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2008 (8) TMI 1008
... ... ... ... ..... endency of appeal reopens the issues decided and this Court is then scrutinizing the correctness of the decision in exercise of its appellate jurisdiction. 8. Considering the aforesaid proposition of law laid down by the Hon'ble Supreme Court, we are of the view that mere pendency of Special Leave Petitions will not amount to stay the operation of the impugned judgment. However, we give one more opportunity to the respondent-State to pursue their application for interim relief before Hon'ble the Supreme Court and to obtain appropriate order of stay. In the event, respondents fails to obtain appropriate order from the Hon'ble Supreme Court in Special Leave Petitions, we shall have no option but to pass appropriate order in accordance with law. 9. Granting sufficient time to the respondents to bring appropriate order from the Hon'ble Supreme Court, let this case be listed after four weeks. Put up this case along with W.P (T) Nos. 1030 of 2008 & 1031 of 2008.
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2008 (8) TMI 1007
... ... ... ... ..... when it was also not the premise of the claim before or order by the A.P.F. Commissioner also and when neither the A.P.F. Commissioner's order nor the P.F. Tribunal's order contain its reference. The aforesaid observations and discussion is only with a view to put on record that the contention was urged during the hearing and upon having considered the same, this Court is not inclined to find fault in the P.F. Tribunal's order on this count. Since, as mentioned earlier, the said contention was not raised before the P.F. Tribunal and it also does not appear to have been considered by A.P.F. Commissioner of the time of original order i.e. his order does not proceed or is not based on said document. 48. In the facts and circumstances of the present case, and on over all consideration of the matter, the challenge against the impugned order dated 26.07.2007 passed by the P.F. Tribunal fails. 49. Consequently the petition fails and the same is rejected. However no cost.
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2008 (8) TMI 1006
... ... ... ... ..... ce over a pledgee of goods. In Bank of Bihar vs. State of Bihar the principle has been recognised by this Court holding that the rights of the pawnee who has parted with money in favour of the pawnor on the security of the goods cannot be extinguished even by lawful seizure of goods by making money available to other creditors of the pawnor without the claim of the pawnee being first fully satisfied. Rashbehary Ghose states in Law of Mortgage (TLL, 7th Edn., p.386) It seems a government debt in India is not entitled to precedence over a prior secured debt. Consequently, I find that the Commercial Tax Department has absolutely no justification or jurisdiction to order the attachment and sealing of the property of the petitioner, which had been purchased by it from M. P.F.C. The present petition is thus allowed and the notice dated January 30, 2002 issued by the Commercial Tax Department, Annexure P-7 against the petitioner and the seizure memo, Annexure P-8 are hereby quashed.
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2008 (8) TMI 1005
... ... ... ... ..... t of revenue. In this case we are of the view that as per the above decision of the Hon'ble Apex Court the view of the A.O. cannot be said to be erroneous and, therefore, the assessment order dated 21- 11-2006 cannot be modified u/s 263. Similar view has been taken by us in the case of M/s. R.B.A. Finance Co. (supra)." In these circumstances, we do not find that there is any error in the order so passed by the learned Tribunal. We also do not find that there is any illegality in the order so passed by the learned Tribunal relying upon the decision of the Hon'ble Supreme Court reported in 82 ITR 586 (SC). Therefore, we do not find any substantial question of law involved in this appeal. Hence the appeal is dismissed. All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2008 (8) TMI 1004
... ... ... ... ..... fact recorded by the Assessing officer which is not based on material documentary evidence available on record. Therefore the finding of the Appellant Authorities are erroneous in law for non-consideration of the material evidence in justification of the findings of the assessing officer in rejecting the claim of the assessee. 16. The request made by the learned counsel Sri. Amit Kumar Deshpande on behalf of Sri. A. Shankar is for remand of the matter to the Assessing officer, as he has not considered the material evidence on record. In view of our foregoing reasons on the substantial question in favour of the revenue, there is no need for us to remand the case to the Assessing Officer for his re-consideration 17. For the aforesaid reasons the substantial question of law would arise and the same is answered in favour of the revenue. We allow the appeal by setting aside the impugned order passed by both the Appellate Authorities and restore the order of the Assessing Officer.
