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Case Laws
Showing 41 to 60 of 386 Records
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1999 (5) TMI 596 - SUPREME COURT
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... ... ..... ed as nullities...." So also whether an application by way of claim petition or an application for grant by way of lease, both were entertainable by the O.E.A. Collector and it was for him to decide which way he chose to deal with the application. In any case, he had the jurisdiction to deal with the application. No case was made out before the O.E.A. Collector and the ADM for recalling the order of settlement dated 2.4.1966. The order did not suffer from lack of jurisdiction or from error of jurisdiction much less an inherent one. The High Court has rightly set aside the order dated 2.2.1976 passed by the O.E.A. Collector as the same was without jurisdiction. In passing the order dated 2.2.1976 O.E.A. Collector had exercised a jurisdiction which the law did not vest in him. The order could not have been sustained by the ADM in appeal. No fault can be found with the view taken by the High Court. The appeal is therefore dismissed though without any order as to the costs.
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1999 (5) TMI 595 - SUPREME COURT
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... ... ..... the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature. 5. The appeals are allowed.
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1999 (5) TMI 594 - SUPREME COURT
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... ... ..... amongst the three special judges can be said to have been done by the High Court though the formal notification in that behalf was issued by the State Government, The Central Government issued the impugned notification, While the SLPs challenging the judgment of the High Court was pending in this Court. The Central Government has failed to establish the necessity of issuing the impugned notification dated 5.2.1999, the same is held to be not in accordance with Section 4(2) of the Act. It was uncalled for at that stage and, therefore, it has to be regarded as bad. In the result, all the appeals - except the appeal filed by VOICE arising out of SLP (Civil) No. 2805 of 1999 are dismissed. The appeal filed by the VOICE is allowed and the impugned notification No. 37I/69/98-A.V. III.(II); dated 5.2.1999 issued by the Central Government is quashed and set aside. No separate orders are called for on Writ Petition No. 93 of 1999 and 97 of 1999 and they stand disposed of accordingly.
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1999 (5) TMI 593 - SUPREME COURT
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... ... ..... bserved "As such, courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interests of justice"." For the reasons stated above the High Court was not correct insofar as the order of Magistrate relates to Section 406 IPC. But in regard to offence under Section 498-A IPC no exception can be taken to the impugned order under appeal as the learned Magistrate did not take note of Section 473 Cr.P.C., while ordering discharge of the appellants. Now the learned Magistrate shall consider the question of limitation taking note of Section 473 Cr.P.C. in the light of observations made hereinabove. Accordingly, the appeal is allowed in part.
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1999 (5) TMI 592 - SUPREME COURT
Inclusion of Claim whether the defendants are not liable to pay to the plaintiffs a sum of Rs.70,000/- in respect of the transport of Rice from Madras to Ronigunta from June to August 1979 objected
Held that:- In the normal circumstances, course of events as they are, this court would not have dealt with the matters as is being presently dealt with but as has been pointed out by the High Court itself that the matters have been dealt with upon consideration of the cause of justice and to sub-serve the need of justice, we also do deem it fit and proper that by reason of the factual situation in the matter, the High Court was not left with any option but to direct such a course of action more so by reason of an express ‘abandonment of right’ as noticed above. In the normal course of events if this particular clause 12 was not available in the contract between the parties the disputes in its entirety by reason of the scope and purview of the Arbitration Clause, could have been referred to arbitration and there would not have been any necessity for delving into a matter in the manner as we have, herein before, but it is by reason of the factum of incorporation of clause 12 and the subsequent abandonment thereof by reason of a decision to have the claim covered under clause 12 to be adjudicated by a forum different from that of the Senior Regional Manager, we also have no option left but to record our concurrence with the finding of the High Court that the fourth dispute being the subject matter of a civil suit initiated by the Food Corporation of India be also referred to arbitration. Be it noted that this order is passed in the peculiar facts and circumstances of the facts in issue and the issue as regards the excepted matters have not been delved into in detail excepting however as above.Appeal dismissed.
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1999 (5) TMI 591 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... House v. State of Karnataka). Learned counsel for the petitioner specifically conceded that he is not arguing question of invalidity under articles 301 and 304 of the Constitution of India. Therefore, we find issue 2 also in favour of the Revenue. In fine both the O.Ps. are dismissed. All interim orders are vacated. 18.. The matter having been mentioned, in O.P. No. 1959 of 1998 the petitioner is challenging the order of assessment dated September 16, 1998 for the year 1994-95. It is open to the petitioner to challenge the order by filing a regular statutory appeal on points, not decided by this Special Tribunal. The time taken during the pendency of the O.P. shall be deducted in calculating the period of limitation for filing the appeal. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 6th day of May, 1999. Petitions dismissed.
