text stringlengths 5 5.67k |
|---|
(1) A.I.R. 1940 P.C. 160. FAC |
871 Question No. 6 The plaintiff 's suit, as already indi cated, was for a specific and ascertained sum of money on the basis of settled account. Ratio |
The courts below have con currently found that there was no settlement of account on April 4, 1949, as alleged by the plaintiff. Ratio |
After this finding, it was not open to them to make out a new case for the plaintiff which he never pleaded and go into the ac counts and pass a decree for the amount which they consid ered was due from the defendants first set to the plaintiff. Ratio |
They should have, in the: circumstances, either dismissed the suit or passed a preliminary decree fox accounts di recting that the books of account be examined item by item and an opportunity allowed to the defendants first set to impeach and falsify either wholly or in part the accounts on the ground of fraud; mistake... |
By adopting the latter course indicated by us, the defendants first set would have got a fair and adequate opportunity of scrutinizing the accounts and showing whether they were tained with fraud, mistake, inaccuracy or omission or of showing that any item claimed by the plaintiff was in fact not due to him. Ratio |
Question No. 7 : The High Court has for cogent reasons held that the goods on which the burden of charge lay being available for the satisfaction of the liabilities, if any, under the agreement dated July 6, 1948, the defendants second set could not be held personally liable for payment of the decretal amount. Ratio |
The opinion expressed by the High Court is correct and we see no warrant or justification to interfere with the same. Ratio |
In view of the foregoing, we have no hesitation in holding that as material alterations have been made by the plaintiff in the agreement dated July 6, 1948 (which is the basis of the suit) rendering it void and as the bar of section 69 of the Partnership Act clearly applies to the case, the suit is clearly untenable an... |
the result, Appeal No. 572 of 1974 is allowed and the suit out of which it arose is dismissed. Ratio |
Consequently, Appeal No. 416 of 1973 fails and is dismissed. RPC |
In the circumstances of the case, parties are left to Pay and bear their own costs of these appeals. RPC |
C.A. 572/74 allowed. RPC |
P.H.P. C.A. 416/73 dismissed. RPC |
ivil Appeal Nos. FAC |
446 449 of 1976. FAC |
Appeals by Special Leave from the judgment and Orders dated. FAC |
14 1338SCI/76 1004 7 4 1969 and 25 1 1972 of the Bombay High Court (Nagpur Bench) In S.T.R. Nos. FAC |
17 to 20 of 1964 and CIVIL APPEAL NOS. FAC |
450453 OF 1976. FAC |
V. p. Raman, Addl. FAC |
General for India, S.B. Wad and M. N Shroff for Appellants in CAs. FAC |
450 to 453/76. FAC |
G.L. Sanghi, A. section Bobde, M.L. Vaidya, V.A. Bobde, A. G. Meneses, J.B. Dadachanji, K.J. John, O.C. Mathur and Ravind er Narain for the Respondents in CAs. FAC |
446 449/76 and Appel lants in (2. FAC |
450 453/76 The Judgment of the Court was delivered by BEG, J. FAC |
The eight appeals before us by special leave arise out of four Sale "Tax References, under Section 23(1) of the Central Provinces and Berar Sales Tax Act, 1947, (hereinafter referred to as 'the Act '). STA |
Five of these were decided by a Division Bench of the Bombay High Court. FAC |
As it answered the main question determining liabili ty to pay the sales tax under the Act against the State, there are four appeals against it by the State. FAC |
The sixth question, which was one of law only, was referred by the Division Bench to a Full Bench, and, this was determined in favour of the State. FAC |
There are, therefore, four appeals by the assessee against the Full Bench decision. FAC |
M/s. Central Provinces Manganese Ore Co. Ltd., the assessee, has its Head Office in London. FAC |
It carries on business on an extensive scale. FAC |
It owns 22 manganese ore mines in Madhya Pradesh from where manganese ore, after being excavated, is sent mostly abroad through different ports. FAC |
The Company is a registered dealer under the Act. FAC |
It used to enter into contracts at places outside Madhya Pradesh for the despatch of what came to be known, in the special parlance of this company 's business, as "Oriental Mixture" But the contracts contain specifications only of strengths of manganese ore to be supplied with permissible percentages of other ingredie... |
The term "Oriental Mixture" was evidently employed by the Company itself to describe a particular type of conglomerate which the unloading at one place of Various types of manganese ore produced. FAC |
The required average consistency or strength of manganese ore specified in the contracts, which did not contain a reference to any "Oriental Mixture", was said to be obtained in the course of this mechanical process of transportation when various grades of manganese ore were heaped together. FAC |
