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2008 (9) TMI 1029
Issues involved:
The issue involved in this case is whether the Appellate Tribunal was right in law and on facts in confirming the disallowance of the claim of deduction of investment funding charges against dividend income.
Summary:
1. Background:
The assessee claimed deduction of fund management charges incurred on funds borrowed from a company. The matter went to the Tribunal twice, with the Commissioner (Appeals) agreeing with the Assessing Officer that the expenditure was not incurred for earning dividend income.
2. Tribunal's Decision:
After considering case law related to claim u/s 57 (iii) and Section 36 (1) (iii) of the Income-Tax Act, the Tribunal allowed the appeal, stating that the expenditure was allowable as business expenditure u/s 36(1)(iii) of the Act.
3. Appellant's Arguments:
The Senior Standing Counsel for the appellant argued that the transaction was collusive, as there was no necessity to borrow funds and the dividend income was significantly lower than the investment.
4. Tribunal's Findings:
The Tribunal noted that the assessee had taken a loan and invested in shares as per the company's objectives. It was observed that the interest paid on the loan was shown as income by the lending company. The Tribunal also referred to a decision of the Gujarat High Court regarding the deduction u/s 57(iii) of the Act.
5. Legal Precedents:
The Tribunal cited the Supreme Court's decision in the case of S.A. Builders v. CIT, stating that since the assessee's business was investing in shares, the interest paid on the loan was allowable u/s 36(1)(iii) for commercial expediency.
6. Conclusion:
The Tribunal allowed the deduction based on the settled legal position regarding Section 36(1)(iii) of the Act. The Tribunal dismissed the appeal, stating that there was no substantial question of law raised.
In summary, the Tribunal upheld the deduction of investment funding charges against dividend income, considering the commercial expediency of the transaction and the nature of the assessee's business.
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2008 (9) TMI 1028
Issues Involved:
1. Revocation of leave to sue.
2. Jurisdiction of the court.
3. Infringement and piracy of registered designs.
4. Cause of action and its establishment.
5. Forum conveniens.
Detailed Analysis:
Revocation of Leave to Sue:
The appellant/plaintiff challenged the order dated 5.9.2007, where the learned single Judge revoked the leave previously granted on 11.10.2006. The single Judge revoked the leave on the grounds that there was no evidence of sales within the jurisdiction of the court and both parties conducted business elsewhere. The appellant/plaintiff argued that the learned single Judge should not have revoked the leave as they had submitted purchase bills showing sales within the court's jurisdiction. The court held that the appellant/plaintiff should be allowed to prove the sales during the trial.
Jurisdiction of the Court:
The appellant/plaintiff argued that the court had both territorial and pecuniary jurisdiction to try the case, as the respondent/defendant was selling pirated biscuit packets within Chennai. The respondent/defendant contended that the appellant/plaintiff failed to prove that the defendant's products were sold in Chennai. The court noted that jurisdictional issues requiring evidence should be decided during the trial, not at the preliminary stage.
Infringement and Piracy of Registered Designs:
The appellant/plaintiff claimed that the respondent/defendant was marketing biscuits in packets that imitated their registered designs, thereby committing infringement and piracy. The respondent/defendant argued that the designs were not original and were common types, and that the appellant/plaintiff had fraudulently secured registrations. The court emphasized that the Designs Act, 2000, provides exclusive rights to the registered proprietor and that these issues should be addressed during the trial.
Cause of Action and Its Establishment:
The appellant/plaintiff asserted that the cause of action arose when the defendant sold biscuit packets with the plaintiff's design, and when the defendant failed to comply with a legal notice. The respondent/defendant argued that there was no proof of sales in Chennai. The court held that whether a cause of action has arisen is a question of fact that can only be decided after recording evidence.
Forum Conveniens:
The learned single Judge had observed that the doctrine of forum conveniens applied, as both parties conducted business outside the court's jurisdiction. The appellant/plaintiff contended that this doctrine should not apply to a suit filed in the Original Side of the High Court. The court noted that the concept of forum conveniens is to avoid suits being filed in inconvenient forums, but in this case, the balance of convenience favored the appellant/plaintiff.
Conclusion:
The court set aside the impugned order dated 5.9.2007, allowing the original side appeal filed by the appellant/plaintiff. It was held that the suit should proceed to trial where both parties could present oral and documentary evidence to substantiate their claims. The court emphasized that questions of jurisdiction and cause of action should be addressed during the trial, not at the preliminary stage. The parties were directed to work out their remedies in the main suit conclusively.
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2008 (9) TMI 1027
The Supreme Court of India dismissed the Civil Appeal in the case. (Citation: 2008 (9) TMI 1027 - SC)
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2008 (9) TMI 1026
Issues Involved:
1. Maintainability of Letters Patent Appeal post-amendment to Section 100A of the Code of Civil Procedure.
2. Applicability of Section 100A to appeals under special statutes like the Motor Vehicles Act.
3. Nature and jurisdiction of the Motor Accident Claims Tribunal.
4. Legislative intent behind Section 100A and its impact on intra-Court appeals.
Detailed Analysis:
1. Maintainability of Letters Patent Appeal Post-Amendment to Section 100A of the Code of Civil Procedure:
The core issue was whether, after the amendment to Section 100A of the Code of Civil Procedure (CPC) effective from July 1, 2002, a Letters Patent Appeal (LPA) against the judgment rendered by a Single Judge of the High Court is maintainable. The court held that Section 100A, which includes a non-obstante clause, explicitly bars further appeals from judgments or decrees passed by a Single Judge in appellate jurisdiction. The legislative intent was to minimize the delay in finality of decisions by restricting the right to intra-Court appeals. The court concluded that no LPA would be maintainable against the judgment of a Single Judge under the amended Section 100A of the CPC.
