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Showing 61 to 80 of 84 Records
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1961 (4) TMI 82
Whether this Court has jurisdiction to try the suit?
Whether the plaintiff’s suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed?
Held that:- The appeal is allowed, and the two preliminary Issues are answered in favour of the appellants.
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1961 (4) TMI 81
Issues:
1. Charges of using criminal force against a public servant under section 353 of the Indian Penal Code and obstructing inspection of accounts under section 15(2)(b) of the Madras General Sales Tax Act.
Analysis:
The judgment pertains to an appeal filed by the State against the acquittal of two respondents by the Sub-divisional Magistrate on charges under section 353 of the Indian Penal Code and section 15(2)(b) of the Madras General Sales Tax Act. The Magistrate found that the offenses were not established and raised concerns about the actions of departmental officers. The High Court emphasized the importance of departmental officers understanding and respecting the limits of their powers when dealing with citizens. The Court acknowledged the duty of officers to strictly adhere to statutory powers and respect citizens' rights. The judgment highlighted the need for officers to act judiciously and within the confines of the law, even if they were acting in good faith based on information received. The Court noted that the behavior of the officers in this case was unsupported by law, rendering the charges unsustainable.
The Court examined the provisions of section 15(2)(b) of the Act, which penalize prevention or obstruction of inspection by an empowered officer under section 14. It was emphasized that officers do not possess general powers of entry like police officers and must adhere to specific provisions. The Court noted that the officers failed to establish the respondents as "dealers" as defined in the Act and did not follow proper procedures, such as issuing a notice under section 14(1) or inspecting business premises as allowed under section 14(2). The judgment highlighted the restricted scope of section 14(3), which permits entry only into places where business is conducted, not private residences. The Court concluded that the entry into the private house of the respondents was unauthorized and constituted trespass, as the officers did not have evidence to prove it was a place of business.
The Court also addressed the charge under section 353 of the Indian Penal Code, emphasizing that the unwarranted intrusion by the officers invalidated their protection as public servants. The judgment stressed the importance of officers verifying information and acting with due care before intruding on private premises. The Court upheld the acquittals of the respondents, emphasizing the need for governmental agencies to understand and verify the extent of their powers before taking action. The appeal was dismissed, underscoring the responsibility of authorities to respect citizens' rights and act within the bounds of the law.
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1961 (4) TMI 80
Issues Involved:
1. Whether the price of the materials used for packing redried tobacco is liable to be included in the taxable turnover of the assessees.
2. Whether the packing materials used by the assessee can be considered sold and therefore liable for the levy of sales tax.
Issue-wise Detailed Analysis:
1. Inclusion of Packing Materials in Taxable Turnover:
The primary issue is whether the price of materials used for packing redried tobacco should be included in the taxable turnover of the assessees. The assessees argued that packing is an integral part of the redrying process, making the contract one of work and labour, with no sale involved. Conversely, the Government Pleader contended that the price of packing materials should be included in the taxable turnover as the property in those materials is transferred to the customers for a price, making the transaction a sale.
2. Sale of Packing Materials:
The court examined whether the packing materials used by the assessee to pack the tobacco, for which the dealer charges at a uniform rate, can be considered sold and therefore liable for sales tax. Previous judgments, such as Krishna & Co., Ltd. v. State of Andhra and Hanumantha Rao v. State of Andhra, held that the materials used in packing were sold and thus taxable. However, these decisions were prior to the Supreme Court's rulings in State of Madras v. Gannon Dunkerley & Co., Pandit Banarsi Das Bhanot v. The State of Madhya Pradesh, and Peare Lal Hari Singh v. State of Panjab, which necessitated reconsideration.
Relevant Provisions and Precedents:
The court referred to the relevant provisions of the Madras General Sales Tax Act, particularly the definitions of "sale" and "turnover." It also discussed the principle that to constitute a sale, there must be an agreement relating to the transfer of goods, completed by the passing of title in those goods. The court noted that previous decisions had distinguished between contracts for work and labour and contracts for the sale of goods.
Application of Supreme Court Judgments:
The court applied the principles from the Supreme Court's decision in State of Madras v. Gannon Dunkerley & Co., which held that in an entire and indivisible contract, there is no sale of goods, and the State cannot impose a tax on the supply of materials used in such a contract. The court concluded that the process of redrying tobacco is one, entire, and indivisible, and the packing of redried tobacco is an integral part of this process. Therefore, the transaction could not be split into separate contracts for the transfer of materials and the provision of services.
