TaxTMI 
TaxTMI 
1955 (2) TMI 17
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....the statement of the case printed at page 2 of the paper book. 3. This matter came up for hearing before a Bench consisting of the then Chief Justice (Justice B. Jagannadhadas, now a Judge of the Supreme Court) and Mr. Justice S. P. Mohapatra and by their judgment dated 25th July, 1952, they directed the Tribunal to submit to this Court a supplementary statement showing whether the cheques which were received by the assessee from the two customers towards commission were received in full satisfaction of the commission due to them as and when they were received in Secunderabad and whether the course of the dealings between the parties showed that the debt by way of commission was intended to be discharged by the mere receipt and acceptance at Secunderabad of the cheques by the assessee; or whether when the assessee entrusted these cheques to their bankers for collection, they did so merely treating these as provisional and conditional payment and not as absolute discharge, as the real question is whether when the cheques were received by the assessee having his place of business outside British India, those cheques were in fact received as absolute and final payments by way of un....
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....for encashing the cheques were debited to the bank charges of this company. Similar procedure was also followed in respect of the Lucas Indian Service Ltd. with the slight difference that the price of goods were paid to Lucas Indian Service Ltd. sometimes by the assessee company after deducting the commission payable on orders placed through the company through Raghunath Mall, banker. 6. In the supplementary statement of the case it is stated that, with respect to the transactions with T.V.S. Iyengar and Sons Ltd. half yearly statements were sent, one ending with 30th June and another ending with 30th December, 1944; that these showed the commission due to the assessee and a cheque for the amount or for a slightly higher amount was sent; that the cheques were made payable on the Imperial Bank of India, Madras; and that similarly the commission due on the transactions with the Lucas Indian Service Ltd. was received by a cheque and the cheque was payable on the Imperial Bank of India at Bombay. It was also stated that the assessee received these cheques at Hyderabad and immediately on receipt put them into Raghunath Mull Bank, its bankers; that in all the cases, receipts for the a....
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....se it was held that it was not open to the learned standing counsel to raise a new question of fact at that stage. This case does not apply to the facts of the present case. He also relies upon the case of In the matter of Brijraj Hukumchand A.I.R. 1931 Cal. 683, which is a decision of a Special Bench. In this case it was held: "It is not open to any assessee to ask the court upon such a reference to examine his books of account and come to findings of fact contrary to those arrived at by the Commissioner in the case stated; and that it is intended still less that this court should be a last resort for the production of books which were not produced before any one of the three Income-tax authorities which had to deal with the case." This case does not also apply in the present instance as the documents produced by the standing counsel are copies of documents already on record and referred to in the orders of the Income- tax Officers. In the case of Messrs. G.I.M. Gregory and Co., [1937] 5 I.T.R. 12 it was held by the Calcutta High Court that in a reference under section 66(2) the High Court is entitled to look at documents and proceedings annexed to the statement of the....
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....o the post office at the request of the addressee is a delivery to him and that is that by posting the cheque in pursuance of the request of the creditor the debtor performs his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performance. The posting of the cheques in Delhi in the instant case, in law amounted to payment in Delhi to the assessee and accordingly the income was received in British India within the meaning of section 4(1)(a) of the Income-tax Act." 10. The important facts of that case as found in the statement of the case quoted in the judgment are under the agreement with the Government of India the assessee undertook to receive payment by cheque drawn on a Bank in India. The assessee company made a specific request to the Government to make payment of the sale proceeds by cheque drawn on a bank in Bombay. When the assessee received the cheque, it did not receive the sale proceeds; it received the sale proceeds subject to the encashment of the cheque. The sale proceeds were received in Bombay and the cheque was encashed on behalf of the assessee at Bombay. 11. It was contended by the assessee in tha....
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....he statement in paragraph 7 of the affidavit that commission on all railway supplies and overriding commission on annual sales were settled annually and payment made by cheques, the amount of which were realised through local banks. This statement also in my opinion does not amount to a specific request made by the assessee to send the money by cheque. On the other hand the statement of the assessee in the affidavit in paragraph 2 to the effect that "the commission was verbally decided to be paid to Messrs Patny & Co. Ltd., Secunderabad, the Agent Company in Hyderabad State at Secunderabad, in cash or by cheque as the case might be" clearly indicates that the payment according to the verbal agreement was to be made at Secunderabad. The words "in cash or by cheque as the case might be" cannot imply a request to send the cheques by post or remit the money by post. "Commission is to be paid at Secunderabad in cash or by cheque"--these words are also consistent with the insistence that whether the money is to be paid by cash or cheque, it is to be paid by the assessee at Secunderabad. There can be a case where even if the money is agreed to be paid by cheque the cheque was to be delive....