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2014 (2) TMI 1413 - SUPREME COURT
Eviction order - Appellant had raised the point of not being covered under the Public Premises Act, 1971 at all stages - applicability of Public Premises Act - retrospective or prospective application - HELD THAT:- The judgment in Dr. Suhas Pophale's case [2015 (8) TMI 1220 - SUPREME COURT] accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation.
The eviction proceedings initiated against the Appellant will stand set aside - Appeal allowed.
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2014 (2) TMI 1412 - ITAT CHENNAI
Deduction u/s 80P - assessee states itself to be a cooperative society engaged in the business of providing credit facilities to its members and hence falls within the definition of a cooperative bank - Scope of amendment to sec 80P(4) - whether the assessee, a cooperative society providing credit facility to its members is a cooperative bank or not so as to be covered by section 80P(4) of the Act denying deduction aforesaid? - HELD THAT:- We make it clear that the Revenue has failed to file any paper book or evidence so as to prove that the assessee/co-operative society is a co-operative bank whose claim for deduction u/s 80P is hit by sub-section(4). In these circumstances, we uphold the CIT(A)’s order granting deduction to the assessee u/s 80P of the Act and reject contentions of the Revenue.
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2014 (2) TMI 1411 - ITAT PUNE
Rectification of mistake - application filled u/s 10(23C) filled to wrong authority - Grievance of the Revenue through this Miscellaneous Application is that the assessee has not filed any application in the office of the CCIT on 13- 03-2006 - HELD THAT:- From the various pages of the paper book, we find the assessee has filed the application in the prescribed form to the CCIT through the office of the CIT which has even been acknowledged by the ITO, Ward- 9(4), Akurdi, Pune vide his letter dated 23-06-2006. We find the Tribunal has already considered the application filed by the assessee. As per the note below Form No.56D the application form should be sent to the CCIT or DG through the CIT or DIT (Exemption) having jurisdiction over the assessee.
Assessee has precisely done the same. The Tribunal after considering the application filed by the assessee through the office of the CIT has taken a view. Therefore, adjudicating the same on the basis of the Miscellaneous Application filed by the Revenue amounts to review of its own order by the Tribunal which is not permissible under the law. We therefore dismiss the Miscellaneous Application filed by the Revenue being devoid of any merit. The Miscellaneous Application filed by the Revenue is accordingly dismissed.
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2014 (2) TMI 1410 - DELHI HIGH COURT
Constitutional validity of the Representation of the People (Amendment and Validation) Act, 2013 - Vires of Constitution of India or not - Whether mala fides can be attributed to the Parliament? - HELD THAT:- The impugned Amendment and Validation Act, 2013 was passed by the Parliament by virtue of the powers conferred under the provisions of the Constitution.
It needs no reiteration that mala fides cannot be attributed to the Parliament/Legislature, as has been held by the Apex Court in a catena of decisions. It has been held by the Apex court in K. NAGARAJ / D. SUBBA RAJU VERSUS STATE OF AP. / CHIEF SECY. OF AP. [1985 (1) TMI 337 - SUPREME COURT] that, "The Ordinance-making power, being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation".
In KC. GAJAPATI NARAYAN DEO VERSUS STATE OF ORISSA [1953 (5) TMI 14 - SUPREME COURT], and it has been held that "The doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant.
Thus, there is no merit in the submission raised by the petitioner that the impugned Amendment and Validation Act, 2013 is a fraud upon the Constitution.
Whether the Validation and Amendment Act, 2013 is legally permissible? - Can the Legislature make the impugned amendment by enacting a Validating Act, as contended by the petitioner? - HELD THAT:- It is settled principle of law that the Legislature can change the basis on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field, fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid.
Through the impugned Validation and Amendment Act, 2013, it is apparent, the Parliament has sought to widen the definition of "Elector", which is more in the nature of curing the defects pointed out by the Court(s) and to obviate any difficulties that have arisen during the course of implementation of the provisions of the RP Act of 1951.
Right to vote is not a constitutional right; it is only a statutory right - Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India? - HELD THAT:- It is trite that 'right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India. Section 62(5) of the RP Act of 1951 explicitly states, "No person shall vote at any election, if he is confined in a prison, or is in the lawful custody of the police - The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute and that challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-Section (5) of Section 62 of the RP Act of 1951 was, therefore, held to be not available.