Conclusion:
The court determined that the contract between the assessees and their constituents is one and indivisible, with no sale of materials as such involved in the transaction. The decisions in Krishna & Co., Ltd., Guntur v. State of Andhra and Hanumantha Rao v. State of Andhra did not align with the principles laid down by the Supreme Court. Consequently, the court held that it was not within the competence of the assessing authorities to impose tax on the supply of materials used in these contracts, treating them as sales. The assessments made on the impugned transactions were unsustainable, and the revision cases were allowed. The taxes collected were ordered to be refunded to the petitioners, with costs awarded to the petitioners.
Final Judgment:
Petitions allowed.
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1961 (4) TMI 79
Whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage?
Held that:- Appeal allowed. When there is a mortgage subsisting on the property, the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case. What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties. If the income from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income. Thus a sale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrong.
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1961 (4) TMI 78
Whether the State Legislature went beyond its legislative competence in enacting by the impugned Madras General Sales Tax Act that the amounts collected by the dealer by way of tax shall be deemed to have formed part of his turnover?
Held that:- Appeal dismissed. The only question which has been raised in these appeals is regarding the validity of the impugned Act. That question having been decided against the appellants.
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1961 (4) TMI 74
Whether the appellants in the two appeals are liable to pay sales tax on the value of the materials used by them in the execution of the works under the contract?
Whether on the construction of the agreement dated December 19, 1953, it could be held that there was a sale by the appellants of the materials used in the construction works, apart from the execution of those works?
Held that:- Appeal allowed. We are satisfied that the proceedings have at all stages gone on the footing that the liability of the, appellants arose under the contract and not otherwise. In that view, we must hold, following the decision in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958 (4) TMI 42 - SUPREME COURT OF INDIA] that the proceedings taken by the respondents for imposing sales tax on the supplies of materials by the appellants, pursuant to the contract dated December 19, 1953, are illegal and must be quashed. In the result, the appeals are allowed and appropriate writs as prayed for by the appellants will be issued.
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1961 (4) TMI 69
Whether section 15 of the Assam Sales Tax Act, 1947, and rule 80 framed under the Act were ultra vires, being a breach of Article 286(2) of the Constitution?
Held that:- Appeal allowed. Sub-section (2) stated that every dealer to whom sub-section (1) did not apply, shall be liable to be taxed under this Act, and that there was no mention of sub-section (1)A there. No doubt, sub-section (2) does not mention sub-section (1)A; but sub-section (1)A is not rendered ineffective by the omission. Sub-section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub-sections of section 3. Sub-section (1)A has the added support of Article 286, and the Constitution must prevail. Thus, both Article 286 and sub-section (1)A of section 3 are there to save from taxation all sales in the course of inter- State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not.
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1961 (4) TMI 66
Whether the Validation Act is within the ambit of entry 54 in List II of the Seventh Schedule to the Constitution?
Held that:- Appeal dismissed. None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it.
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1961 (4) TMI 58
Best judgment assessment - Held that:- Petition allowed. A writ will issue restraining the respondent from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1955 and 1956. The petitioner will get the costs of this petition.
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1961 (4) TMI 47
Issues Involved:
1. Compliance with Article 48 of the Articles of Association.
2. Applicability of Section 155 of the Companies Act, 1956.
3. Requirement of "duly stamped" instruments under Section 108 of the Companies Act, 1956.
4. Definition and cancellation of "duly stamped" under the Indian Stamp Act.
5. Interpretation of "instrument" under Section 2(14) of the Indian Stamp Act.
6. Notification regarding cancellation of "share transfer" stamps.
Issue-wise Detailed Analysis:
1. Compliance with Article 48 of the Articles of Association:
The company objected that the transfer forms used were not in accordance with Article 48 of the Articles of Association. Article 48(b) sets out a form for transfer or transmission of shares. The court found that there was substantial compliance with the requirement, if not verbatim. Moreover, Article 48(b) allows the transfer to be recorded "in any usual or common form which the board shall have approved." The court noted that it was within the board's discretion to approve the forms used by the petitioner and her transferors, and thus, the company's objection was deemed unreasonable.
