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1961 (9) TMI 107 - PATNA HIGH COURT
... ... ... ... ..... it up to the date of the institution of the suits; and the rate of interest allowed by the learned Subordinate Judge, that is, six per cent per annum, is quite reasonable. 16. To sum up, my findings are (1) The appellant failed to perform the contracts within a reasonable time and, therefore, the plaintiffs were justified in drawing the inference that the contracts had been revoked and rescinded by the appellant. (2) The contracts also became unenforceable on account of the uncertainty, want of mutuality, and the material differences between the terms contained in the tender notices read with the receipts granted to the plaintiffs and the terms embodied in the draft leases (3) The plaintiffs are entitled to refund of the amounts deposited by them along with interest, by way of damages, at the rate allowed by the court below. 17. In view of the aforesaid findings, the appeals are dismissed with costs and the judgment and the decree of the court below are affirmed. 18. I agree.
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1961 (9) TMI 106 - ALLAHABAD HIGH COURT
... ... ... ... ..... hin meaning of. .....Article 164 and hence the starting point of limitation for setting aside the ex parte decree would be the date of the decree and not when the defendant had the knowledge of the decree." This contention of the learned counsel, therefore, cannot be accepted. As observed above, the final decree having been passed without any notice or information, the Court had ample inherent power to set it aside within thirty days of the date of knowledge. 8. The revision is allowed with costs and the orders passed by the Courts below are set aside as also the final decree passed in the case. The case is sent back to the trial Court with the direction that it shall be readmitted and the proceedings for final decree shall be reopened and then proceeded with according to law after giving opportunity to the parties to contest the partition scheme in the light of the observations made above. 9. Record of the case shall be sent back to the Court below as early as possible.
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1961 (9) TMI 105 - MADHYA PRADESH HIGH
... ... ... ... ..... at, on fulfilment of certain conditions therein indicated, decrees may be passed on the foot of such transactions. That section itself is, therefore, an answer to the argument that such transactions must be regarded as illegal and void from the inception. Having regard to all these considerations. I am unable to accept, and I say so with the utmost respect, that the view taken in the Bombay High Court represents the correct legal position. In the view I have taken of the question of law referred to us, I would answer it in this way. If a money-lender does not have, and cannot produce, a registration certificate covering the date on which he advanced a loan, his suit for recovery of that loan is, for that reason alone, not liable to be dismissed. It will be sufficient compliance of Section 11-H of the Act if, during the pendency of the suit, he produces a registration certificate which is valid at the time of its production. P.V. Dixit, C.J. I agree. S.P. Bahrgava, J. I agree.
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1961 (9) TMI 104 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... best of his ability on the available data, even in a case where he may have reason to suspect that on full and reliable information becoming available the assessment may have to be reopened. It may be mentioned that in the course of the arguments some reference was made to the provisions of section 35(5) of the Act which was introduced with effect from the 1st of April, 1952. This sub-section makes a specific provisions for reopening the assessment of a partner in a firm when on the assessment or reassessment of the firm it is found that his share in the profits has not been included or has been incorrectly calculated, but it is agreed that this sub-section could not be invoked in the present case regarding the assessment made in September, 1949. In the circumstances, I would answer the question referred to us in the affirmative and order the assessee to bear the costs of the Commissioner. Counsels fee ₹ 250. TEK CHAND J. - I agree. Question answered in the affirmative.
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1961 (9) TMI 103 - HIGH COURT OF BOMBAY
... ... ... ... ..... rges, the amount was disallowed not because it had been paid out of profits or had been determined with reference to the profits of the business, but because he held it to be excessive and unnecessary and not a permissible deduction under section 10(2)(xv) of the said Act. There is good deal to be said for this view." 10. It is true that their Lordships have not expressed a final verdict on the question, namely, whether the second condition cannot be said to have been fulfilled by reason of the fact that the deduction was not allowed because the remuneration was considered as excessive. At the same time, they have observed that there is good deal to be said for this point. At page 188, their Lordships have said that the conditions laid down in the notification are cumulative and all of them have to be fulfilled before the assessee can claim the benefit of the exemption. 11. The result is that the applications fail and are dismissed with costs. 12. Applications dismissed.