Through the impugned Amendment and Validation Act, 2013, the Parliament seeks to amend the definition of the term "Disqualified' as defined under Section 7(b) of the RP Act of 1951 and incorporated proviso to sub-Section (5) of Section 62, which deals with "right to vote". The impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction under certain offences as prescribed under Chapter-III of Part-II of the RP Act of 1951.
Constitutional validity of a statute - Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid? - HELD THAT:- In order to examine the constitutionality or otherwise of a statute and/or any of its provisions, one of the most relevant consideration is the object and reasons as well as the legislative history of the statute. It would help the Court in arriving at a more objective and just approach. It would be imperative for the Court to examine the reasons for enactment of a particular statute/provision so as to find out its ultimate impact vis-à-vis other constitutional provisions.
The legislative competence of the Parliament does not come from Articles 102 and 191, but from Articles 246 and 327 read with Entry 72 of List-I, Schedule-VII of the Constitution, according to which, the Parliament is competent to enact laws with respect to the issues mentioned therein. Thus, one of the criteria for determining the constitutional validity of a law, i.e., the competence of the law-making authority, would depend on the ambit of the legislative power and limitation imposed thereon as also on the mode of exercise of such power. In fact, the RP Act of 1951 was also an enactment, which was enacted by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List-I of the Constitution - Further, the Parliament has the power, rather an exclusive one, under Article 246 of the Constitution to make laws with respect to any of the matters enumerated in the Union List of the Schedule-VII. In exercise of such a power, the Parliament has enacted the impugned Amendment and Validation Act, 2013 and the same cannot be held to be beyond its legislative competence.
There is no legal basis to hold the impugned Amendment and Validation Act, 2013 as unconstitutional.
Whether the Petitioner's plea that criminalisation of politics would gain momentum as the impugned Amendment and Validation Act, 2013 is a case of remedy being worse than the disease? - HELD THAT:- This Court is also of the view that the petitioner's plea to bar any person who is in jail or in police custody from contesting an election on the ground that it would lead to criminalisation of politics is a case of the remedy being worse than the disease. Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of 'vendetta politics' by ruling parties. All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election, is to ask the police to file a case and to arrest the rivals.
Impugned Amendment and Validation Act, 2013 is consistent with the principle of universal suffrage and the presumption of innocence of the accused until proven guilty or not - HELD THAT:- One must distinguish between convicted prisoners on the one hand and the under trials on the other. Further, as our criminal justice system is based on the principle of 'innocent until proven guilty', we cannot presume our under trials in custody to be guilty as far as right to contest elections is concerned. In fact, Rule 84(2) of the United Nations Standard Minimum Rules for Treatment of Prisoners mandates that prisoners who have not been convicted should be presumed as innocent and treated as such - the impugned Amendment and Validation Act, 2013 is consistent with the principle of universal and equal suffrage and the presumption of innocence of the accused until proven guilty.
The impugned Amendment and Validation Act, 2013 is within the legislative competence of the Parliament. In fact, by the impugned Amendment and Validation Act, 2013, the Parliament has by explicit words overruled the intent which had been read by implication by the Courts into Section 62(5) and consequently, changed the basis of "Court's decision" and is, thus, valid - Petition dismissed.
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2014 (2) TMI 1409 - ITAT HYDERABAD
Nature of expenditure - capital or revenue expenses - expenditure incurred was towards repair/replacement of cost of nozzles, buckets, shrouds, bearings, transition pieces and combustion liners which are parts of gas turbines - HELD THAT:- There is no replacement of the gas turbine as a whole but certain repair and replacement to some of the parts of the gas turbine, which does not result in bringing into existence a new asset of enduring nature, rather, the repair and maintenance are of recurring nature and essentially required for smooth running of business of the assessee i.e, generation of power. The other decision of the Hon’ble Supreme Court relied upon by the learned D.R. in the case of CIT V/s. Sri Mangayarkarasi Mills (P) Ltd. [2009 (7) TMI 17 - SUPREME COURT] also following the decision in the case of CIT V/s. Saravana Spinning Mills [2007 (8) TMI 16 - SUPREME COURT] has laid down the same proposition of law. On the other hand, the decisions relied upon by the assessee as noted in the order of the CIT(A) clearly supports the view that the expenditure incurred by the assessee cannot be treated as capital expenditure. Thus we direct the Assessing Officer to delete the addition made on account of disallowance of expenditure.