2. Applicability of Section 155 of the Companies Act, 1956:
The company contended that only a member of the company could make an application under Section 155 of the Companies Act, 1956, suggesting that the remedies lay under Section 111 with an appeal to the Central Government. The court found this argument untenable, stating that Section 155 provides that any person aggrieved by default or unnecessary delay in entering on the register the fact of becoming a member may apply to the court for rectification. The court referenced the case of Sadaskiv Skankar Dandige v. Gandhi Sewa Samaj Ltd., affirming that Section 155 gives the court overriding power, notwithstanding any previous order of the Central Government.
3. Requirement of "duly stamped" instruments under Section 108 of the Companies Act, 1956:
The company argued that under Section 108, a transfer of shares could not be registered unless a proper instrument of transfer "duly stamped" was delivered. The court agreed, noting that the instruments in question were not "duly stamped" as the stamps affixed were not cancelled. Section 2(11) of the Indian Stamp Act defines "duly stamped" as an instrument bearing an adhesive or impressed stamp of not less than the proper amount, affixed in accordance with the law, which includes cancellation of the stamp as per Section 12 of the Stamp Act.
4. Definition and cancellation of "duly stamped" under the Indian Stamp Act:
The court rejected the petitioner's argument that the cancellation requirement under Section 12 of the Stamp Act was irrelevant for determining whether an instrument was "duly stamped" under Section 108 of the Companies Act. The court emphasized that for an instrument to be considered "duly stamped," it must comply with the cancellation requirements of Section 12. Since the stamps on the instruments of transfer were not cancelled, they were deemed unstamped.
5. Interpretation of "instrument" under Section 2(14) of the Indian Stamp Act:
The petitioner argued that the instruments of transfer were not "instruments" under Section 2(14) of the Stamp Act until the board of directors approved the transfer. The court disagreed, stating that an "instrument" includes every document by which any right or liability is created, transferred, limited, extended, extinguished, or recorded. The court cited In re Copal Varnish Co. Ltd., noting that an instrument of transfer passes an equitable interest in the shares to the transferee, making it an "instrument" under Section 2(14).
6. Notification regarding cancellation of "share transfer" stamps:
The petitioner relied on a notification published in the Calcutta Gazette on July 24, 1941, arguing that it was the company's duty to cancel the stamps at the time of registration. The court interpreted the notification as requiring a second cancellation by the company to render the stamps permanently unfit for reuse, even if previously cancelled under Section 12 of the Stamp Act. The court concluded that the initial cancellation as per Section 12 was still required.
Conclusion:
The court found that the company was justified in refusing the registration of the shares due to the instruments not being "duly stamped." The application for rectification of the share register was dismissed. No order as to costs was made, but the company was directed to return the relevant share scrips and instruments of transfer to the petitioner within a fortnight.
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1961 (4) TMI 46
Issues Involved:
1. Authority of managing agents to issue debentures.
2. Validity and enforceability of the promise to issue debentures.
3. Creation of an equitable charge.
4. Delay in seeking relief and limitation.
5. Prejudice to other creditors.
Issue-wise Detailed Analysis:
1. Authority of Managing Agents to Issue Debentures:
The managing agents of Trivellore Oil Mills Ltd. promised to treat a loan of Rs. 20,000 as a debenture loan. However, the managing agents had no authority to issue debentures without the directors' approval, as per Section 87(G) of the Indian Companies Act. This provision explicitly prohibits managing agents from issuing debentures without the directors' authorization, rendering any such promise legally unenforceable. The court held that the managing agents' promise was void due to lack of authority.
2. Validity and Enforceability of the Promise to Issue Debentures:
The court examined whether the company had ratified the managing agents' promise or undertaken a fresh obligation to issue debentures. Despite a tripartite agreement in 1952, which included provisions for issuing debentures to the first respondent, the directors did not formally adopt this agreement. The minutes of the board meeting merely recorded the agreement without a resolution to issue debentures. Consequently, there was no enforceable agreement by any competent party to issue debentures or create a charge.
3. Creation of an Equitable Charge:
The court considered the principle that "Equity treats that as done which ought to be done," which can create an equitable charge based on an agreement to issue debentures. However, this principle applies only when there is an enforceable agreement by a competent party. In this case, the managing agents' promise was void, and the company did not ratify or adopt the promise. Therefore, no equitable charge was created in favor of the first respondent.
