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1960 (9) TMI 126 - BOMBAY HIGH COURT
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... ... ..... ecuniary jurisdiction. After the Bombay Civil Courts Act became applicable to this area, the Civil Judge, Senior Division, will have jurisdiction to deal with the suit. The suit is yet on the file of the District Court. It must now be transferred to the Court of the Civil Judge, Senior Division, for disposal in accordance with law. Order accordingly. There will be no order as to costs of this Civil Revision Application. 9. The petitioner has made an application, being Civil Application No. 1325 of 1959, along with the Civil Revision Application, which I have just now decided, for appointment of a receiver. Since I have disposed of the Civil Revision Application, this application will not survive in this Court. But in-stead of asking the petitioner to make another application in the trial Court, I direct that this Civil Application be forwarded to the Civil Judge, Senior Division, who will deal with it on merits after giving an opportunity to the opponents to put in their say.
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1960 (9) TMI 125 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... with the provisions of the rule making provisions and in the guise of Section 16, Government cannot override or by-Pass either Section 8 or Section 40. Section 16 does not, therefore, dispense with the rule making duty of the Government. I find myself in agreement, also with the answer to the second question posed in the judgment of my brother Pandit, J. that no rule, to which reference has been made by the learned Advocate General, applies to the occupants of urban agricultural land in respect to payment of compensation, and, no provision has been made for the holders of this class of evacuee property. I also concur that where the provisions as to making of rules are mandatory, Press Notes or any other executive instructions are no substitutes for the statutory rules, and as such they have not the force of law and the petitioners, therefore, are not bound either by the Press Notes or the memorandum which are of no legal effect. I, therefore, subscribe to the order proposed.
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1960 (9) TMI 124 - SUPREME COURT
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... ... ..... ere therefore entitled to appropriate reliefs as prayed for in their petition under Art. 226 of the Constitution. 16. We therefore allow this appeal, set aside the order of the High Court and direct that the petition under Art. 226 of the Constitution be allowed and declare that the Punjab Forward Contracts Tax Act No. VII of 1951 is void and unconstitutional as it is ultra vires the powers of the State Legislature, that the notification made under the rules promulgated by the respondent under this Act are also void and unconstitutional, and that a mandamus do issue directing the respondent go allow the petitioners to carry on the business of forward contracts or as commission agents for forward contracts unrestricted by the provisions of the said Punjab Forward Contracts Tax Act No. VII of 1951 and the rules thereunder and not to enforce the provisions of this Act and the rules. The appellants will get their costs in this Court as also in the court below. 17. Appeal allowed.
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1960 (9) TMI 123 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... he earlier two "existing Indian Laws". As I have already said, there is no State law on the subject and there are only the "existing Indian laws" and those laws were enacted by the predecessor-in-interest of the Central Legislature and therefore the present law, which is again passed by the Central Legislature, would not, in any way, be held to be subservient to the existing Indian law on the ground that the field Occupied by the existing Indian law has now become the exclusive field of the State. 25. After giving the entire matter my careful consideration, I am of the view that the Central Act is a valid piece of legislation and must prevail over 'the existing Indian laws'' to the extent to which it comes in conflict with those laws. 26. For the reasons recorded above, these petitions must succeed. I, therefore, allow them and quash the orders of arrest issued against the petitioners. G.D. Khosla, C.J. 27. I agree. K.L. Gosain, J. 28. I agree.
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1960 (9) TMI 122 - HIGH COURT OF MADHYA PRADESH AT JABALPUR
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... ... ..... n the assessing authority has no other alternative but to make its own estimate of the escaped turnover and tax the assessee accordingly. In such a case, the question of the assessee being given an opportunity of leading rebuttal evidence cannot arise. Our answers to the questions referred to for decision are as follows (1) Under Section 10 of the Act the assessing authority has no jurisdiction to reopen the whole assessment ; it can only assess the tax payable on the turnover which has escaped assessment. (2) The best judgment assessment made in the present case is according to law. (3) It is not necessary for the assessing authority to prove affirmatively each and every specific item of the escaped turnover determined according to its best judgment, and as the assessee here did not appear and produce his account books the question of the assessee being given an opportunity of producing rebuttal evidence does not arise. There will be no order for the costs of this reference.