Addition on account of social welfare expenditure - Revenue or capital expenditure - HELD THAT:- A perusal of the assessment order makes it clear that the Assessing Officer admits the fact that the community hall is in the control of Village Panchayat as its ultimate asset. In such view of the fact it cannot be held that it is a capital expenditure as there is no capital asset created by the assessee for it. That besides, as has been rightly held by the CIT(A) social welfare expenditures incurred by a company helps in improving the working with the native people of the nearby area and it also improves the condition of the area inhabited by its employees and others. Therefore, such social welfare expenditures are to be allowed as business expenditure.
As in Karnataka Financial Corporation [2009 (12) TMI 410 - KARNATAKA HIGH COURT] held that the amount spent by the Corporation towards development of model villages has to be considered as expenditure incurred towards his business promotion and therefore, allowable as a business expenditure. Therefore, considering the totality of facts and circumstances, we are of the view that the CIT(A) was justified in deleting the addition.
Addition of prior period expenditure - A.O. held that as the expenditure has apparently accrued and chargeable to those years as per the clauses of term loan agreement between the parties and the expenditure is apparently interest and penal interest for nonpayment/ deferment by the assessee, the same is not an expenditure allowable for the year - HELD THAT:- After going through the order of the CIT(A) we do not find any infirmity in his finding. As can be seen from the facts on record, the payment of interest on term loan was because of a settlement reached with the bank. It is not the case of the Assessing Officer that the interest paid was either claimed or allowed as expenditure in the earlier years. Therefore, the deduction certainly can be allowed under section 43B of the Act when the amount was actually paid by the assessee. CIT(A) having found that the assessee has paid an amount during the year out of the total expenditure the same has rightly been allowed as a deduction. Accordingly, we confirm the order of the CIT(A) and dismiss the ground raised by the department.
Addition of claims raised towards surcharge - HELD THAT:- Reasoning of the CIT(A) that the assessee had taken unilateral decision for waiver of the surcharge is not correct. That besides, when A.P. Transco is contesting the levy of surcharge, which is very much evident from its letter under reference, and demanding for withdrawal of the levy there is no other option on the part of the assessee but to waive the surcharge levied. In this view of the matter, we are of the view that CIT(A) was not justified in rejecting the claim of the assessee. We, therefore, direct the Assessing Officer to allow the expenditure since the decision to waive the surcharge is taken during the financial year relevant to the assessment year under dispute and the amount has been written off during the year in the books of the assessee. The ground raised is therefore, allowed.
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2014 (2) TMI 1408 - ITAT DELHI
Revision u/s 263 - CIT directing AO to make verification/investigation on cash gifts - HELD THAT:- Ld. CIT had not applied his mind but the matter was referred by the AO for initiating the proceeding under section 263 - In the present case it is noticed that the notice dated 17/01/2013 under section 263 of the Act was issued only on receipt of the proposal under section 263 from the ITO, Ward-2(2), Kota and the assessee explained, vide written submission which has been reproduced in para 4 of the impugned order, each and every objection raised by the ITO, Ward-2(2), Kota.
It is well settled that the Ld. CIT while exercising the revisionary powers under section 263 of the Act may call for and examine the records of any proceedings and thereafter if he considers that any order passed therein is erroneous insofar as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justified. Therefore, before taking any action, Ld. CIT himself shall apply his mind after examining the record of any proceedings and his satisfaction is must
As in the present case, the satisfaction was of the ITO (Tech.) who proposed action under section 263 of the Act, but not of the Ld. CIT. Therefore, issuance of notice under section 263 of the Act on the basis of the proposal made by the ITO was void ab initio. We, therefore, set aside the same. Appeal of assessee allowed.
