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1961 (2) TMI 100 - SUPREME COURT
... ... ... ... ..... Mujavar and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court. The trial court has found that the duties of those offices could be performed through deputies. The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted. We do not think that we would be justified in allowing the contesting defendants to argue this question in this appeal. In any event, if the income was being distributed amongst the four families, the plaintiffs and defendant No. 2 claiming under Fakruddin would, by virtue of the provisions of the Shariat Act, be entitled to receive that income. There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the duties of the offices of Peshimam , Khatib and Mujavar . 14. In that view of the case, this appeal fails and is dismissed with costs. 15. Appeal dismissed.
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1961 (2) TMI 99 - SUPREME COURT
... ... ... ... ..... id decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, r. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of s. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which s. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge to validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court. 13. The result is the appeal fails and is dismissed with costs. 14. Appeal dismissed.
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1961 (2) TMI 98 - BOMBAY HIGH COURT
... ... ... ... ..... ll probability they have not complied with the provisions of section 417 (1) and (2) and that that is the reason why a clear affidavit could not be filed by them. Unfortunately, the complainant did not base his complaint in the instant case upon a breach of the provisions of section 417, sub-section (1) or (2); but he limited himself to a breach of section 419, read with section 420, of the Indian Companies Act. Nothing that has been stated in this order will therefore bar the complainant from any further remedy that he may choose to seek. Subject to what we have stated above the appeal fails and is dismissed. (18) Mr. Khambatta at this stage points out to us that a civil suit has already been filed by his client against the company for wrongful dismissal and in fairness to both the parties to this appeal, we would like to make it clear that nothing that has been stated in the course of the judgment in this appeal shall affect the disposal of that suit. (19) Appeal dismissed.
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1961 (2) TMI 97 - BOMBAY HIGH COURT
... ... ... ... ..... ll probability they have not complied with the provisions of section 417 (1) and (2) and that that is the reason why a clear affidavit could not be filed by them. Unfortunately, the complainant did not base his complaint in the instant case upon a breach of the provisions of section 417, sub-section (1) or (2); but he limited himself to a breach of section 419, read with section 420, of the Indian Companies Act. Nothing that has been stated in this order will therefore bar the complainant from any further remedy that he may choose to seek. Subject to what we have stated above the appeal fails and is dismissed. (18) Mr. Khambatta at this stage points out to us that a civil suit has already been filed by his client against the company for wrongful dismissal and in fairness to both the parties to this appeal, we would like to make it clear that nothing that has been stated in the course of the judgment in this appeal shall affect the disposal of that suit. (19) Appeal dismissed.
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1961 (2) TMI 96 - MADRAS HIGH COURT
... ... ... ... ..... sessees in the reference under section 66(2) of the Act and came to the conclusion, that even if bringing in Mysore bonds constituted a remittance, it was a remittance of capital. Though that will be enough to give relief was a remittance of capital. Though that will be enough to give relief to the assessee in these proceedings, we propose to answer the reference under section 66(1) of the Act for the sake of completeness. Our answer to the reference under section 66(2) of the Act in R. C. Nos. 17 and 73 of 1957 is that Commissioner of Income-tax v. Muhammad Ismail Rowther concludes the issue, and that even if there was a remittance by the assessees themselves, the remittances were of capital. Our answer to the reference under section 66(1) of the Act in R. C. Nos. 26 and 36 of 1953 is in the negative and in favour of the assessee. Each of the assessees will be entitled to costs but only to one set of counsels fee Counsels fee ₹ 250. References answered in the negative.
