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2012 (9) TMI 1145 - ALLAHABAD HIGH COURT
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... ... ..... ication to rectify an order, which is the opinion of the Third Member, to which the matter was referred by the bench of Tribunal of two Members , would not fall within the meaning of order passed by the Appellate Tribunal, in appeal. It is an opinion, and not a final order of the Tribunal, which was required to be framed on such opinion. 8. Since the final order of the Tribunal dated 31.5.2005, is under challenge in which the department may take the grounds, which have been taken in this appeal. This appeal as against the order dated 7.4.2000, rejecting the rectification application of the department is held to be not maintainable. 9. The appeal is accordingly dismissed with observations that in case the department has not taken the grounds, urged in this appeal, in the appeal filed against the order dated 31.05.2005, in Lucknow Bench of the Court. It will be open to the appellant to make an application to the Court hearing the appeal, to consider the appeal on such grounds.
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2012 (9) TMI 1144 - ITAT DELHI
Addition on account of late payment of employees’ contribution of ESIC & PF - Held that:- We have no hesitation in holding that the employees’ contribution towards PF paid by the assessee before the due date of filing of return u/s 139(1) of the Act for the assessment year under consideration is admissible. Consequently, findings of the ld. CIT(A) are upheld. With these directions, ground no. 1 in the appeal is dismissed.
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2012 (9) TMI 1143 - DELHI HIGH COURT
Validity of orders passed by the Debt Recovery Appellate Tribunal (DRAT) - Arbitration Act and Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDB Act) is to prevail over the other - Term 'arbitrability' relating to the jurisdiction of the arbitral tribunal - Whether the provisions of the Arbitration and Conciliation Act, 1996 (Arbitration Act) are excluded in respect of proceedings initiated by banks and financial institutions under the RDB Act - HELD THAT:- In the case of Booz Allen and Hamilton Inc.[2012 (10) TMI 459 - SUPREME COURT]. The Supreme Court in that case dealt with the issue of "arbitrability of disputes" and held that all disputes relating to ''right in personam'' are considered to be amenable to arbitration and disputes relating to ''right in rem'' are those disputes which are not arbitrable and require to be adjudicated by courts and public tribunals, being unsuited for private arbitration. The term 'arbitrability' has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the arbitral tribunal;
(i) whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the arbitral tribunal) or whether they would exclusively fall within the domain of public fora (courts).
(ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the 'excepted matters' excluded from the purview of the arbitration agreement.
(iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the arbitral tribunal, or whether they do not arise out of the statement of claim and the counter claim filed before the arbitral tribunal. A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be 'arbitrable' if it is not enumerated in the joint list of disputes referred to arbitration, or in the absence of such joint list of disputes, does not form part of the disputes raised in the pleadings before the arbitral tribunal.
Merely because there were huge NPAs and lot of monies belonging to the banks and financial institutions was stuck up and the legislature in its wisdom decided to create a special forum to have expeditious disposal of these cases would not mean that decisions rendered by Debt Recovery Tribunal come in the realm of ''right in rem''.
So far as tribunal like Debt Recovery Tribunal is concerned, it is simply a replacement of civil court. There are no special rights created in favour of the banks or financial institutions. There are no special powers given to the Debt Recovery Tribunal except that the procedure for deciding the disputes is little different from that of CPC applicable to civil courts. Otherwise, the Debt Recovery Tribunal is supposed to apply the same law as applied by the civil courts in deciding the dispute coming before it and is enforcing contractual rights of the Banks. It is, therefore, only a shift of forum from civil court to the tribunal for speedy disposal. Therefore, applying the principle contained in Booz Allen and Hamilton Inc. (supra), we are of the view that the matters which come within the scope and jurisdiction of Debt Recovery Tribunal are arbitrable.
Once that conclusion is arrived at, obviously the parties are given a choice to chose their own private forum in the form of arbitration.
Another significant fact which has to be highlighted is that the bank entered into agreement with the respondent herein on its own standard form formats. The terms and conditions of the loan were set out and decided by the bank. The respondent signed on dotted lines. In this scenario, when it was the proposal of the bank to have an arbitration clause to which the respondent had agreed, bank cannot now be permitted to say that this arbitration clause is of no consequence. Accepting the contention of bank would mean that the arbitration clause is rendered nugatory. It defeats the very effect of the said arbitration clause which was foisted by the bank itself upon the respondent, though in law, it becomes mutually acceptable between the parties.
