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1966 (4) TMI 92 - ANDHRA PRADESH HIGH COURT
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... ... ..... luded definition and can throw on light upon the construction of instrument as such, nor do this decision in any way militate against the construction placed by us. 13. For the reasons stated above we are clear in our minds that the deletion of the exemption in Art. 4 (b) makes affidavits sworn or declared, for the immediate purpose of filing in Court, liable to stamp duty under that Article. The Legislature intended that result and, however, much we may agree with the submission of the learned Advocate that this will make litigation costly, we can only commiserate but cannot help. The learned Advocate-General drew our attention to certain practical difficulties and hardships which the litigant public and lawyers are likely to encounter. The proper course for him is to draw the attention of the Government and have this remedied. 14. In the result, we direct that the affidavit filed in the case reference is liable to stamp under Art. 4. 15. HJ/AKJ/D.V.C. 16. Order accordingly.
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1966 (4) TMI 91 - PATNA HIGH COURT
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... ... ..... rectify any flaw in the light of the decision of the Supreme Court. Whatever the reasons for the amendment may be, it is clear that without the new expression as introduced in the amendment in Section 21 of the Act, the trustee holding the trust property for me benefit of the beneficiaries could not be assessed under that section in respect of the assets held by him in trust. We need not consider in this case if a trustee's liability under Section 21 can validly arise, even after the amendment of 1964 in that section. 13. The question in the reference is-- Whether in the facts and circumstances of the case, the trustee under the Trust deed, dated 19th July 1949 executed by Kripashankar D. Worah was assessable to Wealth-tax under Section 21 of the Wealth-tax Act ? . For the reasons given, the answer will be in the negative, that is, the trustee was not assessable under Section 21. The reference is accordingly disposed of, but there will be no order for costs. 14. I agree.
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1966 (4) TMI 90 - GUJARAT HIGH COURT
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... ... ..... hese two decisions. 12. We, therefore, reach the conclusion that the plaintiff was a bona fide purchaser of the suit property for consideration without notice of the charge in favour of the Municipal Corporation and the charge was, therefore, not enforceable against the suit property in the hands of the plain tiff. There will accordingly be a decree for the plaintiff declaring that he is the owner of the suit property and that the charge of the Municipal Corporation for arrears of municipal taxes is not enforceable against the suit property in his hands and granting a permanent injunction restraining the Municipal Corporation from proceeding to realise the charge from the suit property. There will also be a decree declaring the warrant of attachment dated 20th July 1955 illegal and void and restraining the Municipal Corporation from enforcing it against the plaintiff in respect of the suit property. The Municipal Corporation will pay the costs of the plaintiff all throughout.
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1966 (4) TMI 89 - HIGH COURT OF ALLAHABAD
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... ... ..... Tribunal very clearly misdirected itself. The form itself clearly mentions that particulars of Part B were to be filled in only in cases where the application is made after the end of the relevant previous year; this is given in the heading of Part B itself. In the present case, the facts given by the Tribunal itself show that the previous year in question began on 1st December, 1952, and ended on the 30th November, 1953, while the application was made on November 17, 1953. The application was made before the end of the relevant previous year and the Tribunal expressed its opinion without paying any attention at all to this aspect. The Tribunal ignored the fact that this Part B was not applicable to this particular application at all. As a result, the question referred to us is answered in favour of the assessee and in the negative. The assessee shall be entitled to the costs of this reference. Counsels fee is fixed at ₹ 200. Question answered in favour of the assessee.
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1966 (4) TMI 88 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... nt of capital gains, and in the reference made to the Gujarat High Court at the instance of the Commissioner, J. M. Shelat C.J. and P. N. Bhagwati J. held, largely on the strength of the decision in Bipinchandra Maganlal & Co.s case, that the receipt of excess over written down value on sale of capital asset could not be held to be profit independently and apart from the legal fiction enacted in the second proviso to section 10 (2) (vii) and could not be regarded as "dividend" within the meaning of section 2 (6A) (c), and that legal fictions are created only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond their legitimate field. With this view I am in respectful agreement and I would accordingly answer the question referred to us in the negative and direct the Commissioner to pay the costs. to the assessee. Counsels fee ₹ 250. H.R. Khanna, J. I agree. Question answered in the negative.
