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Showing 21 to 40 of 7259 Records
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2006 (12) TMI 562 - MADRAS HIGH COURT
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... ... ..... n the balance sheet. The claim has to be determined only by the provisions of the Act and not by the accounting practice of the assessee. In the instant case, the Appellate Tribunal, finding that replacement of machinery is revenue expenditure, held that the claim of the assessee cannot be disallowed. 6. This Court, in COMMISSIONER OF INCOME-TAX v. JANAKIRAM MILLS LTD., referred supra, held that all plant and machinery put together amounts to a complete spinning mill which is capable of manufacturing yarn and hence, each replaced machine could not be considered as an independent one and no intermediate marketable product was produced. 7. The above view was also taken by this Court in Commissioner of Income Tax v. Loyal Textile Mills Ltd., 2006 284 ITR 658. In view of the ratio laid down by this Court in the decisions cited supra, the substantial questions of law are answered in favour of the assessee and against the Revenue and accordingly, the appeal is dismissed. No costs.
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2006 (12) TMI 561 - GUJARAT HIGH COURT
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... ... ..... . Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in 1997 (3) SCC 721 Head Note B 1997 (90) E.L.T. 241 (S.C.). 21. Taking into consideration two major aspects, one that practically the petitioner is on bail since 1992, i.e. for more than 14 years (barring an exception of surrendering to jail authorities after the appeal was rejected, he surrendered, but was bailed out by this Court by order dated 26-4-2002), no useful purpose will be served if the accused is now directed to undergo the remaining sentence, which will be roughly about 20 months as he has already approximately undergone 16 months and 12 days as he is awarded 3 years imprisonment. 22. The submission of the Learned Advocate for the petitioner is accepted. The sentence is modified to the period undergone. Revision Application is allowed. Rule is made absolute to the aforesaid extent. 22.1 It is clarified that the conviction is upheld. Only the quantum of sentence is modified.
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2006 (12) TMI 560 - CESTAT BANGALORE
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... ... ..... s no intention to evade tax and the assessee’s company had become non-operational. The Commissioner (Appeals) has given satisfactory reasons to reduce the penalty. There is no justification to increase the penalty. There is no merit in this appeal and the same is dismissed. ST/07/2005 5. In this appeal, the revenue is aggrieved with the reduction of penalty from ₹ 1,11,796 to ₹ 10,000. The Commissioner (Appeals), in this case also, has noted that the amounts had been paid by the assessee and that there was no charge of suppression of value of taxable service with an intention to evade duty. The adjudicating authority had also held likewise. As there was no intention to evade the tax, the Commissioner (Appeals) reduced the penalty. 6. I have heard the learned JDR. 7. I am of the considered opinion that reduction of penalty is justified, as there was no suppression of facts or intention to evade tax. There is no merit in this appeal and the same is dismissed.
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2006 (12) TMI 559 - SUPREME COURT
Suit for specific performance of contract - Prayer for impleadment to contest the suit and to permit them to file written statement - transfer pendente lite - HELD THAT:- The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation.
The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.
Thus, the High Court's view is clearly indefensible and is set aside.
Learned counsel for the respondents submitted that since they are not parties in the suit, their interest will get jeopardized. It is a trite law that if a person is not a party to a suit, the decree does not affect him unless the judgment is in rem and not in personem.
Appeal deserves to be allowed which we direct.
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2006 (12) TMI 558 - SUPREME COURT
Interpretation of a policy of marine insurance - sale of logs - claim by way of constructive total loss - expression "without prejudice" - burden to prove - HELD THAT:- There had been no repudiation even at that stage. It was only when the ship could not leave the Singapore Port due to unseaworthiness, a claim of constructive total loss was made. Terms of the policy would indisputably have to be invoked for determining the rival clauses. But, it is one thing to say that the claim was barred by limitation or the exclusionary clauses would apply; but it is another thing to say that the question of invoking the said clause did not arise in terms of the contract of insurance.
Only because the expression "without prejudice" was mentioned, the same, in our opinion, by itself was not sufficient and would not curtail the right of the insured to which it was otherwise entitled to. The expression "without prejudice" may have to be construed in the context in which it is used. If the purpose for which it is used is accomplished, no legitimate claim can be allowed to be defeated thereby.
