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2006 (1) TMI 653 - SUPREME COURT
Suit for grants temporary injunction - condition (relating to furnishing of Bank Guarantee) for temporary injunction - Validity of Arbitration agreement - "the purchase order" - Letters of Intent - Whether BINDAL and KGK are estopped from contending that there is no arbitration agreement, in view of their counsel having stated in his telex dated 11.4.1993, that his clients were in the process of jointly appointing an arbitrator? - rejection of the applications u/s 3 of the Foreign Awards Act - HELD THAT:- We find that the said submission of DR is based on two premises. The first is that there is an 'arbitration agreement' between 'DR' on the one hand and 'BINDAL' on the other as per Clause 27.4.2 of the 'General Conditions of Purchase'. The second is that even if Clause 27.4.2 of General Conditions of Purchase itself may not operate as an arbitration agreement between the parties, the Letters of Intent by KGK are purchase orders placed on behalf of BINDAL which are made subject to the General Conditions of Purchase including the arbitration clause (clause 27.4.2) and therefore, there is an arbitration agreement between DR and BINDAL/KGK. On a careful examination, we find that both premises are erroneous and are baseless assumptions.
When DR suggested modifications to the general conditions of purchase, and when BINDAL agreed to them, and both parties initialled Revision No. 4 containing the modifications to the General Conditions of Purchase, on 10.6.1991, no contract or agreement came into existence as it did not involve either an offer or acceptance or performance of any promise. "Revision No. 4" dated 10.6.1991 only consisted of the modifications to the General Conditions of Purchase, subject to which it was willing to enter into a contract with BINDAL for sale of machinery. Parties merely agreed that when an order was placed or contract was entered for supply of a machinery by DR to BINDAL, it will be subject to the 'General Conditions of Purchase' stipulated by BINDAL as modified by Revision No. 4 dated 10.6.1991 agreed by both parties.
Parties agreeing upon the terms subject to which a contract will be governed, when made, is not the same as entering into the contract itself. Similarly, agreeing upon the terms which will govern a purchase when a purchase order is placed, is not the same as placing a purchase order. A prelude to a contract should not be confused with the contract itself. The purpose of Revision No. 4 dated 10.6.1991 was that if and when a purchase order was placed by BINDAL, that would be governed by the "general conditions of purchase" of BINDAL, as modified by Revision No. 4. But when no purchase order was placed, neither the 'general conditions of purchase' nor the arbitration clause in the 'General Conditions of Purchase' became effective or enforceable.
The purchase order is the "agreement entered into between BINDAL and the prospective supplier as recorded in the purchase order form (prepared in the form of Attachment-VII to the General Conditions of Purchase) signed by the parties, including all Attachments and annexures thereto and all documents incorporated by reference therein together with any subsequent modifications thereof in writing." Admittedly, no such purchase order was placed by either BINDAL or any one authorized by BINDAL. It is also evident from Clause (I) of the Letters of Intent that the purchase order was to be issued simultaneously with the Letter of Credit. Clause (M) made it clear that the Letters of Intent were being issued subject to necessary approvals being given by the Authorities of the Indian Government. These provisions clearly indicate that the Letters of Intent were only a step leading to purchase orders and were not, by themselves, purchase orders. Therefore, issue the Letters of Intent by KGK, assuming that it was done on behalf of BINDAL, did not mean that the General Conditions of Purchase which contains the provision for arbitration became a part of the Letters of Intent or became enforceable.
When all the terms of the Letter of Intent are harmoniously read, what is clear is that Letters of intent merely required the supplier to keep the offer open till 31.8.1991 with reference to the price and delivery schedule. They also made it clear that if the purchase orders were not placed and Letter of Credit was not opened by 31.8.1991, DR was at liberty to alter the price and the delivery schedule. In other words, the effect of Letters of intent was that if the Purchase Orders were placed and LCs were opened by 31.8.1991, DR would be bound to effect supply within 151/2 months, at the prices stated in the Letter of Intent. Therefore, it may not be possible to treat the Letters of Intent as Purchase Orders.