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1961 (2) TMI 95 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... of the statement of reasons submitted by the Income-tax Officer, which I have set out above, for the purpose of obtaining the sanction of the Central Board of Revenue for initiating the proceedings. In that statement not only is there no allegation that the companys income for the years in question had been under-assessed because of any failure on their part to disclose the material facts, but also there is no point taken that the companys original assessments had been made without their filing returns under section 22. I am therefore of the opinion that this contention should not prevail. The result is that I hold that the necessary circumstances did not exist which would give the Income-tax Officer jurisdiction to issue the impugned notices under section 34(1)(a), and accepting the petitions, order that the proceedings taken on these notices be not continued. The respondents will pay the costs of the petitioner. Counsels fee ₹ 150 in each petition. Petitions allowed.
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1961 (2) TMI 94 - HIGH COURT OF MADRAS
... ... ... ... ..... ack to the years for which bonus was claimed, we shall refrain from a detailed examination of all the cases cited during the arguments before us. Without a detailed examination, we shall merely mention that Southern Railway Co., of Peru Ltd. v. Owen, to which the learned counsel for the department referred, was considered by the Supreme Court in Indian Molasses Co. v. Commissioner of Income Tax. The relevant passage is at page 79. The learned counsel for the assessee also referred to the criticism of the decision of the House of Lords in Southern Railway of Peru Ltd. v. Owen 1 in 72 Law Quarterly Review at page 486 ff. Our answer to the reference is that ₹ 54,140 is an allowable deduction in the assessment year 1952-53. The Tribunal should verify if ₹ 3,204 added back in the assessment year 1953-54 was included in the sum of ₹ 54,140, and if it was, it should be excluded. The assessee will be entitled to the costs of this reference. Counsels fee ₹ 250.
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1961 (2) TMI 93 - BOMBAY HIGH COURT
... ... ... ... ..... income, profits and gains of any of the partners of the firm; and where the assessee is a registered firm, any loss which cannot be set off against other income, profits and gains of the firm shall be apportioned between the partners of the firm and they alone shall be entitled to have the amount of the loss set off under this section." On the terms of this proviso, in our opinion, it is possible to take a view that where an unregistered firm incurs a loss that loss is not apportioned amongst its partners but remains the loss of the firm to be carried forward in its accounts of the next year for adjustment. For the reasons stated above, it cannot be said that it was not possible to take the view taken by the income-tax authorities in this case. That being the position, it is difficult to hold that the order impugned suffers from any infirmity or error apparent on the face of the record. The petition should, therefore, fail. The rule is accordingly discharged with costs.
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1961 (2) TMI 92 - BOMBAY HIGH COURT
... ... ... ... ..... ner as the case may be may in lieu of payment of refund, set off the amount to be refunded or any part of that amount against the tax (interest or penalty) if any remaining payable by the person to whom the refund is due. Now to call in aid this section, it has to be proved that refund is found to be due under the provisions of the Act to the person claiming the set off. The expression "found to be due" clearly means that there must, prior to the date set-off is claimed, be an adjudication whereunder an amount is found due by way of refund to the person claiming set-off. On the facts stated above it is clear that there has been no adjudication in favour of the petitioner where under any amount is found due to the petitioner. That being the position the provisions of this section in our opinion, are of no assistance to the petitioner. For reasons stated above, in our opinion the petition should fail. The rule is, therefore, discharged with costs. Petition dismissed.
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1961 (2) TMI 91 - MADRAS HIGH COURT
... ... ... ... ..... not constitute income was what was laid down in the United Service Club v. The Crown 1921 1 ITc 113. But that can be no longer considered good law for application to all cases of subscription to an association in view of what the Supreme Court has stated in Royal Western India Turf Club Ltd's case (supra) The contention of the assessee would appear to be well-founded, that had its income been assessable to tax, it was entitled to set off the net income assessed under section 9 of the Act against the deficiency that was bound to result had there been a computation of its income from other sources under section 12 of the Act. In view, however, of our answer to the first question, that the income of the assessee association from its property came within the scope of the exemption granted by section 4(3)(i) of the Act and was not assessable, there is no need for us to record a formal answer to the second question. The assessee will be entitled to the costs of this reference.
