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Showing 21 to 40 of 623 Records
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2007 (1) TMI 632
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... ... ..... o be deposited is, therefore, a sum of ₹ 83,987/-. We are further informed that certified copy of the impugned order has been filed. The certified copy of the judgment and decree may also be filed. 12. In the aforementioned situation, we are of the opinion that interest of justice would be met if we direct the writ petition to be converted into a first appeal. The respondents may file certified copy of the judgment and decree. Deficit court fee, if any, should also be paid by the respondents. Filing of such certified copy and deposit of court fee, if any, must be completed within eight weeks from date. Indisputably, it would be open to the appellant to raise the contention that it was a fit case where the learned Civil Judge could have granted leave to defend the suit. All the contentions of the parties shall, however, remain open. 13. For the reasons aforementioned, the impugned judgment is set aside. This appeal is allowed with the aforementioned directions. No costs.
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2007 (1) TMI 631
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... ... ..... n with the brokerage or delivery brokerage received from the sub-broker. Under the Security Contracts Regulation Act, 1956 the stock broker is registered with the recognized stock exchange and the stock broker is liable to pay certain amounts as fee. 3. The contention of the Revenue is that the applicant is receiving this amount from their customers, therefore, it is brokerage or delivery brokerage, therefore, the applicant is liable to pay Service tax on this amount also. 4. We find that the applicants were separately showing the turn over tax in the contract note issued to the clients as turnover tax and this is to be deposited with the recognized stock exchange where the applicant has registered and is not part of brokerage. In these circumstances, we find, prima facie, the applicant had a strong case in their favour, therefore, pre-deposit of the amount of Service tax and penalties are waived. The stay petition is allowed. (Dictated and pronounced in open Court)
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2007 (1) TMI 630
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... ... ..... of the present case. In the present case as well there is allegation of running rival firm, interference with the smooth administration of the firm. As already stated since the suit has been filed for declaration to declare that the revision petitioner is not a partner with effect from 18.11.2005 and for consequential injunction restraining the petitioner from disturbing the smooth functioning of the first respondent firm, the issue relates to the causes which compelled the respondents to expel the revision petitioner from the partnership firm and the necessity to reconstitute the firm by entering into a fresh partnership deed. Therefore such issues involves detailed evidence which could be done only by a civil court. Under these circumstances, I do not find any illegality or irregularity in dismissing the Interlocutory Application by the learned Trial Judge. 10. In the result, this CRP is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.
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2007 (1) TMI 629
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... ... ..... ven an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some material implicating the accused, and cognizance cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of people. No doubt, it has been alleged in the complaint that the wife of the deceased was having an affair with accused No. 2, but this itself is only a suspicion and cannot be the basis of a conviction. Similarly, the fact that the in-laws of the deceased did not take part in his cremation is not evidence to show their guilt. In our opinion, since there is no material on the basis of which cognizance was taken, we quash the order dated 12.4.2005 taking cognizance of the offence. Resultantly, the impugned judgment of the High Court is set aside and the appeal is allowed.
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2007 (1) TMI 628
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... ... ..... the case. What is the nature of the land and what are the terms of the auction have not been disclosed by the respondents either in the Writ Petition or before us. The recital in the sale deed relied on, does not enable us to uphold this plea or to find any substance in it. The new plea sought to be put forward in the written submissions is a plea which has to be established on the facts to be proved and in the absence of relevant pleadings cannot be upheld. This question cannot also be decided in the absence of the Jaipur Development Authority. We therefore do not find any merit in the new contention sought to be put forward after the hearing was concluded. We overrule the said contention. 18. For the reasons stated above, we allow this appeal and setting aside the decisions of the Division Bench and that of the Single Judge, dismiss the writ petition filed by the respondents. However, in the circumstances, we direct the parties to suffer their respective costs through out.
