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1958 (10) TMI 65 - BOMBAY HIGH COURT
... ... ... ... ..... orporation is directed not to give effect to the resolution made on 28-3-1958 so far as it relates to the prohibition of grant of licences to the persons desirous of selling meat in the weekly markets. The Corporation is further directed to consider and dispose of the applications, already made, if any, or such as may be made hereafter for licences for the sale of meat in the weekly markets in accordance with law. Costs of these petitions shall be paid by the Corporation. Only one set of counsel's fee is allowed. 43. Special Civil Application No. 222 of 1958 fails and is dismissed. We however make no order as to costs as the question about the alleged exorbitant nature of the fees demanded by the Corporation for the occupation of the stalls is not decided by us. 44. As regards Special Civil Application No. 243 of 1958 it fails and is dismissed. Taking into consideration the alleged poor circumstances of the petitioners we make no order as to costs. 45. Orders accordingly.
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1958 (10) TMI 64 - ALLAHABAD HIGH COURT
... ... ... ... ..... and with caution and only where such exercise is justified by the tested specifically laid down in the section itself....." Generally it may be stated that powers under Section 561-A to rehear a case can only be exercised where the facts of the case are shocking to the conscience. Section 561-A thus would not authorise this Court to rehear a case where the applicant or appellant was not heard due to some fault of his or of his counsel. BY THE COURT 105. Our answer to the question referred is as follows 1. That this Court has power to revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same. 2. That this can be done only in cases failing under one or the other of the three conditions mentioned in Section 561-A, namely (i) for the purpose of giving effect to any order passed under the Code of Criminal Procedure; (ii) for the purpose of preventing abuse of the process of any Court; (iii) for otherwise securing the ends of justice.
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1958 (10) TMI 63 - MADRAS HIGH COURT
... ... ... ... ..... involved the payment of ₹ 1,25,000 was entered into to enable the assessee company to continue its business freed of the managing agency, freed of the liability to pay the managing agents a monthly remuneration and 25 per cent. of the net profits every year. The quantum of payment was wholly reasonable from a businessman's point of view. It represented what the directors then thought was but three years' commission but actually it cost them less. In our opinion the only conclusion possible on the material on record is that this amount of ₹ 1,25,000 was expended by the assessee company in the relevant year of account wholly and exclusively for its business. The requirements of section 10(2) (xv) of the Act were satisfied. Our answer to the question is that the payment is deductible under the provisions of section 10(2)(xv) of the Act. The assessee will be entitled to the costs of this reference. Counsel's fee ₹ 250. Reference answered accordingly.
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1958 (10) TMI 62 - SUPREME COURT
... ... ... ... ..... the Govt. order is implemented. The District Inspector of Schools, Saran will please take the help of local Executive, in case of necessity. Sd./- Illegible. 25, 12 Inspector of Schools, Tirhut Divn. 11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also. As no legal justification is forthcoming on the side of the respondents for depriving the petitioners of their rights, whatever they are, in those properties, it follows that the petition has to be allowed, and the respondents have to be prohibited from interfering with the petitioners' properties aforesaid, except by authority of law. The respondents must pay the petitioners the costs of this petition. Senior counsel certified.
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1958 (10) TMI 61 - ANDHRA PRADESH HIGH COURT
... ... ... ... ..... onment till the rising of the Court is incapable of execution as provided by the sections of the Code of Criminal Procedure and does not therefore amount to the suffering of imprisonment within the meaning of the Code. The Subordinate Courts ought to take note of this fact. If they intend to give one day's imprisonment as being sufficient in the interests of justice having regard to the merits of the case, it is their plain duty of issue a warrant to the jail to confine the accused for one day and it is only when the accused suffers that one day's imprisonment in jail that he would have served the sentence. If the Court does not wish to send the person to jail, it must all the same commit the person to be kept in confinement in some other place provided for the purpose but where no such place other than the jail is provided by the Government, it is the plain duty of the Court to commit the accused to the nearest jail to imdergo his sentence even if it he for one day.
