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Showing 41 to 60 of 651 Records
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2006 (8) TMI 657
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... ... ..... deration "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the levy of MAT is permissible while issuing intimation to the assessee under s. 143(1)(a) ?" 6. Paper books be filed in accordance with the High Court rules. IA No. 5428/2005 (stay) 7. Learned counsel for the appellant points out that the regular assessment has already been made in respect of the assessee under s. 143(3) of the IT Act and an appeal is pending before the Tribunal and tax has already been recovered by the Revenue. By the impugned order, the matter has been sent back to the AO with the direction to recompute the deemed income and directing an opportunity of hearing to the assessee before passing an order. In view of the fact that a regular assessment has already been made and the assessee has already deposited the tax we stay the further proceedings before the AO pursuant to the order passed by the Tribunal. The application is disposed of.
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2006 (8) TMI 656
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... ... ..... tion of merits came to conclusion that the amount to be deposited was less than ₹ 20,00,000/-. There is no indication that in case the amount was to be more, then the appellant would pay the differential amount. The stand of the appellant that the maximum deposit that could have been directed was fixed at ₹ 20,00,000/- is on a sound footing. The order of the trial court as well as that of the High Court cannot be maintained. However as an interim measure by order dated 26.9.2005 this Court has stayed the operation of the High Court's order subject to deposit of ₹ 20,00,000/-. It is stated that the deposit has already been made. Though we have held the trial Court's order and the High Court's order are not sustainable, the amount deposited pursuant to this Court's order need not be refunded. The trial Court is directed to proceed with the matter and make effort for its expeditious disposal. Appeal is allowed but without any order as to costs.
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2006 (8) TMI 655
Oppression and mismanagement - qualifications prescribed u/s 399 - right of legal heirs of a deceased member - petitioners constitute more than 1/10th of the total membership - HELD THAT:- According to the petitioners, their father held 99% shares in the company and they are the legal heirs along with Rajmata. All the three of them together have sought for grant of a succession certificate and the 2nd respondent and other brothers being the near relations of the deceased have filed no objection to the grant of succession certificate in favour of the petitioners and Rajmata and that the shares held by the deceased of 5050 equity shares are also part of that application. Thus, without any additions or subtractions, the pleadings reveal that the petitioners are entitled to 2/3rd of the shares held by the deceased which is in excess of 10% of the then existing issued and paid up share capital.
Even after the allotment of the shares impugned in the petition, the petitioners constitute more than 1/10th of the total membership. Thus, in the pleadings, the petitioners have established that they are qualified in terms of Section 399 of the Act to file this petition. In view of this, I need not have to consider any of the objections raised by the respondents on the maintainability. Yet, the main ground for challenge on the maintainability is the discovery of the alleged Will subsequent to the date of filing of this petition. However, in the application seeking for dismissal, there is no mention about the Will nor the prayer for dismissal is based on the alleged Will. Only in the rejoinder, a copy of the alleged Will has been enclosed. The learned Counsel for the petitioners relevantly cited certain decisions to the effect that the maintainability of the petition in terms of Section 399 has to be examined with reference to the facts that stood on the date of filing the petition.
Therefore, I hold that the present petition, in terms of the averments in the petition, is maintainable and cannot be dismissed on the basis of the demurer application by the respondents. All the objections of the respondents will be considered while considering the petition on completion of pleadings. Accordingly, I direct the respondents to file their counter to the petition and rejoinder will be filed. The petition will be heard.
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2006 (8) TMI 654
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... ... ..... nd (ii) to regulate the conduct of the future affairs of the Company, it is hereby declared that- (a) the enhancement of the authorised share capital from ₹ 125 lakhs to ₹ 225 lakhs is illegal and void; (b) the further issue of shares in favour of the fourth respondent impugned in the company petition, being wrongful is set aside; (c) the members of the Company are at liberty to constitute its board of directors, however, providing proportional representation to the respondent group, which shall appropriately be incorporated in the articles of association of the Company; (d) the board of directors of the Company so constituted by the members shall manage the day to day affairs of the Company as per the articles of association of the Company ; (e) the Company shall deliver share certificates to the petitioner in respect of its holdings within 30 days of receipt of this order. With the above directions, the company petition stands disposed of. No order as to costs.
