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1987 (2) TMI 532
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... ... ..... nt. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all. 7. It was contended by the learned Counsel that the competent authority who can remove the appellant from service derives his power under regulations and these regulations ultimately derive their authority from the Act of Parliament and therefore it was contended that the regulations are framed with the approval of the Central Government but it does not mean that the appellant cannot be removed from his service by anyone except the Government or with the sanction of the Government. Under these circumstances on plain reading of Section 197 the view taken by the Courts below could not be said to be erroneous. We therefore see no reason to entertain this appeal. It is therefore dismissed.
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1987 (2) TMI 531
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... ... ..... 85 could not be made effective retrospectively and for that reason order passed on November 11, 1985 (Ex. 6) passed by the DIGP cannot be legalised by virtue of delegation of powers subsequent to that date. 23. From the above discussion the conclusion would be that the order dated November 11, 1985 (Ex. 6) passed by the DIGP, Ajmer is liable to be set aside. When the initial order itself goes away, the appellate order is bound to go. 24. Consequently, the writ petition is allowed. The Notification dated June 9, 1986 to the extent of its retrospective effect is quashed. As a result of it the Orders Ex. 6 dated November 11, 1985 passed by the Deputy Inspector General of Police, Ajmer and Ex. 7 dated June 17, 1986 passed by the Special Inspector General of Police are set aside. It is however made clear that this order will not preclude the State Government from taking any action against the petitioner in accordance with law. In the circumstances of the case, costs are made easy.
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1987 (2) TMI 530
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... ... ..... liefs asked for. The terms of this section should be strictly complied with. That does not however, mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense." Thus, the very purpose of introducing Section 80 C.P.C. has been defeated by such stands being taken when a claim is made against the State Govt. It is the duty of the Officer or the public servant concerned, either to make amends to claims or to inform the claimant as to why his claim cannot be acceded to. The plea, which is raised is unfortunate and to be regretted. 12A. For the foregoing reasons this appeal is liable to be dismissed and is accordingly dismissed with costs. Although the learned Dy. Government Advocate has been very fair in his submissions, but considering the stand of the appellant State, showing scant regard to the law itself, it is a case where costs should be imposed. Counsel's fee shall be ₹ 500A, if certified.
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1987 (2) TMI 529
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... ... ..... officer, who wasa party to the valuation made. There is nothing on record to show that the Assessment Officer had any bias. Moreover, under the scheme of the Act. the duty to make a provisional valuation under Section 148 of the Act and the duty to decide objections to that valuation under Section 148 of the Act, have both been conferred on the Commissioner. Therefore, hearing of objections to valuation made under Section 148 of the Act is not tantamount hearing of an appeal from the order making valuation. That power of appeal is conferred by the Act on the District Court and it was stated at the Bar that the appeals filed by the petitioners in that behalf are pending in the District Court. 9. For all these reasons, these petitions fail and are accordingly dismissed. In the circumstances of the case, parties shall bear their own costs of these petitions. Security amount, if any. be refunded to the petitioners. The interim orders of stay passed in these petitions are vacated.
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1987 (2) TMI 528
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... ... ..... e items referred to therein relate to advertisement, running and maintenance of aircrafts and motor cars or payment to hotels. Running of jeep would not be a wasteful expenditure keeping in view the nature of the assessee’s business. Travelling by jeep could not be considered to be an amenity granted to any employee or a partner availing of the same for making him more comfortable. Since the Allahabad High Court has already drawn a distinction between a motor car and similar other vehicles plying on the road for the purpose of sales tax classification, we are of the opinion that keeping in view the spirit of this provision and the nature of the assessee’s business, the expenses incurred on running and maintenance of jeep should not be subjected to disallowance under sub-section (3A) of section 37. The ground is allowed in these terms. 4. to 6. These paras are not reproduced here as they involve minor issues. 7. In the result, the appeal is partly allowed as above.