2. Applicability of Section 100A to Appeals Under Special Statutes Like the Motor Vehicles Act:
The court examined whether appeals arising from special statutes like the Motor Vehicles Act, 1988, would be maintainable under Clause 15 of the Letters Patent against the judgment passed by a Single Judge. It was noted that the Motor Vehicles Act does not provide for a second appeal. The court emphasized that the right to appeal is a statutory right and cannot be assumed or inferred in the absence of explicit provisions. The court held that appeals under Section 173 of the Motor Vehicles Act, decided by a Single Judge, are not subject to further intra-Court appeals due to the bar imposed by Section 100A of the CPC.
3. Nature and Jurisdiction of the Motor Accident Claims Tribunal:
The court assessed whether the Motor Accident Claims Tribunal (MACT) possesses the trappings of a Civil Court. It was determined that the MACT, though not a Civil Court in the strict sense, has the trappings of one, as it exercises judicial functions, can summon witnesses, record evidence, and pass orders akin to a Civil Court. The MACT's awards are considered judgments or orders. The appellate jurisdiction exercised by the High Court under Section 173 of the Motor Vehicles Act involves applying the CPC provisions, thus aligning with the characteristics of a Civil Court.
4. Legislative Intent Behind Section 100A and Its Impact on Intra-Court Appeals:
The court highlighted the legislative intent behind the introduction of Section 100A, which was to curtail the right to a second appeal and to ensure the finality of judgments passed by Single Judges in appellate jurisdiction. The non-obstante clause in Section 100A overrides other laws, including the Letters Patent. The court emphasized that the legislative scheme aimed to reduce litigation and expedite the judicial process by limiting the scope of appeals. Consequently, the court held that the provisions of Section 100A take precedence over Clause 15 of the Letters Patent, thereby barring intra-Court appeals against judgments rendered by Single Judges in appellate jurisdiction.
Conclusion:
The court concluded that post-amendment to Section 100A of the CPC, no LPA is maintainable against the judgment rendered by a Single Judge of the High Court in appellate jurisdiction, including those under the Motor Vehicles Act. The legislative intent to restrict intra-Court appeals and ensure the finality of decisions is clear and unambiguous, thus overriding the provisions of the Letters Patent. The appeals in question were dismissed as non-maintainable.
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2008 (9) TMI 1025
Issues Involved:
1. Legality and propriety of the High Court's remarks and strictures against the appellant.
2. Justification for the appellant's order dated 4.3.2002.
3. Judicial decorum and restraint in passing remarks against subordinate judicial officers.
4. The appellant's adherence to previous High Court orders.
Detailed Analysis:
1. Legality and Propriety of the High Court's Remarks and Strictures Against the Appellant:
The appellant, a judicial officer, challenged the High Court's remarks as undeserved, unjustified, and unnecessary. The Supreme Court emphasized that the High Court's remarks, such as "mind boggling situation" and "medieval way of administering justice," were unwarranted. The Supreme Court highlighted that judicial officers should be protected from undue criticism to maintain their independence and confidence.
2. Justification for the Appellant's Order Dated 4.3.2002:
The appellant granted permission to an accused to travel abroad on the condition of depositing the passports of his wife and mother. The Supreme Court noted that this order was in line with similar orders previously passed by the High Court. The appellant acted based on the accused's willingness to deposit the passports, which was not objected to by the parties at the time.
3. Judicial Decorum and Restraint in Passing Remarks Against Subordinate Judicial Officers:
The Supreme Court reiterated the importance of judicial restraint and decorum. It cited various precedents to emphasize that higher courts should avoid making disparaging remarks against subordinate judges unless absolutely necessary. The Court noted that such remarks could cause irreparable harm to the judicial officer's reputation and career.
4. The Appellant's Adherence to Previous High Court Orders:
The appellant followed the pattern of previous High Court orders, which required the deposit of family members' passports to ensure the accused's presence. The Supreme Court recognized that the appellant was duty-bound to adhere to these precedents, and any error in his order should have been corrected without harsh criticism.
Conclusion:
The Supreme Court concluded that the High Court's remarks were unjustified and should be expunged. It emphasized the need for higher courts to exercise restraint and avoid damaging the reputation of judicial officers through unnecessary criticism. The appeal was allowed, and the remarks against the appellant were ordered to be expunged.
