... ... ..... Sir Kameswar Singh of Darbhanga 1942 2 M.L.J. 261; 10 I.T.R. 214 (P.C.. We are unable to accept the contention of the revenue authority that the expenditure in this case was incurred for the acquisition of fixed capital assets. The expenditure, as we already stated, did not create any new asset nor did it alter the character of the capital asset that had been acquired by the company under the contract. That remained unaltered. The asset, to defend the title to which the expenditure was incurred was an existing asset and was not acquired in consequence of the expenditure. Nor was there any improvement of the capital assets of the company by reason of the litigation. For these reasons we hold that the decision of the Appellate Tribunal was correct and that the reference must be answered in the affirmative and in favour of the company. The Commissioner of Income-tax shall pay a sum of ₹ 250 as costs of this reference to the assessee. Reference answered in the affirmative.
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1951 (3) TMI 34 - PATNA HIGH COURT
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... ... ..... compensation in the course of business or trade carried on by a trader. Upon the facts of that case the learned Judge held that the receipt of the decretal amount for damages by the assessee for wrongful detention of her movable property was not income within the meaning of the Income-tax Act and was therefore not liable to assessment. It is manifest that the facts are not in any way parallel to the facts of the present case. On the contrary it would seem that the amount of compensation received by the assessee is really a profit derived from the land and it was rightly held by the Appellate Tribunal that the assessee was liable to be taxed under the Act. Upon these grounds I hold that in the circumstances of the case the sum of ₹ 9,699 received by the assessee from the military authorities is taxable. The assessee must pay the cost of this reference to the Commissioner of Income-tax. Hearing fee ₹ 250. SARJOO PROSAD, J.--I agree. Reference answered accordingly.
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1951 (3) TMI 33 - MADRAS HIGH COURT
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... ... ..... ulate a certain test. Each case has therefore to be decided on its own facts. We have adverted to this case only to show that the refinements in the law have been carried to a very large extent and it is difficult always to decide the question when and under what circumstances letting of property may be treated as constituting business. The present case, however, in view of the provisions of the memorandum of association of the company, does not present any difficulty and the view taken by the Tribunal that the letting of the property by the assessee company did not constitute a business and that therefore the profits as well as the capital should not enter into the computation either of profits or of capital under the Excess Profits Tax Act seems to us to be correct. The question referred to us must be answered against the assessee. As the assessee has failed he must pay the costs of the Commissioner of Income-tax which we fix at ₹ 250. Reference answered accordingly.
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1951 (3) TMI 32 - BOMBAY HIGH COURT
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... ... ..... assing only one order. If one were to come to that conclusion it would mean that the power to make adjustments with regard to a particular transaction would be restricted to one adjustment only on one occasion and in one instance. The section gives unrestricted power to make adjustments with regard to one or more than one transaction and that power continues unabated until the Excess Profits Tax Officer is functus officio when he makes an assessment order under Section 14. Therefore, whether the facts before us constitute one transaction or more than one, it makes no difference to the power of the officer to pass such orders as he thinks proper in order to give effect to the provisions of Section 10A and in order to exercise the power conferred upon him by the Legislature. We, therefore, answer the questions referred to us as follows Question No. 1 in the negative. The second question does not arise. Assessee to pay the costs of the Reference. Reference answered accordingly.
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1951 (3) TMI 31 - MADRAS HIGH COURT
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... ... ..... right to get a firm registered subject to such conditions and limitations as were contemplated by that section and left to be provided for by rules framed by the Central Board of Revenue under the powers expressly conferred. I am, therefore, of opinion that Rules 2 and 6 preclude an authorised agent of a partner from signing an application on his behalf for the registration of a firm or for the renewal of a certificate of registration and that these rules are intra vires the rule-making authority, I would therefore answer the question referred to us in Referred Case No. 31 of 1950 in the affirmative and the first of the questions referred to us in Referred Case No. 33 of 1948 in the affirmative and the second of the questions in the negative. As the questions are answered in both cases against the assessee and in favour of the Commissioner of Income-tax, the former shall pay the latter a sum of ₹ 250 as costs one set for both the cases. Reference answered accordingly.
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1951 (3) TMI 30 - SUPREME COURT
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... ... ..... rial being with- out jurisdiction, and a further point in his favour is that the fatal blow on which the charge of murder is based, is not attributed to him but to another person and no definite overt acts are ascribed to him. We have no doubt that these facts will receive due consideration at the hands of the executive authorities. As the points involved in the petitions for special leave to appeal to this Court against the order of the High Court refusing to grant relief under article 226 of the Constitution are the same as those involved in the petitions under article 32, all the six petitions are dismissed. It may however be observed that in this case we have not con- sidered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by the High Court, and we reserve our opinion on that question. Petitions dismissed. Agent for the petitioners 1. N. Shroff. Agent for the respondents P.A. Mehta.
