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Showing 1 to 20 of 27 Records
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1952 (4) TMI 49 - BOMBAY HIGH COURT
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... ... ..... the matter and which vitiated the-whole institution of the suit to such an extent that the Court must consider that the suit was not properly instituted at all. If Sir John Beaumont was right in the view that he took, then the suit before the Privy Council was never instituted as far as the co-plaintiffs were concerned. Therefore, with very great respect, in my opinion the learned Chief Justice was in error in the view that he took. Ordinarily I would have been bound by his judgment as a judgment of co-ordinate authority, but there is the judgment of Mirza J. and also the judgment of the Privy Council to which I have referred. With respect I prefer the judgment of Mirza. J. in Nanjibhai v. Popatlal. 3 I, therefore, set aside the order passed by the learned Judge below and direct that, he should allow the plaintiff to amend the plaint by striking out the signature of the plaintiff's son and allowing the plaintiff to sign the plaint. No order as to costs. 4 Order set aside.
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1952 (4) TMI 48 - ITAT NAGPUR
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... ... ..... ent the decision is defective. It is always desirable to examine the contentions of the assessee and deliver a self-contained order under Section 33(4) giving the findings of fact and the decision on the questions of law arising therefrom. 17. Our answer to the second question therefore is neither Section 14(2)(c) nor the fact that the income, profits, or gains within an Indian State were not received in British India in the relevant accounting period affects the result that the loss of profits or gains in business in an Indian State can be taken into account in computing the profits and gains of business carried on in British India by the assessee who is resident of British India. 18. The result is that the assessee succeeds and will have the costs of this reference. Counsels fee ₹ 200. The Commissioner will pay the costs of the paper book. A copy of this judgment be sent to the Appellate Tribunal as required by Section 66(5) of the Act. Reference answered accordingly.
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1952 (4) TMI 47 - SUPREME COURT
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... ... ..... xpress any opinion as to whether certiorari has been taken a way - if it can taken away at all under our Constitution-by the provision of section 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any court of law. It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it (Vide Colonial Bank of Australasia v. Robert Willan, 5 P.C. Appeals 417. The result is, that in our opinion the appeal succeeds and the judgment of the High Court is set aside and the order of the Labour Commissioner affirmed. As the respondent was absent, we do not think it proper, in the circumstances of this case, to make any order for costs.
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1952 (4) TMI 46 - NAGPUR HIGH COURT
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... ... ..... nt must necessarily be held to be an interlocutory judgment and the collocation of words 'judgment decree or final order,' in section 205(1), Government of India Act makes it clear that no appeal is provided for against an interlocutory judgment or order. (129) To my mind, these decisions set the controversy at rest and make it clear that the word 'judgment' as occurring in clause 10 of the Letters Patent must be construed to mean in civil cases only 'a decree' as laid down by their Lordships of the Privy Council in the 'DAKORE TEMPLE CASE', A.I.R. 1925 P. C. 155. Respectfully disagreeing with my Lord the Chief Justice and Hidayatullah J., I therefore hold that the previous decisions of this Court, except the decision in 'DR. G. W. PANDIT v. PURUSHOTTAM VITHAL', L. P. A. No. 5 of 1950 (Nag.) which is not in consonance with these decisions, are correct. (130) Accordingly, I answer the question referred to the Full Bench in the negative.
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1952 (4) TMI 45 - BOMBAY HIGH COURT
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... ... ..... entral Board of Revenue. That order itself postulates relief being granted on the basis of a fact which can only be determined at a subsequent date. When that fact is determined it is found that the assessee is not entitled to the relief granted to it by the Central Board of Revenue. Therefore it is found that the assessee has obtained excessive relief and under Section 15 it has been deprived of that excessive relief upon discovery of the fact that it has used the buildings, plant or machinery for the purposes of its own business after the war. We, therefore, answer the first question submitted to us in the negative. The second question has not been properly framed. We therefore reframe that question as follows "Whether in view of the order passed by the Central Board of Revenue under Section 26(3) it was competent to the Excess Profits Tax Officer to revise the order under Section 15 of the Act ?", and having reframed it we answer the question in the affirmative.