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1960 (9) TMI 121 - HIGH COURT OF MADRAS
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... ... ..... taken to mean that it has no real application to section 10 and that it controls only the main part of section 24(1). 7. In Commissioner of Income Tax v. Indo-Mercantile Bank Ltd. the Supreme Court had to consider the proper function of a proviso. They observed "The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect." The rule is not inflexible that a proviso cannot travel beyond the ambit of the main enactment. 8. In the result, the question is answered in the negative and against the assessee. The assessee will pay the costs, ₹ 250. Question answered in the negative.
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1960 (9) TMI 120 - KARNATAKA HIGH COURT
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... ... ..... m amount as the Company placed him under suspension in the first instance and later on dismissed him from service, and hence he is entitled to a direction from this Court to the Company to revive his policy without any further payment by him. We do not think that such a direction can be given. For whatever reasons it might be, the fact remains, the plaintiff has not paid his share of the premium amount and thus failed to perform his part of the contract. If the Company has unlawfully deprived him of the means to pay the premium and thereby caused him loss, he must seek other remedies. No provision of law was brought to our notice under which we could grant the injunction prayed. The plaintiff has clearly misconceived his relief if he has one. Hence the plaint claim in this regard is rejected. 19. In the result, both the appeal as well as the cross-objections fail and the same are dismissed with costs. Mir Iqbal Husain, J. 20.I agree. 21. Appeal and cross objections dismissed.
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1960 (9) TMI 119 - ALLAHABAD HIGH COURT OF
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... ... ..... tion was not void ab initio. If the sons could establish facts to warrant a finding that their interest in the joint family property could not be made liable for payment of the maintenance they could avoid the transaction. Learned counsel concedes that nothing has been done by the sons to avoid the charge. As such, we are of opinion that the charge is a liability on the entire family assets and the assessee family is entitled to a deduction of ₹ 6,000 under section 9(1)(iv) of the Income Tax Act. The second reason that the transaction is not obligatory is still more untenable. The liability on the family property to maintain the lady is a legal liability and the obligation which exists in law has only been crystallised and expressly recognised by Kunwar Krishna Chandra in the agreement relied upon. We are, therefore, the opinion that the question referred to the court should be answered in the affirmative. The assessee will have his costs which we assess of ₹ 200.
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1960 (9) TMI 118 - HIGH COURT OF PUNJAB AND HARIYANA
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... ... ..... light of the above discussion it is obvious that some of the employees who belong to the Federation would fall into the category of workmen as defined in the Act, namely those engaged in such activities of the Board as can be classed as industrial, while others would fall outside this category. Evidently the dispute involving those employees falling outside the category of workmen could not be an industrial dispute and the comprehensive reference would be invalid on this account. The result is that I would hold that both the awards are bud for want of jurisdiction on the grounds that the referring authority was the Central Government and not the Punjab Government in both cases and that the disputes were not industrial disputes in cases of Krishan Murti and some of the employees of the Cantonment Boards of Kasauli and Subathu and Dagshai. I would accordingly accept the petitions and quash the awards, but leave the parties to bear their own costs. Gurdev Singh, J. 18. I agree.
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1960 (9) TMI 117 - SUPREME COURT
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... ... ..... and what it has taken away with another; Dormer v. New Castle-upon-Tyne Corporation 1940 2 K.B. 204 (e) If two sections are repugnant, the known rule is that the last must prevail Wood v. Riley (1867-8) 3 C.P. 26 per Keating, J. (7) The power given to the Governor in regard to pardons is a specific power specially conferred as was vested in the colonial and British Governors in Indian provinces during British days. The power given to the court under Art. 142(1) is a general power exercisable for doing complete justice in any cause or matter. If they, i.e., arts. 161 and 142(1) deal with the same subject matter as is contended then art. 161 must prevail over art. 142(1) which is in accord with the constitutional position as above discussed. In the circumstances of this case I would grant the petitioner exemption prayed for and proceed to hear the special leave petition on merits. 92. BY COURT In view of the majority Judgment, the petition is dismissed. 93. Petition dismissed.