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2006 (8) TMI 653
Writ of quo warranto - Interpretation Of Statutes - Karnataka Urban Water Supply and Drainage Board Act, 1973 ("the Act") and the Rules - Power of the Government to make a contractual appointment u/s 4(2) - appointment for the Post of Managing Director - violation of law - HELD THAT:- At any event implicit in the finding of the Division Bench that the appointing authority has no right to appeal in quo warranto proceedings is that the Court cannot probe the mind of the appointing authority in a motion for quo warranto. The High Court erred in probing the mind of the government and acted contrary to its own finding on the role of appointing authority in quo warranto proceedings. The reasons felt out by the learned Judges of the Division Bench are not sustainable in law and the impugned judgment is liable to be interfered with in these appeals.
The learned Judges are not right in quashing the appointment of the appellant as Managing Director on the misconception that he has been re- appointed to the said office, whereas it was a fresh appointment under the provisions of the Act and in accordance with the prescribed qualification and eligibility under the Act. Further the appointee holds the office during the pleasure of the Government as provided under Section 6(1) of the Act. The learned Judges are not correct in holding that the Government is not affected by allowing the writ of quo warranto against the appointee and observed that the Government ought not have filed the appeal. It is unfortunate that the learned Judges have observed that the Government has filed the appeal at the instance of the appointee. The learned Judges, in our opinion, failed to appreciate that it is the duty of the Government to justify the appointment as such there is no wrong in filing the writ appeal.
In the result, we hold: (a) that the appellant was not disqualified for appointment as Managing Director w.e.f. 1.2.2004.
(b) There is no bar for appointment to the post in question on contract basis. The Government has absolute right to appoint persons on contract basis.
(c) Writ of quo warranto does not lie if the alleged violation is not of a statutory provision.
(d) There is no violation of Section 4(2) of the Act and Rule 3 of the Rules because the appellant had experience in administration and capacity in commercial matters before he was appointed as Managing Director on contract basis by the Government.
(e) The Government has no doubt power to make contractual appointment until further orders. The power included the power to make appointment on substantive basis temporary, officiating basis, ad hoc basis, daily wages or contractual basis.
(f) Writ filed by respondents 1 & 2 is motivated.
(g) The petitioners in the writ petition, respondent No. 1 herein which is an unregistered Association under the Trade Unions Act cannot maintain the writ petition.
(h) The findings of legal mala fides is unsustainable and has no basis.
The finding of legal mala fides suffers from other infirmities as far as placing reliance on the complaints against the appellant without adverting to the orders of the Lokyukta detail examination, the appellant is unequivocal terms in both the cases.
Thus, the appeals are allowed and the order impugned in this appeal passed by the Division Bench of the High Court affirming the judgment of the learned single Judge is set aside.
The Division Bench of the High Court ordered cost in the writ appeal. There is no justification in ordering cost in the facts and circumstances of the case. Therefore, the appellant, State Government and respondent No. 4 are entitled to refund the cost, if it has already been paid. However, we are not ordering cost against respondent Nos. 1 & 2 taking into consideration of the financial constraint of the employees and by taking a lenient view of the matter.
In view of this judgment, we allow the appeals filed by Mr. B. Srinivasa Reddy and by the State of Karnataka. As noted herein earlier, the appellant has already been released and in his place a person has already been appointed as a Managing Director of the Board on contract basis. Keeping this admitted fact in mind, we, therefore, keep it on record that the Government or the Board would be at liberty to consider and appoint a candidate, if occasion arises, on contract basis. If such a situation does arise in that case it would be open to the State or the Board to consider the candidature of the appellant (B. Srinivasa Reddy) with others.
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2006 (8) TMI 652
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... ... ..... decision in Dove Investments Private Limited and others v. Gujarat Industrial Inv. Corporationand Sterling Holiday Resort (India) Limited v. Gurajat Industrial Inv. Corporation and Ors. (supra) holding that procedural provisions are not mandatory is inapplicable to the facts of the present case. Similarly, the decisions in (a) Shreenath v. Rajesh (supra) and (b) Delhi Development Authority v. Skipper Construction Company Private Limited (supra) having been rendered in the context of interpreting procedural law and procedural/technical requirements will be of little assistance to the petitioners. For these reasons, the petitioners do not possess the requisite locus standi to maintain the petition. Accordingly, the company petition is dismissed without considering its merits. The petitioners are at liberty to initiate appropriate action under the relevant provisions of the Act. redressing their grievances, if so advised. Accordingly, the unnumbered petition stands disposed of.