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1966 (4) TMI 87 - ALLAHABAD HIGH COURT
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... ... ..... al with the aspect where litigating expenses have been incurred for protection of capital assets which already existed in the hands of the assessee or had already been acquired by the assessee. In those, it has been held that litigation expenses incurred for the protection of capital assets were a legitimate charge as revenue expenditure. The facts of the case before us are quite different. Here no capital assets had been acquired when these litigation expenses were incurred. The litigation arose in the course of the proceedings for acquisition of the capital assets. In these circumstances we have no hesitation in holding that these litigation expenses were not expenditure "allowable" under section 10(2)(xv) of the Income Tax Act, being expenses of a capital nature. The question referred is answered in the negative and against the assessee. The assessee shall pay the costs to the department. Counsels fee is assessed at ₹ 200. Question answered in the negative.
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1966 (4) TMI 85 - CALCUTTA HIGH COURT
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... ... ..... sed as follows (1)The payment of income-tax amounting to ₹ 1,24,199 directly arose on an application of sub-section (7) of section 18 of the Act. (2)It contemplates that the payment is in the nature of punishment as the assessee was under a statutory obligation to deduct the said amount at the source under sub-section (3B) of section 18. (3)The liability has arisen out of an infraction of the statutory provisions and accordingly not deductible from the profits and gains of the business either under section 10(1) or under section 10(2)(xv) of the Act. It is neither incidental to the business, much less wholly and exclusively laid out for the business. (4)It is not also claimable as bad debt in view of the fact that it was not a debt advanced as a trading debt in the course of the business. In the result, the reference cannot be decided in favour of the assessee and the question posed before us is answered in the negative. The assessee shall pay the costs to the revenue.
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1966 (4) TMI 84 - ANDHRA PRADESH HIGH COURT
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... ... ..... nless the court is forced to do so by the irresistible force of the language used. It is well-settled that the limitation Act, being an Act which takes away or restricts the right to take legal proceedings, must, where its language is ambiguous, be construed strictly, i.e., in favour of the right to proceed." We find as follows. We disagree with the finding of the Tribunal that the condition that the partnership should be registered with the Registrar must be already fulfilled at the time when the application was presented. We find that it is sufficient to meet the requirements of rule 2(b) if the partnership became registered under the Partnership Act even after the application was filed. In the result, we answer the question referred to us as follows "On the facts and in the circumstances of the case, the application under section 26A of the Income-tax Act was filed in time and not out of time." In the circumstances of the case, we make no order as to costs.
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1966 (4) TMI 83 - GUJARAT HIGH COURT
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... ... ..... the absence of anything in the section enacting any time limit. In fact, no such time limit could be imposed by the State Government. There is no substance even in this contention of the learned Advocate General. (10) In the result, both the Courts were right in holding that the old order issued in November 1951 continued to remain in force and the company was bound to give legal effect to the said order and it could not unilaterally increase its charges in violation of the said order which was sustained by the old section 57 which continued in operation under section 6 of the General Clauses Act. Both the Courts were therefore right in decreeing the plaintiffs' suits in both the cases. (11) In the result, both these appeals fail and they are dismissed with costs. (12) Mr. Kaji at this stage applied for the certificate being issued for Letters Patent Appeal. As this is a question of great public importance, I order that the certificate be issued. (13) Appeals dismissed.
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1966 (4) TMI 82 - SUPREME COURT
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... ... ..... was dismissed by the High Court. There is no appeal by him. On his behalf, it was not contended that we should exercise in his favour our powers under O. 41, r. 33 of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under O. 41, r. 33 and to set aside the decree of the High Court as to the dismissal of the suit against him. 24. In the result, the appeal is allowed, the decree passed by the High Court in favour of respondents Nos. 2, 3 and 4, Mahabalkumari, Rajkumari and Premkumari, is set aside and the decree of the trial Court dismissing the suit is restored. The suit is dismissed. We direct that the parties will pay and bear their own costs in this Court and in the Courts below. 25. Appeal allowed.