4. Delay in Seeking Relief and Limitation:
The first respondent's application was filed several years after the loan was advanced. The court noted that if the first respondent had sought specific performance shortly after lending the money, he might have succeeded. However, due to the delay and the subsequent liquidation of the company, the court found no basis to grant specific performance or create a charge on the company's assets.
5. Prejudice to Other Creditors:
The court addressed the concern that granting the first respondent a first charge would prejudice other creditors. The tripartite agreement provided for issuing debentures to multiple creditors, not just the first respondent. Granting a first charge to the first respondent would exclude other creditors from similar rights. The court concluded that the terms of the tripartite agreement did not confer any special rights on the first respondent or other creditors to claim a first charge.
Conclusion:
The appeal was allowed, and the first respondent's application was dismissed. The court held that the managing agents' promise to issue debentures was void due to lack of authority, and no enforceable agreement or equitable charge was created. The delay in seeking relief and the potential prejudice to other creditors further supported the decision to dismiss the application. The liquidators were entitled to recover their costs from the company's funds.
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1961 (4) TMI 45
Issues Involved:
1. Whether the claims of the respondents for preferential payment as secured creditors are justified under Section 530 of the Companies Act, 1956.
2. Whether the respondents qualify as "State Government" or "local authority" under Section 530(1)(a) of the Companies Act, 1956.
Issue-wise Detailed Analysis:
1. Justification of Preferential Payment Claims:
The official liquidator filed an application to expunge the claims of the respondents for preferential payment and treat them as unsecured debts. Initially, the respondents' claims were accepted as secured creditors in the liquidator's report. However, upon further examination, the liquidator concluded that this classification was a mistake. The liquidator's application was made under Rule 176 of the Companies (Court) Rules, 1959, which allows for expunging or reducing the amount of improperly admitted proofs. Since no dividend had yet been declared and there was no delay in filing the application, the court found the application maintainable.
2. Qualification as "State Government" or "Local Authority":
a. Director of Sericulture in Mysore, Bangalore (Respondent No. 3):
The respondent claimed preferential payment for debts due to the supply of silk worm eggs, seed cocoons, and silk worm seeds. The court determined that these claims did not fall under "revenues, taxes, cesses, and rates" due to the State Government as per Section 530(1)(a) of the Companies Act. The court referenced the Federal Court's decision in Governor-General in Council v. Shiromani Sugar Mills Ltd., which held that the Crown does not have prerogative priority in liquidation proceedings. The court concluded that the Director of Sericulture's claims were based on trading activities and should be treated like any other customer's claims, thus not qualifying for preferential treatment.
b. Mysore Housing Board and Mysore State Electricity Board (Respondents Nos. 1 and 2):
The respondents claimed preferential payment based on their status as a "local authority." The court analyzed whether these entities could be considered as "State Government" or "local authority" under Section 530(1)(a) of the Companies Act.
- Mysore State Electricity Board:
The court examined the Electricity (Supply) Act, which established the Mysore State Electricity Board as a body corporate with perpetual succession, capable of suing and being sued independently. The court referred to the Madras High Court's decision in Madras State Electricity Board v. Commissioner of Labour, which held that the Electricity Board is not a department of the State Government. The court concluded that the Mysore State Electricity Board is an autonomous entity and not entitled to preferential payments as a State Government.
- Mysore Housing Board:
The court considered the Mysore Housing Board Act, 1955, which deems the Board as a local authority for specific purposes under the Mysore Housing Board Act and the Mysore Land Acquisition Act. The court noted that if the Board were a local authority as defined in the General Clauses Act, there would be no need for such a legal fiction. Thus, the Mysore Housing Board does not qualify as a local authority for the purposes of Section 530(1)(a) of the Companies Act.
The court also referenced the Privy Council's decision in Metropolitan Meat Industry Board v. Sheedy and Denning L.J.'s judgment in Tamlin v. Hannaford, which supported the conclusion that statutory corporations like the Mysore State Electricity Board and Mysore Housing Board are not local authorities entitled to preferential treatment.
Conclusion:
The court held that the claims of the respondents for preferential payments could not be sustained. The official liquidator was permitted to rectify the mistake in his report, expunge the names of the respondents from the list of secured creditors, and add them to the list of unsecured creditors. There was no order as to costs.