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1987 (2) TMI 527
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... ... ..... he surrender and should deliver possession. 11. The last argument of the appellant's counsel was that the Act gives protection only to tenants and not to sub-tenants against unreasonable eviction and hence the first respondent cannot claim protection under the Act from eviction. Reference was made in this connection to Section 2(ii) of the Act which excludes a sub-tenant from the definition of tenant. The argument stems from an erroneous assumption that the first respondent is seeking protection under the Act from being evicted. The true position is that the first respondent has only taken the stand that the appellant is not entitled to evict him under Section 13(2) of the Act since the sub-lease in his favour had been created before the Act came into force. 12. We are, therefore, of the view that none of the contentions of the appellant has merit or substance. Consequently, the appeal fails and is dismissed. The parties Will, however, pay and bear their respective costs.
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1987 (2) TMI 526
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... ... ..... ions, instead of supporting the argument of the Revenue, in fact, cut at the root of its argument. 13. It should, therefore, be held that the “lodging house.” constructed by the assessee is an “industrial undertaking” within the meaning of the Act and since the assessee satisfies the requirements prescribed under section 54D, he is not liable to pay tax on the capital gains. 14. The Tribunal, however, has held that “the running of a lodging house” could not be considered as carrying on an “industrial undertaking”. This finding, in the light of the above discussion, is erroneous. 15. The question accordingly is answered in the negative, against the Revenue. We direct the parties to bear their respective costs in this tax referred case. 16. A copy of this judgment under the seal of the High Court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal Cochin Bench. Income-tax Act,Income-tax Act.
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1987 (2) TMI 525
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... ... ..... its filed against the company in this court, one for specific performance of an agreement to sell the assets of the company and another for specific performance of an agreement to sell all the shares in the company. Mr. Mehta objects on the ground that no reference has been made to any such suit and that Mr. Kamdar is not entitled to rely upon any such proceedings, but even then merely by perusing these proceedings and from the fact that such suits have in fact been filed, mala fides cannot be imputed, It is possible that in a separate suit or any other proceeding which the petitioners may adopt, after evidence and proper investigation, the petitioners may be able to sustain the plea of mala fides and, therefore, while I reject this petition I make it clear that it shall in no way effect the petitioners' right to file a suit or adopt such other proceedings as they may be advised. 15. The petition accordingly stands dismissed. There will, however, be no order as to costs.
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1987 (2) TMI 524
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... ... ..... also defeated or delayed for no fault of theirs. 11. Though normally this Court will be hesitant to interfere with judicial pronouncements in exercise of inherent powers, in exceptional cases like this when an illegality of this type which resulted in miscarriage of justice is brought to notice, this Court cannot but interfere under the inherent powers if not under the revision powers. Normally I ought to have set aside the order of the Sessions Judge and directed him to re-hear the revision because he did not consider the revision on the merits. But if such a course is adopted relief to the poor children will be still delayed. Further the Magistrate awarded maintenance only at the rate of ₹ 25/- to the wife and ₹ 20/- to each child per month. Liability and rate were also not in serious dispute before me. Therefore delay by are hearing will have to be avoided, The petition is allowed and the order of the Magistrate is restored quashing that of the Sessions Judge.
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1987 (2) TMI 523
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... ... ..... assessed by the Deputy Commissioner, it cannot be said that the specified damages will not be money due under the contract and hence the damages cannot be recovered under the Revenue Recovery Act. What applies to specified damages will likewise apply to damages which are quantified after assessment. We, therefore, hold that the opinion of the Full Bench in so far as the recovery of damages and arrears of land revenue is concerned is not in accordance with law. As it is not disputed that in all the three cases the Officers acting on behalf of the State have not only assessed the damages but have also acted as arbiters in the dispute regarding the alleged breach of contract, the High Court was justified in dismissing the Second Appeal preferred by the State in R.S.A. No. 311 of 1969 and in allowing the writ petitions filed by the two contractors. All the appeals, therefore, have to fail and will accordingly stand dismissed. The parties will pay and bear their respective costs.