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1961 (9) TMI 102 - RAJASTHAN HIGH COURT
... ... ... ... ..... on of Article 183 of the Limitation Act. The historical background of the High Courts in British India need not necessarily continue to haunt us in attributing the ordinary meaning to the expression "established by Royal Charter". These Rulers were also sovereigns in their own rights, competent to establish High Courts in the dominions by a royal proclamation. No other authority or power could establish such High Courts. The mere presence or absence of a formal ceremony presenting the grant of the Charter to the High Court in question would not affect the legal position if in substance the High Court was created by a royal proclamation under the royal sign manual. 38. For the above reasons I agree that the appeals should be disposed of in the manner indicated by my learned Brother. 39.BY ORDER OF THE COURT F.B. Civil Reference No. 19 of 1961 in D.B. Civil Execution First Appeal No. 8 of 1958 is allowed. D. B. Civil Execution First Appeal No. 33 of 1960 is dismissed.
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1961 (9) TMI 101 - BOMBAY HIGH COURT
... ... ... ... ..... the authority of Government is a Government industry, which as l have said, may be carried on directly by Government or by somebody or person nominated by Government for that purpose. No business owned by and carried on by a private person or a limited company can be a business carried on by or under the authority of Government. It seems to me that the words 'under the authority' mean much the same as 'on behalf of. It is to be noticed that in Section 2(g)(ii) 'employer' means in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority. With regard to such an industry, even if somebody has been authorised to carry on the work, nevertheless, the chief executive officer in all cases is to be regarded as the employer." 12. In my view, the Petitioners' contentions are not well founded. The petition is liable to be dismissed. 13. The petition is dismissed with costs. 14. Petition dismissed.
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1961 (9) TMI 100 - ALLAHABAD HIGH COURT
... ... ... ... ..... of the fact that stores had not been properly valued in the course of the years in dispute. 57. In connection with issue No. 12 it was urged that the application was a mala fide one as it has been filed to defeat the claim for several lacs of rupees which the respondents had preferred against the company. No materials have, however, been brought on record to show that the application was made with any such ulterior motive. The figures mentioned in the manufacturing accounts and the balance-sheets needed explanation and the explanation furnished by the directors in their case under Section 195 was not very satisfactory. The liquidator could, therefore, in good faith think that the respondents were responsible. I am in the circumstances not satisfied that the application was a mala fide one. 58. The result of the above discussion is that the respondents cannot be held liable to pay any amount to the company and the application must fail. It is accordingly dismissed with costs.
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1961 (9) TMI 99 - ALLAHABAD HIGH COURT
... ... ... ... ..... is liability, it is antecedently highly improbable that the statute should not go on to make that liability effective. A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable." From these observations it follows that section 46 should receive a liberal interpretation. On the decision of the Supreme Court already cited, it would be in consonance with the principle of interpretation, as laid down in the two English cases, that the word "tax" in section 46(1) should include additional tax, which a "penalty" under section 28(1)(c) really is. For the above reasons I am of the opinion that the Income-tax Officer had jurisdiction to impose a penalty under section 46(1) for nonpayment of the penalty imposed under section 28(1)(c). The writ petition has no force and is dismissed. But, in the circumstances, I make no order as to costs.
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1961 (9) TMI 98 - BOMBAY HIGH COURT
... ... ... ... ..... sions of law, it did not materially affect the assessment. The facts of this case, however, are different. The notice issued to the administrator under section 34 of the Act did not mention that he was required to deliver a return in respect of the income of the deceased. On the other hand, he was called upon to make a return of his income relating to the assessment year 1948-49. The return made by the assessee in fact related to his income of the assessment year 1948-49. The deemed dividend income has been added by the Income-tax Officer to the income of the assessee. These being the facts of the case, it is difficult to hold that the issuance of a notice under section 34(1)(b) was a mere irregularity not affecting the merits of the case. For reasons stated above, our answer to the first question is in the negative. In view of our answer to the first question, the second question does not survive. The assessee will be entitled to his costs. No order on the notice of motion.
