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Showing 1 to 20 of 70 Records
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1962 (1) TMI 94 - ALLAHABAD HIGH COURT
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... ... ..... at even in a cash balance of a small amount almost the entire cash balance may be made up only of high denomination notes. When both the possibilities are there, it cannot be said that in taking the existence or non-existence of high denomination notes in a certain cash balance in a certain proportion the Tribunal could hold that the burden which rested upon the income-tax department stood discharged. It follows that it cannot be said in the circumstance of this case that the Tribunal had before it material for holding that the assessee could not have in possession any of the remaining thirteen high denomination notes also and that these remaining thirteen high denomination notes or any of them represented the income of the assessee from some undisclosed source. The result is that the question referred to us for opinion must be answered in the negative and we do so. The reference application is allowed with costs which we assess at Rs. 200. Questions answered in the negative.
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1962 (1) TMI 93 - SUPREME COURT
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... ... ..... elong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him can not asked for a refund of the money paid. It is a well-established principal that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither s. 65 nor s. 64 of the Indian Contract Act has any application. 14. For the reasons given above we have come to the conclusion that there in no merit in the appeal. The appeal is accordingly dismissed with costs. Appeal dismissed.
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1962 (1) TMI 92 - SUPREME COURT
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... ... ..... to non-holding or late holding the elections at the gram panchayat as also municipal level only for the purpose of showing that even in such a case, the operation of the existing statutes or implementation thereof has not been held to have ceased. Thus, unless an appropriate case is made out for issuing a direction upon the State to make a legislation in terms of Article 243W read with Twelfth Schedule of the Constitution of India, prima facie the provisions of the Act as also the rules and regulations framed under the MRTP Act relating to town planning as well as the land use or the building plans have not become otiose. As other questions raised by the petitioners are already covered by the earlier decision of the High Court, which is the subject matter of several special leave petitions pending judgment before this Court, we are of the opinion that no fruitful purpose would be served in entertaining the special leave petition at this stage, which is accordingly dismissed.
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1962 (1) TMI 91 - SUPREME COURT
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... ... ..... rs cannot be exercised to do what the Code specifically prohibits the Court from doing. Sri Tripathi was competent to consider when the other party raised the objection whether the appeal was validly up for re-hearing before him. He considered the question and decided it rightly. It is also urged for the appellants that Sri Tej Pal Singh, had the jurisdiction to pas orders on the application presented by the appellants on December 17,1956, praying for the re-hearing of the appeal and that therefore his order could not be said to have been absolutely without jurisdiction. We do not agree. He certainly had jurisdiction to dispose of the application presented to him, but when s. 369, of the Code definitely prohibited the Court's reviewing or altering its judgment, he had no jurisdiction to consider the point raised and to set aside the order dismissing the appeal and order its re- hearing. We therefore see no force in this appeal and accordingly dismiss it. Appeal dismissed.
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1962 (1) TMI 90 - HIGH COURT OF MADRAS
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... ... ..... r expended wholly and exclusively for the purpose of the land. But the borrowed capital cannot be claimed as deduction as the spending of the amount is in the nature of a capital expense. Interest paid on such borrowing would however stand on a different footing as the expense incurred by paying interest is not a capital expense; but yet it is laid out and expended wholly and exclusively for the purpose of the land. 10. The Division Bench referred to above has, in our opinion, quite rightly, if we may say so with respect, taken the view that interest paid on borrowed capital for acquisition of the estate will be a permissible deduction under section 5 (e) of the Act. We find ourselves completely in agreement with the reasoning and conclusion of that decision. We, therefore, hold that the deduction claimed by the petitioners in these cases ought to have been allowed in computing the agricultural income. These petitions are allowed. There will, however, be no order as to costs.
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1962 (1) TMI 89 - ANDHRA PRADESH HIGH COURT
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... ... ..... ing that year. The same view is taken by a Division Bench of the Madhya Pradesh High Court in Seth Kalekhan Mohammed Hanif v. Commissioner of Income Tax. At page 677 the learned judges observed as follows "We think that once the case is reopened under section 34 of the Income Tax Act, the Income Tax Officer is not limited to the information which he had received and on the strength of which he had asked for a reopening and reassessment of the assessee. If he were to discover other cash credits, he is entitled to take them into account in the income of the assessee and to assess such income if it had escaped assessment earlier." 7. Following the above two decisions and on a true construction of section 34(1) (b), we are inclined to take the view that the entire income that had escaped assessment should be taxed. We, therefore, answer the question accordingly. The respondent is entitled to costs. Advocates fee is fixed at ₹ 150. 8. Question answered accordingly.