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1987 (2) TMI 522
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... ... ..... it is a subsequent enactment. Therefore, if the non obstante clause in section 5 does not find a place in the Scheme framed under the 1952 Act, the departure must be deliberate. The "right to receive" the provident fund amount by a nominee under the 1952 Act, therefore, cannot be interpreted in the same way as "right to receive the amount" by a nominee under section 5 of the Provident Funds Act, 1925. I need not refer to the English decisions cited by counsel for a simple reason. We have a codified law of provident fund different from the English enactment. The provisions in the 1952 Act must, therefore, be interpreted on its own legislative history. The contentions raised by counsel for the petitioner are, therefore, without any merit and are rejected. 7. In view of the position of law stated above, I do not find any reason to interfere with the impugned order. The petition is dismissed but, on the facts of the case, there shall be no order as to costs.
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1987 (2) TMI 521
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... ... ..... Shri Chand v. Govt. of U.P., Lucknow AIR1986SC242 and Phool Chand Gupta v. Regional Transport Authority. Ujjain AIR1986SC119 quash the draft-scheme. We however, make it clear that the State Transport Undertaking or any other person who has obtained permits under Section 68F(1A) or Section 68F(IC) as the case may, be as consequence of the publication of the draft scheme referred to above may continue to operate their services until the expiry of 31-8-1987 provided they are plying their service today. We, however, reserve liberty to the State Transport Undertaking either to initiate a fresh scheme under Section 68C of the Act or to proceed with any other draft scheme which had already been published in respect of the route in question. Since we have quashed the scheme, the question of considering the application under Section 68F(IC) as a consequence of the publication of the draft scheme which is quashed by this order does not arise. 3. The appeal is disposed of accordingly.
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1987 (2) TMI 520
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... ... ..... the said vacancy." The Manager then understood the rule correctly, but later incorrectly. That is why we said earlier in our Judgment that the interpretation given by the High Court to this Rule can result in abuse of this discretionary power with the Manager. If the Government wanted to clothe the Manager the power to choose among rival contenders to a future vacancy, the rule should be suitably amended. The rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled to succeed. We set aside the order of the Division Bench under appeal and allow this appeal. The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose. We would like to make it clear that this direction of ours will not enable her to draw salary for the period she had not worked but only other benefits such as seniority, increments etc. The first respondent will pay costs of the appellant. Appeal allowed.
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1987 (2) TMI 519
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... ... ..... ; as contained in Section 2 (e-1) of the Act. 4. It is against this order, the present revision has been filed impugning the view taken by the Sales Tax Tribunal. 5. I have heard the learned counsel for the parties. It is not necessary for me to go into details of the controversy raised in this case, inasmuch as this Court had an occasion to consider this question at several earlier occasion- Some of the decisions deciding this controversy are reported as Commissioner of Sales Tax v. Gram Udyog, Lalitpur, 1984 UPTC 501; Commissioner of Sales Tax v. Govind Ram Harbans Lal, 1984 UPTC 1006 and Ram Lal Balak Ram v. Commissioner of Sales Tax, U. P., 1986 UPTC 195. The propositions of law laid down in the above decisions squarely apply to the facts found in the instant case. Since the view taken by the Tribunal is in consonance with the view expressed by this Court, in the cases aforesaid, I do not find any merit in this revision. This revision is accordingly dismissed with costs.
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1987 (2) TMI 518
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... ... ..... d not be quashed. It is not disputed that the plea of prejudice or failure of justice is neither pleaded nor proved. Not only that even the judgment of the High Court does not indicate any possibility of prejudice or failure of justice. Learned counsel appearing for the respondent also did not suggest. any possibility of projudice or failure of justice. Under these circumstances therefore the view taken by the High Court does not appear to be correct in view of the language of Sec. 462 read with Sec. 465. The judgment of the High Court is therefore set aside. The direction of remand made by the High Court is also quashed. It is unfortunate that these matters pertaining to incidents of 1980 should not have been disposed of till today and that the matter should have remained pending on such technical grounds for all these years. We therefore direct that the appeals be remitted back to the High Court so that they are heard and disposed of on merits as expeditiously as possible.