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1961 (4) TMI 44
Issues:
1. Whether the misfeasance proceeding brought under section 543 of the Companies Act is within the time limit.
2. Application of section 45-O of the Banking Companies Act to the limitation period.
3. Availability of a further period under section 45-F of the Banking Companies Act.
4. Classification of claims under contractual liability and misfeasance.
Analysis:
The judgment revolves around the issue of the timeliness of a misfeasance proceeding initiated by the liquidator of a banking company under section 543 of the Companies Act. The winding-up petition was presented in 1949, and the winding-up order was made in 1950, with the liquidator appointed on the same date. The liquidator's argument that the proceeding was initiated through a report in 1953 is dismissed, emphasizing that a report does not constitute an application as required by the law. The actual application initiating the misfeasance proceeding was filed in 1958, which is beyond the five-year limit from the date of the winding-up order or the first appointment of the liquidator, rendering it out of time under section 543(2) of the Companies Act.
However, the judgment delves into the application of section 45-O of the Banking Companies Act, which provides a special period for limitation for banking companies under winding-up. The court analyzes the provisions of sub-sections (1) and (2) of section 45-O, concluding that sub-section (1) does not apply to misfeasance applications. Sub-section (2) clarifies that the limitation period for misfeasance claims is twelve years from the accrual of the claim or five years from the appointment of the liquidator, whichever is longer. Thus, the period of limitation for misfeasance claims in this case is governed by sub-section (2) of section 45-O.
Regarding the availability of a further period under section 45-F of the Banking Companies Act, the court dismisses the argument, stating that the provision had been repealed before the application was filed. The judgment distinguishes previous cases and holds that the application cannot benefit from a statute that is no longer in force.
Lastly, the judgment classifies the claims into two categories: those based on contractual liability of the directors and those based on misfeasance. Claims under contractual liability are not time-barred due to section 45-O, while misfeasance claims are limited to acts committed within twelve years preceding the application. The liquidator is directed to provide a statement specifying the acts of misfeasance committed after May 21, 1946, and the liable respondents by a specified date.
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1961 (4) TMI 23
Whether the Central Government exercising appellate powers under section 111 of the Companies Act, 1956, before its amendment by Act 65 of 1960 is a tribunal exercising judicial functions and is subject to the appellate jurisdiction of this court under article 136 of the Constitution?
Whether the Central Government acted in excess of its jurisdiction or otherwise acted illegally in directing the company to register the transfer of shares in favour of Shyam Sunder;and Savitadevi?
Held that:- All the documents which were produced before the Deputy Secretary are not printed in the record before us and we were told at the bar that there were several other documents which the Deputy Secretary took into consideration. In the absence of anything to show that the Central Government exercised it restricted power in hearing an appeal under section 111(3) and passed the orders under appeal in the light of the restrictions imposed by article 47B of the articles of association and in the interest of the company, we are unable to decide whether the Central Government did not transgress the limits of their power. We are however of the view that there has been no proper trial of the appeals, no reasons having been given in support of the orders by the Deputy Secretary who heard the appeals. In the circumstances, we quash the orders passed by the Central Government and direct that the appeals be reheard and disposed of according to law.
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1961 (4) TMI 22
Issues Involved:
1. Validity of the call made by the Hindustan Petroleum Co. Ltd.
2. Payments made towards the call.
3. Adjustment of advance payments towards the call money.
4. Interest chargeable on the unpaid call amount.
5. Relief sought by the appellants.
Detailed Analysis:
1. Validity of the Call:
The primary issue was whether a valid call of 75% of the share money was made by the Hindustan Petroleum Co. Ltd. during the board meeting on April 30, 1953. The appellants argued that the resolution did not fix the time of payment, was discriminatory, and no notice was given to them. The court found that the resolution did not specify the time of payment, which is imperative under Article 17 of the Articles of Association. This omission rendered the call invalid. Additionally, the resolutions were discriminatory as they imposed different call amounts on directors and ordinary shareholders, without authorization under Section 49 of the Indian Companies Act, 1913. The court also noted the absence of proof regarding the issuance and receipt of notice for the call, further invalidating it.
2. Payments Made Towards the Call:
The court examined the payments made by each appellant. Major Teja Singh and Gurinder Singh claimed to have made advance payments of Rs. 5,000 each, which were not accounted for. The court accepted Gurinder Singh's claim, as the liquidator admitted the payment. For Major Teja Singh, the court held that the Rs. 5,000 paid was indeed an advance towards the call and should be credited accordingly. The claims of Raja Maheshinder Singh, Hardam Singh, and Gurbakshish Singh for additional payments were not substantiated with sufficient evidence and were thus rejected.