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1962 (1) TMI 88 - GAUHATI HIGH COURT
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... ... ..... iately preceding the year of assessment. Mr. Chaudhary contends that the entire file of assessment of the assessee for the previous year is placed before the Income Tax Officer at the time of making assessment and when the Appellate Assistant Commissioner refers to the order of his predecessor, he must have looked into the assessment file for the preceding year. As I have already said the orders passed by the Income Tax Officer, the Appellate Assistant Commissioner and the Tribunal are all based on different reasonings and different set of materials. We do not find any evidence on the record to justify the assessment. The order of the Income Tax Officer estimating the yield of the oil and oil cake at 32% and 66% respectively and allowing a refraction of 2% is based purely on conjecture. We, accordingly, answer the two questions in the negative. The assessee is entitled to his costs which we assess at ₹ 100. S.K. Dutta, J. I agree. 17. Questions answered in the negative.
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1962 (1) TMI 87 - PUNJAB & HARYANA HIGH COURT
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... ... ..... urt.” Thus, the provisions of the Indian Limitation Act do not apply to arbitrations other than those conducted under the Indian Arbitration Act. A Division Bench authority of the Bombay High Court (Shah and Gokhale JJ.) in Savitra Khanda Boradi v. Nagar Agricultural Sale and Purchase Co-operative Society Ltd., Ahmednagar . A.I.R 1957 Bom. 178., has been cited in support of this proposition. It was observed by the Bombay High Court in this case that “it cannot, therefore, be said that in terms the provisions of the Limitation Act prevent an arbitrator from entertaining a claim which, if made in a Court of law, may be barred by limitation.” Even assuming that the claim of the Society against the petitioner is barred by time, the arbitrator can still give and award in favour of the party and no challenge can be offered to it under the Arbitration Act itself. 7. Thus there is no force in this petition which fails and is dismissed with costs. Petition dismissed.
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1962 (1) TMI 86 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ive Government for which there is no prima facie justification and of which the petitioner was not even given a notice of. The action of the executive cannot be defended on the vague formula of "administrative grounds" as observed by Basi Reddy, J. in K. Venkataramaiah v. State of Andhra Pradesh. (7) Mr. Jindra Lal has very strongly contended that the pension given to the petitioner was a matter of grace and bounty not founded on any legal right. No reference has been made in support of this proposition to any law or statutory rules and considering that the petitioner had enjoyed this pension for a span of many years I feel bound to hold that there has been a very serious interference with and grave violation of a right which must in the context be regarded as property right. In this view of the matter the petition must succeed and the order of cancellation of pension set aside. The petitioner would get the costs of these proceedings. HF/V.B.B. (8) Petition allowed.
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1962 (1) TMI 85 - HIGH COURT OF PATNA
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... ... ..... idhar Tejpal v. Commissioner of Income Tax, where it was held, upon the facts of the case, that there was sufficient material to hold that there was willful suppression by the assessee of the particulars of his income within the meaning of section 28(1)(c) of the Income Tax Act. Having perused the order of the Income Tax Appellate Tribunal in this can, we are of opinion that the present case falls within the principle laid down in the earlier case, Khemraj Chagganlal v. Commissioner of Income Tax and not than laid down in the latter case, Murlidhar Tejpal v. Commissioner of Income Tax. We are accordingly of opinion that in the facts and circumstances of this case the penalty imposed under section 28(1)(c) of the Income Tax Act upon the assessee is not legally valid. We answer the second question of law, therefore, in favour of the assessee and against the Income Tax department. In the circumstances of this case we do not propose to make any order as to costs of this reference
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1962 (1) TMI 84 - CALCUTTA HIGH COURT
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... ... ..... e was not made solely with t(sic) object of supplying evidence of the debt. 6. No other point has been argued before us. The amount of the debt is admitted. T(sic) assignment of the debt in favour of the plaintiff (sic) sufficiently proved. It must follow, therefore, th(sic) the plaintiff is entitled to a decree as claimed (sic) the plaint We pass the following order. 7. The appeal is allowed. The judgment and decree passed by the learned trial Judge i(sic) set aside. There will be a decree in favour of the plaintiff Prokash Chandra Kishenlal against (sic) defendant Kays Construction Co. for the sum of ₹ 7,651/9/- with interim interest at the rate of 6% per annum from August 19, 1957 up to tod(sic) and interest on decree on the principal sum of ₹ 7,651/9/-. The defendant Kays Construction Co. do pay to the plaintiff Prokash Chand (sic) Kishenlal the costs of and incidental to the suit (sic) also the costs of and incidental to this appeal. Das Gupta, J. 8. I agree.