The Division Bench of the High Court committed an error in holding that the insurance policy stood terminated after June/ July, 1988 in terms of clause 9 of the policy when the contract of carriage had terminated on account of the unseaworthiness of the ship. Even Respondent had not made out any case to the said effect in the pleadings. If the contract of insurance did not terminate on its own, as was wrongly opined by the Division Bench of the High Court, the question of any request for its extension did not arise.
Undoubtedly, the contract of insurance was covered under Institute Cargo Clause (C). However, it included expressly the risk of non-delivery of even single piece of log. It included the risk of the vessel or craft being stranded or grounded. It also included the risk of institute theft pilferage and non-delivery.
Yet again on 2nd March, 1988 and 11th March, 1988, evidently, the scope of aforesaid policy was enlarged pursuant whereto or in furtherance whereof further endorsements were made by paying additional premium, in terms whereof the risk of non-delivery was specifically covered. It will bear repetition to state that the vessel could not proceed from Singapore owing to its unseaworthiness. It was, thus, covered by the terms of the extended terms of insurance policy. The Division Bench failed to consider this aspect of the matter.
Findings of fact were arrived at by the learned Single Judge on the basis of the pleadings of the parties. If a clause of Marine Insurance policy covers a broad fact, in our opinion, it would be inequitable to deny the insured to raise a plea particularly when the insurer being a State within the meaning of Article 12 of the Constitution of India is expected to act fairly and reasonably. The purport and object for which goods are insured must be given full effect. In a case of ambiguity, the construction of an insurance policy should be made in favour of the insured and not insurer.
When the entire case is based on a construction of insurance policy, the question of adduction of any oral evidence would be irrelevant particularly when the learned Single Judge gave due credit of the amount received on auction of the goods under the orders of the Singapore Court. The value of the cargo was known. It is not a disputed amount. Thus, whatever has been recovered by way of sale of the said logs, the same has to be credited for and Appellant should be held entitled only to the balance amount.
Whether the exclusionary clauses contained in the insurance policy are attracted - Respondent in its written statement did not raise such a contention. It was required to be specifically pleaded and proved by Respondent. The burden to prove the applicability of exclusionary clauses was on Respondent. Neither any issue has been raised, nor any evidence has been adduced in this behalf. It is also not a case that the servants of the assured were privy to the unseaworthiness as provided for in Clause 5.5.1 of the insurance policy. There has been no evidence to that effect. Even the said provision has not been applied by the learned Single Judge.
Thus, the appeal is allowed and the impugned judgment of the Division Bench is set aside and the judgment and order of the learned Single Judge is restored.
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2006 (12) TMI 557 - GUJARAT HIGH COURT
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... ... ..... ra) has been distinguished and the case of Ormerods (India) Pvt. Ltd has been applied, which has been approved by the Hon'ble Supreme Court, in view of these facts, we hold that the assessee's case is covered in favour of the assessee by the ITAT judgment in the case of Ataku Holdings Pvt. Ltd., a group concern, respectfully following the same, we uphold the order of the CIT(A) allowing interest as business expenditure. Since we allow the claim of assessee, there is no necessity to go into alternate plea of the assessee. 7. In the result, Revenue's appeal is dismissed.” The CIT (Appeal) as well as the Tribunal both have found that borrowings were for the purpose of business. Whether the borrowings were for the purpose of business or not, is basically based on the finding of fact. Considering the concurrent finding of fact, we see no perversity in the order. No case is made out for admission of this appeal. The appeal stands dismissed at the admission stage.
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2006 (12) TMI 556 - PUNJAB & HARYANA HIGH COURT
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... ... ..... ant. Once the assessment orders for both the years were set-aside, that included the order passed by the revenue under Section 271-D of the Act, would not survive. Therefore, to say that the order, which has been passed by the revenue were independent proceeding under Section 271-D, is not correct. The order which has been passed by the department under Section 271-D of the Act would practically submerge, in view of the order passed by the CIT (Appeals), vide which the original assessment order was set-aside and the case was remanded for denovo assessment. Learned counsel for the respondent contended that after the direction of the CIT(Appeals), fresh assessment orders in relation to the two assessment years have also been passed. No reference in those orders have been made to the order passed by the revenue under Section 271-D of the Act. We are of the view that no substantial questions of law arise for our consideration in this appeal. Thus, the appeal is hereby dismissed.