The Court cannot permit a situation where such an arbitration agreement becomes one sided agreement, namely, to be invoked by the bank alone at its discretion without giving any corresponding right to the respondent to have the benefit thereof. Therefore, we find that orders of authorities below are without blemish.
Finding no merit in this writ petition, the same is dismissed. However, since nobody had appeared on behalf of the respondent, we are not imposing any costs.
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2012 (9) TMI 1142 - SUPREME COURT
Whether the income in question is liable to be taxed as business income or as income from house property" - Held that:- From the records, we find that, for the earlier Assessment Year 2001-2002, the Income Tax Appellate Tribunal has taken the view that income in question is business income.
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2012 (9) TMI 1141 - ITAT CHENNAI
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... ... ..... materials on record, the Tribunal came to the conclusion that it was not practicable to accept the payment by cheque. We are of the view that the finding arrived at by the Appellate Tribunal is a finding of fact and since the Tribunal has correctly come to the conclusion on the materials available on record, we are of the opinion that no referable question arose out of its order. Since we have held that the payments made by the assessee is not liable to be disallowed while computing the business income, on the facts of the case, it is unnecessary to consider the applicability of rule 6DD(j) of the Rules.” 9. In the circumstances, we hold that no disallowance under section 40A(3) is warranted by the Assessing Officer in the assessee’s case. Therefore, we delete the disallowance made by the Assessing Officer under section 40A(3) of the Act. 10. In the result, the appeal of the assessee is allowed. Order pronounced on Tuesday, the 11th of September, 2012 at Chennai.
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2012 (9) TMI 1140 - ITAT DELHI
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... ... ..... ot be taxed on the basis of estoppel of any other equitable doctrine. Further, if a particular income is not exigible to tax, Assessing Officer has no power to impose tax on the said income. We further find that Article 265 of the Constitution of India states that no tax can be collected except by authority of law. CBDT Circular No. 114 XL-35 of 1955 dated 11.4.1955 states that officer of the department must not take advantage of the ignorance of an assessee as to his rights. 9. In view of the aforesaid discussions and precedents, we hold that the assessee’s contention during assessment have to be duly considered on merits and decided accordingly. Hence, in the interest of justice, we remit this issue in this case to the file of the Assessing Officer. The Assessing Officer shall consider the same on merits and decide accordingly. 10. In the result, the appeal filed by the Assessee stands allowed for statistical purposes. Order pronounced in the open court on 21/9/2012.
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2012 (9) TMI 1139 - ITAT NEW DELHI
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... ... ..... cer furnished alongwith the appeal is the order dated 19th March, 2009 passed under Section 154/254/143(3) of the Income-tax Act, 1961. From a perusal of this order, it is not clear whether the refund was granted under Section 143(1) and then after the order under Section 143(3), the interest was charged or the refund was granted by virtue of CIT(A)’s order and interest under Section 234D is charged on the reversal of such order by the Tribunal. We, therefore, set aside the orders of lower authorities on this point and restore the matter to the file of the Assessing Officer for factual verification and readjudication of issue of charging of interest under Section 234D as per our observation above. Needless to mention that the Assessing Officer will allow adequate opportunity of being heard to the assessee. 7. In the result, the assessee’s appeal is deemed to be partly allowed for statistical purposes. Decision pronounced in the open Court on 21st September, 2012.
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2012 (9) TMI 1137 - CALCUTTA HIGH COURT
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... ... ..... ta in ITA No.267/Kol./2009 on which reliance has been placed by the learned Tribunal. On query, he submits that no appeal has been preferred. In view of the aforesaid information, we think that this Court shall not interfere with the judgment and order of the learned Tribunal as it has got the binding effect by this time. Therefore, the appeal is dismissed.