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2008 (9) TMI 1024
Issues Involved:
1. Whether gross collections or net collections should be taken as income.
2. Justification and reasonableness of ad-hoc disallowance out of winnings payments of less than Rs. 2,500 each.
3. Applicability of Section 40A(3) regarding disallowance out of winning payments exceeding Rs. 20,000 made in cash.
Detailed Analysis:
1. Gross Collections vs. Net Collections as Income:
The primary issue is whether the gross collections of the assessee should be taken to the Profit & Loss Account or only the net collections after deducting winnings payments and Betting Tax. The assessee argued that it acts as an agent, and only the commission (net collections) should be treated as income. However, the Tribunal held that the gross collections must be considered as the income of the assessee, and the winnings payments and Betting Tax are expenditures. The Tribunal rejected the concept of overriding title, stating that liabilities towards winnings payments and Betting Tax arise only after the receipt of bettings from punters, and thus, the principle of overriding title does not apply. The Tribunal also noted that the accounting practice followed by the assessee does not reflect the true income and is not in line with the Accounting Standards.
2. Ad-hoc Disallowance out of Winnings Payments of Less than Rs. 2,500 Each:
The assessing officer made an ad-hoc disallowance of 15% of winnings payments less than Rs. 2,500 each, which was reduced to 10% by the CIT(A). The Tribunal found that the assessee maintained a fool-proof computerized system for recording receipts and payments, which was audited by an independent Chartered Accountant. The Tribunal held that the ad-hoc disallowance was not justified as the assessee had satisfied the conditions laid down in Section 37(1) of the Act. The Tribunal deleted the entire ad-hoc disallowance, emphasizing that the Revenue did not bring any material on record to show that the payments were inflated or baseless.
3. Applicability of Section 40A(3) Regarding Disallowance out of Winning Payments Exceeding Rs. 20,000 Made in Cash:
The assessing officer disallowed 20% of the cash payments exceeding Rs. 20,000 made by the assessee, invoking Section 40A(3). The assessee contended that the provisions of Section 40A(3) were not applicable as banking facilities were not available at tote points, and most races were conducted on Sundays and public holidays. The Tribunal noted that the disallowance under Section 40A(3) is mandatory unless payments are covered by exceptions under Rule 6DD. The Tribunal observed that the payments to punters might not fall within the scope of business expenditure under Section 40A(3) as they arise out of a wagering contract. The Tribunal set aside the orders of the Revenue authorities and remanded the matter to the assessing officer to examine the nature of the payments and recompute the disallowance, if any, after giving the assessee a reasonable opportunity of hearing.
Conclusion:
- The gross collections must be considered as the income of the assessee.
- The ad-hoc disallowance of winnings payments less than Rs. 2,500 each was deleted.
- The matter of disallowance under Section 40A(3) was remanded to the assessing officer for fresh examination.
Result:
- Assessee's appeals were partly allowed for statistical purposes.
- Revenue's appeals were dismissed.
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2008 (9) TMI 1023
Issues involved:
The issues involved in the judgment are the correctness of the order passed by a learned Single Judge of Calcutta High Court, the refusal of exclusive marketing right (EMR) to the writ petitioners, the effect of the Patent (Amendment Act), 2005 on pending EMR applications, and the maintainability of the writ petition after the amendment.
Judgment Summary:
Issue 1: Correctness of the Order
The writ petitioners filed for a patent and EMR under the Patents Act, 1970. The Controller of Patents refused the EMR application, leading to writ petitions. The High Court set aside the Controller's order and directed a fresh decision. The Controller again rejected the EMR application. The appellants argued for the right to challenge the orders under Section 24A and 24B, while the respondents cited the transitional provision of the Patent (Amendment) Act, 2005.
Issue 2: Effect of Repeal on Pending Applications
The appellants contended that the repeal of Chapter IV-A did not affect pending EMR applications, as vested rights existed before the amendment. The respondents argued that the transitional provision applied, even to pending applications under Section 11B(3) of the Act.
Issue 3: Application of General Clauses Act
The General Clauses Act, 1897 was invoked to determine the effect of repeal on existing rights, privileges, and liabilities. The judgment referred to previous cases to establish that inchoate rights and obligations are covered under the Act, supporting the view that rights under the old statute are not destroyed by repeal.
Conclusion:
The Court held that the provisions of Section 78 of the Amendment Act did not apply to concluded proceedings before the appointed day. Since Chapter IV-A was repealed, the situation was to be handled under Section 6 of the General Clauses Act. The order of the Division Bench was set aside, and that of the learned Single Judge was upheld. The appeal was allowed without costs.
This judgment clarifies the impact of legislative amendments on pending applications and emphasizes the preservation of existing rights under the law.
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2008 (9) TMI 1022
Issues Involved:
1. Amendment of Written Statement and Counter Claim
2. Law of Limitation
3. Exercise of Judicial Discretion
Summary:
1. Amendment of Written Statement and Counter Claim:
The appeal was directed against the judgment of the High Court of Bombay at Goa, which affirmed the trial court's rejection of the application for amendment of the written statement and counter claim. The appellants sought to amend their written statement and counter claim after thirteen and a half years, seeking an enhanced amount of damages. The trial court and the High Court rejected this application on the grounds that the claim was barred by the law of limitation.
2. Law of Limitation:
The appellants argued that they were suffering a loss of Rs. 20,000 per day from June 1987 and sought to amend their counter claim to include losses up to November 2000. The trial court concluded that since the cause of action arose in 1986, the amendment was ex facie barred by the law of limitation. The Supreme Court noted that courts generally decline to allow amendments if a fresh suit on the amended claim would be barred by limitation on the date of the application. However, it is within the court's discretion to allow such amendments if it serves the interest of justice.