3. Adjustment of Advance Payments:
The court found that advance payments made by Major Teja Singh and Gurinder Singh should be adjusted towards the call money. This adjustment was allowed for Gurinder Singh by the company judge, and the court upheld this decision. For Major Teja Singh, the court concluded that his advance payment of Rs. 5,000 should be credited against the call amount, reducing his liability to Rs. 10,000.
4. Interest Chargeable on the Unpaid Call Amount:
The court upheld the company judge's decision that each appellant was liable to pay interest at the rate of 9% per annum on the unpaid call amount. This interest was deemed applicable from the date of the resolution to the date of payment.
5. Relief:
The court dismissed the appeals of Raja Maheshinder Singh, Hardam Singh, and Gurbakshish Singh, holding them estopped from questioning the validity of the call due to their participation in the resolution. Their objections were dismissed with costs. However, the appeals of Major Teja Singh and Gurinder Singh were accepted. The court ruled that there had been no valid call against them under the resolutions, and thus, they could not be included in the list of contributories. The court fixed the counsel's fee in each appeal at Rs. 60.
Conclusion:
The judgment comprehensively addressed the validity of the call, payments made towards it, the adjustment of advance payments, interest liability, and the relief sought by the appellants. It upheld the objections of Major Teja Singh and Gurinder Singh, excluding them from the list of contributories, while dismissing the appeals of Raja Maheshinder Singh, Hardam Singh, and Gurbakshish Singh, holding them liable for the calls made under the resolution.
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1961 (4) TMI 9
Whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public?
Held that:- The attack on the validity of para 6(h) of the Imports Control Order, 1955 fails. The contention that Section 3 of the Imports and Exports Control Act, 1947, is bad to the extent that it permits the Government to make an order as in para 6(h) of the Imports Control Order, 1955, consequently also fails.
The attack on this provision in para 6(h) of the order that it contravenes Article 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is no scope therefore for the argument that they have been discriminated against. Appeal dismissed.
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1961 (4) TMI 8
Whether the proceedings taken against the petitioner in pursuance of the order under section 8A(2) are violative of the guarantee of equal protection of the laws under article 14 of the Constitution
Held that:- The true scope and effect of the sub-section is to enforce the terms of any settlement arrived at in pursuance of sub-section (1) and to recover any sum specified in such settlement as if it were income-tax or arrear of income-tax in accordance with the provisions of sections 44 and 46 of the Indian Income-tax Act, 1922. We are unable, therefore, to accept the construction which learned counsel for the petitioner seeks to put on the sub-section.
In this case everything was concluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand. All that remained to be done was the recovery of the amount according to the notice of demand. Therefore, the crucial question is---is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before January 26, 1950 ? We are unable to answer this question in favour of the petitioner. Appeal dismissed.
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1961 (4) TMI 7
Whether the transaction is or is not an adventure in the nature of trade?
Held that:- The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.
The constitutional question under article 14 of the Constitution cannot be raised in these proceedings because this court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal. Appeal dismissed.
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1961 (4) TMI 6
Whether it was not open to the High Court in the present reference to go into the question as to the applicability of the proviso to section 10(2)(vii), as it was neither raised before the Tribunal nor considered by it, and could not, therefore, be said to be a question arising out of the order of the Tribunal, which alone could be referred for the decision of the court under section 66(1)?
Whether the sum of ₹ 9,26,532 was property included in the assessee company's total income computed for the assessment year 1946-47?
Held that:- In the present case, the question actually referred was whether the assessment in respect of ₹ 9,26,532 was proper. Though the point argued before the income-tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court, namely, that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve reframing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C.J., in the question which was referred, and, therefore, it was one which the court had to answer. Appeal dismissed.
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1961 (4) TMI 5
Whether the assessee's claim for deducting a sum of ₹ 1,24,199 odd under the provisions of section 10(2)(xv) of the Indian Income-tax Act, 1922 be disallowed as done by Income-tax Appellate Tribunal (Calcutta Bench), Calcutta?
Held that:- Special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under article 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court. Appeal dismissed.
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9911796707
