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2005 (11) TMI 534
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... ... ..... d without notice to directors/shareholders; (b) illegal convening of the board meeting without participation of the third respondent; (c) illegal convening of the extraordinary general meeting; (d) circulation of the circular resolution in violation of Section 289 etc., not having been raised at any prior point of time are found per se not oppressive for the purpose of Section 397/398, more so, when no prejudices have been made out on account of the sale of the property on the facts and in circumstances set out elsewhere and, therefore, cannot be entertained in the present company petition. In view of the foregoing conclusions, the petitioners are not entitled for any reliefs sought by them and they are declined. Ordered accordingly. The interim order made on 28.03.2003 restraining the respondents 6 7 from alienating or selling the property and cutting or removing the trees thereon is vacated. With these directions, the company petition stands disposed of No order as to cost.
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2005 (11) TMI 533
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... ... ..... l payment shall be paid by the Official Liquidator to the concerned applicants of the concerned Company Applications, before the final sale deed is executed by the Official Liquidator. It is further clarified that the Official Liquidator may move the Company Court for disposal of such property. However, before the sale deed is executed by the Official Liquidator in favour of the purchaser whose sale may be confirmed by this Court, it would be required for the O.L., to pay the aforesaid amount of principal together with interest to the concerned applicant of the concerned Company Applications including substituted applicant of Company Application No. 205 of 1999 with Company Application No. 447 of 1999 and thereafter only the sale deed will be executed. 33. In view of the above, Company Applications No. 315 of 2000, No. 447 of 1999 and No. 454 of 1999 shall stand allowed only to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
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2005 (11) TMI 532
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... ... ..... ding sentence and the compensation, in view of this Court, deserves to be left to the concerned trial court, as it would be required to give extensive opportunity to both the sides before an appropriate order of sentence could be made in this behalf. In view of this, this Court is of the view that the order impugned in this appeal deserves to be quashed and set aside and the matter deserves to be remanded back to the trial court for determining award of sentence and compensation if any, after affording an opportunity of hearing to both the sides within the stipulated time. 38. In the result, the appeal is partly allowed. Impugned judgment order is quashed and set aside. For the reasons recorded in the judgment, the matter is remanded to the trial court only for the limited purpose as stated in the judgment and the trial Court is directed to give opportunity to both the sides and decide the matter within a period of 2 months from the date of receipt of the writ from the court.
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2005 (11) TMI 531
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... ... ..... l. Once the authorities say that the ground has not been pressed and that has been rejected on that basis, that cannot be interfered unless there is a cogent evidence in favour of a party, which says that ground has been pressed. 9. In absence of such cogent evidence, no interference is called for. Otherwise also considering the material on record and business of the assessee, Rs. 50,000 estimated in the pawning business is just and reasonable. No interference is called for. The appeal stands dismissed. 10. So far as the next issue regarding deduction under Chapter VI-A is concerned, Mr. Kasliwal prays for withdrawal of the appeal with a liberty to move a miscellaneous application before the Tribunal to reconsider the case. 11. Prayer sought for is allowed. The appeal is dismissed as having been withdrawn so far as the issue regarding deduction under Chapter VI-A is concerned with a liberty to him to file a miscellaneous application before the Tribunal to reconsider the case.
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2005 (11) TMI 530
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... ... ..... ed accountancy rule for determining cost of fixed assets is to include of expenditure necessary to bring such assets into existence and to put them in working condition. Therefore, the question was decided in favour of the assessee and against the revenue. Having considered the facts of the case, we are of the view that they are similar and, therefore, the ratio of this case is applicable. As the aforesaid decision directly covers the issue at hand, we do not think it necessary to go into the case of Sangroor Vanaspati Limited Vs. CIT (2007) 288 ITR 222 (Punjab & Haryana). 4.6 In a nutshell, it is held that the expenses incurred by the assessee are required to be capitalized in the light of the decision in the case of Food Specialties Limited and Lucas-TVS Limited ( no.2) (supra). We are also of the view that the proportionate method employed by the assessee is fair and reasonable. 5. In result, the appeal is allowed. This order was pronounced in open court on 13.05.2011.