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1961 (9) TMI 97 - CALCUTTA HIGH COURT
... ... ... ... ..... or reject the returns submitted to it. The provisions are clearly made under section 21 of the Insurance Act and under sub-clause (d) thereof the Controller can decline to accept any such return. But, in the present case, the fact whether he actually declined to accept such return is not established. For the reasons stated above, we hold that the surplus, miscalled profit, arising to the assessee company from the miscellaneous insurance transactions of a mutual character was not assessable under the Indian Income-tax Act, that, in any event, the assessee was entitled to deduct the reserves within the meaning of section 2(6C) read with rule 6 of the Schedule of the Indian Income-tax Act. We, therefore, accordingly answer the questions set out above. We answer the first question in the negative and the second question by holding that the assessee was justified in deducting the reserve and answer the question accordingly. The assessee is entitled to the costs of this reference.
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1961 (9) TMI 96 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... inclusive of 1944 for the purpose of deduction under section 10(5)(b) of the Act was the depreciation computed against the total world income and not the actual depreciation allowed against the total income. For the foregoing reasons, we answer the first question by saying that the depreciation allowed for the years up to and inclusive of 1944 in the assessment made in the taxable territories would be the depreciation which was actually allowed against the total income and not the depreciation computed against the total world income. The second question is concluded by the decision of the Supreme Court in Dewan Bahadur Ramgopal Mills Ltd. 's case (supra) and our answer to it is in the affirmative. The third question was not pressed and, therefore, no answer is necessary. The answer to the fourth question is that the depreciation "actually" allowed means the depreciation deducted in arriving at the taxable income. The assessee shall have costs of this reference.
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1961 (9) TMI 95 - PUNJAB & HARYANA HIGH COURT
... ... ... ... ..... to accomplish the result. On this premises statutes establishing procedure for collection of taxes are sometimes given liberal construction, as also legislation intended to prevent frauds upon the Revenue. But this argument does not appear to me to be of much assistance to the respondents in the case in hand. Section 34 in my view does not merely lay down a procedure for collecting a tax already imposed. In so far as the case in hand is concerned, this provision also deals with the determination of the assessees' liability to be taxed with the result that unless a case reasonably falls within its purview, the assessees cannot be lawfully taxed. In view of the above discussion, in my opinion, the impugned notice dated July 25, 1958, should be held to be barred by time and I would answer the question referred accordingly. The case will now go back to a learned single judge for disposing of the writ petition in accordance with law and in the light of the answer just given.
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1961 (9) TMI 94 - BOMBAY HIGH COURT
... ... ... ... ..... r opinion, the enlarged powers given to one of the partners are not inconsistent with the relationship of partners, since the partners to the agreement are entitled to fix such terms as they like between themselves. Both Mr. Kolah for the assessee, and Mr. Joshi for the revenue have invited our attention to some of the decided cases. It is not, however, necessary to discuss any of them because, whether the relationship of partnership exists in the case must be determined on the facts of each case. 5. In the view that we have taken, the assessee firm was entitled to the registration under section 26A of the Act in the assessment year and the order passed by the Commissioner cancelling the registration granted by the Income Tax Officer was erroneous and unjustified. The question, therefore, which has been framed in the present reference must be answered in the affirmative. The assessee will be entitled to his costs from the department. 6. Reference answered in the affirmative.