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2007 (1) TMI 627
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... ... ..... of account between the assessee and his agent cannot affect the nature of transaction from real to speculative. In such event actual payment or receipt is merely a convenient mode of settling the account, distinct from settling the transaction. 11. In these circumstances, it must be held that Tribunal has seriously erred in law in holding that the transactions in question are speculative transactions and considering the loss arising therefrom as speculative loss. 12. Since on true interpretation of section 43(5) the transaction in question must be held to be non-speculative, loss arising therefrom is liable to be set off against profits and gains arising from the regular business of the assessee in ordinary course. As a result. the appeal is allowed; the orders passed by the Tribunal, CIT(A) and AO are set aside. The AO is directed to recompute the profits and gains of business by considering the loss in question to be business loss and make assessment accordingly. No costs.
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2007 (1) TMI 626
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... ... ..... no finding as such, about these documents. These documents have to be brought on record and a finding is to be arrived at after hearing the submissions of exporters. The case law cited in respect of them by the exporters shall be considered by the adjudicator as to their applicability and implication. 23. With the aforesaid observations Devengere Cotton Mills Ltd. v. Commissioner of Central Excise - 2006 (198) E.L.T. 482 (S.C.) , I would concur with the findings reached by the ld. Member (J) and answer the reference accordingly. (Pronounced in court on 8-1-2007) Sd/- T. Anjaneyulu Member (J) Majority Order The appeals of M/s. P.A. International, Ashok Rajani, Blend Syntec, Rajkumar Hasija, M/s. Sharan Exports, M/s. Santosh Textile (Appeal Nos. C/903 to 905/02, C/926 to 928/02) are allowed and the appeals filed by the Revenue (Apoeal Nos. C/247 to 262/03) are dismissed. (Pronounced in Court on 12-1-2007) Sd/- K.K. Agarwal Member (T) Sd/- Jyoti Balasundaram Vice President
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2007 (1) TMI 625
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... ... ..... #8377; 1,68,442/- u/s. 78 of the Finance Act, 1944 (sic) (1994). There is no dispute about the demand of duty. The Commissioner (Appeals) taking the submissions into account came to the conclusion that there was a reasonable ground for the failure on their part for non-submission of Return of Service Tax and delay in payment of Service Tax and, therefore, under the provisions of Section 80 of the Service Tax Act (sic) (Finance Act, 1994), they are entitled for waiver of penalty. He has clearly held that there was no evidence of intention to evade Service Tax in the present case. Accordingly he set aside the penalty imposed under Sections 77 and 78 of the Finance Act. He reduced the penalty imposed u/s. 76 to ₹ 25,000/- from ₹ 1,68,442/-. 4. The department has not adduced valid grounds for enhancement of penalty than what has been upheld by the Commissioner (Appeals). 5. Accordingly appeal by the Department is rejected. (Dictated and pronounced in Court)
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2007 (1) TMI 624
Application of the doctrine of prospective overruling in service matters - Government of Kerala framed rules for the employees of Kerala Government Presses Subordinate Services - Government order, rule framed amended prescribing a ratio of 1 : 1 for the purpose of promotion between diploma-holders and certificate- holders - whether the law declared by the Full Bench would have a prospective operation or not - HELD THAT:- The conflict in the decisions was noticed and eventually referred to a Full Bench in the Subaida Beevi [2004 (11) TMI 623 - KERALA HIGH COURT] by another Division Bench of the said Court. By a judgment dated 04.11.2004, the Full Bench held that the amended special rules for the Government Presses Subordinate Services Rules were not suffering from any infirmity and fixation of ratio of 1 : 1 for promotion to higher posts between diploma-holders and certificate-holders needs no interference.
The Full Bench of the High Court indisputably did not say that the promotions which had already been granted would not be disturbed. The judgment of the Full Bench attained finality as special leave petition filed thereagainst was dismissed. Rules as amended by the State of Kerala on 01.07.1980 and 30.08.1984 were upheld.
The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab[1967 (2) TMI 95 - SUPREME COURT] and Anr. In Managing Director, ECIL, Hyderabad and Ors., v. B. Karunakar and Ors.[1993 (10) TMI 310 - SUPREME COURT], the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases.
In service matters, this Court on a number of occasions have passed orders on equitable consideration. But the same would not mean that whenever a law is declared, it will have an effect only because it has taken a different view from the earlier one. In those cases it is categorically stated that it would have prospective operation.
Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf.
We, therefore, do not find any merit in these appeals, which are dismissed accordingly.
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2007 (1) TMI 623
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... ... ..... he State Government of U.P. has filed Special Leave Petition before this Court questioning the correctness of the orders passed by the High Court for the leave of this Court. The impugned judgment of the High Court suffers from the error of complete non-application of mind on the merits of the case in as much as whole pleadings either before the Commissioner and before the High Court was that the payment of ex-gratia to the employees are against the objects of the society and it is in contravention of the provisions of the U.P. Act, 1947, rules and regulations, we have no other option to set aside the same and allow both the appeals filed by the bank as well as the State of U.P. as already indicated in the paragraphs above. The payments already made need not be recovered at this distance of time from the employees of the bank. However we make it clear that the employees are not entitled to ex-gratia payment from now onwards. In the facts and circumstances, we order no costs.
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2007 (1) TMI 622
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... ... ..... tion 11A(1) ofthe Central Excise Act, 1944 ? 2) Whether in the facts and in the circumstances, the CESTAT erred in demanding duty both from the appellant (M/s.Shansuk Industries) and also M/s.Shankar Products after holding that the clearances of both the units are to be clubbed, contrary to the decision of Supreme Court in Gajanan Fabrics Distributors 1997 (92) E.L.T. 451 (S.C.) 2. Learned counsel for the appellant categorically states that the substantial question shown at (f) is not pressed. 3. Place the matter on board for hearing on 15th February, 2007.
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2007 (1) TMI 621
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... ... ..... se would be served in not accepting the highest offer made by R-3 when reserve price has been fixed by the KSFC after obtaining the report from the valuers of the organization. of the Government of Karnataka for ₹ 450 lacs and when R-3 has offered ₹ 700 Iacs excluding the dues payable to KIADB and KEB in respect of leasehold rights, this court is of the opinion that the offer made by has to be accepted and sale has to be confirmed in favour of R-3. 7. Accordingly, CA 1719/2006 filed by KSFC is allowed. KSFC is permitted to hand over possession to R-3 by executing necessary docments in favour of R-3 at. its costs and CA 18/07 allowed in part by permitting the applicant therein to come on record over-ruling his objections in regard to confirm the sale in favour of R-3. 8. As per para-4 of the order dated 14.7 .2006 passed in CA 934/04, this court directed the KSFC to deposit the sale proceeds with the OL within 7 days from today. OL is directed to file his report .
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2007 (1) TMI 620
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... ... ..... y Condoned. Heard. The Civil Appeals are dismissed.
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2007 (1) TMI 619
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... ... ..... te of ₹ 28.80 per share or the fair price determined by the valuer which ever is higher. This will not apply to 155 million shares, the price of which will be only ₹ 10 per share. 20. In case GoWB/WBIDC exercise the option as above to acquire the shares of the petitioners, the petitioners shall be bound to sell their shares and WBIDC/GoWB shall pay the consideration within 45 days of exercise of option and shall be bound by the stipulation in clause 15 above. 21. Liberty is given to apply in case of any difficulty in implementing the above terms. 103. Before parting with this order, I must place on record the excellent manner in which the Senior Counsel appearing for the parties assisted me with their cogent and erudite arguments referring to various documents scattered in various volumes and also by referring to various decided cases. 104. The petition is disposed of in the above terms, reserving the right to appoint a valuer and giving consequential directions.
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2007 (1) TMI 618
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... ... ..... 8377; 20 lakhs as upfront payment which the petitioner has justifiably refused to accept. There will be an order in terms of prayer (a) of the petition. JMB Medicare Ltd. is directed to be wound up in accordance with the provisions of the Companies Act, 1956. The official liquidator shall forthwith take possession of all the assets and properties of the company and take control of all transactions involving the company. 18. Since the company has been directed to be wound up, the application for appointment of a provisional liquidator becomes meaningless and the same is disposed of without any order. The company seeks a stay of operation of the order. There will be an unconditional order of stay till Friday next. If by next Friday a sum of ₹ 50 lakhs is deposited with the official liquidator, the order of stay will continue for a period of two weeks thereafter. Urgent photostat certified copy be issued to the parties, if all formalities in that regard are complied with.