These grades of manganese ore were trans ported, in railway wagons, from one or more mines, and, it appears that the order in which trucks were.loaded in goods trains and unloaded was also so,arranged that the mixture came into existence, as described above, in the mere process of unloading at the port. FAC |
1005 But, this procedure did not seem to involve a process of "Manufacture", as that term is ordinarily understood, to which the assessee could be said to have subjected its manganese ore. FAC |
The case of the assessee company was that the "Oriental Mixture" as a taxable commodity came into existence only after the ores got mixed up in the process of unloading and not before so that it could not be taxed as "goods in exist ence" in Madhya Pradesh at the time when ,contracts relating to these goods were made. ... |
Other questions ,appear to be subsidiary. Ratio |
Nevertheless; we have to consider them 'before coming to the crucial question which is: Is the process described above one of "manufacture" so that a new kind of goods, known as "Oriental Mixture", came into existence at the port where manganese ore trucks were unloaded? As the High Court pointed out, the periods invol... |
Reference No. 17 of 1964 for the period 1st January, 1947 30th September, 1947. Ratio |
Reference No. 18 of 1964 for the period 1st October, 1947 to 31st December, 1948. Ratio |
Reference No. 19 of 1964 for the period 1st January, 1949 to 31st December, 1949. Ratio |
Reference No. 20 of 1964 for the period 1st January, 1950 to 25th January, 1950. Ratio |
We, therefore, agree with the High Court 's view that Article 286 of the Constitution, which is not retrospective in operation, could not help the assessee merely because it was there at the time of assessment. Ratio |
The next question to be considered, which was referred to the Full Bench, flows from Explanation (II) to Section 2(g) of the Act which was amended by the C.P. & Berar Sale Tax (Amendment) Act No. XVI of 1949, came into force on 11th April, 1949. Ratio |
Hence, the law, as found after the amending Act, could apply, .if valid, only to the last two refer ences. Ratio |
But, the question which arose, on the assumption that the amendment was ineffective, was whether the unamended law could be applied at all after the purported amendment. Ratio |
Section 2(g) of the Act, with its two explanations, before it was amended, may be reproduced here in toto. STA |
It reads as follows: "2(g) 'sale ' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable considera tion, including a transfer of property in goods made in course of the execution of a contract, but does not,include a mortgage, ... |
Section 2 of the Amending Act of 1949 provid ed: 2. STA |
In section 2 of the Central Provinces and Berar Sales Tax Act 1947 (hereinafter referred to as the said Act), (a) in clause (g) for Explanation (I1) the following shall be substituted : Explanation (I1) : Notwithstanding anything to the contrary in the Indian , the sale or purchase of any goods shall be deemed for the ... |
The submission made on behalf of the assessee, which was accepted by the High Court was that, as the amendment did not receive the assent of the Governor General under Section 107 of the Govt. ARG |
of India Act, it was void. ARG |
It was, howev er, also urged, on behalf of the assessee, that a repeal of the previously existing section did not require the assent of the Governor General at all. ARG |
The argument was that the original provision was validly repealed, but, as no substi tution of the new provision could take place, because the assent of the Governor General was not obtained, only the repeal survived. Ratio |
The result of accepting such a submission would be that the substitution will have to be split up into two distinct enactments; firstly, a repeal of the original section 2(g) of the Act; and, secondly, the substitution of the new provision for the repealed one. Ratio |
The assessee 's argument was that two processes, one of repeal and another of substitution, are necessarily implied in such an amend ment as the one before us. Ratio |
It was urged that both had received the assent of the Governor, but, since the substi tuted provision alone required the assent of the Governor General, which was not obtained, a repeal, which was assent ed to by the Governor, stood on its own separate footing. ARG |
Thus, the result was said to be a repeal simpliciter without the enactment of the fresh provision meant to replace it. Ratio |
1007 It was submitted that the High Court, after finding the substituted provisions of section 2(g) of the Act to be invalid, had erred in holding that the repeal was also ineffective. Ratio |
It was contended that such a view resulted in attributing to the legislature an intention contrary to that which it had unmistakably expressed by repealing the una mended provision. ARG |
It was urged that the repeal, which was clearly intended, must be held to be valid. ARG |