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2012 (9) TMI 1136 - ITAT PUNE
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... ... ..... e income of ₹ 40,68,215/- in this year. This issue is also identical as adjudicated in the Asst. Year 2001-02. Admittedly in this year substantial incriminating evidence was found against the assessee. The Assessing Officer has relied on the decision of Hon’ble High Court of Bombay in the case of CIT Vs. M.K.E. Memon (Supra) CIT Vs. HM Eusfalli HM Abdulala (Supra). Once the modus operandi is admitted by the assessee, in our opinion, no grievance should be made that some income is estimated. In our opinion the estimation made by the Assessing Officer need no interference as same is reasonable. We accordingly confirm the order of the Ld. CIT(A) and accordingly the assessee’s appeal is dismissed. 47. In the result, assessee’s appeals for Asst. Years 1999-2000 & 2004-05 are dismissed and appeals for Asst. Years 2000-01, 2001-02, 2002-03, 2003-04 are partly allowed. Order accordingly. Pronounced in the open court on this the 24th day of September 2012.
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2012 (9) TMI 1135 - SUPREME COURT
Validity of order passed by the Disciplinary Authority - Appellant remitted back to the Disciplinary Committee - disciplinary proceedings as vitiated due to the participation of the Principal, who was biased against the Appellant - Held that:- The order passed by the Disciplinary Committee cannot be sustained on the short ground that Smt. Neera Sharma was a member of the aforesaid Disciplinary Committee. In our opinion, she was clearly disqualified from participating in any deliberations of the Disciplinary Committee as she had appeared as Management Witness No. 2. It is well settled principle of law that no person can be a Judge in his own cause. Having supported the case of the management, it was not appropriate for Smt. Neera Sharma to participate in the proceedings of the Disciplinary Committee.
When the appeal was being decided by the Disciplinary Committee with regard to the legality or otherwise of the order passed by the Disciplinary Authority, the decision of the Disciplinary Committee not only had to be fair but it also had to appear, to be fair. This is in conformity with the principle that justice must not only be done, but must also appear to be done. Actual and demonstrable fair play must be the hallmark of the proceedings and the decisions of the administrative and quasi judicial tribunals. In particular, when the decisions taken by these bodies are likely to cause adverse civil consequences to the persons against whom such decisions are taken. For the aforesaid reasons, the order dated 18th/19th December, 2008 passed by the Disciplinary Committee is hereby quashed and set aside.
It would be inappropriate at this stage to relegate the Appellant back to the Disciplinary Committee. In the interest of justice, we permit the Appellant to challenge the order of the Disciplinary Authority dated 8th January, 2008 before Punjab School Education Tribunal, Mohali. The appeal shall be filed by the Appellant within thirty days from today. Since the order of the Disciplinary Authority was passed on 8th January, 2008, the appeal may well be beyond limitation period.
Keeping in view the peculiar facts and circumstances of this case, we direct that the appeal filed by the Appellant shall be decided by the aforesaid Education Tribunal on merits and the same shall not be rejected on the ground of limitation. If the appeal is filed by the Appellant within the period stipulated above, the Education Tribunal shall take final decision thereon within a period of three months.
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2012 (9) TMI 1134 - GUJARAT HIGH COURT
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... ... ..... or sales outside the books. The Tribunal has concurred with the findings of fact recorded by Commissioner (Appeals). 6. Having regard to the above findings recorded by Commissioner (Appeals) upon appreciation of the material on record, no infirmity can be found in the reasoning adopted by him. Though it has been contended that the findings recorded by the Tribunal are perverse, the learned counsel for the appellant is not in a position to point out any material to the contrary so as to dislodge the findings of fact recorded by the Commissioner (Appeals) with which the Tribunal, after appreciating the material on record, has concurred. 7. Under the circumstances, the impugned order of the Tribunal being based upon concurrent findings of fact recorded by it after appreciating the material on record, in absence of any perversity being pointed out therein, does not give rise to any question of law, much less, a substantial question of law. The appeal is, accordingly, dismissed.
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2012 (9) TMI 1133 - SUPREME COURT
The right of the accused to a fair trial - examination of an accused u/s 313 Cr.P.C. - Inspection of certified copies or in the alternative for of certain unmarked and unexhibited documents - the examination of the appellant (accused No.2) u/s 313 Cr.P.C. is going on, While such examination of the appellant was midway and she had answered over 500 questions out of the contemplated double the number, an application was filed by the appellant before the learned trial court seeking certified copies of certain unmarked and unexhibited documents which were claimed to be in the custody of the court on being so forwarded alongwith the report of investigation under Section 173(5) Cr.P.C. the appellant filed application before the learned trial court, seeking an inspection of the said unmarked and unexhibited documents in respect of which the earlier application was filed but rejected.