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2006 (12) TMI 555 - RAJASTHAN HIGH COURT
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... ... ..... el for respondent at that time sought time to verify the fact and also for seeking instructions. This fact is not disputed that the final assessment has been made by the department. Anyhow, any amount which is to be refunded to the assessee, the petitioner may file application for seeking refund of the said amount as provided u/s.56 of Rajasthan Sales Tax Act read with Rule 35 of the relevant rules. After such application is filed, the department is directed to consider and dispose of the same in accordance with law within a period of two months from the date of filing of such application. Counsel further submits that it may be clarified that the assessee may be entitled for interest over the said amount which was refundable to him. It goes without saying that a statute itself take note of interest payable in terms of notification as provided u/s.56 of the Act. Consequently, the revision petition has become infructuous. The same is accordingly, disposed of as observed above.
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2006 (12) TMI 554 - DELHI HIGH COURT
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... ... ..... te. For the Respondent None ORDER No substantial question of law arises. Dismissed.
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2006 (12) TMI 553 - DELHI HIGH COURT
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... ... ..... icated. All these details are conspicuously absent. The petitioner has been convicted and sentenced on the vague and bland allegation that cheque of ₹ 3,15,000/- had been issued by the petitioner in discharge of liabilities of repayments of amounts taken by him. This is the only statement contained in the complaint and no further details are forthcoming even in the evidence led by the complainant. 13. In these circumstances, I hold that the courts below have grossly erred in law in concluding that the petitioner was unable to rebut the presumption raised under Section 139. Since, the conviction and sentence have been raised merely on the petitioner's alleged inability to rebut the presumption and there is nothing available on record to establish the complainant's case, I am of the view that the petitioner is entitled to acquittal. The impugned order is set aside. The petitioner is acquitted. The petitioner is in custody. He is directed to be released forthwith.
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2006 (12) TMI 552 - CESTAT BANGALORE
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... ... ..... submits that Appeal No. E/484/2005 on the same issue came up for hearing on 27-12-2006 and by following the ratio of earlier Final Order cited supra, the appeal had been allowed. 3. The learned JDR reiterates the order. 4. On a careful consideration, we notice that the issue is decided by the Final Order No. 938/2006, dated 18-5-2006 holding that these two elements cannot be added in the assessable value, as the assessments had been finalized on the price lists submitted by them with regard to the value of goods cleared from the factory gate. The present two elements pertain to clearance of goods outside the factory gate and, therefore, these elements cannot be added in the assessable value of goods already cleared by them. The issue is covered in the assessee’s favour in the light of the judgments already noted in the appeals disposed of in assessee’s case. The appeal is allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2006 (12) TMI 551 - SUPREME COURT
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... ... ..... er. However we state that the salary that has been already paid to respondent No.1 under the orders of the court will not be recovered from the respondent. The High Court while passing the interim order dated 02.12.1997 in writ petition No. 193 of 1997 while granting stay of the award of the Labour Court directed the Management to deposit half of the amount decreed and also continue to deposit the amount of salary of respondent in future until further orders and that the past award if deposited could be withdrawn by the workman after furnishing security. However, no security need be given to the withdrawal of the amount which is to be deposited as future salary. 32. In view of our finding that the respondent is not a workman, he will not be entitled to payment of half of the decreed amount which was ordered to be deposited. If the amount has not been withdrawn so far, the Management is at liberty to withdraw the same from the court deposit. However we are not ordering costs.
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2006 (12) TMI 550 - DELHI HIGH COURT
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... ... ..... nt entered into between the assessee and the Sumitomo Corporation. We have perused the various clauses of the agreement and the correspondence relied upon by the appellant. We are in agreement with the view taken by the ITAT that the arrangement was in the nature of an agency which would not attract the provisions of Section 80-O of the Income Tax Act. Dismissed.