3. Exercise of Judicial Discretion:
The Supreme Court upheld the decisions of the lower courts, stating that they had exercised their jurisdiction properly in rejecting the amendment application. The Court emphasized that the appellants were making a new case by alleging continuous damages, which was contrary to their original pleadings. The Court also noted that the appellants had not provided any explanation for the delay in filing the amendment application. The Court concluded that allowing the amendment would not serve any purpose as the claim was already barred by limitation.
Conclusion:
The Supreme Court dismissed the appeal, affirming the lower courts' decisions to reject the application for amendment of the written statement and counter claim. The trial court was directed to dispose of the suit as early as possible, preferably within a year. There was no order as to costs.
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2008 (9) TMI 1021
Issues Involved:
1. Whether the accused issued the cheque in discharge of a legal debt or liability.
2. Whether the presumption u/s 139 of the Negotiable Instruments Act, 1881 was rebutted by the accused.
3. Whether the Trial Court erred in acquitting the accused.
Summary:
Issue 1: Whether the accused issued the cheque in discharge of a legal debt or liability.
The accused, Ashwani Kumar, approached the complainant, M/s. N. Chirag Travels (P) Ltd., for the purchase of air tickets. The tickets were supplied and received by the accused, who issued a cheque for Rs. 56,690/- as consideration. The cheque was dishonored due to "Stop payment." Despite receiving a demand notice, the accused failed to pay the cheque amount, leading to a complaint u/s 138 of the N.I. Act, 1881. The accused contended that he issued the cheque as an advance payment for three tickets but received only one ticket.
Issue 2: Whether the presumption u/s 139 of the Negotiable Instruments Act, 1881 was rebutted by the accused.
The applicant argued that u/s 139 of the N.I. Act, there is a presumption in favor of the holder of the cheque that it was issued in discharge of a liability. The accused must prove otherwise. The Trial Court found that the applicant failed to establish the supply of three tickets. The invoices were not convincing, and adverse inference was drawn due to the non-examination of the beneficiaries of the other two tickets. The accused admitted liability for one ticket and was ready to pay for it, which indicated honesty on his part.
Issue 3: Whether the Trial Court erred in acquitting the accused.
The High Court noted that the presumptions u/s 118(a) and 139 of the N.I. Act are rebuttable. The accused can rebut the presumption by raising a probable defense or discrediting the complainant's case. The accused successfully rebutted the presumption by showing that the complainant failed to prove the delivery of three tickets. The invoices were suspicious, and the complainant did not produce crucial witnesses or original documents. The High Court upheld the Trial Court's finding that the complainant could not prove the existence of any debt or liability of the accused.
Conclusion:
The High Court dismissed the application for special leave to appeal, upholding the order of acquittal. The complainant failed to prove the culpability of the accused, and the presumption u/s 139 of the N.I. Act was successfully rebutted by the accused.
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2008 (9) TMI 1020
Issues involved: Challenge to G.O.Ms.No.186 dated 16.8.2000 by Union of Periyar District Co-operative Land Development Bank and its employees regarding fixation of scale of pay by State Government without prior approval.
Summary:
1. The appellants challenged G.O.Ms.No.186 dated 16.8.2000, seeking direction for salary and benefits as per settlements u/s 12(3) or 18(1) of the Industrial Disputes Act, 1947.
2. State Government fixed scale of pay in the Bank through G.O.Ms.No.186 dated 16.8.2000, leading to the writ petition dismissal based on a Division Bench decision.
3. Appellants argued State Government lacked jurisdiction to fix service conditions, as power lies with Board of Directors u/s 73 of the Tamil Nadu Co-operative Societies Act, 1983.
4. State contended Board of Directors needs prior approval for fixing scale of pay as per Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988.
5. Rule 149 was amended in 2002, replacing approval from Registrar with approval from the Government, as per appellants' counsel.
6. Division Bench decision highlighted the purpose of Rule 149 to prevent societies from making wage settlements without considering viability.
7. Rule 149 mandates societies to frame byelaws for service conditions with prior Government approval, including cadre strength, recruitment methods, pay scales, and disciplinary procedures.
8. Section 73 of the Act empowers societies to appoint officers subject to Rules like Rule 149, prohibiting settlements without Government approval.
9. Co-operative Societies, including the Bank, cannot make wage settlements without State Government's prior approval as per Act and Rules.
10. Respondent Bank did not frame a bylaw under Rule 149, allowing State Government to set minimum pay scales for employees.
11. High Court found no illegality in the Government Orders, upholding the dismissal of the writ petition without costs.
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2008 (9) TMI 1019
Issues involved: Appeal against Tribunal's order dated 10-9-2007 for the assessment year 2001-02, pertaining to penalty u/s 271(1)(c) for disallowance of foreign travel expenses.
Summary:
Issue 1: Tribunal's order for the assessment year 2001-02
The appeal is against the Tribunal's order dated 10-9-2007 for the assessment year 2001-02, which is a composite order for two assessees, Continental Carriers Pvt. Ltd. and Continental Air Express Pvt. Ltd. In the case of Continental Air Express Pvt. Ltd., the issue in the quantum appeal has been sent back for reconsideration by the Assessing Officer.