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1999 (5) TMI 590 - MADHYA PRADESH HIGH COURT
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... ... ..... s Court in the case of Commissioner of Sales Tax, M.P. v. Burmah Shell Oil Storage and Distributing Co. of India 1981 48 STC 54 1981 14 VKN 373 distinct and different from the turpentine oil falling in residuary entry, therefore, there was no need for referring the stated questions for the opinion of this Court as no referable question arose in the matter. It is well-settled that question covered by judgment of jurisdictional court ceases to be question of law under section 44(1) of the M.P. General Sales Tax Act, 1958 and warrants no reference to this Court. 6.. This reference is accordingly answered in affirmative as Board was justified in holding that the mineral turpentine oil sold by the assessee as thinner was exigible to the tax at 12 per cent under the residuary entry 1 of Schedule II, Part VI of the Act. Same holds true about the levy of penalty which is rooted in appreciation of facts and does not give rise to any question of law. Reference answered in affirmative.
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1999 (5) TMI 589 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ficate of registration ... or for the packing of any containers or other materials specified in the certificate of registration ...... the transaction shall be subjected to the concessional rate of tax. This is precisely what has been done in the present case. The cylinders are used as containers for the supply of gas. 13.. In view of the above and particularly the fact that a written statement has already been filed on behalf of the appellate authority and the Tribunal that the transaction amounts to sale , we think no useful purpose would be served by relegating the petitioner to the remedy of appeal. Still further, on merits, we find that the claim made on behalf of the respondents is not tenable. Thus, we allow the writ petition and set aside the order of assessment, a copy of which has been produced as annexure P1 with the writ petition. As a result, the orders at annexures P2 and P3 become redundant. In the circumstances, we make no order as to costs. Petition allowed.
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1999 (5) TMI 588 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... commercial production for the purpose of this rule and the application for exemption will have to be filed within 90 days from that date. From the language used in sub-rule (5) of rule 28A of the Rules, it is clear that the limitation of 90 days prescribed therein is mandatory and there is no provision for any authority to condone this delay or entertain an application beyond the period fixed therein. In the case before us the application for exemption from sales tax was filed by the petitioner-company on September 9, 1993 whereas it had gone into commercial production on October 10, 1992. It is thus clear that the application for exemption was filed much beyond the period of 90 days and the same was rightly rejected both by the Higher Level Screening Committee and by the appellate authority. In this view of the matter, no fault can be found with the impugned orders. In the result, there is no merit in the writ petition and the same stands dismissed. Writ petition dismissed.
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1999 (5) TMI 587 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... he apex Court held that car seat covers and upholstery manufactured by an assessee are accessories to motor vehicles, even though they are made of leather, plastic cloth or such other materials. Similarly, in T.C. (R) No. 95 of 1997 this Special Tribunal has taken a similar view in respect of leather belting and rubber belting used in textile industry. It was held that they will fall under entry 81. Looked from this view, we are satisfied that the goods in question are used only as accessories of machineries in the textile industry. Therefore, it clearly falls under entry 81 of the First Schedule. The tax revision case filed by the Revenue fails and is dismissed. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 26th day of March, 1999. Petition dismissed. Reported as State of Tamil Nadu v. J. J. Brothers 2000 120 STC 428 (TNTST).
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1999 (5) TMI 586 - ALLAHABAD HIGH COURT
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... ... ..... bjections after three days the present revisionist had not furnished form XXXI to the consignor. Even if, the dealer-revisionist had not sent any form XXXI it cannot be burdened with penalty because the goods belonged to the consignor who admittedly was transporting the same from Delhi to U.P. and was the person who was obliged to comply with the provisions of section 28-A. The revisionist s obligation was only to furnish form XXXI. Even if it did not furnish form XXXI, the revisionist cannot be penalised for the action of the consignor who should not have despatched the goods for entering into U.P. without securing a form XXXI from the revisionist. 10.. For the above reasons, the levy of penalty on the revisionist cannot be sustained. The revision petition is, therefore, allowed. The Tribunal s order dated March 21, 1998 is set aside and it is ordered that the dealer s second appeal No. 636 of 1997 will stand allowed and the penalty in question is quashed. Petition allowed.