Even if we assume that the Letters of Intent were intended to contracts for supply of machinery in accordance with the terms contained therein, it may only enable DR to sue for damages or sue for the expenses incurred in anticipation of the order and opening of LC. But that will not be of any assistance to contend that there was an arbitration agreement between the parties.
It is now admitted by DR that there is no document (Revision No. 4 or otherwise) modifying the general conditions of purchase, which is initialled by DR and KGK. The Revision No. 4 was initialled only by DR and BINDAL. Therefore, the general conditions of purchase containing the arbitration clause, never became a term of the letters of intent dated 12.6.1991. Clause (C) of the letters of intent made it clear that it is only the purchase orders which were to be placed in future on or before 31.8.1991 (along with opening of LC) that was to be subject to the General Conditions of Purchase. Therefore, we hold that the letters of intent, even if assumed to result in any binding contract, did not provide for arbitration.
Thus, neither the General Conditions of Purchase forming part of Invitation of Bid nor Revision No. 4 dated 10.6.1991, nor the Letters of Intent dated 12.6.1991 contain any arbitration agreement. There is also no other document or correspondence which can be read as containing a provision that can be interpreted as an agreement to resolve disputes by arbitration. We are, therefore, of the view, though for slightly different reasons, that the decision of the learned Single Judge and the Division Bench of the High Court holding that there is no arbitration agreement, does not suffer from any infirmity.
It is rightly pointed out by Shri Adarsh Kumar Goel, learned Counsel for the appellant that they had by mistake agreed for reference and that arbitrators could not decide the existence of the arbitration agreement or arbitrability of the disputes without prejudice to their stand that no valid agreement existed. Shri Nariman contended that having agreed to refer the dispute, the appellant had acquiesced to the jurisdiction of the arbitrators and, therefore, they cannot exercise the right u/s 33 of the Act. We find no force in the contention. As seen, the appellant is claiming adjudication u/s 33 which the Court alone has jurisdiction and power to decide whether any valid agreement is existing between the parties. Mere acceptance or acquiescing to the jurisdiction of the arbitrators for adjudication of the disputes as to the existence of the arbitration agreement or arbitrability of the dispute does not disentitle the appellant to have the remedy u/s 33 through the Court. In our considered view the remedy u/s 33 is the only right royal way for deciding the controversy.
We, therefore, do not find any reason to interfere with the decision of the Division Bench of the High Court. The appeals are, therefore, dismissed. Parties to bear their respective costs.
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2006 (1) TMI 652 - DELHI HIGH COURT
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... ... ..... they are so sure of their defense, then they should get themselves acquitted at the earliest, rather than rushing to the High Court against every order and praying for examining the entire evidence without it being on record of the Trial Court, without it having been tested by cross-examination. 17. Any such attempts will be a negation of the amendments and will defeat the very purpose of the repeated amendments. Considering all the facts and circumstances, I do not find any justification for interference under Section 482 of the Code of Criminal Procedure. The petition, in my view, is vexatious and mala fide. Lacs of public money has been squandered. The petition is, therefore, dismissed with ₹ 10,000/- (Rupees ten thousand) as costs, in favor of the respondent No. 2 and against the petitioner. 18. The Trial Court is directed to dispose of the matter preferably within 4 months. 19. Nothing said herein will tantamount to expression of opinion on the merits of the case.
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2006 (1) TMI 651 - CESTAT, NEW DELHI
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... ... ..... of final products, hence, not integrally connected with the manufacture - Cannot be considered to have been used in the manufacture of final products - Note eligible inputs for credit - Rules 57AA, 57AB and 57AC of erstwhile Central Excise Rules, 1944. 5. The issue of availment of credit on the dissolved acetylene gas is squarely covered by the ratio of the decision of the Larger Bench and hence the appellant are not eligible for the Modvat credit on the duty paid on such inputs. The appeal of the appellant to that extent is rejected. 6. As regards penalty I find that the appellant took credit of the duty paid on inputs based on the decided case laws on the issue and hence no malafide can be attached to their availment of credit. The penalty sought to be imposed on the appellants is unwarranted in this case. The penalty imposed on the appellant is set aside. 7. Accordingly, the appeal is allowed to the extent as indicated above. (Operative part pronounced in the Open Court.)