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1966 (4) TMI 81 - HIGH COURT OF ANDHRA PRADESH
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... ... ..... Judge, keeping in view the judgment of this Court will consider whether the other items of the schedule question before him in the appeal come within the meaning of the food' as laid down above. This Writ Petition is therefore partly allowed. There will be no order as to costs. 26. In regard to W.P. No. 163/65, it merely challenged the validity of the octroi and does not question any specific article as not falling within the definition of food'. It is true that a copy of the schedule is attached to the petition. A stray sentence appears in paragraph 4 of the affidavit in reference to other 20 items. But the affidavit read as a whole does not challenge any particular item of the schedule as not included within the definition of food'. What was challenged was the levy of Octroi itself and since I have held that it is not ultra vires, this writ petition must be dismissed and it is accordingly dismissed. No costs. Advocate's fee ₹ 100. Orders accordingly.
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1966 (4) TMI 80 - HIGH COURT OF MADHYA PRADESH
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... ... ..... the other clauses which define and regulate the rights and liabilities of the parties. He based his contention on the principles enunciated in 1942-1 All ER 337 at p. 346. The contention is correct but it could help the appellant only if it were found that the contract made between the parties on 26-9-1957 was not a new and independent contract and left the previous contracts alive and therefore the arbitration clause which applied to the earlier contracts also governed the subsequent contract. In the result, we agree with the trial Court in holding that the agreement made between the parties on 26-9-1957 was a new and independent contract and it completely discharged the earlier contracts between them. As the new contract did not contain any agreement between the parties to refer the dispute to arbitration, in our opinion the plaintiff's suit could not be stayed under Section 34. The appeal, there fore, fails and is dismissed with costs. Counsel's fee ₹ 100/-.
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1966 (4) TMI 79 - HIGH COURT OF ANDHRA PRADESH
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... ... ..... hat both the parties should have an opportunity of adducing further evidence on the relevant aspects so as to place fuller data to enable the Court to decide correctly the value under Section 4 of the Act regarding the cheroots in Column 4. ( 34. ) In the result, we allow this appeal, set aside the judgment and decree of the lower Court and remand the case to the trial Court for fresh disposal on Issues Nos. 1 to 3 and 6. The learned Additional Judge will dispose of the case in the light of the observations made in this judgment and the principles laid down by us following the decisions of the Calcutta High Court in AIR 1961 Cal 477 Supra and of the Mysore High Court in AIR 1963 Mys 216 Supra after giving full opportunity to both sides to adduce evidence further in the matter. The costs of this appeal shall follow and abide the result. The appellate will be entitled to a refund of the Court-fee paid by it on the memorandum of appeal. ( 35. ) Appeal allowed and case remanded.
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1966 (4) TMI 78 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... on applies to the present case. I may again revert to the provisions of sub-section (2A) according to the closing words of which all the provisions of the Act shall apply to a return filed as provided in this sub-section as if it were a return under sub- section (1), and in Ranchhoddas Karsondas's case 1959 36 I.T.R. 569 ; 1960 1 S.C.R. 114, the Supreme Court held that the return showing an income under the taxable limit which was filed belatedly by virtue of the benefit of sub-section (3) was a return furnished under sub-section (1). To my mind this reinforces the conclusion that nothing in sub-section (2A) detracts from the general provision in sub- section (3) for the filing of a return at any time before an assessment is actually made. The result is that I would answer the question referred to this court in the affirmative and allow the assessee his costs of the reference. Counsel's fee ₹ 250.00 H.R. KHANNA J.--I agree. Question answered in the affirmative.
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1966 (4) TMI 77 - MADHYA PRADESH HIGH COURT
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... ... ..... House of Lords in the case of Southern Railway of Peru 1957 A.C. 334; 32 I.T.R. 737 (H.L.) is, therefore, not applicable to the present case. The decision that is relevant here, and which fully supports the view we have taken, is the decision of the Madras High Court in Commissioner of Income-tax v. Indian Metal and Metallurgical Corporation 1964 51 I.T.R. 240. In that case, it has been ruled that the liability of an employer-assessee in respect of retrenchment compensation under section 25F of the Industrial Disputes Act, 1947, is not a liability in praesenti but is only a contingent liability which cannot be taken into account as an accrued liability, even though the assessee has been maintaining his account books on the mercantile system. For the foregoing reasons, our answer to the question referred to us for decision is in the affirmative. The assessee shall pay the costs of this reference. Counsel's fee is fixed at ₹ 200. Question answered in the affirmative.
