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Showing 1 to 20 of 62 Records
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1962 (10) TMI 94 - GUJARAT HIGH COURT
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... ... ..... a doctor for the examination of injuries on his body so as to ascertain whether he, could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with" a view to identify them." 24. Until recently the accused person was not competent to be a witness. 25. As the accused is present in Court it would be improper to provide that a summons should be issued to a person present in the Court and also present in the dock o£ the Court as an accused person. If the Legislature had intended that an accused person should be called upon to produce documents from his possession, it would have made a provision similar to Section 91 and would not have provided that summons should be issued to the accused in such a case. 26. For all the above, reasons, the learned Magistrate was right in rejecting the application of the Police Prosecutor. The reference is, there fore, rejected.
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1962 (10) TMI 93 - MADRAS HIGH COURT
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... ... ..... Section 151 C. P. C. to rectify the situation, as the earlier settlement between the petitioning creditor and the debtor was substantially "an abuse of the process of the court." 10. Consequently, the revision proceeding has to be dismissed. But learned counsel for the revision petitioner (debtor) represents that ample provision has been made already for the satisfaction of the claim of the non-petitioning creditor who has not been substituted under Section 16, and that the alleged act of insolvency was a perfectly bona fide act which might be fully justified when the facts of the context of the transaction are taken into account. I need not express any opinion upon these arguments. They will no doubt be carefully considered on the merits, when further proceedings are taken by the Court below in the insolvency, resulting from the lifting of the interim stay directed by this court. 11. The revision proceeding is accordingly dismissed, but I make no order as to costs.
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1962 (10) TMI 92 - RAJASTHAN HIGH COURT
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... ... ..... me, both the lower courts appear to have relied on this document for the purpose of holding that ₹ 901/- were paid by the plaintiff to the defendant-appellant. In so far as they have done so, they have gone wrong. They were to give a finding 'on the basis of the evidence on record ignoring the document and treating it as inadmissible on the point whether the plaintiff has proved that ₹ 901/- were paid by him to the defendant-appellant. I am, therefore, constrained to remit the case back to the lower appellate court for giving a finding on this point without taking the document (Ex. P/1) into consideration. 19. As a result of the aforesaid discussion the appeal is allowed, the judgment and decree of the learned District Judge, Jaipur District, Jaipur dated the I3th of April 1957 are set aside and the case is remitted back to that court to decide it in accordance with law, keeping in view the afore said observations. Costs in this appeal shall abide the result.
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1962 (10) TMI 91 - MADRAS HIGH COURT
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... ... ..... be held to be a trustee as the terms of the will, in our opinion, constitute a valid trust for the purposes mentioned therein. It follows, therefore, that no part of the trust money can be included in her total income assessable to tax. It may be that the department might have recourse to section 41(1) of the Act but upon that question we express no opinion. The question that has been referred to us, namely, whether the terms of the will operate to create a charge, is not the question which really arises in the case. we have therefore recast the question in the following form "Whether, on the facts and circumstances of the case, the decisions of the Tribunal directing the exclusion of ₹ 6,000 from the total assessable income of the assessee is correct or not ?" We answer this question in the affirmative and in favour of the assessee. The Commissioner will pay the costs of the assessee. counsels fee ₹ 250. Questions recast and answered in the affirmative.
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1962 (10) TMI 90 - MADRAS HIGH COURT
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... ... ..... ners, the interest payments to these donees have been entered in the accounts, year after year, and it is not too much to say that there has been no word of protest from the other partners of the firm. Obviously, if the entries relating to the gifts were untrue, the other partners of the firm would have found occasion to object to the payment of this interest. On the other hand, this has been accepted by all parties, so that the genuineness of the gifts is beyond question. As we have already indicated, whether physical delivery should exist in any given case is a matter which would depend upon the nature of the subject-matter of the gift. In the present case, we are satisfied that the gifts were guanine and valid. 7. It accordingly follows that question No. 1 has to be answered in favour of the assessee. 8. Following question No. 1, the second question has also to be answered in favour of the assessee. The assessee will be entitled to its costs. Counsel's fee ₹ 250.