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1960 (9) TMI 116 - ANDHRA PRADESH HIGH COURT
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... ... ..... lay stress on the plant or the machinery being new and the allowance being confined to the year; of installation. In our opinion, the allowances could be only for one year. In this situation, we feel that in order to sustain a claim for the initial and additional depreciation allowances, the machinery must be regarded as a unit; spare parts, however costly they may be, could not be regarded as objects of claim in that behalf. We are of opinion that the principle enunciated by the Bombay High Court in Maneklal Vallabhdas v. Commissioner of Income-tax 1959 37 ITR 142 is sound, if we may say so with respect. We do not think we can share the view of the Madras High Court in Mir Mohd. Alt v. Commissioner of Income-tax 1960 38 ITR 413 . Hence the conclusion of the Tribunal affirming that of the Department cannot be successfully impeached. In the result, we answer the reference against the assessee and in favour of the Department. The assessee will pay the costs of the Department.
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1960 (9) TMI 115 - PUNJAB & HARYANA HIGH COURT
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... ... ..... ring whatsoever on the matter before us. I, therefore, find that in this case there has been no retransfer of the income from the trust property to the author of the trust, nor does the trust make any provision whatsoever which entitles him at any time named or in the future to reassume power over the income of the assets directly or indirectly. That being so, the case does not fall within the mischief of the first proviso, nor is the case covered by section 16(1)(c) ; the income from the shares must be deemed to be the income of the trust and not of the assessee. In this view of the matter the first question which is "whether the dividend income of the 300 shares of the Simbhaoli Sugar Mills Private Ltd. transferred by the assessee to S. Raghbir Singh Trust was the income of the assessee liable to tax" must be answered in the negative. The second question does not arise and I need not even set it out here. The reference is answered accordingly. Mahajan J.-I agree.
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1960 (9) TMI 114 - ANDHRA PRADESH HIGH COURT
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... ... ..... a theory cannot be sustained. It is not the division of the asset as being used for business and non-business purposes that is contemplated by the section but only apportionment of the depreciation allowance as between the use of it for business purposes and its use for non-business purposes. However, that need not detain us any longer as we are not convinced that such a proposition can be sustained either on the language of any section or on authority. If that were the correct view, we think that the Income-tax Officer could not adopt a different basis for the assessment year 1956-57 by taking into consideration the whole of the depreciation allowance permissible under clauses (vi) and (via ). Adopting the same procedure, he should have taken into account ₹ 630, in which case the loss sustained by the assessee would have been estimated at ₹ 708 and not ₹ 78. In the result, questions Nos. 1 and 2 referred to us should be answered in favour of the assessee.
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1960 (9) TMI 113 - PUNJAB & HARYANA HIGH COURT
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... ... ..... er section 26A of the Act is not a genuine firm. For this contention, he bases himself on two grounds (1)that the profits which were divided were not arrived at according to commercial principles ; and (2)that the income-tax payable by the partners was debited to the firm's accounts and not to the partner's individual accounts. So far as the second ground is concerned, it was not agitated before the Tribunal. Before the Tribunal, only the first ground was agitated and the Tribunal was of the view, and rightly so, that this was a matter relating to the internal affairs of the partnership and had no bearing upon the question of its genuineness. It is well settled that only those questions of law can be referred under section 66(2) of the Income-tax Act, which arise out of the order of the Tribunal. It appears to us that from the order of the Tribunal, no question of law at all arises. In this view of the matter, there is no force in this petition. Khosla, C.J.-I agree.