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2006 (1) TMI 650 - COMPANY LAW BOARD NEW DELHI
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... ... ..... l from both the sides, on conclusion of the hearing , I visited the Hotel premises. Both the 2nd petitioner and the 2nd respondent were present. I found that most of the renovation work had been completed and work was going on in the ground floor of the premises. The second respondent informed me that once the ground floor work was completed in the next few months, he was planning to have a soft opening of the hotel. After the visit to the hotel premises, in view of the close relationship between the 2nd petitioner and the 2nd respondent, I invited them for a discussion with a view to explore the possibility of an amicable settlement of the disputes but without any fruitful result. My further two interactions with the parties along with their advocates to settle the disputes amicably also failed. Since the discussions with me were without prejudice, I am not recording the details of the discussions. 52. The petition is disposed of in the above terms with no order as to cost.
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2006 (1) TMI 649 - DELHI HIGH COURT
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... ... ..... able. Not every reasonable exercise of judgment is right and not every mistaken exercise of judgment is unreasonable. 111. Hence, the Wednesbury unreasonableness means unreasonableness verging on absurdity as observed by the House of Lords in Puhlhofer v. Hillingdon L.B.C. (1986) 1 AII ER 467. 112. In Nottinghamshire C.C.v. Secretary of State for the Environment, (1986) 1 AII ER 199 Lord Scarman observed that to challenge a decision of the Minister as unreasonable the applicant must establish by evidence that the decision was so absurd that he must have taken leave of his senses. 113. Keeping in mind the above position of law, we are of the opinion that the learned Single Judge has practically sat as a Court of appeal over the decisions of the Executive Authorities including the MCD, which he was clearly not entitled to do. Hence, we set aside the impugned judgment of the learned Single Judge and allow this appeal, and uphold the sanction order of the M.C.D. dated 4.12.2002.
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2006 (1) TMI 648 - DELHI HIGH COURT
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... ... ..... r accounts book of the respondent. For record it may be noted that claim of the petitioner is in sum of ₹ 73,106/-. 5. In that view of the matter, formal proof of the debt is waived. 6. CP is allowed. Respondent is directed to be wound up. Official liquidator who was appointed as the provisional liquidator when CP was admitted for hearing is appointed as the Official Liquidator. 7. Steps to be taken by the Official Liquidator as per law.
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2006 (1) TMI 647 - SUPREME COURT
Applications to quash the investigation - seeking to released on bail - large economic scam - violation of applicable banking procedures and regulations - application for recall of the order of the learned Chief Metropolitan Magistrate directing investigation u/s 156(3) of the CrPC - Offences under Sections 405, 406, 408, 409 and 120B of the Indian Penal Code, 1860 ("IPC"), read with Section 35A of the Banking Regulation Act, 1949 - HELD THAT:- In the facts of the present case, we are satisfied that the complaints, which were filed in respect of malfeasance and misfeasance within the jurisdiction of the Ahmedabad Police, were not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences, nor were they alleged to have been committed in the course of the same transaction or the same occurrence as the ones alleged in First C.R. No. 67/2001.
In our view, the distinctions drawn by the High Court are fully justified. The High Court was right in observing that the FIRs, which were under challenge before it, were regarding independent and distinct offences. Hence, the FIRs could not be prohibited on the ground that some other FIR had been filed against the Petitioner in respect of other allegations made against the Petitioner.
Moreover, the High Court was correctly cognizant of limitations while exercising its powers u/s 482 of the CrPC, which should not in any event, be exercised lightly. Reading the impugned judgment of the High Court as a whole, we are satisfied that there is no scope for interference by us. The High Court was justified in declining to exercise its powers u/s 482 of the CrPC and in refusing to interfere with the orders passed by the learned Chief Metropolitan Magistrate. Finally, considering the nature of the allegations involved and the facts and circumstances of the present case, we too are not inclined to exercise our extraordinary powers under Article 136 of the Constitution to interfere.