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2006 (8) TMI 651
Application seeking amendment under Order VI Rule 17 - Withdrawing admission made in written statement - benami transactions - suit for a declaration of ownership and possession - Whether the High Court as well as the Trial Court had erred in rejecting the application ? - HELD THAT:- A bare perusal of the order rejecting the application for amendment of the written statement indicates that while rejecting the application for amendment of the written statement, the High Court as well as the trial court based their decisions mainly on three grounds. The first ground was that since the Appellants had made certain admissions in the written statement, its amendment cannot be allowed permitting the Appellants to withdraw their admission made in the same. Secondly, the question of limitation cannot be allowed to be raised by way of an amendment of the written statement and lastly inconsistent pleas in the written statement cannot also be allowed to be raised by seeking its amendment.
We do not find any reason as to why amendment of the written statement introducing an additional plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which are not permissible in law. We have already examined the statements made in the written statement as well as the amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the Appellants which was sought to be withdrawn by way of amending the written statement.
In our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the Defendants/Appellants in their written statement.
That apart, in the case of Estralla Rubber v. Dass Estate (P) Ltd.[2001 (9) TMI 1144 - SUPREME COURT], this Court held that even there was some admissions in the evidence as well as the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be ground for rejection of the same when no serious prejudice is shown to have been caused to the Plaintiff/Respondent No. 1 so as to take away any accrued right.
The last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the Appellants in their application for amendment of the written statement, excepting the plea taken by the Appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground.
We are therefore of the view that inconsistent plea can be raised by Defendants in the written statement although the same may not be permissible in the case of plaint, in the case of Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co.[1976 (9) TMI 177 - SUPREME COURT], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that Defendants/Appellants are not allowed to take inconsistent pleas in their defence.
As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement of any stage of the proceedings.
We are of the view that the High Court as well as the trial court erred in rejecting the application for amendment of written statement. Accordingly, the orders of the High Court and the trial court are set aside, the application for amendment of written statement is allowed. The Defendants/Appellants are directed to file an amended written statement within a period of one month from the date of production of this order before the trial court to dispose of the suit within a period of one year from the date of communication of this order to it. The appeals are allowed. There will he no order as to costs.
Appeals allowed.
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2006 (8) TMI 650
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... ... ..... handra Prakash Agarwal is concerned. The Division Bench has affirmed the view of the learned Single Judge that the story of notice having been given to Shri Bhagirath Agarwal of the meeting where his directorship was in question, and his staying away from such meeting, was difficult to accept. The decision of the Single Bench or the Division Bench has not been seriously contested on behalf of the appellant. In the facts of the case, it is difficult to take a view which is different from that taken both by the Single Judge and the Division Bench of the High Court. The aforesaid appeal, therefore, fails and is dismissed. Consequently, we are not convinced that any order is required to be passed as prayed for in the application filed on behalf of Shri Bhagirath Agarwal under Section 340, Code of Criminal Procedure being I.A.No. 10/2006 and the same is also dismissed. Let a copy of this order in so far as it relates to Civil Appeal No.1015/2000 be communicated to the High Court.
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2006 (8) TMI 649
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... ... ..... date. 18.Claim for release of ₹ 24 crores to Group A I had directed deposit of this amount in the name of this Board only in view of the issues raised by both the groups. Since I have given my findings on the issues, there is no impediment in releasing this amount to Group A. Accordingly, I direct the State Bank of Patiala, in which this amount has been kept as deposit, to release the same together with accrued interest on of after 16th August, 2006 to Group A under the authority of this order. Group A will produce a copy of this order to the Bank indicating the bank account to which this amount is to be transferred and the bank will act accordingly. 19. If the parties desire that to oversee the timely implementation of the proposal dated 7.3.2000, an independent person should be appointed, I shall do so on filing of an application to that effect. Such a person shall be, preferably, a retired High Court Judge. 20.All the applications are disposed of in the above terms.
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2006 (8) TMI 648
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... ... ..... se of the powers under Section 402, I direct as under i. The allotment of 97,300 shares made in favour of the petitioner on 03.01.1998 is declared to be null and void and therefore, set aside. ii. The issue of shares made on 16.04.1998 as well as 24.12.1999 in favour of the third respondent is declared to be valid and binding on the Company. iii. The members of the Company are at liberty to appoint their own directors as they may deem fit and the board of directors so constituted will (a) manage the affairs of the Company in terms of the Memorandum of Association and Articles of Association of the Company; (b) attend to the grievances of the respondent Nos. 5 to 7 and other allottees; (c) take appropriate steps in realisation of the outstanding dues, if any, from the petitioner, allottees and any other person in accordance with due process of law. With the above directions, the company petition and the connected applications stand disposed of. All interim orders are vacated.