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1961 (2) TMI 90 - SUPREME COURT
... ... ... ... ..... they desired." It was an order for trial de novo on fresh pleadings and on all issues that may (1)(1933) L.R. 60 I.A. 76. arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this question was also left open to be tried before the Civil Judge. We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under Art. 133 (1) (c) of the Constitution. We accordingly vacate the certificate granted by the High Court and dismiss these appeals with costs. One hearing fee. Appeals dismissed.
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1961 (2) TMI 89 - CALCUTTA HIGH COURT
... ... ... ... ..... ion after that. In the present case the marriage took place on 18th December, 1947, and upon that the transfer became irrevocable from its very inception. It was argued that unless there…… is an express clause for retransfer or for re-assumption of control over the property in the transfer deed, it is not a revocable transfer. In my view this argument is not sound. If the nature or the terms of the transfer are such that under certain circumstances the property has to revert to the transferor, as for example, upon a failure of consideration, the provision of the Act is attracted. The expression "in any way" in the first proviso to clause (c) of section 16(1) of the Act is wide enough to cover such a case. The cases cited by the parties on this point have been dealt with by my learned brother at length and I do not propose to deal with them over again. I agree that question No. 1 should be answered in the affirmative and question No. 2 in the negative.
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1961 (2) TMI 88 - RAJASTHAN HIGH COURT
... ... ... ... ..... provisions of the Income-tax Act. Therefore, in the circumstances of this case we do not find that failure to serve notice under section 6 of the Public Demands Recovery Act has resulted in any such prejudice to the petitioners as to necessitate any direction that action should be taken under that provision and the proceeding should start from that stage over again. Otherwise it appears to us that the proceedings are in order and the Collector could transfer the certificate for execution and recovery of the amount to the Tehsildar who was his subordinate and within whose jurisdiction the petitioners reside. We, therefore, do not feel inclined to interfere merely because of non-compliance with the provisions of section 6 of the Public Demands Recovery Act, though we must in no sense be taken to commend any irregularity in adopting the proper procedure known to law in all such cases. The application, therefore, in the net result, fails and must be dismissed, but without costs.
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1961 (2) TMI 87 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... ctor or primary rule in statutory construction and it has to be gathered by keeping to the forefront the purpose behind the enactment of a given provision ; further, to ascertain such intent, it is legitimate and, indeed, highly desirable to seek aid from the other relevant provisions of the statute, because it is the statute read as a whole which best discloses the true intent of the lawgiver and the real legislative plan. It is in the circumstances permissible to read sub-section (2) of section 33 along with sub-section (5) of section 5, and so read, in the light of what I have just stated, I find it a little difficult to construe section 33(2) to mean that the Commissioner is prohibited by law from directing any Income-tax Officer, other than the one who, in fact, passed the assessment order, to appeal. With these observations, I concur that the question referred to us must be answered in the affirmative and further that the Commissioner of Income-tax will have his costs.
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1961 (2) TMI 86 - MADRAS HIGH COURT
... ... ... ... ..... he original assessment would not be open in what was virtually a reassessment under section 35(1) of the Act. Further, while the order dated September 29, 1955, which was subsequently set aside by the Income-tax Officer himself, showed ex facie that the petitioner was given credit for his share of the tax paid by the firm, the order dated February 19, 1959, did not show it. That order recorded that the assessed tax had already been paid by the assessee, but how the adjustments were carried out was not clear. Even apart from that, it should be clear, as we have already stated, that the same income could not be assessed twice, once as that of the firm and again as the income of the partners in violation of the statutory requirements of section 23(5)(a) and section 23(6) of the Act. The petition will be allowed. A writ of certiorari will issue setting aside the order dated February 19, 1959. In the circumstances of this case we direct the parties to bear their respective costs.