Special Leave Petition (Crl.) is directed against the judgment of the Gujarat High Court declining to grant bail to the Petitioner. Having perused the order and the record, Thus, we are not satisfied that in the facts and circumstances of the case, the Petitioner is entitled to be released on bail. The order of the High Court appears to be justified. We find no reason to interfere.
In the result, Special Leave Petition (Crl.) are found to be without merit and are hereby dismissed. Special Leave Petition is also dismissed.
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2006 (1) TMI 646 - SUPREME COURT
Initiation of contempt proceedings - directions given form the subject matter of challenge - default in complying with the directions - whether the earlier decision which has received its finality had been complied with or not? - HELD THAT:- If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.
We notice that pursuant to the direction given by the High Court, the exercise directed to be undertaken was in fact undertaken. The respondent was given promotion and in the meantime he has retired. That being so, it is not necessary to go into the correctness of the direction given, except clarifying the position in law.
The appeal is accordingly disposed of.
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2006 (1) TMI 645 - SUPREME COURT
Constitutional scheme - fundamental right of education - State to establish Project Schools - Petition filled by Teaching and non-teaching staff - seeking payment of salaries to the teaching and non teaching staff of 300 schools - Validity of circular letter dated 04.02.1989 - appointment by the Vidyala Sewa Board - decision of the Cabinet to sanction four additional posts in each of the 300 Project Schools - educational qualification of the teaching staff - HELD THAT:- So far as taking over of the services of the teaching and non-teaching staff of the Project Schools is concerned, even the same is surrounded by mystery. Counsel appearing on behalf of the Respondents had unequivocally stated that the services of the teaching and non-teaching staff had been regularized. The expression ’regularization’ has a definite connotation. Regularization of services must precede a legislative act or in absence of legislation, rules framed in terms of proviso appended to Article 309 of the Constitution of India.
There is nothing on record to show as to the precise job required to be performed by the three men Committee i.e. they were to identify such schools which met the criteria laid down in the Circular letter dated 25.9.1981 or 25.1.1985 or whether they were also to scrutinize the academic and other qualifications required for appointment of the teaching and nonteaching staff. Except certain statements made in the affidavit before the High Court as also before us the parties herein had not produced any document to show that on what term or terms the process of recognition/taking over of the private schools had been made.
There is no dispute about 150 schools. Various documents as also the affidavits filed on behalf of the State in no uncertain terms show that besides the schools which were established by the State and are being run by it, there are various other schools over which there was a dispute about their identification.
The Government established 75 schools and three men Committee identified 57 schools. The teachers of the said schools were appointed by Vidyala Sewa Board, but the documents produced and the affidavits affirmed by the parties point out 300 schools. We have noticed some discrepancies hereinbefore to show that the number of the schools mentioned by either side may not be entirely correct but the fact remains that before the Cabinet also, a representation was made by the authorities of the State themselves that 300 schools are in place. It is only on that basis the Cabinet sanctioned 1200 more posts.
We have noticed that there is no dispute that in the years 1982-83 and 1983-84, no school was recognized or established. We have also noticed hereinbefore that one of the conditions for recognition was that the teachers were required to be appointed by the Vidyala Sewa Board. In the aforementioned context, the letter dated 4.2.1989 is required to be considered for the purpose of this case.
Indisputably, if somebody has any say in this behalf it will be the Bihar Senior School Education Board, a statutory authority who is statutorily enjoined to lay down the criteria for the purpose of recognition of said schools by it. But for all intent and purport this issue has become academic. In view of the fact that the State itself has realized the difficulty which the schools would face if only 5 posts are sanctioned in each school. The Cabinet itself realized that like any school run by the Government, it is necessary to have at least 9 teachers even in the project schools. The strength of the teachers for such schools has not only been sanctioned, sanction therefor was given with retrospective effect and retroactive operation. Necessary funds were allocated for the said purpose. Although, thus, it was the prerogative of the State to lay down the criteria, the same has been laid down. Therefore, correctness or otherwise of the finding of the High Court that the State was bound to recognize at least 9 teachers in each school, for all intent and purport is now academic.