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2014 (2) TMI 1407 - MADRAS HIGH COURT
Seeking withdrawal of Look Out Circular - fundamental right to travel abroad - HELD THAT:- It cannot be lost sight of that the settled law is that 'Right to Travel Overseas' is a 'Fundamental Right' guaranteed under Article 21 of the Constitution of India, which was held so, in the decision of the Hon'ble Supreme Court in Satwant Singh Sawhney V. D. Ramarathnam, [1967 (4) TMI 196 - SUPREME COURT] and also the same was reiterated in the decision of the Hon'ble Supreme Court in Maneka Gandhi V. Union of India, [1978 (1) TMI 161 - SUPREME COURT].
It cannot be gainsaid that the law of one's right to travel abroad is governed by the tenor and spirit of the Passports Act, 1967 (15 of 1967). Indeed, Section 3 of the Act under the caption 'Passport or travel document for departure from India' specifies that 'No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document' - Section 6 of the Passports Act, 1967 speaks of 'Refusal of Passports, travel documents', etc. In fact, sub-clause (1) of Section 6 of the Passports Act, 1967 enumerates the grounds on which an endorsement on a passport or travel document for visiting any foreign country shall be refused. Likewise, sub-clause (2) also mentions the grounds on which the passport or travel document for visiting any foreign country shall be refused.
It is to be borne in mind that neither Charge Sheet nor Final Report is defined under the Criminal Procedure Code. In whatever term it is mentioned viz., Charge Sheet or Final Report it only means a 'Report' under Section 173 Cr.P.C. which has to be filed by the concerned Police Officer on completion of his investigation. It cannot be gainsaid that the Charge Sheet/Final Report is filed so as to enable the concerned Court of Law to apply its mind whether cognizable offence thereupon ought to be taken or not. The report is ordinarily filed in prescribed format.
The Charge Sheet is nothing but a Final Report of Police Officer under Section 173(2) Cr.P.C. The said report is an intimation to the Magistrate that upon investigation into a cognizable offences, the Investigating Officer was able to procure sufficient evidence for a Court to enquire into the offence. No wonder, the Magistrate must give notice and opportunity of hearing to the Informant before accepting the final report or closing the same - one cannot ignore an important fact that if the Investigating Officer finds sufficient evidence even against an absconding accused, the law does not require the filing of charge sheet must await the arrest of the said accused.
The Look Out Circular which was originally issued by the 1st Respondent on 06.10.2012 and opened for a year against the Petitioner, was further extended for six months period till 26.05.2014 by the Bureau of Immigration, (MHA) Government of India, Chennai 6 as per letter dated 27.01.2014, in terms of the request received from the 1st Respondent dated 16.12.2013.
Admittedly, as against the Petitioner/A2 the investigation is pending in respect of the Crime No. 304 of 2012 originally on the file of the 3rd Respondent and later on transferred to the file of 2nd Respondent. It is the stand of the Respondents that only because of the attitude of the Petitioner/A2, they are unable to proceed further in regard to the investigation of the case - the LOC can be withdrawn by the authorities concerned, who issued the same. Indeed, the Criminal Court's jurisdiction in cancelling LOC or affirming the same is quite in tune with the jurisdiction of cancellation of Non Bailable Warrant.
Petition dismissed.
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2014 (2) TMI 1406 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Violation of SEBI Act - violations committed by promoters of BoR under SEBI Act - Dilution of shareholding - Deceptive mechanism adopted by Promoter group in collusion with persons acting in concert ('PAC' for short) with various group entities - Penalty imposed under Section 15HA and under Section 15A(a) of SEBI Act - HELD THAT:- Where violations committed by any person fall within the domain of two authorities constituted under two statutes, then both authorities would be justified in initiating action against that person. In such a case, if one authority for any reason does not initiate proceedings, then, inaction by one authority would not vitiate proceedings initiated by another authority. In the present case, RBI noticed that Promoter group of BoR together with connected entities had violated RBI Guidelines (within the domain of RBI), and referred it to SEBI to consider as to whether promoters of BoR had violated SEBI Act and Regulations framed thereunder. SEBI conducted further investigation and on receipt of investigation report initiated adjudication proceedings and imposed penalty on all entities including appellant herein.