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1999 (5) TMI 585 - ALLAHABAD HIGH COURT
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... ... ..... ber, 1993 in which a register was found which showed that there were some minor variation in the quantity of stock transfer from this depot to other depots. On that basis, the assessing officer initiated proceedings for reassessment under section 21 of the Act and ultimately estimated the turnover of Rs. 1 lakh to have escaped assessment in the earlier assessment. It is this turnover that has been knocked off by the Tribunal. 4.. Admittedly, the variations were very minor and negligible. The extent of the dealer s operation is evident from the huge turnover already assessed. It is incomprehensible that the dealer concealed the turnover of about Rs. 1 lakh. No actual concealment of the sales was found. The Tribunal, therefore, has concluded that there was no escapement of turnover. This is a finding of fact and no cause for interference is made out. The revision petition is dismissed with costs that I assess at Rs. 1,500 (rupees one thousand five hundred). Petition dismissed.
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1999 (5) TMI 584 - GUJARAT HIGH COURT
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... ... ..... termining and without disclosing existence of necessary facts which brings operation of sub-section (4A) to take shelter behind the specious plea that levy of interest is automatic. The levy of interest can be automatic only after founding necessary facts which establish that the liability to pay interest under section 47(4A) has arisen and determining the amount so payable by way of interest on a specified sum that is held to be delayed payment of tax, with reference to which the liability of any assessee to pay interest is to be computed. No demand of interest can be raised in vacuum. But before liability of tax has been established there cannot be a starting point of automatic levy of interest. 18.. We therefore find that the notice dated December 17, 1998 suffers from apparent arbitrariness and is contrary to law. Petition therefore succeeds. Impugned notices dated December 17, 1998 and February 15, 1999 are quashed. There shall be no order as to costs. Petition allowed.
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1999 (5) TMI 583 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... ct and the intention of the parties of the contract and also from the nature and obligations discharge in the execution of the contract, that the contract in the present case is essentially for sale of goods and certain civil works contemplated are incidental to the contract of sale of goods. The swimming pool water purification plant was not embedded to any immovable property and the goods in question is easily detachable from the distribution system in the swimming pool centre which was already there. Thus, we hold that the Joint Commissioner of Commercial Taxes has rightly brought the turnover to assessment as sale of goods. In view of the reasons stated by us, there is no case to interfere and accordingly the tax appeal case is dismissed. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 7th day of May, 1999. Appeal dismissed.
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1999 (5) TMI 582 - AUTHORITY FOR ADVANCE RULINGS
Whether the applicant’s stay in India in a year is less than 182 days, and the stay in four preceding years is less than 365 days hence, he is non-resident in India under section 6 of the Income-tax Act, 1961?
Whether the applicant would be entitled to be taxed at the lower rate of tax as per article 10-para. 2(b) and article 11-para. 2(b) of the said Double Taxation Avoidance Treaty at the rate of 15 per cent., on gross dividend income, arising in India (for dividend income prior to July 1, 1997) and at the rate of 12.5 per cent., on gross interest income on investment accruing and arising in India to the applicant from the investments made in debentures and bonds of Indian companies or any other interest income on loans/advances made out of his moneys from his Non-Resident External Account ?
Whether on the facts and in the circumstances of the case and having regard to the fact that the applicant is a resident of UAE in terms of article 4 of the said Double Taxation Avoidance Treaty, gains arising on sale/transfer of his movable properties would be taxable only in the UAE and not in India as per article 13-para. 3 of the said DTA ?
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1999 (5) TMI 581 - SUPREME COURT
Whether the appellant is right in contending that the arbitration clause 39 in the main agreement did not permit the arbitrator to deal with the disputes relating to the Interior Design Agreement which contained a different arbitration clause and whether the award, in respect of the Interior Design Agreement was void?
Whether the appellant who did not raise any question of jurisdiction under Section 16 of the Act in relation to the disputes under the Interior Design Agreements, could have raised a question of jurisdiction of the arbitrator or of his power to deal with issues arising under the said Agreements at the stage of section 34?
Whether an arbitrator is not entitled to pass an award directing specific performance of an agreement of sale and the subject matter of the dispute is not capable of arbitration under section 34(2)(b)(i) of the Act?
Whether the appellant could question factual findings relating to default, time being essence, readiness and willingness etc. before the arbitrator under Section 34 of the Act?
Held that:- Appeal dismissed. we do not think it necessary to decide this question in view of the fact that though Section 16 was referred to during the course of the hearing, the learned senior counsel for respondents had argued on merits that the arbitrator had Jurisdiction to decide the disputes/differences concerning the Interior Design agreements also and that even if the appellant could be permitted to raise these issues at the stage of Section 34, there was no substance in the said contentions.