It is furthermore not in dispute that the State for the first time in its letter dated 04.02.1989 laid down the qualifications for the teachers as also the strength thereof.
The validity and/or legality of the said Government order dated 04.02.1989 was questioned before the High Court. The High Court, as noticed supra set aside the said directions holding that 9 teachers were required to be appointed in each of the schools. This part of the order of the High Court does not require elaborate consideration as the State Government had now sanctioned 4 additional posts with retrospective effect.
Even if there is no dispute as regard number of schools, in view of the stand taken by the State and particularly in view of the fact that it appears from the records that recognition of the school, if any, had wrongly been granted to some schools where buildings were also not completed or the process of selection was also not over, it may be necessary for the State to have a further look in the matter.
It is furthermore necessary to scrutinize as to whether the teaching and non-teaching staff appointed for the said purpose fulfill the criteria in terms of the policy decision of the State or not. Their qualifications laid down under other relevant statutes for the purpose of obtaining permission must also be scrutinized.
We do not find any merit in the contention raised by the learned counsel appearing on behalf of the Respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppel has no application where contention as regard constitutional provision or a statute is raised. The right of the State to raise a question as regard its actions being invalid under the constitutional scheme of India is now well recognized. If by reason of a constitutional provision, its action cannot be supported or the State intends to withdraw or modify a policy decision, no exception thereto can be taken. It is, however, one thing to say that such an action is required to be judged having regard to the fundamental rights of a citizen but it is another thing to say that by applying the rule of estoppel, the State would not permitted to raise the said question at all. So far as the impugned circular dated 18.02.1989 is concerned, the State has, in our opinion, a right to support the validity thereof in terms of the constitutional framework.
Having said so, we must observe that the ultimate decision must be left at the hands of the State. In view of the Cabinet decision dated 25.01.2000, 300 schools are said to have been recognized. We have, however, our doubts as to whether all correct facts have been placed before the Cabinet or not particularly in view of the fact that many of the schools which were established in Chhotanagpur and Santhal Pargana are now in the State of Jharkhand. We have pondered over the matter but we are not very sure as to whether apart from the schools which had been identified by the three-man committee and admittedly recognized by the State, any final decision had been taken as regard recognition or otherwise of the remaining schools by the appropriate authority.
Thus, we are of the opinion that a committee should be constituted for the said purpose.
The Chief Secretary of the State of Bihar is, therefore, requested to constitute a committee comprising of two officers and one Educationist of repute and/or a retired Judicial officer. In the event a Judicial Officers is appointed as a member of the committee, he would be the chairman thereof. Remuneration of the Judicial Officers and/or the Educationist shall be determined by mutual agreement.
The Chief Secretary is hereby requested to place at the disposal of the committee the requisite staff, which may be required by the committee, from amongst the staff of one or the other department of the State.
In the event it is found that teachers have been appointed on ad hoc basis, the Vidayalay Sewa Board shall be directed to make regular recruitment strictly in accordance with law.
All the concerned Regional Deputy Directors of Education must also submit their reports in respect of the Project Schools within four weeks from date before the committee.
The Committee shall also deal with all such individual cases of the Appellants, as has been directed in para 35 of the judgment of the High Court.
All the educational institutions claiming recognition or having any other claims would file their representations together with all supporting documents within three weeks from date. In their applications, the institutions must also give details of the students admitted in each class year-wise. Although from the records, it appears that about 300 schools laid their claims having been recognized which is also evident from the decision of the Cabinet, we are of the opinion that the question as to how many schools fulfil the criteria laid down by the State Government in terms of its policy decision must be considered afresh.