Issue 2: Penalty u/s 271(1)(c) for disallowance of foreign travel expenses
The proceedings relate to penalty u/s 271(1)(c) for disallowance of foreign travel expenses by the Assessing Officer. The Tribunal's order dated 5-4-2007 in the quantum appeal indicated that the issue of disallowance of foreign travel expenses was sent back to the Assessing Officer for a fresh decision. As the quantum appeal was allowed on this ground and remanded to the Assessing Officer, it was argued that the penalty proceedings arising from the same orders cannot continue. The revenue did not appeal against the Tribunal's order in ITA No. 1397/Delhi/2005. The court agreed with the respondent's counsel that there is no merit in the appeal and dismissed it.
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2008 (9) TMI 1018
Issues involved:
The issues involved in this case include the custody of a child born through surrogacy, challenges to directions given by the Rajasthan High Court, questions regarding the legality and regulation of surrogacy in India, and the jurisdiction of the National Commission for Protection of Child Rights.
Custody of Child Born Through Surrogacy:
The petition raised questions regarding the custody of a child named Manji Yamada, born through surrogacy. The grandmother of the child filed the petition challenging directions given by the Rajasthan High Court. The High Court had issued directions related to the production and custody of the child, who was born to biological parents from Japan through a surrogate mother in Anand, Gujarat. The child was moved to Arya Hospital in Jaipur due to a law and order situation in Gujarat. The genetic father had to return to Japan, and a Birth Certificate was issued by the Municipality at Anand indicating the genetic father's name.
Challenges to Surrogacy Laws:
Respondent No. 3 raised concerns about the lack of laws governing surrogacy in India, alleging irregularities and a money-making racket in the surrogacy process. The respondent emphasized the need for stringent laws related to surrogacy and questioned the locus standi of another party to file a habeas corpus petition regarding the child's custody. The respondent's stand highlighted the need for proper regulation and enforcement of laws concerning surrogacy to prevent exploitation and ensure the well-being of children born through surrogacy.
Role of National Commission for Protection of Child Rights:
The judgment referenced the Commissions for Protection of Child Rights Act, 2005, which establishes the functions of the National Commission for Protection of Child Rights. Section 13 of the Act outlines various functions of the Commission, including examining safeguards for child rights, inquiring into violations of child rights, and recommending appropriate measures for the protection and welfare of children. The Act empowers the Commission to address issues related to children in need of special care and protection, including those involved in surrogacy arrangements.
Surrogacy Methods and Legal Considerations:
The judgment provided insights into different forms of surrogacy, such as traditional surrogacy where the surrogate is the genetic mother and gestational surrogacy where the surrogate carries an embryo not biologically related to her. It distinguished between altruistic surrogacy, where the surrogate receives no financial reward, and commercial surrogacy, where a gestational carrier is paid for carrying the child. The judgment highlighted the legal and ethical considerations surrounding surrogacy arrangements, especially in cases involving infertility or health issues preventing intended parents from carrying a pregnancy to term.
Conclusion and Directions:
The Supreme Court disposed of the writ petition, directing any grievances related to the child's custody to be addressed by the National Commission for Protection of Child Rights. The Court emphasized the importance of following legal procedures for travel permissions and visa extensions concerning the child and the grandmother. The judgment clarified that all pending proceedings in High Courts related to the matter would stand disposed of due to the Supreme Court's order, without any costs imposed on the parties involved.
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2008 (9) TMI 1017
Issues involved:
The judgment deals with the issue of acquittal under Section 138 of the Negotiable Instruments Act, 1881 based on the issuance of a cheque for a time-barred debt.
Details of the judgment:
1. The accused was initially convicted but later acquitted under Section 138 of the Negotiable Instruments Act, 1881. The Complainant sought Special Leave to Appeal against this acquittal.
2. The ground of acquittal was that the cheque was issued for a time-barred debt, which was not enforceable under the explanation to Section 138 of the Act. The cheque was issued for part payment of commission or brokerage fees due since 30.12.1999.
3. The Addl. Sessions Judge, citing relevant cases, concluded that the mere issuance of a cheque for a time-barred debt does not constitute a promise to pay as required by the Contract Act. The judgment emphasized the need for a written promise to pay to start a fresh period of limitation.
4. The judgment referred to a case where the accused's acquittal was reversed because the Complainant accepted a cheque issued for a debt due in December 1996.
5. Another case was cited where the accused validated the cheque by extending the repayment date multiple times, constituting a fresh promise under Section 25 of the Contract Act.
6. Previous judicial opinions were highlighted, stating that Section 138 of the Act is attracted only when a cheque is issued for a legally enforceable debt. Issuing a cheque for a time-barred debt does not lead to conviction under Section 138.
7. The judgment reiterated the requirement of an express promise in writing for a fresh period of limitation under Section 25(3) of the Contract Act. An implied promise is not sufficient, and a distinction was made between an acknowledgment under the Limitation Act and a promise to pay under the Contract Act.
8. The Court, based on precedent, upheld the acquittal of the accused, following the view established in previous cases. Special Leave to Appeal was denied based on the existing legal position.