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1952 (4) TMI 44 - MADRAS HIGH COURT
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... ... ..... iven cow or herd of cows yielded when they were pasture-fed and how much they yielded when they were primarily stall-fed. On an examination of the grounds furnished by the Tribunal we have to hold that there was no material on record on which they could come to the conclusion that the milk sold by the assessee in the accounting year was not agricultural produce, i.e., the produce of "husbandry" with its implication, that the cows were reared on the agricultural lands of the assessee and were primarily fed on the produce of those lands. There was no material to show that the profits of the sale of such milk constituted anything but agricultural income in the hands of the assessee. Our answer to the question referred to us for decision is that there was no material available to the Tribunal to hold that the income received from the sale of milk by the assessee during the accounting year was not "agricultural income" within the meaning of the Income-tax Act.
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1952 (4) TMI 43 - MADRAS HIGH COURT
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... ... ..... partnership deed, whatever the position might have been before 1940, this deed of partnership makes it clear that the income earned by these two persons as partners was not the income of the joint family but is the individual income of the partners. The circumstance under which the commission earned by the members of a Hindu undivided family. could be made an income of the Hindu undivided family was considered in this Court in Murugappa Chetty and Son' s case (supra ) As pointed out in that judgment, merely because in the previous years the assessee did not object to treat the income as income of the joint family (sic) would not convert the subsequent income which accrued into a joint family income unless the parties who have earned the income agreed to throw it into the common stock and blend it with the income of the joint family. For these reasons, we think that the question referred to us by the Tribunal must be answered in the negative and in favour of the assessee.
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1952 (4) TMI 42 - MADRAS HIGH COURT
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... ... ..... o the department to himself investigate the truth and correctness of the accounts of the assessees and not merely to act as their post office in transmitting them. We do not agree that the respondent is under any such duty to the department and, therefore, no question of negligence arises. We think it is necessary to comment on the inordinate delay, before concluding, in the institution of these proceedings. The statements complained of were made on 11th July, 1944, and 2nd October, 1944; they were found to be unacceptable by the department by its order dated 31st October, 1944; the assessment proceedings were themselves finally closed on 30th July, 1947, and this complaint is filed on 6th January, 1951. It is essential that charges of this kind should be made with promptitude. In the result we hold that the respondent is not guilty of any conduct which renders him unfit to be a member of the Institute. There will be no order for costs in this reference. Ordered accordingly.
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1952 (4) TMI 41 - SUPREME COURT
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... ... ..... ent) should not be calculated on the principle laid down in Radhacharan v. Maharaja Ranjit Singh (1918) 27 C.L.J. 532 but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal. It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage. Moreover, it seems to us that the claim has no substance in the absence of any evidence about the proportion the original patni rent bore to the revenue and cesses. 17. For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent, instead of six per cent. The parties will bear their own costs in all these appeals. 18. Appeals dismissed.
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1952 (4) TMI 40 - NAGPUR HIGH COURT
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... ... ..... inion. That opinion can be found in the order under Section 33(4) of the Act. It is unfair to the assessee that the Appellate Tribunal, which may not have given full consideration to his case in the appellate order, should supplement that order by giving additional reasons, and sometimes additional facts, to the prejudice of the assessee. In our view, the Tribunal should state all the facts which were considered by it in coming to the conclusion it did under Section 33(4), whether those facts are referred to in its order or in the orders of the Income-tax authorities and to refer to any document which may have been used in deciding the case. It is also necessary to state the case in restrained language even though the Tribunal considers an order of the High Court under Section 66(4) erroneous. The Tribunal is not called upon by the Act to express its opinion on the correctness or otherwise of the order which under law it is bound to carry out. Reference answered accordingly.