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2006 (8) TMI 647
Prayer for grant of specific performance of contract - piece of vacant land - application was filed u/s 10 - refund advance amount - damages together with interest - cancellation of the deed of sale in favour of the subsequent purchaser - High Court refusing to exercise their jurisdiction u/s 20 - HELD THAT:- It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities.
It was, therefore, not a case where the Trial Court found that the Defendant had committed a fraud on the statutory authorities or on the court. The expression 'fraud' in our opinion was improperly used. It must be noticed that admittedly when the agreement was entered into, the proceedings under the 1976 Act were pending. The parties might have proceeded under a misconception. It is also possible that the Defendant had made misrepresentation to the Plaintiff; but the question which was relevant for the purpose of determination of the dispute was as to whether having regard to the proceedings pending before the competent authority under the 1976 Act, the Defendant could perform their part of the contract. The answer thereto, having regard to the order of the competent authority dated 08.08.1980, must be rendered in negative.
Our attention has rightly been drawn by Mr. Gupta to the deed of sale executed by the Defendant in favour of others. By the said deeds of sale all the six co-sharers have sold portions of their house properties and lands appurtenant thereto. The total land sold to the purchasers by all the six co- sharers was below 900 sq. metres.
Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed. However, in the facts and circumstances of the case, the parties shall pay and bear their own costs.
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2006 (8) TMI 646
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... ... ..... correct in law in holding that the Commissioner of Income Tax (Appeals) had in fact reviewed its earlier order dated 29th January, 2003 while exercising jurisdiction under Section 154 of the Income Tax Act, 1961, which only permits rectification of error apparent on the face of the record?? Paper books be filed in accordance with the High Court Rules.
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2006 (8) TMI 645
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... ... ..... d. ( 45. ) In the result, the company application succeeds partly. There shall be an direction to re-adjudicate the claims of 21 workmen in accordance with law within a period of eight weeks from today. Thus, company application is made absolute in terms of prayer (b). The claim of the applicant union for payment of interest on Gratuity is rejected. So also the claim for bonus for the years 1994-95, 1995-96, 1996-97,. 1997-98. However, as far as Provident Fund contribution of the employer is concerned, the liquidator to take steps as directed above. There shall be no order as to costs. ( 46. ) In the light of the above discussion, it is not necessary to make a detailed reference to the decisions brought to my notice by Shri Engineer. In any event, I am in agreement with the learned Single Judge of Gujarat High Court insofar as his conclusion on payment of Bonus by the liquidator. The decision of Kerala High Court does not apply in the facts and circumstances of present case.
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2006 (8) TMI 644
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... ... ..... -C.E., dated 1-3-2003. Under this entry, all excisable goods (other than parts and accessories thereof) falling under Heading 90.18 of the CETA Schedule were chargeable to duty of excise at the rate of 8 . There is no dispute regarding the classification of the goods under the said Heading (90.18) but the description of the goods under S. No. 267 (A) in the Table annexed to Central Excise Notification No. 6/2002 is more specific than the one given under S. No. 43 in the Table annexed to Central Excise Notification No. 10/2003. Even otherwise, where there are two exemption Notifications applicable to a given goods, it is open to the assessee to choose the one of his choice. Therefore, we do not find any reason to interfere with the decision of learned Commissioner (Appeals) on the claim for refund of CVD. 4. For the reasons already noted, the impugned order is to be sustained and we do so. The Revenue’s appeal gets dismissed. (Dictated and pronounced in open Court)
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2006 (8) TMI 643
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... ... ..... r’s marking is ‘S-1’, the same as on the goods imported by M/s. Khurana Exports. The Customs authorities were, therefore, right in treating the two consignments as of identical goods and demanding duty based on the price of the supply to M/s. Khurana Exports. The price to M/s. Khurana Exports would be the best price as it is the manufacturer’s price to the first tier in trade, excluding trading margins. 5. The appellant’s contentions lack credibility completely. Misdeclaration of destination (Bangladesh) remains admitted though Customs needn’t have a grievance against this. Declaration regarding grade (Type-2) is no different, as truth is given away by the marking on the packing by the manufacturer. Thus, misdeclaration of grade and value remains clearly established. 6. In view of what is stated above, we find no reason to interfere with the impugned order. The appeal fails and is rejected. (Dictated and pronounced in open Court)
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2006 (8) TMI 642
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... ... ..... and subsequently further clause (a) was replaced by another clause (a), which is in clarificatory nature, with effect from 1.4.2003 ?” Admitted facts are that the appellant has filed return showing loss and the income is also assessed as “NIL Income”. When the return was shown as loss as well as the assessment of income is also NIL, no penalty under Section 271(1)(C) of the Income-tax Act is attracted. No case is made out for admission of the appeal. The appeal stands dismissed at admission stage.