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2005 (11) TMI 529
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... ... ..... ground raised by the assessee. Therefore, I am in agreement with the conclusion of the learned CIT (Appeals). The disallowance of depreciation of ₹ 1,45,800 deserves to be upheld. 11. The next ground pertains to charging of interest under section 234(b) of the Act. Learned counsel for the assessee contended that charging of interest is consequential in nature. After considering the rival submissions, I am of the view that charging of interest under section 234(b) is mandatory in nature. In view of the decision from the Hon'ble Apex Court pronounced in the case of CIT v. Anjum M.H. Ghaswala 2001 252 ITR 1. The remaining ground pertains to penalty proceedings under section 271(1)(c) of the Act. After considering the submissions, the same does not arise out of the order of the learned CIT (Appeals). 12. The last ground is merely prayer and requires no deliberation. In the result, appeal of the assessee is dismissed and the stand of the learned CIT (Appeals) is upheld.
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2005 (11) TMI 528
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... ... ..... nder Article 226. 15. Admittedly, the petitioner is a member of the second respondent primary Co-operative society, which is a member of the third respondent Apex Society, Section 69 of the Kerala Co-operative Societies Act provides for resolution of a dispute between a person and a Co-operative society and that includes a dispute between a member of the primary society and the Apex Society to which the primary society is a member as per Clause (e) of Section 69(1) of the Act. This is a fair and efficacious remedy available to the petitioners, where the rights and liabilities of the parties will be decided at length by an arbitrator invested with certain powers of the civil court. Necessarily, the petitioners can avail themselves of that remedy which is an established procedure to remedy the wrong said to be done against them by the 3rd respondent Apex Society. Accordingly, we answer the question posed in the negative. This results in dismissal of the writ petition. We do so.
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2005 (11) TMI 527
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... ... ..... conviction. The High Court has recorded a finding that the material shows that the petitioners are prima facie involved in the offence. Large portion of the amount advanced to Bhavika Creations (about ₹ 7.5 crores) has allegedly been diverted by appellant No. 1 for acquiring shares in Nedungadi Bank Ltd. As a result of the scam, the Bank is under liquidation from 31.7.2003. On account of the fraudulent activities of the then Managing Director and Appellant No. 1 (the then Director) and Appellants Nos. 2 and 3, nearly ₹ 23 crores is due from Bhavika Creations alone. Having regard to huge amounts involved in the systematic fraud, there is a danger of the appellants absconding, if released on bail, or attempting to tamper with the evidence by pressurizing witnesses. In the circumstances, we do not find any reason to interfere with the order refusing bail as grant of the relief sought may result in thwarting the course of justice. The appeal is, therefore, dismissed.
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2005 (11) TMI 526
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... ... ..... enalty under Section 77 is reduced from ₹ 1,000/- to ₹ 250/-Revenue contend that the Original Order imposing penalty should be restored. 2. Heard learned SDR. On a careful consideration, I notice that the issue is no longer res Integra as the Apex Court in the case of State of M.P. v. BHEL has held that equal amount of penalty cannot be levied and Adjudicating Officer has got the discretion to reduce the same. Furthermore in terms of the Karnataka High Court judgment rendered in the case of CCE, Mangalore v. Shree Krishna Pipe Industries and the Tribunal ruling rendered in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam which has been confirmed by the Supreme Court, penalty is not leviable if tax has been paid even before the issue of show cause notice. The appellants have not filed cross-appeal. Therefore the reduced penalty is required to be confirmed. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in Open Court)
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2005 (11) TMI 525