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1958 (10) TMI 60 - BOMBAY HIGH COURT
... ... ... ... ..... had rendered valuable services sincerely to the Maharaja and to the State, it was difficult for Mr. Kolah to argue before us that the assessee could not be regarded as in the employment of the Maharaja. But that is not all. The order dated 27th December, 1950, in terms proceeds on the footing that the Maharaja was the employer and the assessee was his employee. We do not think we would be in error in accepting for the purpose of this case the equation or equivalence which the Maharaja established between himself and his State. It is not necessary to draw on one's general knowledge in this case because the writings dated 22nd January, 1948, and 27th December, 1950, do show that the Maharaja regarded himself as the State. Therefore, Mr. Kolah in our judgment very rightly did not seek to rely on that contention. In fairness to Mr. Kolah, we must add that the point has not been conceded by him. Our answer to the question will be in the affirmative. Assessee to pay the costs.
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1958 (10) TMI 59 - MYSORE HIGH COURT
... ... ... ... ..... tention is not tenable. The notice mentioned in the proviso is a notice under clause (a) of subsection (1). When we refer to clause (a ) of sub-section (1), we find that the Income-tax Officer may in cases falling under clause (a) serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22. Subsection (2) of section 22 provides that the Income-tax Officer may serve a notice upon the assessee requiring him to furnish a return setting forth his total income during the previous year. Thus, the notice which has to be given under clause (a) of section 34 is a notice requiring the assessee to furnish a return of his total income during the previous year. Thus, it is clear that "any year" would be the year for which the return has to be furnished, i.e., the accounting year. In my opinion, therefore, there is no reason for us to alter our judgment already delivered. Narayana Pai, J.-I agree.
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1958 (10) TMI 58 - BOMBAY HIGH COURT
... ... ... ... ..... t, de hors the Extension Act. It turns on the construction to be put on paragraph 4 of the Order of 1949. Succinctly stated, the argument has been that the paragraph gave benefit of the relevant exemptions both to assessees who were non-residents in the taxable territories and those who were residents in the taxable territories. The identical point was raised before this court in Income-tax Reference No. 28 of 1955 decided by Chagla, C. J., and Tendolkar, J., on 20th February, 1956, in a matter, which, we are informed, has been carried to the Supreme Court. In that case, this very contention was negatived and we are bound by that decision. It is not necessary for us to examine this argument of Mr. Palkhivala. Our answer to the first part of question 1 will be in the negative and to the second part of the same question will also be in the negative. Our answer to question 2 will be in the negative. Our answer to question 3 will be in the affirmative. Assessee to pay the costs.
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1958 (10) TMI 57 - MADRAS HIGH COURT
... ... ... ... ..... the assessee appeals, the whole matter would be before the Assistant Commissioner, and, no express provision would be necessary to enable him to give directions in respect of a matter already before him. This would apply also to the Commissioner and the Income-tax Appellate Tribunal. It is only to enable the Income-tax Officer to take action in pursuance of a finding recorded or directions given in respect of an assessment different from that covered by the appeal or revision as the case may be that special provision would be necessary. To construe the proviso in the manner in which Mr. Subbaraya Aiyar invited us to do would be to make that proviso otiose. This is clearly a matter in which the Income-tax Officer has jurisdiction to act. What remedies are open to this petitioner against the decision of the Income-tax Officer do not arise for consideration now. The writ of prohibition asked for cannot issue. The rule nisi is discharged and the petition is dismissed with costs.
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1958 (10) TMI 56 - BOMBAY HIGH COURT
... ... ... ... ..... o their profit in the other business before the assessment of the unregistered firm, and that could be the only answer because in such a case there would be no assessment of the profits of the unregistered firm. Therefore, it is not possible to accept the contention that the assessment of the unregistered firm is a sine qua non to the right of a partner to claim a set-off in respect of his share of the losses in an unregistered firm. Moreover, Mr. Joshi's present argument is contrary to the principle laid down in the decisions to which we have already made reference. The fact that the assessee before us is not an individual but a registered firm does not make any difference. Our answer, therefore, to the second question will be that the assessee can claim a set-off in respect of its share of loss in an unregistered firm if the Income-tax authorities do not proceed to determine the loss of the unregistered firm and do not bring it to tax as permitted by section 23(5)(b ).
