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Case Laws
Showing 1 to 20 of 190 Records
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1989 (10) TMI 243
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... ... ..... e the defendant has admitted execution of a negotiable instrument, it is entirely upon him to prove lack of consideration and there is no burden on the plaintiff to establish adequate consideration. In such a case, when the evidence adduced by both sides is evenly balanced, the plaintiff can certainly bank upon the presumption under Section 118(a) of the Act. But, in a case where execution of the negotiable instrument itself is denied and when evidence adduced on both sides is not evenly balanced, the plaintiff cannot rely on the presumption under Section 118(a). 5. It is also pertinent to note that in exhibit B-3 notice, the plaintiff did not specify the amount covered by the cheque. That would show that the plaintiff did not have a specific case with regard to the amount mentioned in exhibit A-1 cheque when he issued the notice. 6. As against the concurrent findings of the courts below, I find no reason to interfere. The second appeal is dismissed with no order as to costs.
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1989 (10) TMI 242
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... ... ..... ion 138 are sufficiently indicative that the Legislature did not intend to treat the act of drawing the cheque as amounting to commission of the offence. If the intention was different, the Legislature would possibly have employed the words such as "whoever draws any cheque ..... .". Instead the statute has employed the words "where any cheque drawn by a person ....... is returned by the bank unpaid .......... .". Here the stress of the provision is on the fact of return of the cheque unpaid by the bank whereas drawing of the cheque has no emphasis except as a prefatory reference. Hence, the mere fact that the cheques in question were drawn prior to the date of commencement of Act 66 of 1988 is no reason to hold that the law was not in force at the time of commission of the offence under Section 138 of the Act. I, therefore, hold that the prosecution is not hit by Article 20(1) of the Constitution. 8. Criminal miscellaneous case is, accordingly, dismissed.
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1989 (10) TMI 241
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... ... ..... became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No. 4 had died and there was nothing to show that his heirs had been brought on record. learned Counsel for the parties appeared on that date and an affidavit was taken on record. They prayed for time to make submissions on the said question. The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed. Time given to defendant No. 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988. This submission also made by learned Counsel for defendant No. 6 has, therefore, no substance. In view of the foregoing discussion, there is no merit even in the appeal filed by defendant No. 6. 20. In the result, both the appeals fail and are dismissed. In the circumstances of the case, however, there shall be no order as to costs.
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1989 (10) TMI 240
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... ... ..... lled trainees. If there were trainees, there should have been trainers too. The Management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that the appellant-employer resorted to unfair labour practice. There would have been travesty of justice if the High Court declined to interfere with the findings arbitrarily and with reasonable basis reached by the Industrial Court. 9. Before parting with the case, we may record that opportunity was given to the parties to arrive at an amicable settlement. But it has been reported that the quantum of compensation offered by the Management is utterly inadequate and therefore the settlement could not be reached. 10. In the light of the foregoing discussion, we find no legal infirmity in the order of the High Court. The appeal is therefore dismissed. No costs.
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1989 (10) TMI 239
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... ... ..... s in Vellore. He returned an income of ₹ 14,988 for the year of assessment, 1936-37. On an examination of the books, the Income-tax Officer found they were entirely unreliable and they could not be made the basis for any method of accounting. The Income-tax Officer has set out in detail his reasons for having to disregard the accounts, and the learned Advocate who appears for the assessee has rightly conceded that the reasons given by the Income-tax Officer for the rejection of this account cannot be objected to. In these circumstances, the Income-tax authorities had to estimate what was the income of the assessee for the period mentioned. They assessed him on the sum of ₹ 26,500 which was based on the average rate of profits made by other manufacturers of cigars and beedies and also on the profits which the assessee had made in previous years. No just exception can be taken to the estimate arrived at, and the answer we give to the reference is in the affirmative.