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1962 (1) TMI 83 - CALCUTTA HIGH COURT
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... ... ..... aid" in section 10(5) was ex abundanti cautela and the result would have been the same even if the word "paid" was not interpreted as provided for. I find myself unable to accept this contention. There was no need to give such an interpretation at all in that event. As the taxation of what is not trading receipt is the result of a fiction the scope of the same ought to be strictly limited. It is legitimate to infer that the legislature thought that it would not be right to take ways a portion of the insurance moneys even before the same were actually received. On behalf of the assessee it was argued that the proper way to look at it was to treat a portion of the insurance moneys as profit only in case it reached the hands of the assessee and in my view this construction should be upheld. The question should therefore, be answered in the negative. The assessee will have the costs of the reference. Asim Kumar Ray, J. - I agree. Question answered in the negative.
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1962 (1) TMI 82 - CALCUTTA HIGH COURT
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... ... ..... ined at this stage in view of the finding recorded. I find no difficulty in holding that the "capital paid in surplus", which remained constant from 1934 to 1945, can also be treated as a reserve in the light of the above. The accounts of the company clearly show that it was a surplus which came in as a result of the issue of shares in 1934. It remained undisturbed for eleven years and has figured in the accounts in the same way as its paid up capital. It really partakes of the nature of a reserve. Moreover, it has never been allowed in the computation of the profits of the assessee under the Indian Income-tax Act, 1922, and, therefore, it fulfils the test laid down in rule 2(1) of Schedule II to the Act. The questions referred to this court must therefore be answered as follows Question 1 in the affirmative. Question 2 in the affirmative. Question 3 in the affirmative. The assessee will have the costs of this reference. Certified for two counsel. Ray J. - I agree.
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1962 (1) TMI 81 - CALCUTTA HIGH COURT
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... ... ..... ate of Bihar 1961 12 STC 449; 1962 2 SCR 81; AIR 1961 SC 1615 and Venkateswaran v. Ramchand Sobhraj Wadhwani 1962 1 SCR 753; AIR 1961 SC 1506, and to the cases of Calcutta Discount Co. v. Income-tax Officer, Calcutta 1961 41 ITR 191 , 207-208; 1961 2 SCR 241, and Bidi Supply Co. v. Union of India 1956 29 ITR 717 ; 1956 SCR 267; AIR 1956 SC 479. But I do not think it is necessary to deal with these cases at length or to express any opinion on this point. Our attention was also drawn to the cases of B.M. Desai v. Ramamurthy, Income-tax Officer, Bombay 1958 34 ITR 409; Haramohan Poddar v. Sudarson Poddar AIR 1921 Cal. 538; 25 CWN 847, 850 and to two English cases, Attorney-General v. Partington LR 4 HL 100, 122 and Cape Brandy Syndicate v. Inland Revenue Commissioners 1921 1 KB 64, 71. But these cases also need not be dealt with at any length. In my view this appeal must fail and it is accordingly dismissed with costs. Certified for two counsel. Debabrata Mookerjee, J.-I agree.
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1962 (1) TMI 80 - KERALA HIGH COURT
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... ... ..... rm. The business remains the same for the purpose of section 24(2)(ii) and the identity of the business does not change by reason of the change in persons who carry on that business. The business also continues to be carried on by that individual; for, a business carried on by a firm is a business carried on by the partners of the firm and one partner is the agent of the others in carrying on that business, and when a partnership carries on a business each partner thereof carries on that business" (Head-note). In the light of what is stated above we must hold that the identity necessary is available and that the question referred has to be answered in the affirmative and in favour of the assessee. We do so. The department will pay the costs of the assessee. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (5) of section 66 of the Indian Income-tax Act, 1922.