While arguing the matter on demurrer that is, assuming that the appellant is guilty of making representation which is not true, appellant would not be justified in contending that no penalty should be imposed under SEBI Act on ground that RBI has not initiated any action against appellant, because liability to pay penalty for violating SEBI Act and regulations made thereunder is not dependent on RBI initiating proceedings and imposing penalty for alleged violations of RBI guidelines.
SEBI as capital market regulator and RBI as banking sector regulator operate in different fields and therefore, fact that RBI has not initiated proceedings against appellant for the alleged violations of RBI guidelines would not absolve appellant from his liability to pay penalty when appellant is found to have violated SEBI Act and regulations made thereunder.
Argument that AO has failed to consider findings of WTM in his order dated March 26, 2012 that violations committed by promoters are not grave is without any merit, because, firstly, observations made by WTM in his order dated March 26, 2012 are only prima-facie observations made in the context of continuing ex-parte ad-interim order after completion of investigation. Secondly, WTM himself has categorically recorded in his order that AO shall pass final order without being influenced by observations made by WTM in his order dated March 26, 2012. Therefore, argument that in view of prima facie observations of WTM no penalty could be imposed upon appellant is without any merit and hence liable to be rejected.
Fact that RBI has permitted merger of BoR with ICICI Bank cannot be a ground for appellant to escape penal liability for violating SEBI Act and regulations made thereunder, because permission granted by RBI for merger of BoR with ICICI Bank was not in lieu of offences committed by appellant under SEBI Act and regulations made thereunder. In other words, having violated SEBI Act and regulations made thereunder, appellant cannot avoid penal liability merely because, subsequent to such violations RBI has permitted merger of BoR with ICICI Bank.
There is nothing on record to suggest that camouflaging real level of shareholding by promoters of BoR including appellant has led genuine investors to trade in shares of BoR, cannot be a ground for appellant to escape penalty even after violating SEBI Act and regulations made thereunder, because SEBI Act does not contemplate imposition of penalty on a person violating SEBI Act only if investors suffer on account of such violations. That may be a factor to be taken into account by AO while determining the quantum of penalty. Therefore, fact that there is no evidence to show that any investor has suffered cannot be a ground to escape penalty even after violating SEBI Act and regulations made thereunder.
Penalty of ₹ 4 crore has been imposed under Section 15HA of SEBI Act without considering provisions contained in Section 15J of SEBI Act is also without any merit because, Section 15HA provides that a person indulging in fraudulent and unfair trade practices relating to securities shall be liable to a penalty of ₹ 25 crore or three times the amount of profits made out of such practices, whichever is higher. Assuming that actual profits made by promoters including appellant on account of violation of PFUTP Regulations, 2003 are unascertainable, AO, after considering all mitigating factors has imposed penalty of ₹ 4 crore as against penalty of ₹ 25 crore imposable under Section 15HA of SEBI Act which cannot be said to be arbitrary or unreasonable.
Parliament by inserting Section 15HA to SEBI Act with effect from 29.10.2002, has prescribed penalty not less than ₹ 25 crore upon a person indulging in fraudulent and unfair trade practices relating to securities. In the present case, it is not in dispute that Promoter group controlled by Tayal family including appellant have represented to the investors that they have reduced their shareholding in BoR during the investigation period from 44.18% to 28.61%. However, it is found that contrary to the representation made, shareholding of promoters along with PAC's has gone up to 63.15% during the investigation period. In such a case, representation made to investors constitutes fraud for which penalty imposable is not less than ₹ 25 crore. However, taking into consideration, all mitigating factors, AO has imposed penalty of ₹ 4 crore on appellant. In these circumstances, discretion exercised by AO in imposing penalty of ₹ 4 crore as against penalty of ₹ 25 crore imposable under Section 15HA of SEBI Act cannot be said to be unjustified or unreasonable.
Appellant is also saddled with penalty of ₹ 1 crore under Section 15A(a) of SEBI Act for non-compliance of summons issued to appellant. Summons in this case was issued on May 26, 2011 calling upon appellant to appear before investigating officer on May 31, 2011 with documents specified therein. By letter dated May 30, 2011 appellant informed the investigating officer that above summons has been received on May 28, 2011 and it would not be possible to appear with documents on May 31, 2011 and requested for another date for appearance and production of documents.
