Tag Archives: benefit

Gain and Profit

As per Merriam Webster Dictionary, the word “gain” means something wanted or valued that is gotten; something that is gained; especially money gotten through some activity or process, something that is helpful: advantage or benefit; an increase in amount, size or number.
In Words and Phrases, Permanent Edition, Vol. 18, the word “gain” has been given the following meanings:
“Gain” means increase or addition to what one has of that which of profit, advantage or benefit; resources or advantage acquired, profit; opposed to laws; act of gaining something ; specially, the obtaining or amassing of profit or valuable possessions; acquisition, accumulation, Breuer’s Income Tax, In Re , 190 SW 2d 248 : 354 Mo 578 (1945).
Gain, benefit or advantage:
Under the Retail Sales Tax Act, defining “retailer” as every person engaged in business of making sales at retail, and defining “business” as any activity engaged in with the object of “gain, benefit or advantage”, social club which furnished, without profit food and drink to its members and their guests was subject to tax, since, although club realized no “profit” from furnishing of food and drink, it did realise “gain, benefit or advantage”. Gen. Laws 1937, Act 8493, Section 2(c-e). “Profit” may be said to be “gain, benefit or advantage”, but “gain, benefit or advantage” does not necessarily mean only “profit”. Union League Club v. Johnson, 115 P 2d 425 : 18 Cal 2d 275 (1941).
A “vendor engaged in the business of selling tangible personal property”, so as to be liable for sales tax, is one who commences, conducts or commences, conducts or continues in the activity of selling tangible personal property, with the object of gain, benefit or advantage, wither direct or indirect, irrespective of whether sales are made for “profit”, since one may engage in a business activity with an object of “gain, benefit or advantage” and not necessarily for “profit”. Gen. Code, Section 5546-1 et seq., 116 Ohio Laws, Pt. 2, p. 323. “Profit” may be “gain, benefit, or advantage” but “gain, benefit or advantage” does not necessarily mean only “profit”. State v. Zellner, 13 NE 2d 235 : 133 Ohio St 263 (1938).
In Arthur Average Association for British, Foreign and Colonial Ships, In re ex p Hargrove and Company, (1875) LR 10 Ch App 542 (DC), it was held that “gain” is not restricted to pecuniary or commercial profits, it includes other considerations of value obtained.
From the above dictionary meanings and judgment of 1875, it becomes clear that the word “gain” is not synonymous with the word “profit”, It is not restricted to pecuniary or commercial profits and includes other considerations of value gained. Any advantage or benefit acquired or value addition made by some activities would amount to “gain”. Brihan Mumbai Mahangarpalika v. Willingdon Sports Club, (2013) 16 SCC 260.

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Allegations of fraud, misrepresentation and undue influence – Burden of Proof

When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in dominating position and he has to prove that there was fair play in the transaction and that the apparent is the real, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party , that is to say, the party who is in a position of active confidence. A Person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast against the person holding the position of confidence or trust to show that that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Evidence Act, 1872. The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers and other have been held to fall within the rule. The section requires that the party on whom the burden o proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in case of a stranger equity will not set aside a voluntary deed or donation, however improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active confidential, or fiduciary relation exists between the parties, there the burden of proof is on the done or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196.

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