Madhavrao J. ScIndia Vs. Commissioner of Income-tax - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].s.h. kapadia, j. 1. at the instance of the assessee, the following two questions of law have been referred to this court for opinion under section 256(1) of the income-tax act, 1961, in respect of the assessment year 1973-74 :'1. whether, on the facts and in the circumstances of the case, the tribunal was right in holding that the gross dividend declared by the companies in ceylon was chargeable to tax and not the net amount after deducting the tax at source and the cost of foreign exchange entitlement certificate ? 2. whether, on the facts and in the circumstances of the case, the tribunal was correct in holding that the travel allowance received by the applicant from scindia investments pvt. ltd., was not exempt in terms of section 10(14) of the income-tax act, 1961 ?' 2. as far as question no. 1 is concerned, both learned counsel for the parties state that the controversy involved in this question is squarely covered by the decision of this court in mrs. meherbai n. sethna v. cat : [1994]209itr453(bom) . accordingly, question no. 1 is answered in the affirmative, i.e., in favour of the revenue and against the assessee.3. as regards question no. 2 reproduced hereinabove, we mention at the very outset that on going through the order passed by the authorities below, we feel that this question pertains to daily allowance received by the assessee. in the circumstances, question no. 2 should be read as referring to daily allowance and not the travel allowance. in the present matter, the tribunal has observed that the head office of scindia investments private limited, is situated at bombay and the assessee is ordinarily a resident of gwalior, and as such he was coming from gwalior for performing duties of his office as director at bombay. in view of the explanation to section 10(14), the assessee in this case cannot claim exemption in respect of allowance received by him for performing his duties as director in office at bombay. in the circumstances, the tribunal was right in rejecting the assessee's claim for exemption in terms of section 10(14) of the income-tax act, 1961. accordingly, question no. 2 is answered in the affirmative, i.e., in favour of the revenue and against the assessee.4. reference stands disposed of accordingly with no order as to costs.