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1962 (10) TMI 89 - BOMBAY HIGH COURT
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... ... ..... t of time when the right of appeal is determined. We cannot accept the argument in view of the observation of the Supreme Court to which we have already made reference. It appears to us clear from the view express ed by their Lordships of the Supreme Court that the accrual of the right of appeal is determined on the date of the initiation of the proceedings in which a possibility of a lis arising exists even though the lis may actually arise at a stage subsequent to the initiation or even at the end of the proceeding, when the order thereon is passed. In the case before us, the notice under section 22(2), calling upon the assessee to submit a return, has been issued on the 11th of June, 1956, which is long before the new Court Fees Act came into operation. Proceedings in the case of the present assessee, therefore, could be said to have been initiated before the provisions of the new Act came into force and, therefore, the reference will be governed by the old Court Fees Act.
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1962 (10) TMI 88 - PUNJAB & HARYANA HIGH COURT
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... ... ..... case, ILR (1960) Punj 639 to give an extended meaning to the definition of a shop and a commercial establishment in that Act. So far as the Act as it stands at present is concerned, a provision analogous to Section 5 in the Bombay Act has been incorporated in Section 2 (4) of the Act which defines "commercial establishment". Therefore, the reason for giving the extended meaning to the definition of commercial establishment no longer holds good. 23. After giving the entire matter my full and careful consideration I am definitely of the view that the present depot does not fall within the ambit of the Act inasmuch as it is neither a shop nor a commercial establishment. 24. The result, therefore, would be that this petition for revision is allowed and the order of the Additional Sessions Judge, Ambala, and that of the Magistrate Ambala are set aside. The fine, if paid, shall be refunded. Dulat, J. 25. I agree and have nothing to add. Gurdev Singh, J. 26. I also agree.
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1962 (10) TMI 87 - BOMBAY HIGH COURT
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... ... ..... tion 23(4) of the Act, but is challenging the general validity of the assessment on the ground that the service of notice under section 22(2) read with section 34(1) (a) was not valid because it was made at a place other than the place the place where the assessee resides, and on the ground that the Act did not apply to him, because he was not a resident in the relevant assessment year in the taxable territories. This contention also has little force. We have already stated that the Tribunal has found as a fact that the assessee was residing in the taxable territories during the relevant assessment year, and also has found as a fact that the assessee was carrying on business at a place to which the notice under section 22(2) was addressed. The second contention also, therefore, should fail. 13. For the reasons stated above, our answer to the question reframed is in the affirmative. The assessee shall pay the costs of the Commissioner. 14. Question answered in the affirmative.
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1962 (10) TMI 86 - MADRAS HIGH COURT
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... ... ..... e was an indirect transfer of assets by L. G. Balakrishnan to his minor son, Vijayakumar. This is certainly based on the evidence on record and it seems to us that this finding is fully justified and warranted. As stated already, the decision of the Division Bench in C. M. Kothari v. Commissioner of Income-tax, is no authority for the proposition that in every case of gifts and mutual transactions, the assessee can repel the applicability of section 16(3)(a)(iv) merely on that ground. If such a contention were to be upheld, it would enable the assessee to defeat tax by merely resorting to devices and forms. In our opinion, the gifts of ₹ 50,000 in favour of minor Vijayakumar was in fact and in truth a gift by Balakrishnan to his son, and that section 16(3)(a)(iii) of the Act is plainly applicable. The question is answered in the affirmative and against the assessee, who will pay the costs of the department. Counsels fee ₹ 250. Question answered in the affirmative.
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1962 (10) TMI 85 - MADRAS HIGH COURT
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... ... ..... llant in declining to appear before the authorities, at the stage of the enquiry itself, and to state facts within his knowledge. In other words, it is distinctly at a premature stage that the protection has been claimed for the appellant. Of course, it is a heavy and true objection that the testimony thus compelled, in the guise of proceedings under Section 171-A of the Sea Customs Act, might be later utilised to prosecute the appellant, and thus effectively divest him of the protection of Article 20(3) by taking two steps, instead of one. The answer to this objection has been clearly demonstrated, if I may say so with respect, by my Lord, the Chief Justice; such compelled testimony cannot be later relied on or used in a criminal prosecution, as, at that stage, the protection of Article 20(3) will be available to the appellant. This fully disposes of the argument or objection upon this ground. 66. I therefore concur that the appeal fails, and has to be dismissed with costs.