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1961 (2) TMI 85 - MADRAS HIGH COURT
... ... ... ... ..... ply to negotiable instruments, if the assignment of a Promissory note at a partition to a member of a joint family does not amount to a transfer by art of parties but by operation of law, no document in writing in support of the assignment is required under Section 130 of the Transfer of Property Act. Where property in a promissory note gets transferred by operation of law, the special modes of transfer envisaged in the Negotiable Instrument Act are not required, and a person to whom the property in the negotiable instruments stand so transferred is entitled to sue on the note as such. 29. The reference is answered accordingly. (This case coming on for final hearing before Srinivasan J. on 9th March 1961, the Court delivered the following JUDGMENT) 30. In view of the answer to the reference made to the Full Bench, the judgment and decree dismissing the suit have to be set aside. The suit is directed to be restored to file and disposed of on merits. No order as to costs here.
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1961 (2) TMI 84 - SUPREME COURT
... ... ... ... ..... ld certainly be a suitable sentence. But in this case,; there was a conflict of view even, in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice, that on April 16, 1960, the Central Government made another rule amending rule A-11.05 by inserting the word " curd " in the definition of butter and the amended definition.reads, " butter means the product prepared exclusively from milk, cream or. curd of cow or buffalo........... This must have been made to clarify the position in view of the conflicting decisions. In the circumstances, we think that a sentence of fine would meet the ends, of justice in the present case. We, therefore, set aside the sentence of two months' rigorous imprisonment and a fine of ₹ 250/- and instead sentence the appellant to pay a fine of ₹ 500/-. With this modification, the appeal is dismissed. Appeal dismissed.
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1961 (2) TMI 83 - MADRAS HIGH COURT
... ... ... ... ..... nder the Revenue Recovery Act on the basis, that all proceedings taken subsequent to the notification in the District Gazette on October 18, 1958, were in excess of the jurisdiction conferred on the revenue authorities by the Revenue Recovery Act. Since neither side has wholly succeeded we direct that the parties bear their respective costs. Before we completed the judgment, learned counsel for the Department brought to our notice the fact that the applications filed by the petitioner assessee under section 66(2) of the Act, T.C.P. Nos. 12, 13 and 14 of 1960, were disposed of on November 28, 1960, itself. In those cases the court refused to direct a reference on the question whether the assessments in any of the years was barred by limitation. This feature, however, that we stated earlier in the judgment that proceedings under section 66(2) of the Act were still pending, would in no way affect the reasoning in our judgment and our conclusions. Reference answered accordingly.
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1961 (2) TMI 82 - SUPREME COURT
... ... ... ... ..... y serious error was committed in incorporating that direction which would justify our interference. 7. Finally it was urged that the appellant was entitled to claim the loss suffered by him on account of defective work by way of an equitable set off in the claim made by the respondent in suits Nos. 55 of 1946-47 and 117 of 1945-46. But the appellant made a claim in a substantive suit for compensation for loss suffered by him because of the alleged defective work done by the respondent. That suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to re-agitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946-47, and no plea of equitable set off has been raised in the written statements in the companion suits. 8. In our view, there is no substance in any of the contentions raised. The appeals therefore fail and are dismissed with costs. One hearing fee. 9. Appeals dismissed.
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1961 (2) TMI 81 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... After hearing the learned counsel for the parties I am of the view that it has not been shown in the present case that the partnership in question offended the provisions of any Act or statutory rules or any term and condition of the licence. The same was, therefore, valid. 49. Since I have held that the partnership did in fact come into existence between the parties to this litigation and that it was a valid partnership; points Nos. 3 and 4 do not arise and no finding need be given thereon. The proper remedy for the plaintiffs was to file a suit for dissolution of partnership and rendition of accounts. The suit as framed is not maintainable and is liable to be dismissed. 50. In the result, I would accept this appeal and Appeal No. 2 of 1955, set aside the judgments and decrees of the Court below and dismiss the plaintiffs' suits. In the peculiar circumstances of these cases, however, I would leave the parties to bear their own costs throughout. I.D. Dua, J. 51. I agree.
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