9. The application was dismissed, maintaining the acquittal of the accused in line with the legal principles discussed in the judgment.
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2008 (9) TMI 1016
Issues Involved:
1. Whether giving notice u/s 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, is mandatory for the tenant.
2. Whether the tenant lost the right to purchase the disputed land due to failure to give such notice.
3. Interpretation of Sections 31 and 32F of the Act.
Summary:
Issue 1: Mandatory Notice u/s 32F
The High Court framed the issue of whether giving notice u/s 32F was mandated for the tenant and whether failure to give such notice resulted in the tenant losing the right to purchase the land. The High Court held that Section 32F is mandatory in nature and requires strict compliance. Despite the tenant initiating proceedings u/s 32G and paying some installments, this did not constitute substantial compliance to dispense with the mandatory requirement of Section 32F. The tenant's failure to issue a written notice to the landowner, as required u/s 32F, resulted in the loss of the right to purchase the disputed land.
Issue 2: Loss of Right to Purchase
The High Court dismissed the Writ Petition on the ground that the Respondent (Ramchandra) was the sole owner of the disputed land, and the tenant had failed to comply with the mandatory requirement of serving a notice u/s 32F. The Supreme Court agreed with the High Court's interpretation, stating that the provisions of Section 32F are independent and separate from Section 31. The tenant was under a legal obligation to give notice of his intention to purchase the land as required u/s 32F. The tenant's failure to serve such notice resulted in the loss of the right to purchase the land.
Issue 3: Interpretation of Sections 31 and 32F
The High Court interpreted that Sub-section (2) of Section 32F is an exception to Sub-section (1) but limited to the sections referred to in it (Sections 32 to 32E and 32G to 32R). Section 31 is not included in Sub-section (2) of Section 32F, and the expression "Notwithstanding anything contained in the preceding sections" under Sub-section (1) of Section 32F indicates that the right given to the landlord under Section 31 is separate from the right given to the tenant under Section 32F. The Supreme Court upheld this interpretation, emphasizing that the tenant must comply with the mandatory requirement of serving a notice u/s 32F.
Conclusion:
The Supreme Court dismissed the appeal, agreeing with the High Court that the tenant's failure to serve a notice u/s 32F resulted in the loss of the right to purchase the disputed land. The provisions of Section 32F are mandatory and require strict compliance, separate from the provisions of Section 31. The appeal was dismissed with no order as to costs.
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2008 (9) TMI 1015
The Bombay High Court dismissed the appeal regarding the deduction under section 35D of the IT Act for a shipping business, citing a previous order on the same issue. The appellant's question of law was not entertained. (Case citation: 2008 (9) TMI 1015 - BOMBAY HIGH COURT)
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2008 (9) TMI 1014
The High Court of Punjab & Haryana disposed of an appeal in similar terms as in a connected case (ITA No. 544 of 2006). Justice Adarsh Kumar Goel and Justice Ajay Tewari were presiding. Appellant represented by Mr. Sanjeev Kaushik, Addl. Advocate General, Haryana.
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2008 (9) TMI 1013
Issues Involved:
1. Jurisdiction and power of a High Court to transfer cases to a court subordinate to another High Court.
2. Interpretation and application of Sections 22 to 25 of the Code of Civil Procedure, 1908.
3. Harmonization of Section 23(3) and Section 25 of the Code of Civil Procedure.
4. Applicability of inherent powers under Section 151 of the Code of Civil Procedure.
Detailed Analysis:
1. Jurisdiction and Power of a High Court to Transfer Cases:
The primary issue was whether a High Court has the power to transfer a case from a court subordinate to it to a court subordinate to another High Court. The appellant contended that the High Court of Madhya Pradesh erred in transferring a case to a court subordinate to the High Court of Bombay, arguing that only the Supreme Court has such authority under Section 25 of the Code of Civil Procedure, 1908.
2. Interpretation and Application of Sections 22 to 25 of the Code of Civil Procedure:
Sections 22 to 25 of the Code of Civil Procedure deal with the transfer and withdrawal of suits, appeals, and other proceedings. Section 22 allows a defendant to apply for the transfer of a suit to another court. Section 23 specifies the forum for such applications, distinguishing between courts subordinate to the same appellate court, the same High Court, and different High Courts. Section 24 provides general powers of transfer to the High Court or District Court, while Section 25 empowers the Supreme Court to transfer cases between High Courts or between civil courts in different states.
3. Harmonization of Section 23(3) and Section 25 of the Code of Civil Procedure:
The respondent argued that Section 23(3) should be harmonized with Section 25, allowing a High Court to transfer cases to courts subordinate to another High Court. The court, however, held that Section 23 is a procedural provision specifying the forum for transfer applications and does not grant substantive power to transfer cases. Section 25, as amended in 1976, is a comprehensive provision that grants the Supreme Court exclusive jurisdiction to transfer cases between High Courts or civil courts in different states. The court emphasized that interpreting Section 23(3) to allow High Courts to transfer cases would undermine the legislative intent of Section 25.
4. Applicability of Inherent Powers under Section 151 of the Code of Civil Procedure:
The respondent also contended that inherent powers under Section 151 could be invoked to transfer cases in the interest of justice. The court rejected this argument, stating that inherent powers cannot be exercised in contravention of express provisions of the law. Since Sections 22 to 25 comprehensively cover the law of transfer, Section 151 is inapplicable.