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1962 (10) TMI 84 - MADRAS HIGH COURT
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... ... ..... ase these loans and outstandings were shown as outstandings to the assessee in its balance-sheet as doubtful asset in the year 1954. It is true it was treated as an asset but it was not at any time brought into the profit and loss account. It cannot be pretended that if the moneys had been recovered by the assessee from the managed company it would have in any way augmented its income or, to use the familiar expression, "gone to swell its profits of the business". We are, therefore, of the opinion that the claim of the assessee cannot be sustained under section 10(2)(xi) of the Act. It is unnecessary to refer to the other contentions raised by the learned counsel for the department urging that the debt became bad even prior to the accounting year, and that there was no carrying on of the managing agency business in the year of account. The question is answered against the assessee and in favour of the department. The department will get its costs from the assessee.
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1962 (10) TMI 83 - GUJARAT HIGH COURT
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... ... ..... ich deduction is claimed on the basis of the aforesaid agreement dated 22nd June, 1949, are not liable to be deducted. In order to bring out the real dispute between the parties in connection therewith, we would reframe the question as under "Whether, on the facts and in the circumstances of the case, in ascertaining the net wealth of the assessee, the liability for the sum of ₹ 57,217-8-0 less 10 per cent. thereof claimed by the assessee should be taken into account?" Our answer to the question is in the negative. (3)Our answer to question No. 3 is in the negative. (4)Question No. 4 is not pressed and is not answered. Having regard to all the circumstances of the case, we consider that the fair order to make as regards costs would be that the respondent should pay to the Commissioner of Wealth-tax ₹ 364 by way of costs and we order accordingly. There will be No. 8 of 1962, filed for altering the form of the questions. No order in the civil application.
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1962 (10) TMI 82 - MADRAS HIGH COURT
Character of the amount received - compensation with interest at 6% from the date of publication of the notice under section 5 of the Act, namely, 24th May, 1949 - capital receipt or busniss income - - Held that:- We have no doubt that in the present case the award of interest was not part of the compensation fixed for the acquisition of the land. The statute authorized the Government to pay only the market value of the land as per the provisions of section 6 of the Act. It would be in contravention of the statute to hold that the direction to pay interest was in effect to result in a payment over and above the market value, the upper limit of which is fixed by the statute itself. So much is clear.
The assessee having received the amount, the only question that arises for consideration is, did he receive it as income or as capital. It seems to us that the award of interest was made on the footing that the State Government became a debtor to the assessee for the payment of the true compensation for the acquired land under the Act as on the date of section 5 notification, and that the debt not having been discharged by payment on that particular date, the assessee was entitled, in law or in equity, to have interest at 6 per cent. till payment. This in substance appears to be the proper way of justifying the payment of interest and determining its true character.
We, therefore, answer the first question against the assessee and in favour of the department. The amount of ₹ 1,28,716 is assessable to tax as income in the hands of the assessee. The Tribunal has not dealt with the question of apportionment of the tax amount between the two assessment years 1955-56 and 1956-57 as in its view the amount was not taxable at all. Question No. 2, therefore, does not arise out of the order of the Tribunal. It will be open to the Tribunal to go into this question afresh and pass suitable orders after hearing the assessee and the department.
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1962 (10) TMI 81 - ALLAHABAD HIGH COURT
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... ... ..... rritory and opening of a new business in a Part B State section 10A applies, but it would not follow that the other observation which was the only material observation in the case, that section 10A is applicable, when a business in a taxable territory is kept up, though in a dormant state, and a new business is started in a Part B State is not correct. My answer to the second question is, therefore, "No". The question whether the main purpose of the assessee for opening a branch at Ratlam was or was not to avoid or reduce his liability to excess profits tax is a question of fact and could not be, and has not been, raised before us. I do not say anything on it. A copy of this judgment should be sent under the signature of the Registrar and the seal of the court to the Tribunal. The Commissioner shall get his costs of the reference assessed at ₹ 500. Brijlal Gupta, J.-I agree with the answer proposed. The Commissioner should have his costs fixed at ₹ 500.
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1962 (10) TMI 80 - ALLAHABAD HIGH COURT
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... ... ..... ndra Ganguly v. Commissioner of Income-tax 1930 4 ITC 418, for the proposition that the second notice issued is a valid notice and is not illegal. That is, however, not the question which arises in this writ petition. The second notice is not under challenge in this petition. What is challenged, however, is the order of penalty pursuant to the earlier demand notice which itself the Estate Duty Officer cancelled. There cannot be any doubt that if the demand notice itself is cancelled for any reason whatsover, there can be no default in respect of such notice of demand. Before there can be any default the notice of demand should be valid in all respects. For these reasons, I would direct that a writ will issue quashing the order of the Assistant Controller, Estate Duty, dated the 27th March, 1961, imposing a penalty of ₹ 10,000. The interim stay order is discharged. The writ petition is allowed, but in the circumstances of the case the parties shall bear their own costs.