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1989 (10) TMI 238
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... ... ..... ase of the prosecution The fact remains that the sample parcel at the time of deposit in the Malkhana bore the seal impressions of both the investigating officer as well as the Officer-in-charge of the police station. PW2 Ram Daras Constable took this sample parcel to Cfsl after obtaining it from the Moharar Malkhana of Police Station Mandir Marg. He has deposed that at that time the seal impressions Op and Psp were intact and so long as it remained in his custody, it was not tampered with Therefore, the seal impressions on the sample parcel having remained intact up to the time it was deposited in Cfsl, the delay of 10 days in sending it to Cfsl has no adverse effect on the case of the prosecution. I, Therefore, see no merit in this appeal also. (20) As a result of the discussion above, I do not find any merit in either of these appeals and same are hereby dismissed. The sentence awarded to both the appellants being the minimum permissible under the Act are hereby affirmed.
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1989 (10) TMI 237
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... ... ..... ion proceeding. As soon as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced. This aspect did not arise for decision in the cases Executive Engineer (Irrigation) v. Abhaduta Jena, 1988 1 SCC 418 or Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., 1989 1 SCC 532 and no assistance from them can be taken in the present appeal. The learned counsel for the appellant is, therefore, right in saying that the arbitrator in the present case, by directing on 20.4. 1982 the parties to file 'their statements of claim, clearly indicated that he accepted the offer to arbitrate. The proceeding must, therefore, be deemed to have instituted not later than this date. We accordingly hold that the award so far it allowed interest for the period after 20.4. 1982 is without jurisdiction and must be excluded. The appeal is accordingly allowed in part. The parties shall bear their own costs. Appeal partly allowed.
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1989 (10) TMI 236
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... ... ..... view to prevent the petitioner from engaging in transportation or concealment or keeping smuggled gold or dealing in smuggled gold and in such a case the conditions of bail order, putting certain restrictions on the movements or containing certain directions are not relevant as held in the case of Haridas Amarchand Shah of Bombay v. K. L. Verma and others, . For the same reason the omission to place copy of the bail application or the bail order before the declaring authority before issuance of declaration under Section 9(1) of the Act is not such a factor which would vitiate the declaration. 18. I therefore find it to be a case where none of the contentions canvassed on behalf of the detenu carry any force, and there is no case made out to come to a conclusion that the detention order or the continued detention of the petitioner were liable to be set aside. 19. The writ petition is accordingly dismissed and the rule is discharged. No order as to costs. 20. Rule discharged.
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1989 (10) TMI 235
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... ... ..... e ITO had disallowed one-third of the expenses as pertaining to agricultural activities of the assessee. The disallowances were deleted by the AAC himself. Against that part of the AAC's order the department had came up in appeal before the Tribunal which was dismissed. The department had not challenged the deletion of other overhead expenses in full by raising a question of law. Apart from the fact that in view of this Court's decision in Maharashtra Sugar Mills Ltd.'s case (supra) . There is no provision justifying disallowance of a part of the expenditure by apportioning it in the manner it was done, the very fact that the department had not challenged deletion of other overhead expenses made in similar circumstances shows that there is no merit whatsoever in this part of the question raised at the instance of the department. Accordingly, the second question also requires to be and is answered in the negative and in favour of the revenue. No order as to costs.
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1989 (10) TMI 234
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... ... ..... sidered by the above two judgments, we are of the considered opinion that the law laid down by the Hon'ble High Court in the said case is applicable to the facts of the case of the assessee Therefore, the learned Commissioner (Appeals) was fully justified in cancelling the penalty." 5.2. In view of the aforesaid discussions and in view of the fact that the assessee had suffered heavy losses in past years, in the year under consideration and in all the subsequent years, we are satisfied that the assessee had no guilty intention in furnishing any inaccurate particulars of income or for concealing its income as there were no prospect so any taxable profits in future years and therefore, we are of the considered opinion that no penalty could be validly imposed under section 271 (1) (c) under the aforesaid facts and circumstances of the assessee’s case. 6. In the result, the penalty imposed under section 271 (1) (c) is cancelled and the assessees appeal is allowed.