Conclusion:
The court concluded that only the Supreme Court has the authority to transfer cases between courts subordinate to different High Courts under Section 25 of the Code of Civil Procedure. The High Court of Madhya Pradesh's order transferring the case to a court subordinate to the High Court of Bombay was set aside. The court clarified that Section 23(3) is a procedural provision and does not confer power to transfer cases, which is exclusively governed by Section 25. The appeal was disposed of with each party bearing its own costs.
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2008 (9) TMI 1012
Issues Involved:
1. Constitutional validity of various sections and clauses of the Assam Agricultural Produce Market Act, 1972, as amended by the Assam Agricultural Produce Market (Amendment) Act, 2000, and the Assam Agricultural Produce Market (Amendment) Act, 2006.
2. Refund of cess collected under the impugned legislations.
3. Legislative competence and repugnancy with central laws.
4. Quid pro quo between the cess collected and services rendered.
5. Authority of the Assam State Agricultural Marketing Board to levy and collect cess.
6. Establishment and operation of check gates for collection of cess.
Detailed Analysis:
1. Constitutional Validity of Various Sections and Clauses:
The petitioners challenged the constitutional validity of Sections 3D, 3E, Clause (ii) and (iii) of Explanation-1 to Section 21, as well as Sections 21(1), 21(2), 21(3), 21A, 23, and 25(xiii) of the Assam Agricultural Produce Market Act, 1972, as amended by the Amendment Acts of 2000 and 2006. The court held that the legal fiction created by Explanation-1 to Section 21, which presumes sale or purchase of agricultural produce in the market area under certain conditions, is valid. This fiction is rebuttable and aims to prevent evasion of cess. The court found that the amendments were in alignment with the Model Act, 1998, and did not violate the legislative intent.
2. Refund of Cess Collected:
The petitioners sought a refund of the cess collected from 13.08.2001 to 08.12.2005. The court held that the petitioners are not entitled to any refund prior to 13.08.2001. For the period after this date, the court directed the formation of a committee to scrutinize the claims for refunds based on the individual facts and documents produced by the parties. The committee will include representatives from the government, the Board, the concerned Market Committees, and the traders.
3. Legislative Competence and Repugnancy with Central Laws:
The petitioners argued that the amendments were repugnant to the Sale of Goods Act, 1930, a central legislation. The court held that the Assam Agricultural Produce Market Act does not occupy the same legislative field as the Sale of Goods Act and is not repugnant to it. The legal fiction in Section 21 does not conflict with the Sale of Goods Act as it is a rebuttable presumption and does not alter the essential attributes of a sale.
4. Quid Pro Quo Between the Cess Collected and Services Rendered:
The court examined whether there was a quid pro quo between the cess collected and the services rendered by the Board and Market Committees. The court found that the Board had undertaken substantial investments in market infrastructure, including godowns, auction platforms, and other facilities. The court held that the cess collected was being utilized for authorized purposes under the Act and there was a reasonable correlation between the cess and the services rendered.
5. Authority of the Assam State Agricultural Marketing Board to Levy and Collect Cess:
The petitioners challenged the authority of the Board to levy and collect cess. The court upheld the validity of Section 21(2), which empowers the Board to levy and collect cess on behalf of any or all Market Committees with the approval of the State Government. The court found that this provision does not violate the scheme of the Act and is necessary to prevent evasion of cess.
6. Establishment and Operation of Check Gates:
The petitioners argued that the establishment of check gates by the Board was illegal. The court held that the establishment of check gates is authorized under Section 21A of the Act, as amended by Act 2000 and Act 2006. The court found that the check gates are necessary to prevent evasion of cess and are not arbitrary or unreasonable.
Conclusion:
The court upheld the constitutional validity of the impugned sections and clauses of the Assam Agricultural Produce Market Act, 1972, as amended. The court directed the formation of a committee to scrutinize claims for refunds of cess collected after 13.08.2001. The court found no repugnancy between the Assam Act and the Sale of Goods Act, 1930. The court also upheld the authority of the Assam State Agricultural Marketing Board to levy and collect cess and the establishment of check gates to prevent evasion of cess. The petitions were partly allowed with no order as to costs.
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2008 (9) TMI 1011
Negotiable Instruments Act, 1881 - Dishonor of Cheque - proof of a document or admissibility of a document in evidence which is tendered along with a list of documents or along with an affidavit in lieu of examination-in-chief - Interpretation of Section 145(2) - procedure followed regarding marking the documents as exhibits - HELD THAT:- The issue of the interpretation of Sub-section (2) of Section 145 is well settled by the Division Bench in the case of KSL Industries Ltd.[2005 (2) TMI 885 - BOMBAY HIGH COURT] reads thus: '' The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions.''
The procedure laid down by the Apex Court in the case of Bipin Panchal [2001 (2) TMI 590 - SUPREME COURT] will have to be followed by the Courts sub-ordinate to this Court. However, the said decision-of Apex Court is applicable only to one category of objection regarding admissibility of the document in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document.