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2006 (12) TMI 549 - GUJARAT HIGH COURT
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... ... ..... se of the assessee as we have already pointed out that the subsidy was given by the State Government to set up the industry in the backward area, therefore, we are of the view that the judgment of Hon'ble Supreme Court in the case of Sahney Steel and Press Works Ltd. (supra) will help the assessee and will not help the Revenue. We accordingly, in view of the scheme and the decision of Sahney Steel and Press Works Ltd. (supra), hold that the subsidy received by the assessee is capital in nature and accordingly set aside the order of the authorities below and direct the Assessing Officer to delete the addition of ₹ 10,00,000/. This appeal on this issue is allowed. ” In spite of time granted, learned counsel for the appellant has failed to show that the subsidy was given to run the business. When the subsidy was not given to run the business, we see no infirmity in the order of the Tribunal. No substantial question of law does arise. The appeal stands dismissed.
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2006 (12) TMI 548 - SUPREME COURT
Offences punishable u/s 8 and 9 of the Act - Political opponent lodged the complaint - Public servant - Chief Minister of the State of Punjab - Sanction in terms of Section 197 of the CrPC - Validity of proceedings initiated under the Prevention of Corruption Act, 1988 ('Act') and/or the Indian Penal Code, 1860 (the 'IPC') - whether sanction is necessary or not ? - registration of a cognizable offence - HELD THAT:- Mere non-description of the offences in detail is really not material. At the stage of framing charge it can be urged that no offence is made out. With reference to the absence of allegations under Sections 8 and 9 of the Act, it is submitted whether the charge sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the Court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether there prima facie appears existence of any material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by Learned Counsel for the respondent-State.
It would not be permissible to contend that a public servant would be covered by Section 13(1)(d) (similar to Section 5(1)(d) of Old Act) and therefore the public servant would not be covered by Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the offences under Sections 8 and 9 of Act are different and separate. Assuming, Section 13(1)(d)(i) covers public servants who obtain for 'himself or for any other person' any valuable thing or pecuniary advantage by corrupt or illegal means, that would not mean that he would not fall within the scope of Sections 8 and 9. The ingredients are different. If a public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc. then he would fall in the net of Sections 8 and 9. In Section 13(1)(d) it is not necessary to prove that any valuable thing or pecuniary advantage has been obtained for inducing any public servant.
Great emphasis has been led by the appellants on some factual scenario to show that the complainant was close to incumbent Chief Minister and he has been rewarded subsequently for making the complaint. In essence, the plea is that mala fides are involved. This allegation of mala fides is also linked with the so called conferment of power with the particular police station at Mohali and conferment of jurisdiction on a particular Special Judge by Notification dated 17.11.2003. A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions would not be sufficient. The person against whom mala fides conduct is attributed is interestingly not a party in the proceedings.
So far as the allegation that political opponent had lodged the complaint is concerned, that itself is not sufficient for the Court to interfere. When the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation. Merely because the political opponent was the complainant that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof.
Whether the submissions ought to prevail, the legal principles governing the registration of a cognizable offence - It is manifestly clear that if any information disclosing a cognizable offence is laid before an officer incharge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. In this connection, it may be noted that though a police officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non- cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code.
Further, under Sub-section (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers as he has while investigating a cognizable offence.
Whether the registration of a criminal case u/s 154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code - The controversy revolves around the Notification dated 19.10.2002 regarding P.S., Mohali with Statewide jurisdiction. According to Learned Counsel for the respondent-State it represents a continuity and there was no new creation. So far as the Notification dated 17.11.2003 is concerned, undisputedly, the expression used is "appoint". It was clarified that though the said expression has been used, it did not actually mean appointment of a Sessions Judge and First Additional Sessions Judge, Ropar as Special Judges. They were already appointed and designated as stated in the Notification itself. What was intended related to allocation of cases registered at P.S., Mohali to the existing Courts of Special Judges, Ropar. There is also no dispute that P.S., Mohali falls within the area of district Ropar over which Special Judges, Ropar had jurisdiction as approved by the High Court.
It is to be noted that Learned Counsel for the State submitted that to avoid any fear of forum shopping, the State is even willing to abide by the decision of this Court if the trial takes place in Chandigarh or wherever this Court directs, and to show that the State has no intention to the trial being conducted at a particular place and to prove its transparency the stand is taken. We do not think it necessary to so direct, because the expression "notwithstanding the jurisdiction of other Special Judges in the State of Punjab" has already been stated to be unnecessary and would be of no consequence. That being so, the plea in that regard as raised by the appellants also fails.
Since all the challenges have been held to be without substance, the inevitable result is that the appeals deserve to be dismissed which we direct.