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1989 (10) TMI 233
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... ... ..... jected, holding that the expression "anticipated demand" was vague and not capable of objective assessment and, therefore, was found to lead to a great deal of uncertainty. The other provisions mentioning "suitability of the applicant" in s. 27(6)(e) and "public interest" in s. 27(6)(g) were also held to have failed in laying down any objective standard or norm so as to save the Act. The provisions of the act, with which we are dealing in the present cases, are far less helpful for the purpose of upholding its validity. 10. For the reasons mentioned above, the impugned sections of the Act must be held to be invalid. These provisions are inextricably bound up with the other parts of the Act so as to form part of a single scheme, and it is not possible to sever the other parts of the Act and save them. In the result, the entire Act is declared ultra vires. The appeal is accordingly allowed, but, in the circumstances, without costs. Appeal allowed.
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1989 (10) TMI 232
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... ... ..... production of documents. This power was given to the Commissioner to decide not abstract questions of law, but only to determine actual concrete differences in payment of contribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person. We, therefore, allow the appeal and reverse the order of the Commissioner and that of the High Court. The matter stands remitted to the Commissioner to dispose it of afresh and in accordance with law and in the light of the observation made. The parties shall appear before the Commissioner to receive further orders on December 12, 1989. The Commissioner, shall dispose of the matter within three months thereafter. Appeal allowed.
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1989 (10) TMI 231
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... ... ..... e at the time of the search on 5th April 1984 in having chewed up the credit bill of Munish Lubricants to which reference has been made earlier. However, even the department has not attached any significance to this paper and it has not been connected to the assessee. That paper relates to the assessee's brother Shri Kailash Chand and pertains to a date 25th February 1984. This may only show that the assessee was not at all conversant with the papers which he was carrying in the brief case as also their relevance. Therefore, if the facts are viewed in their proper light, this conduct on the part of the assessee may show that the assessee was nervous. This conduct does not assists the department in any way. Having regard to the foregoing, therefore, we find no warrant or justification on facts to take a view different from the one taken by the learned Commissioner (Appeals) in the impugned order. 8. In the result, the appeal filed by the department fails and is dismissed.
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1989 (10) TMI 230
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... ... ..... be detained without obtaining the opinion of the Advisory Board. There is, however, no amendment as to the safeguards provided under Article 22 and ss. 9, 10 and 11 of the Act. Indeed, there could be no such amendment. This reminds us of what was said, of course in a slightly different context. "Amid the clash of arms laws are not silent. They may be changed, but they speak the same language in war and peace." Would laws speak in a different language in internal disturbance? Lex uno ore omnes alloquitur. Law addresses all with one mouth or voice. Quotiens dubia interpretatio libertatis est secundum libertatem respondendum erit Whenever there is a doubt between liberty and bondage, the decision must be in favour of liberty. So says the Digest. The result in that this appeal fails and is dismissed. As ordered by the High Court the detenu is to be set at liberty forthwith, if he is not required to be detained in connection with any other case. R.N.J. Appeal dismissed.
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1989 (10) TMI 229
Appeal - Cross objection - Condonation of delay - Late submission of cross objection ... ... ... ... ..... at Ludhiana. In this view we set aside the impugned orders and remand the matters to the Collector of Customs (Appeals) for considering the appeals on the question of merits. Original documents if any filed by the appellants may be returned to the appellants after an application and observance of all the formalities." 7. In view of the earlier judgment of the Tribunal we set aside the impugned order and remand the matters to the Collector of Customs (Appeals), New Delhi to redecide the same and we further hold that Assistant Collector, Kota has jurisdiction to decide the matter and as such the Collector of Customs (Appeals), New Delhi has got jurisdiction. We further direct that the Collector of Customs, (Appeals) New Delhi will dispose of the appeals on merits after granting opportunity of hearing to the respondents and shall observe principles of natural justice. In the result the 36 appeals are allowed by way of remand and 36 cross objections disposed of accordingly.