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... ... ..... part of this cement was purchased from the market had not been supported by any evidence. In such a situation, the defence plea of the assessee could not have been accepted. The demand made in the adjudication was fully justified by the evidence on record. The Commissioner was in error in requiring the Revenue to prove clandestine production from raw material consumption as well. In this view of the matter, we allow the appeal of the Revenue in regard to duty demand as well as quantum of penalty on the manufacturer. Accordingly, duty demand is restored to the original amount of ₹ 7,60,759/- confirmed in adjudication and penalty is increased to ₹ 4 lakhs on the assessee manufacturer. The appeals of the Revenue are allowed to this extent. There is no merit in the cross-objections of the assessee whereunder reduction of penalty has been sought. The same is rejected. 8. All the appeals are ordered in the above terms. (Dictated and pronounced in open Court on 30.11.05)
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2005 (11) TMI 524
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... ... ..... owing cases. (1) Yamaha Motors (I) Pvt Ltd. v. CCE Delhi 2005 (186) E.L.T. 161 (2) Turbo Energy Ltd. v. CCE Chennai 2005 (187) E.L.T. 47 (Tri-Che) (3) CCE v. Veleo Friction Material India (Pvt.) Ltd. 2005 (185) E.L.T. 78 (4) Navinon Ltd. v. CCE Mumbai 2004 (172) E.L.T. 400 (5) Aviat Chemicals Pvt. Ltd. v. CCE Mumbai 2004 (170) E.L.T. 466 3. On a careful consideration, I notice that the view expressed by the learned Commissioner has since been approved by the Tribunal in the above noted citations. The appellants have not carried out any activity of service to be attracted within the category of Consulting Engineers. They have merely transferred their know-how which cannot be brought within the ambit of Consulting Engineering services. This view has been expressed by the Tribunal in all the above noted judgments. Respectively following the ratio of the cited judgments, I do not find any merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2005 (11) TMI 523
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... ... ..... on of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial dispute which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it." 15. In view of the discussions made above it is manifestly clear that there is no industrial dispute in existence nor there is any apprehended dispute between the appellant-Bank and the Federation (second respondent) and as such there is absolutely no occasion for making any reference for adjudication by the Industrial Tribunal. The reference being wholly futile, the same deserves to be quashed. 16. The appeal is accordingly allowed with costs. The judgments and orders of the learned single Judge dated 29.2.2000 and that of the Division Bench of the High Court dated 19.6.2000 are set aside and the reference made by the Central Government to the Industrial Tribunal on 29.12.1997 is quashed.
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2005 (11) TMI 522
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... ... ..... the assessee has not adopted the established and settled practice. The market value of the stock has been taken into consideration while arriving at chargeable income although the market value of the stock is more than the cost value of the stock. The profit earned is only notional. There is no transfer of the goods and the closing stock remains the opening stock of the next accounting year. The income which has not been derived at by the assessee cannot be said to be the income chargeable for income and, therefore, the rejection of the accounts maintained by the assessee for the valuation of the closing stock by the assessing officer and confirmed by the High Court is in accordance with law. The power exercised by the assessing officer under Section 145 is as per the principles enunciated by various authorities and the courts. We do not find any good or sufficient reason to interfere with the order passed by the High Court. The appeal is dismissed with no order as to costs.
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2005 (11) TMI 521
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... ... ..... blic place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 for searching the vehicle between sunset and sunrise. In the case in hand the search was made of a public conveyance at a public place between sunrise and sunset. Therefore, the provisions of Section 42(2) of the Act shall have no application to the case. This being the position, the High Court was not justified in acquitting the Respondents and the trial court was quite justified in convicting them. 5. Accordingly, the appeal is allowed, the impugned order of acquittal rendered by the High Court is set aside and the conviction and sentence recorded by the trial court against the Respondents are restored. Bail bonds of the Respondents who are on bail are cancelled and they are directed to be taken into custody forthwith to serve out the remaining period of sentence for which compliance report must be sent to this Court within a period of one month.