There are several items in Schedule E of the main agreement which overlap the items in Schedule A of the Interior Design Agreement. In view of the overlapping, in our opinion it has to be said that several items in the Schedule A of the Interior Design Agreement are in modification/substitution of the items in the Main Agreement. Therefore the coverage of the two agreements makes it clear that the execution of the Interior Design Agreement is ‘connected with’ the execution of the main Agreement. It may also be noted that the date of the main agreement and the Interior Design Agreement is the same in each of the three cases and clause 3 of the Interior Design Agreement states specifically that ‘the work of the said renovation, designing and installation shall commence from the execution thereof’ which means that the execution of the Interior Design agreement and the main agreement is to be simultaneous.
We hold on Point 3 that disputes relating to specific performance of a contract can be referred to arbitration and Section 34(2)(b)(i) is not attracted. We overrule the view of the Delhi High Court. Point 3 is decided in favour of respondents.
The Explanation to the provisions says that without prejudice to the generality of sub-clause (ii) of clause (b), it is declared for the avoidance of any doubt, that an award is to be treated as in conflict with the public policy of India if the making of the award was induced or affected by fraud, or corruption or was in violation of sections 75 or 81. Section 75 deals with confidentiality while section 81 deals with admissibility of evidence in other proceedings. We do not have any such situation before us falling within section 34(2)(b)(ii). The factual points raised in the case before us, to which we have referred to earlier, do not fall within Section 34(2)(b)(ii). Coming to Section 34(2)(b)(i) we have already held that the subject matter of the dispute is not incapable of settlement by arbitration under the law for the time being in force. Nor is any point raised that the arbitral award is in conflict with the public policy of India. We are, therefore, of the view that the merits of the award, on the facts of the case do not fall under Section 34(2)(b) of the Act. Appeal dismissed.
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1999 (5) TMI 580 - SUPREME COURT
Dishonor of cheque - Held that:- Appeal allowed. The date when the notice sent by Fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act.
In this case the complainant has admitted the fact that written notice was sent by fax. Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date). The last day when the respondent could have filed the complaint was 26-7- 1996. But the complaint was filed only on 8-8-1996 So the court has no jurisdiction to take cognizance of the offence on the said complaint.
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1999 (5) TMI 579 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY
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... ... ..... the followed. We are satisfied that the Competent Authority who passed the impugned order did not give hearing to the appellant and, thus, the principles of natural justice have been violated. Therefore, we allow the appeal and set aside the impugned order and remand the matter to the Competent Authority to give a hearing to the appellant based on the record. No fresh evidence will be permitted. The appellant or his counsel shall appear before the Competent Authority on July 1, 1999, for argument based on the available record. The Competent Authority is directed to pass the order, based on the arguments and the record before the end of July. In exercise of the power conferred under rule 14 of the Appellate Tribunal for Forfeited Property (Procedure) Rules, 1989, we direct the appellant not to alienate, dispose of, part with possession or create any third party rights over the forfeited property, till the disposal of the proceedings before the Competent Authority after remand.
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1999 (5) TMI 578 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY
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... ... ..... ically stood revoked. We are of the considered view that such automatic revocation of the order of detention is to be construed as an order of revocation, within the meaning of clause (i) to the proviso to section 2(2) of the SAFEMA. As observed by the High Court of Madras in the order dated March 1, 1999, the order of the Competent Authority dated September 29, 1995, is only consequential to the order of detention dated December 19, 1974, and could not have been made when the order of detention stood revoked automatically. In the above mentioned view we have taken, we hold that the order of detention of the detenu stood automatically revoked within the time and the detenu or his legal heir cannot be treated as persons to whom the provisions of the SAFEMA apply and there was no jurisdiction in the Competent Authority to proceed to forfeit the properties. The appeal is accordingly allowed and the order of the Competent Authority, Madras, dated September 29, 1995, is set aside.
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1999 (5) TMI 577 - CALCUTTA HIGH COURT
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... ... ..... Rs. 63,606 should be taken into consideration at the time of reassessment because the Board has found that documents in support of such claim have already been traced. 13.. Hence, the application is allowed. The assessment order, the appellate order and the order of the Board, barring its direction on credit notes, are hereby set aside. The matter is being sent on remand to the assessing officer to make fresh assessment on the basis of materials available in the light of the aforesaid observations. The applicant is directed to make all the books of accounts and materials available to the assessing officer as and when called for the purpose of reassessment. The assessment should be completed within three months from the date of this order. As already pointed out the suggestion of the Board as regards the credit notes should be taken into consideration at the time of reassessment. We make no order as to costs. D. BHATTACHARYYA (Technical Member).-I agree. Application allowed.
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