HELD THAT:- This Court do not see as to how the appellant (second accused) can be denied an access to the documents in respect of which prayers have been made in the applications. While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well entrenched principles of law that have been laboriously built by illuminating judicial precedents is sacrificed or compromised. In no circumstance, the cause of justice can be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. In view of what has been stated above and to balance the need to bring the prosecution in the present case to its earliest conclusion and at the same time to protect and preserve the right of the accused to a fair trial we are of the view that the following directions would take care of the conflicting interests that have surfaced in the present case:-
(1)The accused No.2, i.e. the appellant herein, be allowed an inspection of the unmarked and unexhibited documents referred to by her in the application filed in the Court of XXXVI Additional City Civil & Sessions Judge, Bangalore;
(2) Such inspection will be completed within a period of 21 days from the date of receipt of this order by the learned trial court. The venue of such inspection and also the persons who will be permitted to be present at the time of inspection will be decided by the learned trial court.
(3) The right of inspection conferred by this order will not affect the validity of any part of the trial till date, including, the examination of the accused No.1 under Section 313 Cr.P.C. which has since been completed or any part of such examination of the second accused that may have been completed in the meantime.
(4) In the event the third and the fourth accused also desire inspection of the unmarked and unexhibited documents such inspection will be allowed by the learned trial court. In such an event the process of inspection will also be simultaneously carried out and completed within the period of 21 days stipulated in the present order.
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2012 (9) TMI 1132 - ITAT, PUNE
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... ... ..... of the assessee is more acceptable since the lower authorities have not decided the issue from the angle of gift. Considering the totality of the facts of the case, we deem it proper to restore the issue to the file of the AO with a direction to examine the contention of the assessee that the amount of ₹ 3 crores received as corpus donation is in the nature of gift and therefore the same is not taxable in view of the ratio of the decisions cited (Supra). The AO should also keep in mind the outcome of the writ petition filed by the assessee, if available at the time of passing the order. Needless to say the AO shall give due opportunity of being heard to the assessee and decide the issue in accordance with law. We hold and direct accordingly. The grounds raised by the assessee are allowed for statistical purposes. 12. In the result, the appeal filed by the assessee is allowed for statistical purposes. Pronounced in the open court on this the 12th day of September, 2012.
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2012 (9) TMI 1131 - DELHI HIGH COURT
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... ... ..... nds admitted) Admittedly, ₹ 2.54 crores had been paid by the petitioner to the respondent; ₹ 2 crores was the security deposit; ₹ 54 lacs was the advance rent at the rate of ₹ 1.50 lac per month for a period of 36 months. After adjusting the unpaid amount, balance payable was ₹ 2,26,05872/-. It has been established that this is a “debt” within the meaning of Section 434 of the Companies Act; it has been established that the respondent is unwilling and unable to pay this debt. Petition is liable to be admitted; it is accordingly admitted. However, the publication of the citation is deferred for four weeks enabling the respondent to pay this amount of ₹ 2,26,05,872/- along with interest 9 per annum failing which necessary steps will be taken by the petitioner to get the publication affected in “Indian Express” (English Edition) and “Jansatta” (Hindi Edition) as also in Gazette. 15. Renotify for 02.11.2012.
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2012 (9) TMI 1130 - ITAT AMRITSAR
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... ... ..... ng Officer. The Ld. CIT(A) relied upon the decisions of various courts of law. 14. We have heard the rival contentions and perused the facts of the case. Since the additions in the present case have been deleted by us in quantum appeal hereinabove in assessee's case in ITA No. 406(Asr)/2009 for the assessment year 2003-04 by our order of even date. Therefore, in the absence of any addition, no penalty under section 271(1)(c) of the Act, can be levied by the AO and the same deserves to be cancelled. The Ld. CIT(A) has deleted the penalty since the assessee had established that the money received from M/s. Shital Fibres Ltd. is in the nature of deposits and we do not find any infirmity in the order of the Ld. CIT(A). Thus, all the grounds of the Revenue are dismissed. 15. In the result, the appeal of the assessee in ITA No.406(Asr)/2009 is allowed and the appeal of the Revenue in ITA No.146(Asr)/2011 is dismissed. Order pronounced in the open court on 20th September, 2012.