assessment periods. Ratio |
Of course, this argument assumes that the repeal and the new ' enactment are separate. Ratio |
In Shriram Gulabdas vs Board of Revenue, Madhya Pradesh & Ant. PRE |
the province, is not ultra vires the Provision Legislature. PRE |
We must make it clear that our answer to this question is in the affirmative, free from considerations arising under Article 286. Ratio |
We have shown that the necessary power to make the unamended Explanation did exist in the State Legisla ture; but we have also made it clear that by virtue ' of Article 286 the Explanation can no longer be enforced because under the present Constitution the sales tax can only be col lected at the market and where the g... |
We may also state that the amended Explanation II is not validly enacted because it makes drastic changes in the rules as found in the without obtaining the ' assent of the Governor General. Ratio |
The effect of the amended Explanation going out would be to rehabilitate the old Explanation as it existed because the amendment being unconstitutional will fail to work any change in the law (See the opinion given by one of us, Hidayatullah, J., in Laxmibai vs The State (I.L.R. , 608, 610 (F.B.)". Ratio |
No question relating to the enforcement of the Sales tax by any collection to be made after the Constitution came into force was raised the cases before us. Ratio |
This was held to be the correct position in the case of Shriram Gulabdas (Supra). Ratio |
It was also clearly held there that the 'result of the invalidity of the amended explana tion was to leave the law unaltered as it stood before the amendment. Ratio |
We approve of this pronouncement made long ago on this very question. Ratio |
It was urged on behalf of the assessee that the case of Shriram Gulabdas (supra) contained what was merely an obser vation with regard the "rehabilitation" of the preexisting law as that question was no directly under consideration there ARG |
It was also submitted that this observation must be deemed to have been over ruled by subsequent pronouncements of this Court. ARG |
(1) (1952) 3 S.T.C. 343. ARG |
1008 The passage cited above by us occurs in answering the fifth question considered there which was framed as follows: "(v) Whether Explanation II to clause (g) of Section 2, which makes an agreement of sale taxable even though the sale may have taken placed outside the Province, ultra vires of the Provincial Legislat... |
We think that the view that the unamended law was in operation was not a mere obiter dictum. Ratio |
It was necessary to decide that question before other questions could be determined. Ratio |
We give out own reasons below for accepting the correctness of the view taken then. Ratio |
The following passage was also cited from Koteswar Vittal Kamath V.K. Rangappa Baliga & Co. (at p. 509): "Learned counsel for the respondent, however, urged that the Prohibition Order of 1119 cannot, in any case, be held to have continued after 8th March, 1950, if the prin ciple laid down by this Court in Firm A.T.B. M... |
2 SCR 435 (AIR 1963 SC 928) is applied. Ratio |
In that case, rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, was impugned. Ratio |
The Court held that the ' new Rule 16(2) was invalid because the provisions of that. Ratio |
rule contra vened the provisions of Article 304(a) of the Constitution. Ratio |
Thereupon, it was urged before the Court that, if the impugned rule be held to be invalid, the old Rule 16 gets revived, so that the tax assessed on the basis of that rule will ' be good. ARG |
The Court rejected this submission by holding that : 'Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid '. Ratio |
On that analogy, it was argued that, if we hold that the Prohibition Order of 1950 was invalid, the previous Prohibition Order of 1119 cannot be held to be revived. Ratio |
This argument ignores the distinction between supersession of a rule, and substitution of a rule. Ratio |
In the case of (1963) Supp. 2 SCR 435 (AIR (supra), the new Rule 16 was substituted for the old Rule 16. Ratio |
The process of substitution consists of two steps. Ratio |
First, the old rule is made to cease to exist, and, next, the new rule is brought into existence in its place. Ratio |
Even if the new rule be in valid, the first step of the (1) ; 509: ; 47.1009 old rule ceasing to exist comes into effect and it was for this reason that the Court held that, on declaration of the new rule as in valid, the old rule could not be held to be revived". Ratio |
In the above mentioned passage, this Court merely explained the argument which was ac cepted in the case of firm A.T.B. Mehtab Majid & Co. vs State of Madras(1). Ratio |
After doing so, it distinguished the facts in Koteswar 's case (supra), relating to an alleged substitution of one Prohibition Order by a subsequent order which was found to be invalid. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.