Business meaning of

The word “business” has been defined by the Act in S. 2 (5) of the Indian Income-tax Act, 1922 as follows:

“Business” includes any trade, commerce or manufacture or any adventure in the nature of trade, commerce or manufactures or any profession or vacation ….”

 It means any continued activity of a person which yields profits and which is in the nature of trade, commerce or manufactures. It may even be any adventure in the nature of trade, commerce or manufacture. A proviso was added to this definition in the year 1940 in these terms:

‘Provided further that all businesses to which this Act appiles carried on by the same person shall be treated as one business for the purposes of this Act.”

The effect of the proviso is that if a man is carrying on a number of activities whether of the same or of the different natures, all these various businesses are treated as one. The same person, if engaged in the manufacture of hardware, oils, textiles, motor tyres, bicycles and owning mills for his diverse activities in different places and also trading in merchandise and doing contract business is deemed to carry on a single business. All the businesses that he carries on are lumped together and treated as one business for the purpose of levying the tax and calculating the profits. The proviso has made an amalgam of all the businesses of one individual and it is in view of this amalgam that proviso 3 of S. 5 has to be considered. It seems to me that what has been amalgamated by the definition has again been made separate by the proviso to S. 5 If a number of businesses carried on by a person are situate in different places, than the effect of the proviso is to again treat them as separate business under the description of the phrase “part of a business.” In other words, if a man is carrying on manufacture in textiles in Bombay, a shop at Mysore, has a distillery in Allahabad and has an oil mill in Gwalior, then for the purpose of S. 5 all these four trades are part of the business within the meaning of proviso 3 to S. 5, one part situtate in one place and another part situate at another place and if any of these parts produce profits at the place of the business, that place being in an Indian State, than proviso 3 would have application. I think that the affect of the language of proviso 2 of S. 5 is to give colour to proviso 3 as being complementary to it and providing for converse case to those arising under this proviso concerning non-residents. Illustratively it may be said that proviso 2 would cover the case if the manufacturing business of the respondent was situate in Bombay and his sales exclusively were made at Raichur provided he was a non-resident. In that event excess profits duty would be chargeable on a part of the profits attributable to the part of the business in Bombay, or in other words, to those business operations that were being carried on in Bombay. The converse case where the manufacturing operations are being carried on in Raichur by a resident in India and the sales are made exclusively in Bombay is apparently covered by proviso 3 because a part of the business being situate in Raichur profits attributable to that part of the business out of the total sale proceeds could only be said to accrue at the place of manufacture.

What is an Application [Definition]

Let us advert to the definition of the expressions ‘applicant’ and ‘application’ found in Ss. 2(a) and 2(b) of the Limitation Act, 1963;

“2(a) ‘applicant’ includes –

(i) a petitioner;

(ii) any person from or through whom an applicant derives his right to apply; (iii) any person whose estate is represented by the applicant as executor, administrator or other representative;

(b)’application’ includes a petition”. The definitions are inclusive. They do not expaliate the meanings that should be annexed to the expressions as such. We must find out what ‘application’ could legitimately and in the legal sense mean. The definition in Section 2(a) and 2(b) may not by themselves be helpful to decide this crucial aspect. In Shorter Oxford English Dictionary some of the meanings annexed to the expression ‘application’ are: “the action of putting a thing to another”; “the bringing of anything to bear practically upon another”; and “the action of making an appeal, request or petition to a person”. In Stroud’s Judicial Dictionary Third Edition, one of the meanings annexed to the expression ‘application’ runs as follows:

“‘Application’ includes the hearing of the action as well as an interlocutory proceeding (International Financial Society v. Mescow Gas Co., (1877) 7 CHD 241”.

The nomenclature of the application is not decisive. The words used in the statute must be construed not according to the more ordinary general meaning of the words. In this connection, we feel obliged to extract the following passage occurring in Maxwell on The Interpretation of Statutes — Twelfth Edition:

“The words of a Statute, when there is doubt about their meaning, are to be understood in the sense in which they best har-monian with the subject of the enactment. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained. Grammatically, words may cover a case; but whenever a statute of document is to be construed it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied.”