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2012 (9) TMI 1129 - DELHI HIGH COURT
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... ... ..... r the Indian Patent 196774 is liable to be revoked on the grounds raised in written statement and counter-claim of the defendant? OPD Issue No. 2 is decided in favour of the plaintiffs and against the defendant. 3. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP AND 5. Relief. In view of the findings arrived at on issue No.1, issue Nos.3 and 5 are decided against the plaintiffs. 6. Whether defendant/counter-claimant proves that the plaintiff's subsequent US Patent 6900221, is to the effect that the compound of claim No.1 of the suit patent is a mixture of the two, Polymorph A and B Compound and need to be separated to perform and get the claimed compound for acceptable efficacy; and its effect on the plaintiff's patent? OPD/CC. Issue No.4 is decided in favour of the defendant and against the plaintiffs. In the result, both, the suit being CS(OS) No. 89/2008 and the counter claim being C.C. No. 52/2008 are dismissed. No order as to costs
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2012 (9) TMI 1128 - CALCUTTA HIGH COURT
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... ... ..... sion, the reason being that a winding up proceeding is not merely for the benefit of the petitioner but of all shareholders, creditors or contributories of the company. Therefore, winding up proceedings could not be stayed merely because the creditor has filed a suit against the company. 5. Coming back to the factual matrix, we would find that the property was duly conveyed by the petitioning creditor to the company upon receipt of consideration for the same. Two of the cheques valued at ₹ 43.4 lacs got dishonoured. This admitted fact could not be disputed by the company. 6. In such view of the matter, the learned Judge very rightly admitted the winding up petition that would deserve no interference by us. The appeal fails and is hereby dismissed. 7. There would be no order as to costs. 8. The stay prayed for, is considered and rejected. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2012 (9) TMI 1127 - CENTRAL INFORMATION COMMISSION, NEW DELHI
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... ... ..... as a public authority and, therefore, it needs to have a CPIO. Therefore, we direct the CPIO of the Economic Affairs to place this order before the Finance Secretary who shall cause to be appointed within one month of receiving this order a CPIO for the Ministry or nominate one of the existing CPIOs to act as the CPIO for the Finance Ministry also. We also direct the CPIO to forward to the Appellant a copy of the RBI press note/guideline on the subject to which he himself had referred in his reply within 10 working days of receiving this order. 6. Since it is not very clear as to which public authority in the Government of India would be concerned with the remaining queries, we cannot particularly blame the CPIO for having suggested the names of the Department of Revenue and the Ministry of Home Affairs although, in our opinion, those public authorities are not concerned. 7. The appeal is disposed of accordingly. 8. Copies of this order be given free of cost to the parties.
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2012 (9) TMI 1126 - CALCUTTA HIGH COURT
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... ... ..... the facts and circumstances discussed above, the petitioner is also entitled to relief in the sense that the Bank ought to reconsider the representations submitted by him. 13. In the result, the response dated 7th May, 2012 stands set aside. The authorised officer of the respondent Bank shall proceed to consider the petitioner's representations dated 19th March and 30th April, 2012 in accordance with law and give a fresh decision thereon. Immediately after such decision is given, the same shall be communicated to the petitioner. Till such time the decision is communicated, no further effect shall be given to the possession notice dated 20th June, 2012, meaning thereby that the petitioner's possession shall not be disturbed. With the aforesaid direction, the writ petition stands disposed of. There will be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2012 (9) TMI 1125 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... several years between 2003 and 2012. This Tribunal has held in several cases including Subhkam Securities Private Limited. vs. Securities and Exchange Board of India decided on July 25, 2012 Appeal no.73 of 2012, Aditi Dalal vs. Securities and Exchange Board of India decided on November 28, 2011 Appeal no.143 of 2011 that proceedings under the Securities and Exchange Board of India Act require finalization within a reasonable period of time. Delay defeats justice and the very purpose for which proceedings are initiated. In the present case, the suspension of certificate of registration after a period of 12 years from the commission of the violation cannot be regarded as reasonable or justified. In view of the mitigating factors in the present case, while upholding the violation as found by the whole time member, we hold that a warning to the appellant to be careful in future would be reasonable and would meet the ends of justice. The appeal is disposed of as above. No costs.
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