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2006 (8) TMI 641
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... ... ..... ded from the impugned orders passed by the Chief Judicial Magistrate and the Government of Pondicherry. The District Registrar, Registration Department, Pondicherry is directed to register the Sale Certificate issued in favour of M/s. EID Parry India Limited, petitioner in W.P. No.6453 of 2006. M/s. New Horizon Sugar Mills Limited, petitioner in W.P. No.1897 of 2006, is directed to approach the Tribunal under Sec.17 of the SARFAESI Act, if they so desire, for refund of the excess amount alleged to have been retained by the Indian Bank. In so far as the other properties which are included in the impugned orders, it is open to the all parties concerned to approach the Designated Court under Act 1 of 2005 for appropriate reliefs. 47. Accordingly, C.R.P. No.1352 of 2005 and W.P.Nos.1897, 5389, 6453, 7076 and 9713 of 2006 are disposed of. W.P. Nos.8797, 8800 and 10052 of 2006 are dismissed. Interim orders, if any, shall stand vacated. Connected miscellaneous petitions are closed.
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2006 (8) TMI 640
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... ... ..... CIT v. Punjab Alkalies and Chemicals Ltd. 2006 30 Indian Taxation Reports 247 (Punj. & Har.) on a similar ground raised by the revenue. 14. In Veecumsees v. CIT 1996 220 ITR 1851 , the Hon’ble Supreme Court held that deduction for payment of interest on the loans raised for building a cinema theatre, which was ultimately closed, was allowable deduction as the assessee was engaged in a composite business of jewellery and cinema. The facts of the case are quite different with the facts of the present case. 15. Keeping in view the earlier judgment of this Court in Oswal Spg. & Wvg. Mills Ltd. (supra) and also the recent judgment of Calcutta High Court in JCT Ltd.’s case (supra), addition of proviso in section 36(1)(iii) of the Act, in our view, the question raised in the present appeal is required to be heard by a Larger Bench. 16. Accordingly, we direct that the papers be placed before the Hon’ble Acting Chief Justice for constituting a Larger Bench.
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2006 (8) TMI 639
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... ... ..... done, there is a clear violation of principles of natural justice. Ultimately, the matter may have to be remanded for de novo consideration. Prima facie, the appellants have a fair chance to succeed by a de novo order. It is also seen that on this very issue, the Commissioner of Central Excise & Service Tax, Chennai by his Order-in-Original No.2 & 3/2006 dated 24-2-2006 and 7/2006 dated 30-3-2006 has already decided this issue in assessee’s favour. As already noted there is a clear chance of appellants succeeding in the matter, therefore, the stay application is allowed unconditionally granting full waiver of pre-deposit and staying its recovery till the disposal of the appeal. Meanwhile, the learned JDR shall get para-wise comments from the Commissioner on the records and submissions made by the appellants. As the Revenue implication is very high, the matter has to be listed for out of turn hearing on 27th October 2006. (Pronounced and dictated in open Court)
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2006 (8) TMI 638
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... ... ..... hich the assessee wanted to set up was the business of running a hotel. It cannot be said that the new business was inter-connected or inter-dependent on the existing business of the assessee. There was a clear diversity or distinction of separateness with regard to the hotel business and the existing business of financing. We are, therefore, of the view that even the finance charges claimed by the assessee are not to be allowed as a deduction in the facts and circumstances. 18. As far as deduction of other expenses under section 37 is concerned, a combined reading of section 3, section 4(1), sections 28 and 37 of the Act makes it clear that the deduction can be claimed only after the business has commenced. Till such time the setting up of the new source of income, all expenses whether revenue or capital connected with setting up of such business would be capital expenditure and, therefore, not allowable as deduction. 19. In the result, the appeal of the Revenue is allowed.
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