 The first and the foremost impression that occur to the mind of the Court is that an ‘application’ referred to in the Limitation Act, 1963, must be one intended to settle or secure the rights of the applicant and. correspondingly the obligations of the opposite party. There cannot be dispute that the application must be only before a Court of law. So long as no application is made or presented before a Court of law, the question of limitation would not arise at all. The provisions of the Code of Civil Procedure, hereinafter referred to as the Code, govern the presentation of proceedings before a Court of law. Section 26 of the Code prescribes that every suit shall be instituted by the presentation of a Plaint or in such other manner, as may be prescribed. Section 141 of the Code says that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. What is the meaning to be given to the word ‘proceedings’?

The word ‘Proceedings’, in its compendium, will certainly take in applications. The scope of ‘Proceedings’ itself has been considered by pronouncements of this Court.

The words ‘suit or proceeding’ have been interpreted in various senses in different statutes according to the intent and scope of the statute, sometimes in a narrow sense and sometimes in a wide sense. The word ‘suit’ in a narrow sense is confined to a litigation initiated in a trial Court and ending with a decree or a final order passed by it. In this sense it would not include execution proceedings or proceedings in appeal. But in a wide sense it has been interpreted as comprehending the entire litigation commencing from the initiation of the litigation in the trial Court up to the state when the ultimate decision is reached in the final Court of appeal or as revision. In this view it would include execution proceedings in appeal as continuation of the suit.

The word ‘proceeding’ has been similarly interpreted. In its narrow sense, it is a step in any action or in an independent proceeding analogous to an action by which a litigation is initiated. In a wide sense it has been interpreted, if used in juxtaposition with a suit, to include any proceeding in the nature of a suit. Even in this view, having regard to the context, it is sometimes limited only to the stage of litigation commenced by filing a petition or application in the trial Court and ending with an order or decree passed by that Court.

In another view it is meant to indicate all the applications in execution of a decree or order passed in the main proceeding and also all proceedings in appeal as continuation of the proceeding. The word ‘proceeding’ used alone has been interpreted to mean all judicial proceedings and when applied to suits to mean the suit as a whole. Therefore the meaning to be attributed to the word ‘suit’ or ‘proceeding’ must depend upon the scope of the enactment wherein the said expressions are used and with reference to the particular context wherein they occur.”

 In Kochadai Naidu and Another Vs. Nagayasami Naidu and Others, , Ramachandra Iyer, J. as he then was, while construing the word ‘proceeding’, occurring in S. 24 of the Code, had occasion to advert to its definition, found in Shorter Oxford Dictionary and in ‘words and phrases’ permanent Edition Volume 34, as follows:

“The word ‘proceeding’ is defined in the Shorter Oxford Dictionary as doing a legal action or process, any act done by the authority of a Court of law”. In ‘words and phrases’ Permanent Edition Volume 34, a number of meanings taken from American decisions are given for the word ‘proceedings’. Two of them which I give below bring out of the essential import of the words:

(1)’The word ‘proceeding ordinarily relates to forms of law, to the modes in which judicial transactions are conducted.’

(2) ‘The term ‘proceeding’ is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked.”

 Venkatadri, J. in K.J. Lingan and A.V. Mahayalam and Others Vs. Joint Commercial Tax Officer and Another, , referred to the earlier pronouncements of this Court with regard to the meaning to be annexed to the term ‘proceeding’ and held that the very action of calling upon a dealer by the notice of commounding u/s 46 of the Madras General Sales Tax Act 1 of 1959 is a proceeding under that Act, since it is a step in aid or action taken by the concerned authority in the whole process of assessing the dealer on his turnover and hence, a Revision would lie against such notice.

Tek Chand, J. of the High Court of Punjab & Haryana in Workmen of Bali Singh and Bhagwan Singh Vs. Management of Bali Singh and Bhagwan Singh, , while construing the word ‘proceeding’ in S. 93 of the Punjab Reorganisation Act, (1966), observed as follows (at p 149 of AIR):

“Even if inclusive definition was not given of the word ‘proceeding’ in Section 93, in its general acceptation also, it is a term of wide amplitude; and means a prescribed course of action for enforcing or protecting a legal right and further embracing the requisite steps to be taken whether procedural or substantive. Proceeding also means forms in which relief is sought before Courts of Law or before other bodies or authorities determining rights and liabilities and in which actions are brought and defended and the manner of conducting them and the mode of deciding them”.