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1987 (2) TMI 517
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... ... ..... s case was premature. May be it is relevant if any question relating to the bar of limitation for the issue of the notice is in consideration. Not if it is held that the issue of the notice is premature. Since it is not reopening a final and completed assessment, the bar of limitation in the Rules does not apply. Nor do the nice questions of law debated at length in relation to limitation and jurisdiction arise for consideration in the view we are taking, following the ratio of the aforesaid judgment of the Bombay High Court. 8. In the circumstances, we allow the appeal and set aside the demand made in the notice to show cause dated 17-12-1980 as premature. The respondent will be at liberty to issue demands/notices to show cause in respect of such amounts in escalation as may be awarded in the arbitration proceedings now pending between the appellant and the buyers of the ships in question as and when the awards are made. The appeal is allowed subject to that condition.
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1987 (2) TMI 516
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... ... ..... issed. Along with the Special Leave Petition the petitioner has presented before this Court a Writ Petition under Article 32 of the Constitution questioning the validity of the notifi- cation issued by the State Government on the ground that the power conferred under the Act on the State Government by sub-section (5) of section 1 authorising the State Govern- ment to extend all or any of the provisions of the Act to other establishments in the State suffers from the vice of excessive delegation of essential legislative powers. It is also contended that the application of the Act to businesses like the one which is being carried on by the petitioner during certain seasons only of the year is violative of Article 14, Article 19(1)(g) and Article 21 of the Constitu- tion. Having carefully considered the submission made by the learned counsel for the petitioner we find no merit in any of the contentions urged in the writ Petition. The Writ Petition is also, therefore, dismissed.
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1987 (2) TMI 515
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... ... ..... nk as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. Keeping the nature of the offence in view and the conclusions drawn by the High Court, we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence the complicity of Sadanand in the conspiracy to kill the Collector through Yadav. In these circumstances, Sadanand has become entitled to the benefit of our doubts and his conviction is not sustainable. His appeal has to be allowed. He is acquitted and is directed to be set at liberty forthwith. Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the fight time in accordance with law. It is unfortunate that lapses have occurred. Appeals disposed of.
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1987 (2) TMI 514
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... ... ..... ndia. We feel that 10 per cent of what had been estimated by the Income-tax Officer as net profits of those years would be a proper estimate of the assessee's income that had accrued or arisen in India to be accordingly brought to tax. The Appellate Assistant Commissioner's order in all these cases will stand reversed to that extent." 5. The findings of the Tribunal as recorded in its judgment noted above have not been challenged by the revenue and they have become final. It appears to us that the Tribunal had materials on record on the basis of which the Tribunal was entitled to come to an estimate of the appropriation of profits which would be said to have accrued, arisen and taxable in India. The decision of the Tribunal cannot be said to be improper or illegal and needs no interference. 6. For the reasons above, we answer the said question in the affirmative and in favour of the assessee. 7. There will be no order as to costs. Shyamal Kumar Sen, J.- I agree.
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1987 (2) TMI 513
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... ... ..... elling rate would have been determined thereafter. No such enquiry was made from the purchasers. Therefore, the rate mentioned in the cash memos cannot be doubted. The Assistant Commissioner (Judicial) was, therefore, not justified in affirming the estimate of average selling rate per truck. The Tribunal did not consider this aspeet of the matter and without giving any finding on the question whether or not the books of account were liable to be rejected, it simply observed that the average selling rate of ₹ 3500/- as applied by the Assessing Officer, was excessive. When the book version cannot be rejected in view of the findings of the Assistant Commissioner (Judicial), the question of estimating the average selling rate per truck does not arise. 5. In the result, the revision succeeds and is allowed. The Tribunal's order dated 26-6-1986 is set aside. Let a copy of this order be sent to the Tribunal to pass an order under Section 11 (8) accepting the book version.
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