Court : Mumbai
Decided on : Mar-22-1943
Reported in : AIR1944Bom1; [1943]11ITR559(Bom); (1943)45BOMLR929
Author: K John Beaumont 1. This is a reference made by the Income-tax Appellate Tribunal raising four questions, but in substance only one question calls for serious consideration, and that is whether the provisions of Section 4A(c) of the Indian Income-tax Act, 1922, a sub-section introduced by the amending Act of 1939, are ultra vires in whole or in part. That sub-section provides that a company is resident in British India in any year (a) if the control and management of its affairs is situated wholly in British India in that year, or (b) if its income arising in British India in that year exceeds its income arising without British India in that year. It is not suggested that paragraph (a) is invalid. The provision that the residence of a company depends on where the control and management of its affairs is situated is in accordance with English law. But it is suggested that paragraph (b) is ultra vires in that it involves the taxation of a non-resident in respect of income derived ...
Tag this Judgment!Court : Mumbai
Decided on : May-10-1943
Reported in : (1945)47BOMLR525
Viscount Simon L.C., J.1. This appeal is brought, by leave of the Madras High Court, from an order of that Court dated November 5, 1937, dismissing the appellants' application that a writ of certiorari should issue to the Board of Revenue at Madras to bring up, in order to be quashed, an order made by the Collective Board, on October 9, 1936, under Section 172 of the Madras Estates Land Act, 1908.2. The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should 'be certified' of the proceedings to be investigated and the object is to secure, by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not ...
Tag this Judgment!Court : Privy Council
Decided on : May-10-1943
VISCOUNT SIMON L. C: This appeal is brought, by leave of the Madras High Court, from an order of that Court dated 5th November 1937, dismissing the appellants' application that a writ of certiorari should issue to the Board of Revenue at Madras to bring up, in order to be quashed, an order made by the Collective Board, on 9th October 1936, under S. 172, Madras Estates Land Act, 1908. The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct...
Tag this Judgment!Court : Mumbai
Decided on : Dec-10-1943
Reported in : (1944)46BOMLR831
Lokur, J.1. This is a second appeal arising out of a suit filed by five brothers, the sons of Raghoshet Wani of Dabhadi, against Supadu Laxmanshet Wani, defendant No. 1, his six sons defendants Nos. 2 to 7 and their tenants defendants Nos. 8 and 9. The plaintiffs claimed to recover possession of two lands, Revision Survey No. 83 of Jalgaon and Revision Survey No. 273 of Dhandri, together with Rs. 300 as past mesne profits for three years, future raesne profits and costs of the suit. The plaintiffs based their claim on their title which, they alleged, was accepted by the defendants when Suit No. 395 of 1924 in the First Class Subordinate Judge's Court at Nasik was compromised. The defendants denied their title and contended that the compromise application, being not registered, was inadmissible in evidence and that it was not binding on them as the compromise had been brought about by undue influence. Both the Courts below disallowed these contentions and awarded to the plaintiffs posse...
Tag this Judgment!Court : Chennai
Decided on : Aug-10-1943
Reported in : AIR1943Mad602; (1943)2MLJ247
Alfred Henry Lionel Leach, C.J.1. This is an application for the issue of a writ of certiorari for the quashing of the proceedings in Ordinance Case No. 1 of 1943 on the file of the Special Judge, Chingleput. The application involves the decision of the question whether Sub-section (1) of Section 3, of the Special Criminal Courts (Repeal) Ordinance, 1943 (Ordinance No. XIX of 1943) embodies a valid provision of law.2. The petitioner and seven other persons were charged with having conspired to blow up the Uppanar Railway bridge near Shiyali and with having attempted to destroy the bridge. After their arrest the accused persons were brought before the Stationary Sub-Magistrate of Shiyali, who transferred the case to the Sub-Divisional Magistrate of Mayavaram. Under the provisions of the Special Criminal Courts Ordinance, 1942 (Ordinance No. II of 1942), the Sessions Judge of Nega-patam was appointed by the Government of Madras the Special Judge to try the case. Subsequently the Governme...