As the constitution of the Committee may take some time, such claims may be filed in the office of the Education Secretary, who would open an appropriate cell in this behalf. The committee upon scrutinizing the claims of the institutions and/or the teaching and non-teaching staff would submit a report before the Chief Secretary within three months.
The Chief Secretary is requested to place the said report together with his comments thereupon before the appropriate authority in terms of the Rules of Executive Business and it is expected that the said authority of the Government of Bihar shall take appropriate decision thereupon within four months from date.
We would appreciate, if the State Government takes suitable action against those who may be found responsible for commission of irregularities and/or illegalities in the process of implementation of the Government scheme in accordance with law. As regard minimum age of the teaching and non teaching staff, indisputably the same should be 18 years.
So far as educational qualification of the teaching staff is concerned, we are of the opinion that having regard to the fact that the limited number of teachers were to be appointed with a view to accomplish a constitutional goal of spreading literacy in the villages, particularly amongst the girls, the standard adopted in Zila Schools or Government schools constituted in urban areas may not be insisted upon, as was observed by the High Court, but keeping in view the fact that it is essentially a Government function, the question as to whether some teachers having B.T. training or training in Physical Education would be allowed to continue in the said Project Schools or not is left to the State, wherefor a decision in a decision in accordance with law may be taken.
These appeals are disposed of with the aforementioned observations and directions. Thus, there shall be no order as to costs.
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2006 (1) TMI 644 - BOMBAY HIGH COURT
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... ... ..... l for the Revenue has agreed and consented to continue with the appeal and accordingly the appeal was heard by the CESTAT from 6th January, 2006 to 19th January, 2006 and on conclusion of argument, the Tribunal has reserved the Judgment. 4. Although, the above contention was disputed, in the light of the order of the Tribunal dated 19/1/2006, the learned Additional Solicitor General for the petitioner sought permission to withdraw the petition keeping contentions of both parties open. Accordingly, the petition is allowed to be withdrawn and the same is dismissed as withdrawn with no order as to costs. 5. However, we make it clear that all the contentions of both the parties are kept expressly open.
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2006 (1) TMI 643 - SUPREME COURT
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... ... ..... inspector of Police that accused Pratapji was involved in large number of cases and details of nine cases were given. Similarly it was stated that the accused no.2 Jayantubha, who was an accomplice of accused no.1 was also involved in nine cases. The trial court while dealing with the bail application filed by the accused also noted about the pendency of the cases. It further appears that during pendency of the trial the bail granted to accused Pratapji was cancelled for breach of conditions imposed by the court for grant of bail. These aspects do not appear to have been considered by the High Court. It proceeded on factually erroneous premises without keeping in view correct principles relating to punishment. Above being the position we set aside the impugned judgment of the High Court and remit the matter to the High Court for a fresh hearing on the question of sentence, uninfluenced by any observation made in these appeals. The appeals are allowed to the aforesaid extent.
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2006 (1) TMI 642 - MADHYA PRADESH HIGH COURT
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... ... ..... however, we find that in the very assessment order dated 27 -11 -1986 the penalty of ₹ 19,191 has been imposed under section 17(3) of the Act after recording a finding that sufficient cause has not been shown by the assessee. From the assessment order, a copy of which is enclosed along with the statement of case as Annexure B -2, we do not find as to whether the assessee was at all asked to show cause for the defaults mentioned in clause (b) of section 17(3) of the Act and as to whether the assessee actually showed any cause for such default. If the assessee was not given the opportunity to show cause for the defaults mentioned in clause (b) under section 17(3) of the Act, penalty under section 17(3) of the Act was not justified. But if the assessee was in fact given an opportunity to show cause for the defaults mentioned in clause (b) under section 17(3) of the Act, the imposition of penalty was justified. The question referred to us is accordingly answered as above.
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2006 (1) TMI 641 - SC ORDER
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... ... ..... lveer Bhandari, JJ. ORDER Appeal dismissed.