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1961 (9) TMI 93 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... ater part of his judgment observed as under -- "It may be argued that the right to sue in the State for the amount, or to be more precise, the right to continue the suit already filed in the State was transferred to the plaintiff and, therefore, it related to property situate or at least to a thing to be done in the State. The question to my mind does not seem to be free from doubt, and I have not been able to lay my hands on any direct authority on the point. The counsel for the parties also have not been able to assist me in its decision.............." (6) In view of what I have said above, I would accept this petition, set aside the judgment of the trial Court and hold that there award in question requires to be stamped in accordance with the provisions of the Indian Stamp Act before it is filed and made a rule of the Court. In the circumstances of this case, however, I would leave the parties to bear their own costs in this Court. (7) Revision petition allowed.
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1961 (9) TMI 92 - SUPREME COURT
... ... ... ... ..... of suits in civil courts on the grounds specified by cls. (a) to (g). Clause (c) deals with the ground that the relationship of landlord and tenant does not exist. This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court a.% contemplated is prescribed by s. 126(3) (c). That also has some bearing on the construction of s. 7(1); and it is for that limited purpose that we have referred to it. Therefore, we are satisfied that the High Court was in error in holding that under a. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the Respondents were the tenants of the appellant and that the civil court had no jurisdiction to entertain the said dispute. In the result, the appeal must be allowed, the order passed by the High Court set aside and that of the District Court restored with. costs throughout. Appeal allowed.
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1961 (9) TMI 91 - ALLAHABAD HIGH COURT
... ... ... ... ..... te and another as distinct from creating indirect or consequential impediment As observed in the above case, restrictions from which freedom is guaranteed by Article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Also see A.V. Fernandez v. State, (S) AIR 1955 Trav-Co. 126. 22. It cannot be said that the order regulating the movement of wheat within the State has a direct or immediate effect of restricting or impeding the trade between the State of Uttar Pradesh and other States. The Order is therefore not hit by Articles 301 302 and 303 of the Constitution. 23. In the result we allow the appeal, set aside the order of acquittal and convict and sentence the respondent to a fine of ₹ 250/- and in default to six months' R. I. under Section 7 of the Essential Commodities Act read with Clause 3 of the Order. The 72 bags of gujai, and if they have been sold their sale proceeds, are forfeited to the State.
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1961 (9) TMI 90 - SUPREME COURT
... ... ... ... ..... such a case if a property was jointly acquired by them, it would not be governed by the law of joint family ; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit.. Therefore, the rights inter se. between the. members who have acquired the said property would be subject to the terms of the agreement where under it was acquired. The concept of joint tenancy known to English law with the right of survivorship is -unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or components, with the. result that their properties passed by inheritance and not by survivorship. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.
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1961 (9) TMI 89 - BOMBAY HIGH COURT
... ... ... ... ..... property built between the years 1946 and 1956 is not sufficient. The assessee has also further to establish that that income is in his hands chargeable as income from property under the Act. This, as already stated above, the assessee has failed to establish. In the result, in our opinion, the assessee is not entitled to claim exemption in respect of the rental income of the Borivli property. In view of our aforesaid finding, it is not necessary to consider the other alternative question which was argued before us. Mr. Joshi, in the alternative, had argued that even if the assessee is entitled to claim exemption in respect of the rental income of the Borivli property for the year 1952-53, he could not be entitled to such exemption for the years 1953-54 and 1954-55. The question does not survive in view of our aforesaid finding. The answer to the reframed question is in the affirmative. The assessee shall pay the costs of the department. Question answered in the affirmative.
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1961 (9) TMI 88 - SUPREME COURT
... ... ... ... ..... hen on the terms of particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building. These considerations should not, in our opinion, affect the construction of the words "let for residence". 13. Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premises let are therefore "premises" to which under section 6(1) of the Rent Act the provision of part II of the Act, apply. 14. The Trial Court and the High Court were therefore right in holding that the City Civil Court, Bombay, had no jurisdiction to try the suits. 15. The appeals are accordingly dismissed with costs. There will be one set of hearing fee for the four appeals. 16. Appeal dismissed.
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