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1958 (10) TMI 55 - BOMBAY HIGH COURT
... ... ... ... ..... ncome. Now, we are in respectful agreement with the observations of Kama, J., and Chagla, J. as they then were, but the observations have little bearing on the issue before us and it is not necessary for us to discuss in this judgment the general nature and incidents of income in the context of tax law. Another aspect of this matter presented by learned counsel for the Revenue is founded on the concept that receipts after death did not change the character of the income. We have already made reference to this point and it is not necessary for us to discuss the same. We only mention it to note the argument sought to be founded on this concept. In the view we take of the matter, it is not necessary to discuss the question about the Hindu undivided family which was argued before the Tribunal. The whole argument turns principally on the application of section 24B and the view we take of the matter is in favour of the assessees. Our answer to the question will be in the negative.
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1958 (10) TMI 54 - PATNA HIGH COURT
... ... ... ... ..... ly for the purposes of the business is primarily a question of fact to be determined by the Income-tax authorities. It is contended on behalf of the assessee in this case that there is no evidence to support the finding of the Income-tax authorities on this question of fact. We do not accept this contention as correct. On the other hand, there are materials to support the finding that there was no nexus between the payments made to the two coparceners, Gulzarilal and Madanlal, and the profits of the partnership derived by the Hindu undivided family, and so the payments made were not justified on any principle of commercial expediency. We hold, therefore, that on the facts and circumstances of this case the assessee is not entitled to deduction of ₹ 3,850 from the assessment of income-tax for the relevant years under section 10(2)(xv) of the Income-tax Act. Accordingly, the question of law must be answered against the assessee and in favour of the Income-tax Department.
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1958 (10) TMI 53 - KERALA HIGH COURT
... ... ... ... ..... he result, A. S. No. 403 of 1955 is allowed to this extent viz., that the plaintiff is allowed to recover the amount decreed, by sale o# survey Nos. 27/3 and 4 and 2108/2 also. The general direction in the lower court's decree that the buildings in the properties will be sold last is set aside. A. S. No. 403 is dismissed in other respects. A. S. No. 411/55 is dismissed subject to the direction that the 2nd defendant's share in item 1 of Schedule A and the building bearing No. 8/367 will be sold last. 9. A. S. No. 349/55 is also dismissed subject to the direction that the building in items 2 and 3 of Schedule C will be sold after the sale of all the plaint items except the 2nd defendant's share in item 1 in Schedule A and the building No. 8/367. The plaintiff is allowed to bring all the properties to sale and the same will be sold subject to the directions made above. 10. In the circumstances of the case, the parties are directed to bear their costs in this court.
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1958 (10) TMI 52 - BOMBAY HIGH COURT
... ... ... ... ..... taxable but it should be assessed in the hands of the appellant in the manner stated above." 8. On this part of the order the question has been raised whether the order is valid in law. In view of the conclusion reached by us on the first question, it is not necessary to determine the second question. 9. Now, the argument of Mr. Samarth before us was mainly directed to the second question and the argument was that it was competent to the third Member to give those directions. It is difficult for us to accept Mr. Samarth's contention, but since we are not answering the second question it is not necessary for us to deal with the same. 10. Our answer to the first question will be facts and circumstances of the case the profit which accrued to the assessee on the purchase of the land by the partnership is ₹ 48,500. 11. As we have already mentioned, it is not necessary to answer the second question. 12. Assessee to pay the costs. 13. Reference answered accordingly.
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1958 (10) TMI 51 - SUPREME COURT
... ... ... ... ..... esting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties. For the reasons given above, it must be held that the judgment and decree passed by the High Court, in so far as they reverse those of the trial court, are erroneous, and must be set aside. The appeal is, accordingly, allowed with costs throughout, which are attributable to the single issue which has been decided in this Court. Appeal allowed.