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1962 (10) TMI 79 - ALLAHABAD HIGH COURT
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... ... ..... Schedule II applies we are referred to the case of nfcitation ILR Bom 408 /nfcitation and ILR 23 Cal 723 (FB). These decisions undoubtedly, support the contention. The question of the applicability of Article I of Schedule II was not considered in Appeals Nos. 54 and 94 of 1900 already referred to, and, we are prepared to follow the Calcutta and Bombay decisions. We also think that on principle an ad valorem stamp should not be levied in such cases. The only title which the order appealed against, gives to the petitioner, is the right to administer the estate, and if he has to sue to recover the estate, he will have to pay stamp duty on its value. We do not think that stamp duty on the value of the estate should (SIC) exacted." 33. Agreeing with the view taken in the above cases, we are of opinion that the court fee payable on a memorandum of appeal under Section 299 of the Indian Succession Act is ₹ 5/- as laid down, in Schedule II, Article 1 (e) (5) of the Act.
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1962 (10) TMI 78 - SUPREME COURT
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... ... ..... entertain the complaint and appeals from orders of conviction recorded by them would lie to the High Court, or the Court of Session, according as the Magistrate, trying the case was a Presidency Magistrate, or a Judicial Magistrate of the First Class. The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and not from any unequal dealing by the executive constituting the Courts of the Magistrates. It is because powers exercisable by a Presidency Magistrate are conferred upon the Special Magistrate, as they may lawfully be conferred, that the incidental right of appeal which is prescribed by the statute is exercisable in the High Court, and not in the Court of Session. We do not think that there is any discrimination practised by the Notification constituting a Special Magistrate for the trial of the case against the petitioners and others. 9. The petition therefore fails and is dismissed. 10. Petition dismissed.l
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1962 (10) TMI 77 - MADRAS HIGH COURT
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... ... ..... called in aid to demonstrate an error on the record of a partner's assessment...In our opinion, sub-section (5) could not be used in this case, and the decision of the High Court was right." We are of opinion that the present case is fully governed by the two decisions of the Supreme Court cited above. The individual assessments of the assessee in regard to all the four years were made in the year 1948-49. The records do not show when the firm itself was first assessed in regard to these years. But even assuming that the assessment orders were made after April 1, 1952, section 35(5) cannot apply. Though this question has not been referred to us specifically, it does arise out of the order of the Tribunal, and we have expressed our opinion in the matter. In the view that we have taken it is unnecessary to answer question No. 2. The assessee, having succeeded in the reference before us, will be entitled to his costs from the department. Counsel's fee ₹ 250.
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1962 (10) TMI 76 - SUPREME COURT
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... ... ..... ction to workmen who are thrown out of employment for no fault of their own, to tide over the period of unemployment"; and in that sense, the said compensation is distinguishable from gratuity. Therefore, if the transferor is by statute required to pay retrenchment compensation to his workmen, it would be anomalous to suggest that the workmen who received compensation are entitled to claim immediate re-employment in the concern at the hands of the transferee. The contention that in cases of this kind, the workmen must get retrenchment compensation and re-employment almost simultaneously is inconsistent with the very basis of the concept of retrenchment compensation. We are, therefore, satisfied that the general principles of social justice and fair play on which this alternative argument is based, do not justify the claim made by the respondents. 22. In the result, the appeal is allowed and the award is set aside. There would be no order as to costs. 23. Appeal allowed.
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1962 (10) TMI 75 - SUPREME COURT
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... ... ..... n fact or in law that he participated in the strike. If he joined demonstrations organised in connection with the strikes, or if he took part in the preparations for the strike, it cannot be said that he took part in the strike as such, and so, the charge cannot be reasonably construed to mean that his conduct amounted to a contravention of the rule which prohibits strikes. Therefore, though Rule 4-A is partly, and not wholly, invalid as held by this Court in the case of Kameshwar Prasad( 1962 Supp. 3 S.C.R. 369), the particular charge against the respondent being on the basis of that part of the rule which is invalid, it must follow that the departmental proceedings based on that charge are also invalid. That is why appeal No. 379/1962 must be allowed and the departmental proceedings instituted against the respondent for the alleged contravention by him of rules 4-A and 4-B must be quashed. There would be no order as to costs. Appeal 378/62 dismissed. Appeal 379/62 allowed.
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