Without considering merits of above request and without giving any opportunity for production of documents or appearance, show cause notice was issued and by impugned order penalty of ₹ 1 crore has been imposed upon appellant by AO under Section 15A(a) of SEBI Act for non-compliance of summons issued to appellant. Since dispute in this case related to 2007-2009 period and since summons was issued in May 2011, it would have been just and proper for the investigating officer to consider reasonable request of appellant and fix another date for appearance/production of documents, especially when appellant had agreed to appear and produce documents on the next date fixed by investigating officer. Since reasonable opportunity for production of documents was not given to appellant, we deem it proper to set aside penalty of ₹ 1 crore imposed upon appellant under Section 15A(a) of SEBI Act. Accordingly, we uphold penalty of ₹ 4 crore imposed under Section 15HA and set aside penalty of ₹ 1 crore imposed under Section 15A(a) of SEBI Act.
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2014 (2) TMI 1405 - SC ORDER
Interpretation of statute - Section 22 of the Trade Union Act, 1926 - HELD THAT:- Issue notice.
The effect and operation of the impugned order shall remain stayed until further order.
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2014 (2) TMI 1404 - SUPREME COURT
Validity of election petition - certain invalid votes had been counted in favour of the Appellant and certain valid votes which were cast in favour of the Respondent No. 1 - HELD THAT:- This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them - the court cannot exercise discretion of ordering recounting of ballots just to enable the election Petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts.
It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal [2009 (9) TMI 1062 - SUPREME COURT] and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil [2009 (5) TMI 934 - SUPREME COURT]. Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case.
The inescapable conclusion that can be reached is that even after deciding the Recrimination Petition, the Appellant and the Respondent No. 1 have received equal number of votes - in such a fact-situation the decision as to who will be the returned candidate is to be decided by the draw of lots by virtue of the provisions of Section 102 of the Act.
Appeal disposed off.
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2014 (2) TMI 1403 - ITAT AHMEDABAD
Addition on account of battery replacement expenses - additional evidence was admitted after hearing both the parties - HELD THAT:- Since the nature of this additional evidence is such that it requires verification at the end of AO, the matter is restored back to his file for fresh adjudication after making necessary inquiries/investigations about the veracity of this additional evidence. - cross appeals filed by assesses and revenue are allowed for statistical purpose.
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2014 (2) TMI 1402 - PUNJAB & HARYANA HIGH COURT
Dishonor of Cheque - insufficient funds - present criminal revision petition has been filed by the petitioner without surrendering before the learned lower Appellate Court - HELD THAT:- This Court has every doubt with regard to the maintainability of this criminal revision petition without surrender of the petitioner before learned Court below after dismissal of his appeal. There is no doubt that this Court can suspend the execution of the sentence as per provision contained in Section 401, Cr.P.C., while hearing criminal revision petition, but that has to be done only when the petitioner is behind the bars - Concededly, it is not a case where the learned lower Appellate Court had suspended the sentence and granted time to the petitioner to file the present petition. In that eventuality, on course this Court can accept the prayer and allow him to remain on bail if the provision so permit.
The petitioner was not satisfied with the judgment of conviction and the order of sentence passed by the learned Trial Court, therefore, filed an appeal before the learned Additional Sessions Judge, Fast Track Court (Adhoc), Jalandhar, but thereafter in the month of February, 2013, he absented himself and never appeared before the learned lower Appellate Court, therefore, the said Court was constrained to pronounce the judgment in the absence of the petitioner. The learned lower Appellate Court also concurred its findings with the judgment delivered by the learned Trial Court and dismissed the appeal - the findings recorded by the learned two Courts below are well based since the respondent-complainant was able to prove that the cheque amounting to ₹ 7,50,000/- issued by the petitioner- accused in discharge of his legal liability had bounced and in spite of the notice issued by the respondent-complainant, the petitioner-accused failed to pay the amount. The evidence led by the respondent-complainant has established his case, therefore, no ground is made out for interference by this Court while exercising the revisional jurisdiction.
Petition dismissed.