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1966 (4) TMI 76 - SUPREME COURT
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... ... ..... ave been granted. We are, therefore, of the opinion that the contention of respondent no. is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. no. 3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in court remanding the matter to the trial court on this question and the matter will be unduly protracted. For the reasons expressed, we hold that the decree passed by the trial court should be set aside and the plaintiffrespondent no. I should be granted a declaratory decree that the compromise decree in O.P. no. 3 of 1950 on the file of the District Court Nellore is not valid and binding on Sri Kodandaramaswami temple. Subject to this modification, we dismiss this appeal. The parties will bear their own costs throughout. Appeal dismissed.
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1966 (4) TMI 75 - SUPREME COURT
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... ... ..... ntainable. The High Court accepted the defendants' contention that the claim for arrears must be limited to a period of three years prior to the institution of the suit. It allowed interest on the arrears at 6 p.a. and decreed the claim of the plaintiffs for partition and for arrears of compensation. The plaintiffs then moved the High Court under s. 151 read with O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with respect to their claim for compensation, for use and occupation of the house from the date of suit till delivery of possession of their share after passing the final decree. The High Court allowed this application and directed that the plaintiffs shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree, whichever event first occurs. It also made an appropriate order regarding costs.
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1966 (4) TMI 74 - GUJARAT HIGH COURT
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... ... ..... e reasons did not invalidate the order so as to render it liable to be quashed and set aside but this Court could in the exercise of its jurisdiction under Article 226 compel the conciliation officer by a mandamus to give reasons in support of the order and then proceed to examine whether the order was required to be quashed by certiorari. But we did not allow this argument to be raised before us because sitting as a Full Bench, we are concerned only with the question referred to us by the Division Bench and we cannot allow any party to extend the scope and ambit of the controversy beyond that set out in the question referred to us. 14. Our answer to the question referred to us, therefore, is that the conciliation officer exercising quasi-judicial functions under Section 33(2)(b) is bound to make a speaking order or, in other words reasons must be stated on the face of the order. There will be no order as to costs of this reference. 15. Reference answered in the affirmative.
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1966 (4) TMI 73 - CALCUTTA HIGH COURT
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... ... ..... sclosed source, such income can be treated as business income if the assessee has no other source of income. In the instant case the assessee is a firm formed for the purpose of carrying on business. There is nothing on record to show that the firm had any source of income other than business. Therefore, in our opinion, it is not unreasonable to hold that any amount representing secret income arose out of the business of the firm. We, therefore, hold that the fixed deposits represented income from business and that they were assessable in the assessment year 1946-47. The assessability of the cash credits is not disputed. The fourth question, accordingly, is answered in the affirmative. Questions Nos. 2 and 3 were not pressed at the hearing. We, therefore, refrain from answering them. The two questions pressed at the hearing having been answered in favour of the revenue, the assessee must pay the costs of this reference to the Commissioner of Income-tax. K.C. SEN J.--I agree.
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1966 (4) TMI 72 - SUPREME COURT
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... ... ..... ess ancillary to the work of a coal mine is being carried on". In our opinion, the change in the language of s. 2(b) of the earlier Act brought about by the amending Act (Act 45 of 1965) was not meant to bring about a change Sup5CI-19 of law in this respect but was meant to fix a proper interpretation upon the earlier Act. It is a well- recognised principle in dealing with matters of construction that subsequent legislation may be looked at in orderer to see what is the proper interpretation to be put upon the earlier Act where the earlier Act is obscure or ambiguous or readily capable of more than one interpretation. (See Ormond Investment Co. Ltd.,v. Betts( 1928 A.C. 143 at p. 166). For the reasons expressed, we hold that the respondent is not the owner of a coal mine within the meaning of s. 2(b) of the Act and the High Court has rightly acquitted the respondent of the offence alleged against him under the Scheme. We accordingly dismiss this appeal. Appeal dismissed.
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