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1952 (4) TMI 39 - MADRAS HIGH COURT
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... ... ..... the succeeding year, however, instead of taking the value of the closing stock as the value of the opening stock he again adopted the cost price as the value of the opening stock for the succeeding year. This, it was pointed out, was not warranted and was opposed to principles of commercial accountancy and the rule that in arriving at trading profits the trader has the option of choosing either the market value or the cost price whichever is lower cannot be applied in the manner in which it was done by the assessee in that case. These decisions, in our opinion, clearly point to the conclusion that the method which the assessee has adopted in valuing the closing stock in the present case is not supported either on principle or authority. In these circumstances the question referred to us must be answered in the negative and against the assessee. As the assessee has failed he must pay the costs of the respondent which we fix at ₹ 250. Reference answered in the negative.
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1952 (4) TMI 38 - SUPREME COURT
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... ... ..... it from there. 21. The chaukidar is a very unsatisfactory witness and the learned Judicial Commissioner comments on his unsatisfactory demeanour. It is evident that he has not told the whole truth. It is also evident that the reasons given in the confession for the appellant's action after the murder are untrue. If he really wanted the villagers to know who had caused the murders, naturally he would have given himself up or, failing that, he would at least have left the Khukri, with which the murders were committed, behind and not merely the scabbard. It was pointless to leave behind a muffler, a ganji and one rubber shoe, which no one says are the appellant's, just for the purpose of inculpating himself. 22. Weighing the evidence as a whole, we are of opinion that there are large elements of doubt and that it would be unsafe to convict. Giving the appellant the benefit of the doubt, we set aside the conviction and sentence and direct that the appellant be released.
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1952 (4) TMI 37 - NAGPUR HIGH COURT
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... ... ..... permission to revise the return as originally filed after the assessee's dishonesty has come to the notice of the Income-tax Officer a penalty under Section 28(1)(c) can be imposed. It is not necessary to consider the hypothetical case of an assessee who submits a revised return and the application of the decisions in Commissioner of Income-tax, C.P. and U.P. v. Badridas Ramrai 1939 7 I.T.R. 613 and Attorney-General v. Midland Bank Executor and Trustee Company, Limited, as Marsh's Executor 1934 19 Tax Cas. 136 relied on by the learned counsel for the Commissioner and challenged by the other side. The High Court cannot be called upon to answer hypothetical questions which do not arise on the facts of the case. 8. The assessee fails and must pay the costs of this reference including the costs of paper book. Counsel's fee ₹ 100 a copy of this judgment be sent to the Appellate Tribunal in accordance with Section 66(5) of the Act. Reference answered accordingly.
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1952 (4) TMI 36 - MADRAS HIGH COURT
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... ... ..... ring and, therefore, not taxable, while in the other case which related to 158 kanals of land, the purchase was from the beginning a speculative purchase and the brothers intended to sell the land to their best advantage. It was held that it was not an investment of surplus capital but a purchase made with the sole and exclusive object of selling it at a profit when a suitable opportunity had occurred. This case itself brings out the distinction between, and explains under what circumstances the profits received by the sale of land would be a capital receipt and when it would be a decisions on the point. In our opinion, the sum of ₹ 9,397 also should be treated as a capital receipt. It, therefore, follows that the sum of ₹ 13,197 is exempt from tax and the second question must be answered in the negative and in favour of the assesses. As the assessee has substantially succeeded, he is entitled to costs, which we fix at ₹ 250. Reference answered accordingly.
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1952 (4) TMI 35 - MADRAS HIGH COURT
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... ... ..... antile. In view of what we have said above, the question whether the accounts maintained by the agents should be treated as the accounts of the assesses even when he maintained none of his own, does not arise for consideration. Even had these accounts of the agents not been produced, the Income-tax Officer would have had the right to adopt the mercantile basis of accounting for computing the income of Captain Alexander from his estates when he himself had not regularly employed any method of accounting for his income from that source. As the Tribunal observed, the correctness of the computation as finally made by the Assistant Commissioner was not challenged even before the Tribunal. The answer to the second question referred to us is in the affirmative and against the assesses. As the assessee, now represented by his widow, the legal representative, Mrs. Alexander, has failed, she will pay the costs of the Commissioner of Income-tax--Rs. 250. Reference answered accordingly.