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2014 (2) TMI 1401 - SUPREME COURT
Bribe - interpretation of various sections that appear in Chapter II read with Chapter III of the Prevention of Corruption Act, 1988 - whether, on the death of the sole public servant, the Special Judge will cease to have jurisdiction to continue with the trial against the private persons for non-PC offences? - HELD THAT:- The Indian Penal Code has provided for punishment for the offence of bribery and corruption even against the public servants. Parliament, in its wisdom, noticed that the Penal Code was not adequate to meet the exigencies of time and a need was felt to introduce a special legislation with a view to eradicate the evil of bribery and corruption from the society. Consequently, the Prevention of Corruption Act, 1947 was enacted, which was amended in the year 1964, based on the recommendations of the Santhanam Committee. Parliament still felt that the anti-corruption laws should be made more effective, by widening their coverage and enhancing penalties and to expedite the proceedings and hence the 1988 Act was enacted.
The scope of Sub-section (3) of Section 4 of the PC Act, which indicates that "when trying any case", which means trying any case relating to the offences referred to in Section 3(1)(a) and (b) of the PC Act for which exclusive jurisdiction is conferred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under the Indian Penal Code is a separate offence, has to be separately charged and tried.
The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under Sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under Sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.
There are no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No. 88 of 2001 in the Court of Chief Metropolitan Magistrate for trying the case in accordance with law - appeal allowed - decided in favor of appellant.
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2014 (2) TMI 1400 - CALCUTTA HIGH COURT
Failure to submit the revised return within the statutory period as prescribed - applicability of documents sought to be produced for the first time - Section 33 (3) of the West Bengal Value Added Tax Act, 2003 - HELD THAT:- It is no doubt true that a particular amount is shown under stock transfer and it is equally true that revised return is not filed within the period prescribed under Section 33 (3) of the said Act. While making an assessment on the basis of the return, the authorities are not denuded of power to disallow any claim under a particular head, if the documents and other evidence suggest otherwise. It is also equally true that if the documents are produced by the Assessee, which manifests that the amount shown under a particular head is wrongly shown therein, the authorities, if otherwise satisfied on the basis of the documents as well as the explanation offered, cannot deny the benefit as the petitioner has shown the said amount under a wrong head.
The order impugned in this writ petition is bereft of any such reasoning except a stray statement that the Assessee has not explained why the said documents were not filed before the Assessing Officer - Board is directed to reconsider the revisional application upon taking note of the documents filed by the petitioner and shall record the reasons relating to the acceptability or non- acceptability of those documents as well as its relevancy in the context of the dispute - Petition disposed off.
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2014 (2) TMI 1399 - SUPREME COURT
Dishonor of Cheque - criminal offence or not - Section 420 read with Section 120-B of the Indian Penal Code - HELD THAT:- No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the Appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the Appellants in their defence in accordance with law for due consideration at appropriate stage.
On considering the facts of the present case it is found that the facts were properly noticed by the High Court on earlier occasion while examining the petition preferred by the Appellants for quashing of FIR of this case. The same view has been reiterated by the High Court in the order under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, there are no good ground to interfere with the criminal proceedings against the Appellants at this stage.
Appeal dismissed.
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2014 (2) TMI 1398 - COMPETITION COMMISSION OF INDIA,
Unfair and discriminatory conditions with respect to its Continuing Professional Education (CPE) scheme of OP - structured CPE credits and organization of the seminars/conferences/workshops for obtaining these credits - relevant product market - market for organizing recognised CPE Seminars/Workshops/Conferences - HELD THAT:- There seems to be force in the allegations of the informant that the restriction put in by OP in not allowing any other organization to conduct the CPE seminars for CPE credits, createdan entry barrier for the other players in the relevant market. Further, the choice of the consumer (members of OP) in this case was being limited. The members of OP had no option, but to attend the seminars organized by OP (whatever be the quality of seminars) to get the requisite CPE credits.The restriction put on by OP does not meet the objectives sought to be achieved by the policy. There are hundreds of seminars and conferences organized every month across India by reputed chambers of commerce like CCI, FICCI, ASSOCHAM, NASSCOM, etc. However, these seminars/conferences are not recognised by OP for CPE credits. Prima facie, it appears to be an unreasonable restraint and the members CA of OP are left with no option but to compulsorily attend seminars organized by OP and its organs.