Objection regarding inadequacy of stamp is concerned that is already settled by the larger bench of the Apex Court in the case of Javer Chand [1961 (4) TMI 118 - SUPREME COURT]. In fact, in the decision of this Court in the case of Peacock Industries [2006 (7) TMI 700 - BOMBAY HIGH COURT], the judgment of the Apex Court in the case of Bipin Panchal (supra) is not read and interpreted to mean that it also applies to the objection regarding proof of documents.
Therefore, after filing of affidavit of examination-in-chief and after recording formal examination-in-chief of the concerned witness, an objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof has to be dealt with immediately by the learned Magistrate before proceeding with the recording of cross-examination. Only in a case where the said adjudication involves a decision on complicated questions which require a very detailed adjudication, it can be postponed till the final hearing.
In a case where a document is proved in accordance with Evidence Act but an objection is raised to the admissibility of the said document, as held by the Apex Court in the case of Bipin Panchal (supra), such document can be tentatively marked as an exhibit as objection to the admissibility can be decided at the stage of final hearing as contemplated in the decision of the case of Bipin Panchal (supra). if objection regarding proof of a document is decided, the complainant or accused who has produced the said documents is put to the notice that the document is not held as proved so that he can seek indulgence from the Court of leading further evidence. This, avoids possibility of parties applying at the stage of judgment for recalling the witness or for leading further evidence for proving a document.
I have already held that merely because a document referred to in cross-examination is marked as an exhibit, the same does not dispense with the proof of document, in accordance with law of evidence.
Criminal Application - objection to admissibility of the affidavit of examination-in-chief - The perusal of the order dated 16th July, 2008 shows that there is no specific objection raised regarding the proof of the documents. The order dated 16th July, 2008 has been recorded during the course of recording formal examination-in-chief of the complainant. As far as objection to the admissibility of affidavit of examination-in-chief is concerned, as stated above, the interpretation made by this Court of Section 145(2) of the said Act of 1881 stands and therefore objection to admissibility of the affidavit of examination-in-chief cannot be sustained.
In the circumstances, no interference is called for with the impugned orders subject to what is laid down in this judgment.
In Criminal Writ Petition, the learned Judge has tentatively marked all the documents produced by the complainant as exhibits. As held earlier, before proceeding to record the cross-examination, the learned Judge will have to deal with the objection as regards proof of the documents leaving the objection, if any, as regards admissibility open.
Hence, I pass the following order: Subject to what is observed in this judgment, no case for interference is made out and the petitions are disposed of.
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2008 (9) TMI 1010
Claim on loss incurred under the guarantee written off - guarantee given by Agrima was genuine or colourable - Whether the Tribunal was right in law in confirming the order of CIT(A) allowing the claim of the assessee for loss being guarantee written off, failing to appreciate that Saurashtra Cement and Chemical India Ltd.(SCCIL), Mehta Pvt.Ltd., Maharana Mills Ltd. and Agrima Project had common Directors and were under the same management and the entire exercise was collusive and only to book losses? - Agrima issued a guarantee to SCCIL in favor of Maharana Mills - Maharana Mills failed to repay the loan SCCIL thereon, called upon the assessee to make good the payment of loan with interest in terms of the guarantee executed by Agrima - In view of the amalgamation of Agrima with the assessee, the assessee paid the amount along with interest to SCCIL in instalments.
HELD THAT:- We do not agree with the finding of the A.O. that clause 13 of the Memorandum of Articles of Association is a comprehensive clause and in view of that clause Agrima cannot give any guarantee without security. We are of the view that according to clause 13 of the object clause Agrima could guarantee the performance of any contract or obligation/payment of money of or by any person or company or Corporation. In addition to this, the said Object clause 13 also allows Agrima to secure any guarantee in such a manner as the company may think fit and in particular by the mortgage pledge or other security upon all or on any other properties of the company. This would not mean that Agrima cannot give guarantee without security.
Contention of the revenue that the three concerns/companies were under the control and management of the same group of persons and, therefore, warranted application of principles initiated in Mc Dowel’s case, we are of the view that such a contention in the absence of any material in support thereof should be outright rejected.
It is argued by the assessee before all the authorities that the said three companies are independent and acted as such at arm’s length. Infact, SCCIL is a listed company. This contention of the assessee is accepted by CIT(A) who has reached a finding of fact that the amounts received by Maharana Mills from the Banks and financial institutions and from SCCIL were utilised in purchasing new machinery which was also installed and it is not the allegation of the AO that these funds were misappropriated by the directors or were frittered away. CIT(A) have, therefore, reached a finding of fact that the guarantee given by Agrima was genuine. This finding of fact is also accepted by the Appellate Tribunal. In view of these concurrent findings of fact, we see no reason as to why we should interfere with the said finding of fact.
In view thereof we are of the view that except for making a bare allegation that the entire exercise of giving guarantee by Agrima to SCCIL was collusive and only to book losses on the ground that the companies have common directors and were under the same management, the revenue has failed to produce any material in support of their case that the guarantee given by Agrima was not genuine. Only because some directors were common one cannot reach to a serious conclusion that the entire transaction was collusive and colourable only to book losses.
Therefore, we answer the above question raised in the appeal against the revenue and in favour of the assessee. The appeal stands dismissed.
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