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1989 (10) TMI 228
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... ... ..... granting express power of Review to the State Government with regard to an order made under section 42 of the Act and in the absence of any such power the Director, Consolidation of Holdings could not have reviewed his previous order dismissing an application of the Panchay- at under section 42 of the Act, and if so done, the review order of the Director would be ultra vires and without jurisdiction. In the instant case it has not been shown to us that the Panchayat earlier moved any application under section 42 on the same subject matter and the instant order of the Director amounted to a review of his own order. There is no material to hold that the instant order of the Direc- tor is an order of review of his earlier order; and Mr. Rohtagi clearly denied that it was so. In the result we allow this appeal, set aside the im- pugned order of the High Court and restore that of the Director, Consolidation. We, however, leave the parties to bear their own costs. Appeal allowed.
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1989 (10) TMI 227
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... ... ..... rd which has been pronounced between the parties has in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has not been and cannot be seriously disputed." Considering the above observations of this Court in the aforesaid cases we hold that the principle of res judicata or for that the principles of constructive res judicata apply to arbitration proceedings and as such the award made in the second arbitration proceeding being Arbitration Case No. 276 of 1980 cannot be sustained and is therefore, set aside. The High Court has rightly allowed the F.M.A. No.304 of 1982 holding that the appellantcontractor was precluded from seekingthe second reference. No other points have raised before us by the appellant. In the premises aforesaid, we dismiss these appeals with costs quantified at ₹ 5,000 and affirm the judgment and order dated April 10, 1987 made by the High Court. Appeals dismissed.
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1989 (10) TMI 225
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... ... ..... only point emphasised was that there was no evidence to show that the petitioner is receiving financial aid or loan from the Khadi and Village Industries Board but otherwise also, the State Government being of the opinion that it is expedient in the public interest, exempted the tax on sale of products mentioned in the Schedule. The purpose seems to be that the Government thought it proper to encourage the industries mentioned in the Schedule which were financed by the Khadi and Village Industries Board or Khadi and Village Industries Commission. Therefore, in my opinion, the petitioner was also entitled to the exemption granted vide notification dated March 8, 1988 (annexure 2). In the result, the writ petition is allowed. The petitioner is also entitled to the exemption granted vide notification dated March 8, 1988 (annexure 2). It will be open for the petitioner to apply to the department concerned for refund if it has paid the tax. No order as to costs. Petition allowed.
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1989 (10) TMI 224
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... ... ..... tory. In support of the ground learned counsel for the petitioner cited authority of the final court in Ramchandra Keshav Adke v. Govind Joti Chavare reported in AIR 1975 SC 915. We are afraid, this case does not help the learned counsel for the petitioner. In this case the final court was not dealing with the point in issue. Their Lordships were not considering whether a particular form was mandatory or directory. In fairness to learned counsel for the petitioner, it may be mentioned that he has also urged that penalty proceedings could not be commenced before completing the assessment. The reading of section 17 which is the provision for imposition of penalty does not bear this construction. The section does not mandate that before taking proceedings for imposing penalty, the assessment should have been completed. In this view of the matter, we find no merit in the writ petition which is hereby dismissed in limine. Interim directions are hereby vacated. Petition dismissed.
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1989 (10) TMI 223
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... ... ..... en paid by his agent on the goods transferred to him. At the same time, it has also been observed that the assessing authority or the appellate authority may also exercise its powers under section 24 of the Act to arrive at the truth, but it has not been said that the assessing authority or the appellate authority is always bound to adhere to this procedure. It is only in cases in which the assessing authority or the appellate authority finds it necessary to do so, they can do so, but they cannot be compelled by the assessee to exercise those powers in all cases. Whenever the assessing authority or the appellate authority wants to resort to this procedure, it can always ask for such particulars from the assessee as may enable it to call a witness or to get document produced. Thus, the order does not suffer from any error apparent on the face and, therefore, with the aforesaid observations, the application for review is disposed of. Review application disposed of accordingly.
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