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2005 (11) TMI 520
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... ... ..... he Act is not indicated to be read as 'must' or 'shall'. The said decision was followed by this Court in Grid Corporation of Orissa Ltd. v. AES Corporation and Ors. (2002)7SCC736a. In view of this legal position it is clear that Section 11(9) of the Arbitration & Conciliation act is not a mandatory provision. Accordingly, I am not bound to appoint a Sole Arbitrator having neutral nationality. I hereby appoint Mr. Justice S.N. Variava, a retired Judge of this Court, as the sole arbitrator in this case. The address of Justice Variava is 7-B, Rockside, 116, Walkeshwar Road, Mumbai- 400 006. The remuneration of the arbitrator and the other costs that may be involved, particularly in view of the fact that the venue of arbitration as per the arbitration clause has to be at England (U.K.) shall be fixed by the arbitrator. The petition is disposed of accordingly. A copy of this order be forwarded by the Registry of the Court to Mr. Justice S.N. Variava forthwith.
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2005 (11) TMI 519
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... ... ..... s by the financial institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequent ill effects. 28. In this case there is no equity in the petitioners' favor and hence we are not inclined to exercise our discretion under Article 226 of the Constitution in this case. 29. We have been informed that about ₹ 1,34,000 Crores of loans of banks and financial institutions are outstanding in India and have not been repaid. Unless repayment of the loans is done, the bank or the financial institution cannot lend money to new businessmen and new industrial units cannot be set up. Thus, interfering with such recoveries does incalculable harm to the economy and will be continued to be done if persisted by the Courts because new businessmen cannot get loans since the borrowers have not repaid. 30. The petition is accordingly dismissed.
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2005 (11) TMI 518
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... ... ..... nt of this Court in M/s Saketh India Ltd. and Ors. v. M/s India Securities Ltd, 1999 (2) Civil Court Cases 202 (SC) 1999 (2) RCR (Crl.) 153 (S.C.) A.I.R. 1999 S.C. 1090, in which case taking into consideration the provisions of Section 12(1) of the Limitation Act, it was laid down that the day on which cause of action accrued, has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act. In the present case, after excluding the day when cause of action accrued, the complaint was filed well within time; as such the High Court was not justified in holding that there was two days delay in filing the complaint. For the foregoing reasons, we are of the view that the High Court was not justified in quashing prosecution of the Respondents. Accordingly the appeal is allowed, impugned order passed by the High Court is set aside. Now the Trial Court shall proceed with the complaint in accordance with law. Appeal allowed. Appeal allowed.
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2005 (11) TMI 516
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... ... ..... demand by rejecting, the Modvat credit and also imposed personal penalty of identical amount. The said order is impugned before us. 3. After bearing both sides, we find the issue is no more res integra and stands settled by the decision of the Hon’ble Supreme Court in the following cases - (i) Commissioner of Central Excise (A) v. Narayan Polyplast - 2005 (179) E.L.T. 20 (S.C.) (ii) Commissioner of Central Excise v. Narmada Chematur Pharmaceuticals Ltd., reported in 2005 (197) E.L.T. 276 (S.C.) (iii) Punjab Tractors Ltd. v. Commissioner of Central Excise, reported in 2005 (181) E.L.T. 380 (S.C.) The ratio of the above decisions is that in case the assessee has chosen to pay duty in respect of the exempted goods, he cannot be denied the benefit of the Modvat credit inasmuch as the entire exercise was revenue neutral. 4. As the issue is decided by the Supreme Court, we set aside the impugned order and allow the appeals by following the above referred judgments.
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2005 (11) TMI 515
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... ... ..... hmanan, JJ. ORDER Appeal dismissed.
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2005 (11) TMI 514
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... ... ..... s actually of 750. H.P. and of second hand quality, which could have easily done by him. Apart from this, Assessing Officer has also not brought any material on record that such motor was purchased at the cost of ₹ 3,50,000 and any amount over and above ₹ 50,000 has been paid by the assessee to the seller of the motor. Therefore, in the light of this discussion merely on the statement of the seller of the motor, Assessing Officer was not justified in drawing the inference that seller of the motor has sold 40 H.P. motor without mentioning the same in the sale bill. Therefore, in the totality of the facts and circumstances of the case, we are of the considered view that Assessing Officer was not justified in making the addition and learned CIT(A) confirming the same on the same contention. Therefore, we set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition of ₹ 3 lacs. 6. In the result the appeal of the assessee is allowed.
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