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2007 (1) TMI 617
2006 (8) TMI 123 - PUNJAB AND HARYANA High Court ... ... ... ... ..... a Jha, Adv., Mr. Rahul Gupta, Adv., Ms. Reema Sharma, Adv. ORDER Leave granted. Original records be requisitioned. Issue notice on the prayer for interim relief.
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2007 (1) TMI 616
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... ... ..... ntral Excise in the name of Ansul Industries was done in 1995 as per certificate dated 20th March, 1995. Similarly, the certificate issued by Central Excise in favour of Anand Kumar Bansal, proprietor Bansal Tobacco Store is dated 1992. Prima facie, therefore, it appears that the Respondent is not guilty of deliberate concealment of facts and mis-statement. 71. In view of the above findings the present Appeal is dismissed. However, the Appellant is granted three months time to comply with the injunction Order passed by the learned Trial Court and dispose of its pending stock/wrappers, etc. 72. It is also clarified that the observations made in this Order are tentative and based on prima facie view taken by this Court. Learned Trial Court will dispose of the Suit on the basis of evidence adduced by the parties and without being influenced by any of the observations on facts made in this Order. 73. In the facts and circumstances of the case, there will be no order as to costs.
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2007 (1) TMI 615
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... ... ..... s case, Therefore, the judgment of Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories 1965 1SCR737 and the case of Johnson and Johnson and Anr. v. Christine Hoden India (P) Ltd. and Anr. 1988 PTC 39 cited by the defendants would have no application. 28. The consequence of aforesaid discussion would be to confirm the ex-parte injunction granted on 9.3.2005. Resultantly, IA, 1854/2005 moved by the plaintiff is allowed and order dated 9.3.2005 is made absolute till the disposal of the suit and IA.2761/2005 preferred by the defendant is hereby dismissed. However, it will not preclude the defendant to suitably modify the trademark and also the manner in which the words are written so that they are not similar or deceptively similar or confusing. 29. CS (OS) No. 309 of 2005. Pleadings are complete. List before the Joint Registrar for admission/denial of documents on 26.02.2007 and before Court for framing of issues on 26.03.2007.
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2007 (1) TMI 614
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... ... ..... ms are that he who seeks equity must do equity and he who comes into equity must come with clean hands. " There have been allegations and counter allegations. Considering the argument of the parties, and in view of the facts and circumstances of this case, I find that it is intact, the conduct of the respondents which has been detrimental to the intent of the company and its shareholders including the petitioners. Respondents cannot take advantage of their own wrongs. 8. In view of the foregoing, considering the inter se disputes between the parties, the two sets of Annual returns and uncontroverted averments and affidavits of the petitioners and Shri V.K. Sehgal, the only inference possible is that the petitioners are shareholders in the respondent company and that they have proved their case. Therefore, Company Petition No. 69/2003 is hereby allowed. The petitioners are entitled to relief sought at item 1 and 2 at para 8 at page 9 of the petition. No order as to cost.
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2007 (1) TMI 613
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... ... ..... nal Procedure Code is clearly warranted to quash and set aside the order of issue of process against this accused No. 4-applicant, in the relevant complaint case. 26. Therefore, the orders of issue of process against this applicant in Criminal Complaint Case No. 676/97, 677/97, 679/97 passed by learned Judicial Magistrate, First Class, Special Court are hereby quashed and set aside, so also the order passed by the learned Ad hoc Additional District Judge in Criminal Revision No. 408/2006,409/2006 and 410/2006 is hereby quashed and set aside. 27. In the circumstances of the case, learned Magistrate is directed to expedite the trial of rest of the accused by conducting the same on day to day basis. 28. It is also made clear that this order shall not prevent the trial Court from taking cognizance of any offence, noticed to have been committed by this applicant, under Section 319 of Criminal Procedure Code during the course of trial. Rule is made absolute in the aforesaid terms.
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