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1958 (10) TMI 50 - KERALA HIGH COURT
... ... ... ... ..... t to those resolutions. Therefore, the decisions referred to above clearly show that the plaintiffs have a cause of action to agitate their grievances in the civil court and that civil courts have got jurisdiction to grant appropriate reliefs in such cases. 51. In this view, all the contentions of Mr. Abraham fail and the decrees and judgments of both lower courts are confirmed and this appeal dismissed with costs of plaintiffs. The trial court fixed the 1st of March 1958 as the date for holding the continuation meeting of the 37th annual general meeting. The learned District Judge fixed the date as 1-5-1958. 52. As that date also has expired we fix that the said meeting be held on Monday the 1st December 1958 for which the necessary steps will be taken by the Commissioner already appointed by the trial court. We also confirm the appointment of the Receiver to be in management till a proper Board is elected and we also confirm the other directions given to the said Receiver.
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1958 (10) TMI 49 - SUPREME COURT
... ... ... ... ..... ll have to be paid out of the estate of the deceased appellant or petitioner in revision, is the ground for giving the heir or legal representative a right - to continue the appeal or a privilege of maintaining or continuing a revision, the same principle should entitle him to question the correctness of the conviction itself, for, if the conviction remains, at least some fine, however nominal, will have to be paid by the heir or the legal representative out of the estate of the deceased. In our opinion, therefore, where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. For the reasons aforesaid, we allow the appeal, and remit the case to the High Court to be dealt with in accordance with law. Appeal allowed.
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1958 (10) TMI 48 - BOMBAY HIGH COURT
... ... ... ... ..... the business is being carried on by one or more of them, acting for all. In such a case the court has to ascertain the real intention and contract of the parties not merely from the writing itself but from the whole facts of the case. As was observed by Lord Justice Lindley in a well- known case "look at the facts; look at the evidence; look at the accounts; look at the way in which the parties acted; and see what is the proper inference from all that.....; co-owners keep accounts on a totally different footing." Now, we have linked at the facts of this case as also the evidence and we fail to see the existence of any business between the assessee, his wife and his two sons, who signed the partnership agreement. For the reasons given by us, our answers to the question will be that the assessee cannot be said to be carrying on business and it is not entitled to the benefits of registration under section 26A. Assessee to pay the costs. Reference answered accordingly.
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1958 (10) TMI 47 - BOMBAY HIGH COURT
... ... ... ... ..... gally the true nature of the sum under consideration could be held to be interest on securities of the assessee mills. That disposes of the first question before us. The other question is more consequential than an independent question and the assessee can succeed only if we were to hold that the securities were held by the Fund as bare trustees for the assessee. We must discountenance that contention. In our judgment, it was the Fund who owned the securities and held the securities, which were in payment of excess profits tax. In our opinion, the assessee was not in any manner legally or beneficially interested in the same and was not entitled to earn interest on the same in any capacity. Our answer to the first question will be in the negative. Our answer to the second question will also be in the negative. There is a notice of motion taken out by the assessee. The notice of motion will be dismissed with costs. Assessee to pay the costs. Questions answered in the negative.
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1958 (10) TMI 46 - BOMBAY HIGH COURT
... ... ... ... ..... d counsel for the Revenue. In such a case, the period of reasonable notice would certainly have been of more than six months. Of that we have no doubt. Therefore, the suggestion in this case that an inordinately larged sum was paid to the assessee by F.E. Dinshaw Ltd. cannot be accepted. Moreover there is not much of a sequitor to this. Ultimately the suggestion of counsel came to be that the arrangement was not what it seemed to be on the face of it. But as we have already observed, it is not for us in this case to question or doubt the geniuses of the arrangement recorded between the parties. There are two questions referred to us and the second question, as Mr. Joshi has rightly pointed out, does not arise if our opinion on the first question is in favour of the assessee. Our answer to the first question will be in the negative. In view of what we have decided, it is not necessary to answer the second question. Commissioner to pay the cost. Reference answered accordingly.
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