As a principle, it has to be stated that the word ‘proceedings’, which takes in applications within its ambit is relatable to an action in a Court of law. With regard to the meaning to be annexed to the word ‘action’, in Bharat Bank Ltd. v. Ruby General Insurance Co. Ltd., AIR 1951 Pun 97, the following passage from Haisbury’s Laws of England stands extracted:

“An ‘action’ according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of Justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be ‘the legal demand of a right’, or ‘the mode of pursuing a right to judgment’. It implies the existence of Parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a Court having power to enforce such a right.”

In Stroud’s Judicial Dictionary — Third Edition, one of the definitions given to the word ‘action’ runs as follows:

“This is a generic term, and means a litigation in a civil Court for the recovery of individual right or redress of individual wrong, inclusive, in Us proper legal sense, of suits by the Crown (Bradlauch v. Clarke, (1883) 8 App Cas 354; see also Judgment of Brett, M. R. in A. G. v. Bradlauch, (1885) 14 QBD 667).

In substance, an ‘action is a legal proceeding, whereby the applicant seeks enforcement or rights or claims and/or discharge of obligations cast on the opposite side towards the applicant. To put it in a nutshell as a proposition of law, an application must be an action before a Court of law.


 

What constitutes an outrage to female modesty

What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her SEX. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her SEX. The act of pulling a woman, removing her saree, coupled with a request for SEXual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. Continue reading

MEANING OF “CENTRAL ACT”

What is ” Central Act”?

The term ‘Central Act’ has been defined under clause (7) of section 3 of the General Clauses Act, 1897 which reads as under:-

“(7) ‘Central Act’ shall mean an Act of Parliament, and shall include—
(a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and

(b) an Act made before such commencement by the Governor-General in Council or the Governor-General, acting in a legislative capacity.”.

Clause (7) of section 3 of the General Clauses Act, 1897 becomes relevant in terms of article 367 of the  Indian Constitution, which reads as:- Continue reading

Tariff

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 REF : Electricity Act

Under Section 62 of the Electricity Act, the Commission has power to  fixe the tariff rate. The word ‘tariff’ has not been defined in the Act. Tariff means a schedule of 55 standard/prices or charges provided to the category or categories for procurement by licensee from generating company, wholesale or bulk or retail/various categories of consumers. After taking into consideration the factors in Section 61(1)(a) to (i), the State Commission determined the tariff rate for various categories including Solar Power PV project and the same is applied uniformly throughout the State.

When the said tariff rate as determined by the Tariff Order (2010) is incorporated in the PPA between the parties, it is a matter of contract between the parties. In my view, respondent No.1 is bound by the terms and conditions of PPA entered into between respondent No.1 and the appellant by mutual consent and that the State Commission was not right in exercising its inherent jurisdiction by extending the first control period beyond its due date and thereby substituting its view in the PPA, which is essentially a matter of contract between the parties.

[Gujarat Urja Vikas Nigam Ltd. Vs. Solar Semiconductor Power Company (India) Pvt. Ltd. and Others[SC 2017]

Res Judicata

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No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation I : The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II : For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.

Explanation III : The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV : Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V : Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI : Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII : The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII : An issue heard and finally decided by a Court of Limited jurisdiction, competent to decide such issue, shall operate as re judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

Civil Suit under CPC

SECTION 09: COURTS TO TRY ALL CIVIL SUITS UNLESS BARRED
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation: I: As suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to .

Explanation I or whether or not such office is attached to a particular place.

Decree under CPC

Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include–
(a) any adjudication from which an appeal lies an appeal from an order, or
(b) any order of dismissal for default.

Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

Public Officer under CPC

public officer” means a person falling under any of the following descriptions, namely:–
(a) every Judge;
(b) every member of an All India Service];
(c) every commissioned or gazetted officer in the military, naval or air forces of the Union] while serving under the Government;
(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;