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1952 (4) TMI 34 - SUPREME COURT
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... ... ..... he appellant. In any event, the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which, according to counsel, ought to have been put to the appellant. We pressed him several times to disclose that but he was unable to do so. As we said at the outset, the case is a very simple one in which a man was caught red-handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence. The murder was committed in day light and there was no dearth of eye-witnesses. Two have been believed, and in the case of the other two, certain statements made by them in the Sessions Court resiling from statements previously recorded in the committal proceedings have been disbelieved. The appeal fails and is dismissed. We see no reason to interfere with the sentence of death. Appeal dismissed.
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1952 (4) TMI 33 - NAGPUR HIGH COURT
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... ... ..... ntal rights (where other remedies become ineffective due to delay or otherwise) is not appro- priate in the instant case where the petitioner has the means and is willing to pay the tax and can take recourse to the ordinary modes of redress. 17.. As regards the new Explanation, we have already pointed out in Miscellaneous Civil Case No. 258 of 1951 decided today, that the amendment is ultra vires and that mere production of the goods would not be enough to make the tax payable unless the goods are appro- priated to a particular contract. To impose the tax at that stage would be tantamount to charging an excise duty and not a tax on the sale of goods. This opinion, however, is academic in both the cases since we are not really called upon to decide this matter in either of these two cases. 18.. With these remarks the application is dismissed. Counsel s fee Rs. 200. Application dismissed. Since reported as Shriram Gulabdas v. Board of Revenue, Madhya Pradesh 1952 3 S.T.C. 343.
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1952 (4) TMI 32 - NAGPUR HIGH COURT
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... ... ..... it clear that by virtue of Article 286 the Explanation can no longer be enforced because under the present Constitution the sales tax can only be col- lected at the market end where the goods are delivered for consumption. We may also state that the amended Explanation II is not validly enacted because it makes drastic changes in the rules as found in the Sale of Goods Act without obtaining the assent of the Governor- General. The effect of the amended Explanation going out would be to rehabilitate the old Explanation as it existed because the amend- ment being unconstitutional, will fail to work any change in the law (See the opinion given by one of us, Hidayatullah, J., in Laxmibai v. The State(1)). 53. In view of the fact that the decision is against the assessee, the assessee must bear the entire costs of this reference. The opinion will now be sent to the Board of Revenue for dealing with the case according to law. Counsel s fees Rs. 100. Reference answered accordingly.
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1952 (4) TMI 31 - MADRAS HIGH COURT
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... ... ..... ally disposes of this matter, though that fact in itself, even if true, cannot be a ground for enter- taining a writ of prohibition. Under Section 11 of the Act he can prefer an appeal against the order of the assessing authority and under the proviso to the section the payment of the tax admitted only is the condition precedent for preferring the appeal. Further the Tribunal under Section 12A can give directions in regard to the payment of the tax. Nor the circumstances that the decision may affect other persons is a ground for ignoring the statutory procedure and remedies. Even assuming there are some difficulties in the way of the petitioner, I do not think I am justified in issuing this extraordinary writ as the petitioner has an effective and satisfactory remedy under the Act itself. I should not be understood to have expressed any opinion on the merits of the contentions raised. The petition fails and is dismissed with costs. Advocate s fee Rs. 100. Petition dismissed.
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1952 (4) TMI 30 - MADHYA PRADESH HIGH COURT
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... ... ..... Commissioner s order contains some further details and refers to the objections taken by the assessee in its grounds of appeal. But even here, it is not clear whether in the case of sales from the dyeing department the assessee merely dyed the cloth and/or yarn brought to it by its customers or whether it sold to them cloth and/or yarn from its own stock after dyeing it in the manner desired by the customers. Similarly, in regard to sales from the mechanical department, it is not clear what exactly are the goods the sale price of which has been in- cluded in the turnover. In regard to both these items, further enquiry is necessary in the making of which the exact nature of the claim made by the assessee should be fully considered. In the result, the application fails in respect of all items but two dealt with in the last preceding paragraph. In regard to these items, the case is remanded to the learned Commissioner for further enquiry and fresh decision. Ordered accordingly.
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