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1960 (9) TMI 112 - ALLAHABAD HIGH COURT
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... ... ..... there is no evidence to show that in doing so he intended to reduce or in fact reduced his business capital, the inference drawn by the taxing authorities that the oil mill was only an asset produced by a part of the business capital and retained the character of the capital itself cannot be said to be unjustified. We are, therefore, of opinion that the oil mill was a commercial asset and the first question should be answered in the affirmative. Section 2(5) of the Excess Profits Tax Act defines "business" as including any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufacture. Using a part of the capital already employed in a flour mill business by setting up an oil mill was an expansion of his business by the assessee and the income earned by letting out the oil mill on hire for some time before starting to run it himself was, in our opinion, income from business. We would, therefore, answer the second question also in the
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1960 (9) TMI 111 - SUPREME COURT
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... ... ..... o far as I can make out from the amended plaint, the suit related to the istimrari estate and the properties there of, moveable and immovable. 30. There was also an application to urge a constitutional point to the effect that if s. 119 is so construed as to bar a suit like the one in the present case, then it is violative of Art. 14 of the Constitution. This point was not pressed before us; therefore, it is unnecessary to explain the nature and incidents of these istimrari estates and the reasons for the classification made. The argument before us proceed on a pure question of construction, and I have addressed myself to that question only. 31. For the reasons already given, I hold that on a proper construction of Sections 23 and 119 of the Regulation, the present suit is barred. I would, accordingly, allow the appeal and dismiss the suit with costs. 32. BY COURT In accordance with the majority judgment of the Court, the appeal is dismissed with costs. 33. Appeal dismissed.
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1960 (9) TMI 110 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... not honour their underwriting agreements. This is a case in which share-holders are not likely to protect their interests and, in the past, they never showed any vigilance, otherwise, the company would not have found itself in the straits in which it is at present. In this case all the facts from which a conclusion can properly be drawn as to whether the company should be ordered to be wound up, or should be permitted to linger or have been placed on record. After giving anxious consideration to the arguments advanced at the Bar, I am of the view that this petition should succeed both under clauses (c) and (f) of section 433. I, therefore, order that the respondent company be would up the Court and I appoint the Official Liquidator attached to this Court as the Official Liquidator for carrying out the work of liquidation. He should take charge of the assets and records of the company and proceed with the work of the company's liquidation. LE/M/KSB. (7) Order accordingly.
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1960 (9) TMI 109 - ALLAHABAD HIGH COURT
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... ... ..... gested by the learned counsel for the appellant the sub-clause would really become meaningless for it would read "providing for social welfare and reform ..... of Hindu religious institutions of public character to all classes and sections of Hindus". The framers of the Constitution could not have intended the sub-clause to be read in this manner. 11. We, therefore, find no difficulty in agreeing with the learned Judge that the provisions of the Hindu Marriage Act which are being challenged in this case do not infringe Article 25 of the Constitution and are clearly protected by Clause (2) (b) of it. Rule 27 of the Government Servants' Conduct Rules only gives effect to those provisions. The appellant could not, therefore, avoid the provisions and the State was in the circumstances justified in refusing to grant him the permission he wanted. The petition of the appellant was thus rightly dismissed and the appeal must fail. It is accordingly dismissed with costs.
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1960 (9) TMI 108 - SUPREME COURT
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... ... ..... that, when possibly by failure to appreciate their error, the notification had been published, and the propriety and legality of its action was brought up before the Court by an application under 0. 39, r. 2(3), the attitude taken up by the State Government and persisted in upto hearing before us, has been one which we can hardly commend. If the Government had deliberately intended to disobey the order of the Court, because for any reason they considered it wrong, their conduct deserves the severest condemnation. If on the other hand it was merely a case of inadvertence and arose out of error, nothing would have been lost and there was everything to be gained, even in the matter of the prestige of the Government, by a frank avowal of the error committed by them and an expression of regret for the lapse, and it is lamentable that even at the stage of the hearing before us, there was no trace of any such attitude. The appeal fails and is dismissed with costs. Appeal dismissed.
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1960 (9) TMI 107 - HIGH COURT OF MADHYA PRADESH
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... ... ..... his place Neemuch is only forty miles from Mandsaur and is connected by bus as well as by train. When the case was taken up neither the defendant nor his witnesses were present and accordingly the plaintiff led evidence. The defendant's lawyer cross-examined them without any prayer for adjournment or objection. The defendant himself had sent a telegram which was received later on, that he had missed the train. But that was no reason why he could not have come by bus, All things considered, the defendant's conduct was most unbusinesslike, and only showed that he had really no defence worth the name. Be that as it may, quite independently of the defendant's conduct, I find that the suit was not timebarred. ( 8. ) I , accordingly, allow the appeal, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court. Costs throughout to the plaintiff-appellant and pleader's fee payable by the defendant-respondent.
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