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2006 (12) TMI 547 - ORISSA HIGH COURT
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... ... ..... 13th Edition, Butterworths, the word "move" has been meant "to introduce and move". Therefore, where a resolution once moved for recording a vote of confidence by members would mean that some result was achieved either it is carried or defeated. That situation is totally different from the situation in which the resolution was annulled as a result of absence of the members. In such a situation, it cannot be said that a resolution was moved. 25. Going by this interpretation of the word "move" in Section 54(1)(ii) of the said Act, this Court cannot hold that the resolution of no confidence motion was moved on 14.10.2005. 26. For the reasons aforesaid, this Court is of the opinion that the resolution dated 20.2.2006 cannot be vitiated under Section 54(1)(ii) and therefore, cannot be set aside by this Court. Accordingly, W.P.(C) No. 2090 of 2006 fails. All interim orders stand vacated. There will be no order as to costs. I. Mahanty, J. 27. I agree.
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2006 (12) TMI 546 - SUPREME COURT
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... ... ..... to the propagation of the teachings of Swami Narayan. This situation should change. If the time, energy and money spent on litigations and feuding had been spent for carrying on the wishes of the founder of the institution, things would have reached very great and amazing heights. We have, therefore, to voice our anxiety in this matter and request that the system and administration should be fairly and properly bridled, to prevent recurrence or repetition of feuds, which have already to some extent shattered the reputation of this great majestic institution, which has very vast resources and assets. Therefore, it is high time that proper remedial measures are taken by all concerned. For the foregoing discussions, we are of the opinion that the appeal deserves to be dismissed and the appellants are not entitled to any relief. However, we direct the trial Court to proceed with the trial on priority forthwith and on day-to-day basis and dispose of the same on merits. No costs.
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2006 (12) TMI 545 - SUPREME COURT
Application u/s 243 of CrPC - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - Trial Magistrate as well as the High Court have observed that Section 243 CrPC deals with summoning of defence witnesses and cause any document or thing to be produced through him - But in the present case, the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for hand-writing expert for examination.
HELD THAT:- Section 243(2) is clear that a Magistrate holding an inquiry under the CrPC in respect of an offence triable by him does not exceed his powers u/s 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. Hence, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.
Thus, we allow this appeal and set aside the order of the High Court passed in Criminal Revision Case by which the order of the Judicial Magistrate made in Crl. M. P. dismissing the application of the appellant u/s 243 CrPC was affirmed. Accordingly, Crl. M.P. on the file of the Judicial Magistrate, shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature in the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition.
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2006 (12) TMI 544 - MADRAS HIGH COURT
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... ... ..... shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate." Section 3(1)(d) of the Cr.P.C. reads as follows "any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area." The power conferred with the Chief Metropolitan Magistrate is equal to the Chief Judicial Magistrate in the District level. The learned District Magistrate will be seen only as Chief Judicial Magistrate. The return of the application of the petitioner is erroneous. 6. In view of the facts and circumstances of the case, the return order, dated 15.12.2003, passed by the learned Chief Judicial Magistrate, Coimbatore, is set asides. The Chief Judicial Magistrate, Coimbatore is directed to take the application of the petitioner on file and proceed the case in accordance with law. Accordingly, this Criminal Original Petition is ordered.
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2006 (12) TMI 543 - GUJARAT HIGH COURT
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... ... ..... ing Limited. 3. Co.Applns. No. 85, 86, 87 of 2005 dt.7-3-2005, Bazley Finvest Pv.Ltd. And others. 4. Co.Appln. No. 176 of 2005 dt. 11-5-2005, Arvind Clothing Limited. 5. Co.Appln. No. 411 of 2005 dt. 16.12.2005, Dinesh Platechem Limited, it is submitted that it is not necessary for the Holding Company to take out separate proceedings for amalgamation of wholly owned subsidiary. 3. Heard the learned advocate appearing on behalf of the applicant. Having gone through the aforesaid decisions as well as the Scheme of Amalgamation, and in light of various judgments referred to hereinabove, holding that separate proceedings are not necessary for the Transferee Company being the Holding Company, it is held in the present case also that separate proceedings, as required to be taken out under the provisions of Section 391(2) of the Companies Act, 1956, are not required to be undertaken by the applicant Company. This application is accordingly allowed to the aforesaid extent. No costs.
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