Informant has pointed out in his information that the 64th Annual Report of OP for the Financial Year 2012-13 shows that the OP earned gross revenues of ₹ 45 crores from organizing seminars and conferences, which is around 8% of the OP’s total revenue. Informant also pointed out there were no similar restrictions imposed by other accounting bodies of the world, i.e. in US, UK, Singapore, Australia, etc.
The Commission directs the Director General (DG) to cause an investigation to be made into the matter and to complete the investigation within a period of 60 days from receipt of this order. If during the course of investigation, involvement of any other party is found, the DG shall investigate the conduct of such other parties including the conduct of group companies, if any, in terms of the proviso to section 27 of the Act - the DG is also directed to investigate the role (if any) of the persons who were in charge of, and were responsible to the companies for the conduct of the businesses of such companies, after giving due opportunity of hearing to such persons.
Application disposed off.
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2014 (2) TMI 1397 - ITAT JODHPUR
Excess deduction claimed u/s 36(1)(viia) - excess deduction of 10% of average advances of rural branch is available to rural branches and as per explanation (ia) below section 36(1)(viia) ‘rural branch means a branch of schedule bank or a non schedule bank (and thus rural branch of a cooperative bank is not covered) - CIT-A deleted the addition - HELD THAT:- In the present case, it is noticed that the Ld. CIT(A) decided the issue in favour of the assessee in consonance with the decisions taken by the coordinate benches of the ITAT at Jaipur [2014 (1) TMI 833 - ITAT JAIPUR] and Cochin [2012 (5) TMI 22 - ITAT COCHIN]. He has followed the decision of.Jaipur Central Co-operative Bank Ltd. [2014 (1) TMI 833 - ITAT JAIPUR]. We, therefore, do not see any merit in this appeal of the department.
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2014 (2) TMI 1396 - KERALA HIGH COURT
Condonation of delay - Sufficient reason for delay - whether the transactions of the appellant with M/s. Bharat Petroleum Corporation Limited and M/s. Indian Oil Corporation Limited are transactions under which the appellant could be treated as providing vehicles for hire (tanker lorries to carry materials) or whether the appellant was employing herself as a carrier? - HELD THAT:- It is not as if the appellant had not shown any cause at all to condone the delay. The sufficiency or otherwise in such matters have necessarily to be weighed also, on the scales of justice, depending upon the question whether the delay could be condoned at least on terms. This largely depends on the cause pleaded for the delay and the view that the appellate court, tribunal or authority could take on a prima facie superficial examination of the grounds of appeal, which may also point out that ends of justice require the appeals to be entertained.
In this view of the matter, we see that the substantial question of law that arises for decision in these appeals is as to whether the Tribunal had acted, in accordance with law, while it refused to condone the delay, at least on terms. On hearing the learned counsel for the parties on that particular issue of law, we are satisfied that the said question is a substantial question of law, and, has to be answered in favour of the appellant.
In the result, these appeals are allowed and the impugned orders are set aside on condition that the appellant pays the Department an amount of ₹ 10,000/- (Rupees ten thousand only) as costs in each of these appeals within a period of two weeks from today, by making appropriate remittance
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2014 (2) TMI 1395 - GUJARAT HIGH COURT
Seeking recovery of VAT demand - against assessment orders, three appeals have been preferred by the petitioner - HELD THAT:- At this stage, atleast till such stay applications are disposed of, without there being any special facts on record, the action initiated by the Department in recovering the tax demand is quashed. The Deputy Commissioner [Appeals] before whom such stay applications are pending may, however, endeavour to dispose of such applications latest by 31st March 2014, for which the petitioner shall cooperate.
Petition disposed off.
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2014 (2) TMI 1394 - SUPREME COURT
Sanction for prosecution - Irregularities in the award of the contract and construction of administrative building for the Corporation of Ujjain during the period 1991-1993 - valid sanction by the competent authority or not - proceedings for prosecution against superior officers - Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.
The trial court should conduct a proper inquiry as to whether all the relevant materials were placed before the competent authority and whether the competent authority has referred to the same so as to form an opinion as to whether the same constituted an offence requiring sanction for prosecution.
Appeal allowed.
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