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1962 (1) TMI 79 - ANDHRA PRADESH HIGH COURT
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... ... ..... ppearance before the court, it has no option but to refuse to answer the question referred to it. The jurisdiction to refuse to answer is there. But its exercise in any given case is a question of discretion." 8. The decision of the Calcutta High Court was followed by the Travancore-Cochin High Court in Commissioner of Income Tax v. Pothan Joseph & Sons. 9. Having given our best consideration to the terms of section 66(5) and the decision referred to supra we are inclined to take the view that this court is not bound to answer the reference, but may refuse to do so. 10. In the result, in the circumstances of the case, we refrain from answering the questions concerned - it is entirely in our discretion as provided in section 66(5) of the Act. As both the references are made at the instance of the same assessee, we award costs in the first R.C., viz., R.C. No. 45 of 1960. There will be no order as to costs in R.C. No. 46 of 1960. Advocates fee is fixed at ₹ 250.
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1962 (1) TMI 78 - MADRAS HIGH COURT
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... ... ..... be. The matter will however be different if the District Judge had no concurrent jurisdiction with the Subordinate Judge. In such a case he would certainly be justified in refusing to entertain the application for probate. The District Judge therefore having jurisdiction concurrent with that of the subordinate judge should have at the stage at which the application came to him, entertained it and disposed it of himself or transferred the same to the file of the Sub Court for disposal. 19. In the result, the appeal is allowed, the order of the lower court is set aside and the District Judge is directed to entertain the application for probate and dispose it of at an early date. 20. As the respondent was unrepresented Sri N. Venugopal Nayagar was appointed to represent her case as amicus curiae. Before parting with the case we must express our thanks to Sri N. Venugopal Nayagar for the able assistance he gave us in deciding the points arising in the appeal. 21. Appeal allowed.
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1962 (1) TMI 77 - SUPREME COURT
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... ... ..... ris was not disposed of by the Subordinate Judge for two years and it took the High Court three years to dispose of the revision petitions against the orders of the Subordinate Judge. The proceedings were further held up even after special leave was granted by this Court in March, 1957 for nearly five years before the appeal could be heard. This Court had ordered that the hearing of the appeals be expedited and heard on cyclostyled record but the record was not made ready for a long time. We also find that a large number of documents were included in the books prepared for use of the court to which no reference was made at the Bar during the course of the hearing. We trust that the case will be taken up for hearing with the least practicable delay and disposed of according to law. The appellants in the two appeals will be entitled to their costs both in this Court and the High Court. The costs of the trial court will be the cost in the cause. Appeals allowed. Cases remitted.
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1962 (1) TMI 76 - CALCUTTA HIGH COURT
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... ... ..... decision in the matter on facts unknown to him. If, in the instant case, the decision or the opinion of the Government of India, Ministry of Home Affairs, ultimately turns out to be correct and the petitioner's own impression about his own age turns out to be incorrect, then by asking the Chief Justice to treat the petitioner as a sitting Judge and not as a retired Judge and by asking him further to allocate judicial work to him, the Chief Justice may be asked to face the peril of having judicial work done by a retired Judge. That must be avoided lest it may result in disastrous consequence to judicial administration. 19. The petitioner says that the Ministry of Home Affairs has not correctly decided his age. That is a dispute which he may fight out against the Ministry of Home Affairs, if he has his remedies. By sidetracking the attack on the Chief Justice of this Court the petitioner is not entitled to succeed. 20. For the reasons aforesaid I dismiss this application.
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1962 (1) TMI 75 - ANDHRA PRADESH HIGH COURT
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... ... ..... ssee is liable to pay tax on half the income, or the entire income. As we are clear that the order of the Tribunal is contrary to the decision of the Madras High Court in Mohamad Abdul Kareem & Co. v. Commissioner of Income-tax 1948 16 I.T.R. 412, we answer the question in the negative, viz., that the assessee is not liable to be taxed on half the income only. It follows from our conclusion that both G. Krishna Reddy and D.D. Italia are jointly and severally liable for the tax as an association of persons within the meaning of section 3 of the Income-tax Act. The view taken by the Income-tax Officer that as the partnership was illegal the licensee, G. Krishna Reddy, and D.D. Italia, who had carried on the business as an association of persons, are jointly and severally liable under section 3 of the Income-tax Act is correct. In the particular circumstances of the case we make no order as to costs. Counsel's fee is fixed at ₹ 250. Reference answered accordingly.
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