Tag this Judgment!Court : Allahabad
Decided on : Apr-30-1943
Reported in : AIR1943All331
ORDERIqbal Ahmad, C. J.1. This is an application under Section 491, Criminal P. C, and was filed on 27th April last by one Baldeva Das with a view to secure the release of Pt. Kamlapati Tewari from detention under an order purporting to be made under Rule 26 of the Defence of India Rules. The application is supported by an affidavit which shows that Kamlapati Tewari, who is a member of the Legislative Assembly, United Provinces, attended a meeting of the All India Congress Committee at Bombay and, on his return journey from Bombay was arrested at the Allahabad Railway Station on the night of 10th August 1912, and is at present detained under Rule 26. Sir Tej Bahadur Sapru, who appeared for the applicant, contended that Rule 26 of the Defence of India Rules was invalid and submitted that it had been so held in a recent case by the Federal Court. On 27th April I adjourned the hearing of the application to this date to enable Sir Tej Bahadur Sapru to file a certified copy of the judgment ...
Tag this Judgment!Court : Mumbai
Decided on : Sep-01-1943
Reported in : (1944)46BOMLR54
J.C. Shah, J.1. The question that arises in this case is, whether Ordinance XIX of 1943 is a valid Ordinance. It was promulgated on June 5, 1943, to repeal Ordinance II of 1942, which established Special Criminal Courts in India for trial of certain classes of offences. Ordinance II of 1942 was held to be intra vires by the Bombay High Court in Emperor v. Shreekant Pandurang Ketkar : (1943)45BOMLR323 , though the Calcutta High Court arrived at an opposite conclusion in Banoari Lal v. Emperor : AIR1943Cal285 as regards Sections 5, 10, 14 and 16. Eventually the Federal Court of India held in Emperor v. Banoari Lal that Sections 5, 10 and 16 of the Ordinance were ultra vires. This decision was given on June 4, 1943. The Governor General deliberated overnight and promulgated Ordinance XIX of 1943 the next day. The new Ordinance accepted the decision of the Federal Court in so far as it repealed Ordinance II of 1942. It also proceeded to terminate pending proceedings; but it went further to...
Tag this Judgment!Court : Allahabad
Decided on : Dec-15-1943
Reported in : AIR1944All62
Allsop, J.1. The question which we have to answer is whether the Governor-General had power validly to enact Section 2 of ordinance 14 of 1943. His powers of legislation are derived from the provisions of Section 72 set out in Schedule 9, Government of India Act, 1935. These provisions as amended are as follows:The Governor-General may in oases of emergency make and promulgate ordinances for the peace and good government of British India or any part thereof and any ordinance so made shall have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.There is a provision in the India and Burma (Emergency Provisions) Act, 1940, that the Governor-General shall not be su...
Tag this Judgment!Court : Mumbai
Decided on : Jun-28-1943
Reported in : AIR1944Bom218; (1944)46BOMLR363
Lokur, J.1. This appeal involves a question of considerable importance under the Khoti Settlement Act, 1880.2. The facts are not in dispute. The plaintiff and defendants Nos. 2 to 17 are co-sharers in the khotki of the village Kasheli in Ratnagiri District. Defendant No. 1 is a permanent tenant of khata No. 84 in that village. I may mention here that before the amendment of Section 3(4) of the Khoti Settlement Act, 1880, by Section 85(b) of Bombay Act IV of 1913, permanent tenants were styled 'occupancy tenants.' In accordance with the Recording officer's tharav or decision, defendant No. 1 and his predecessors were paying to the khot that (rent) at three times the survey assessment in respect of their khata No. 84. This went on till defendant No. 2 became the managing khot for 1935-36. Defendant No. 1 then made an application to the Recording-officer requesting that his liability in respect of khata No. 84 should be fixed at survey assessment and local fund cess only. Defendant No. 2 ...
Tag this Judgment!Court : Chennai
Decided on : Sep-02-1943
Reported in : AIR1944Mad340
Leach, C.J.1. These appeals and civil revision petitions arise out of proceedings instituted in the Court of the Subordinate Judge of Devakottah, with reference to the estate of one RM.AR.AR.RM. Arunachalam Chettiar, who died on 23rd February 1938. Appeals Nos. 321 of 1940, 3,104 and 239 of 1941 are from a preliminary decree passed by the Subordinate Judge in a suit for the administration of the estate. The petitions ask for the revision of orders passed in the suit. C. M. A. No. 282 of 1941 is against an order granting probate of a will executed by Arunachalam on 8th January 1938. These matters have been heard together and can be dealt with conveniently in one judgment.2. The testator, who was a member of the Nattukottai Chettiar community was a very wealthy man. His personal assets have been estimated to be worth Rs. 39,66,100. He had assets in British India, Burma, Federated Malay States, Ceylon and French Cochin China. In addition, he was the trustee of numerous charities, the endo...
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