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2006 (1) TMI 640 - KARNATAKA HIGH COURT
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... ... ..... ok profit could be only at the end of the financial year, the provisions of Section 207, 208, 209 or 210 cannot be made applicable, until and unless the accounts are audited and the balance sheet is prepared even the assessee may not know whether the provisions of Section 115J would be applicable or not. The liability would be after the book profits are determined in accordance with the Companies Act. Therefore, it was held that the authorities were not justified in directing to charge interest under Section 234B and 234C of the Act. 3. The present case arises under Section 115J(A) of the Act which deals with deemed income relating to certain companies. The principle enunciated in the aforesaid judgment would equally apply to the assessment involved in this appeal also, as we are in respectful agreement with the law declared by this Court in the case of KWALITY BISCUITS (supra). In that view of the matter, we do not find any merit in this appeal. Accordingly it is dismissed.
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2006 (1) TMI 639 - DELHI HIGH COURT
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... ... ..... ks leave to withdraw this writ petition reserving liberty to the petitioner to seek such other remedy as may be available to him under law. This writ petition is accordingly dismissed as withdrawn with the liberty prayed for.
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2006 (1) TMI 638 - SUPREME COURT
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... ... ..... nt in his Report. This has also become necessary because according to learned counsel for the respondent, the Report is in its favour while learned counsel for the Revenue submits that there are some areas which need to be clarified and this can be effectively done before the Tribunal which has to decide the case on the factual aspects keeping in view the provisions of law involved. In that view of the matter, we remit the matter to the Tribunal which shall re-hear the matter with reference to the Report of the Cost Auditor. The parties shall be permitted to place their respective stand in support or opposition of the Report, as the case may be. A copy of the Report shall be placed before the Tribunal by learned counsel for the Revenue within a period of six weeks so that the Tribunal can fix up a fresh date of hearing. While hearing the matter afresh, the Tribunal is free to consider all other connected issues involved in the matter. The appeals are disposed of accordingly.
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2006 (1) TMI 637 - SUPREME COURT
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... ... ..... ive of the position in law, equity demands that, as they have drawn their pension for long periods, they shall not be asked to refund their drawn pension amounts, nor shall their pension be stopped now. We have made the aforesaid directions in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused (see in this connection Deb Narayan Shyam and Ors. v. State of W.B. and Ors3 and State of Bihar and Ors. v. Kameshwar Prasad Singh and Otrs.,4. Barring this limited relief no other relief is due to the petitioners before us. Subject to the aforesaid limited relief all the petitions are dismissed.
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2006 (1) TMI 636 - SUPREME COURT
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... ... ..... ordinarily meant to compensate the officer concerned for his out-of pocket expenses incidental to the journeys performed by him for his official tour/s. As traveling allowance is not a source of income to the Government servant but only a compensation to meet his expenses, the prosecution while calculating the sources of income during the check period, need not take it into account as income. However, it is open to the Government servant to let in evidence to show that he had in fact saved something out of the travelling allowance. It is for the court then to accept or not whether there was such actual saving. But the question of automatically considering the entire travelling allowance as a source of income does not arise. In this case, as the appellant did not lead any specific evidence to show that he had made any savings from out of the travelling allowance, the claim for inclusion of TA in income, is untenable. 18. The appeal has no merit and is, accordingly, dismissed.
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2006 (1) TMI 635 - SC ORDER
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... ... ..... Interlocutory applications are allowed. The civil appeal is admitted.
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2006 (1) TMI 634 - KARNATAKA HIGH COURT
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... ... ..... ules read with Section 12 of the Act, in as much as, once the assessment orders are quashed, all payments made under the assessment orders become excess payment and the petitioner can definitely claim for refund by filling an application under this provision. On production of satisfactory proof of tax having been paid, the assessing authority shall pass orders for refund within a period of six weeks from the date of filling of such application by the petitioner”. 3. I direct the Commissioner of Commercial Taxes to take a decision in terms of the order in SURESH COLOUR LABS (Supra) within a period of eight weeks from the date of receipt of copy of this order.
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