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2008 (8) TMI 1003
... ... ... ... ..... read with 471 and 120B IPC in Crime No. 70 of 2006. Another case pertains to Crime No. 364 of 2007 registered under Sections 420, 465, 466, 467, 468 read with 471 and 120B IPC. The facts of these cases have been carefully examined and even assuming the allegations of these cases as true, even then by no stretch of imagination, the offences committed by the detenu can be called prejudicial to public order. The detenu can be dealt with under the ordinary criminal law if it becomes imperative. 33. In this view of the matter, the detention order passed against the detenu is illegal, unsustainable and liable to be quashed and we accordingly do so. Since we are quashing the detention order on the threshold submission of the detenu, therefore, it is not necessary to examine other submissions advanced by the detenu. The detention order is accordingly quashed. The detenu be set at liberty forthwith, if not required in any other case. The appeal is accordingly allowed and disposed of.
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2008 (8) TMI 1002
... ... ... ... ..... ty five lakhs with the Nigam. Out of this, Rupees twelve lakhs and fifty thousand shall be deposited within three months and the balance amount shall be deposited within three months thereafter. Accordingly, the appeal is allowed in-part and the impugned order is modified by directing that the stay granted by the High Court shall remain operative if Respondent No. 1 deposits Rupees twelve lakhs and fifty thousand within three months and the remaining amount within three months thereafter. If Respondent No. 1 fails to deposit either of the instalments, the stay order passed by the High Court shall stand automatically vacated and it will be open to the Appellant-Nigam to disconnect the supply of electricity forthwith. So far as the current electricity charges are concerned, Respondent No. 1 shall deposit the same within the time permissible under the law and, in case it fails to do so, the Nigam would be at liberty to disconnect the supply of electricity. Appeal partly allowed.
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2008 (8) TMI 1001
... ... ... ... ..... am non-judice and the provisions of Section 60 of the Act have been held to be mandatory and not directory in nature, unlike the ratio of judgment in Montreal Street Railway Company's case rendered by Privy Council in a similar situation, the inescapable consequence would be to set aside the impugned award and remit all these cases to a properly constituted Tribunal in terms of Section 60 of the Act. 6. Thus, we set aside the impugned award and remit all these cases for a fresh consideration. In case the Tribunal has not been constituted in terms of Section 60, we direct the State Government to constitute such a Tribunal within a period of two months from the date of receiving a copy of this order. The Tribunal shall decide and dispose of all these matters within a period of four months thereafter. All these writ petitions are, thus, disposed of with the aforesaid directions. Concerned Assistant Registrar to place photocopies of this order in the files of concerned cases.
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2008 (8) TMI 1000
... ... ... ... ..... n Officer. In the present case the issue is as to whether the Departmental valuer's report constitutes information for the purpose of completed assessment. 20. The aforesaid discussion lead us to conclude that the Valuation Officer's report do not constitute information for reopening of a completed assessment and accordingly, answer to the first question at the instance of the assessee is in the negative, in favour of the assessee and against the revenue and it is held that the tribunal was not right in holding that the Valuation Officers' report constitute information for the purpose of reopening of the completed assessment by seeking resort to Section 148 of the Act. 21. In view of our answer to the aforesaid question the other questions referred to us at the instance of the revenue as also the assessee are rendered academic. 22. Let our opinion be forwarded to the Patna Bench of the Income Tax Appellate Tribunal, Patna. Tax cases stand disposed off accordingly.
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2008 (8) TMI 999
... ... ... ... ..... e case personalty in his individual capacity as such presentation of complaint by agent or power of attorney does not vitiate the proceedings. But in the present case granting liberty to the complainant to seek permission to prosecute the case through power of attorney or to opt to prosecute the case personally would not serve any purpose. Since offence under Section 138 of the Negotiable Instrument Act is punishable with two years imprisonment and as such cognizance will have to be taken within three years which period cannot be extended condoning the delay in taking cognizance as such the following order. 10. The petition is allowed. The order of issue of process for the offence under Section 138 of the Negotiable Instrument Act is set aside. The entire proceedings are quashed. 11. The assistance rendered by Sri F.V. Patil, appointed as Amicus Curiae is placed on record and his fee is fixed at ₹ 5,000/-(Rupees Five Thousand only) which shall be paid by the Government.
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2008 (8) TMI 998
... ... ... ... ..... tion 25(4), i.e., in cases of orders passed in "post-grant opposition". Therefore, there is no point in transferring the pending FAO No. 292/06 and FAO No. 293/06 to the Appellate Board which has no authority to decide matters concerning "pre-grant opposition". Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No. 292/06 and FAO No. 293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in "pre-grant opposition" proceedings. 25. Accordingly, the two Civil Appeals, filed by the appellant herein, stand disposed of with no order as to costs.
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2008 (8) TMI 997
... ... ... ... ..... ate which was produced in support of the claim shows that the benefit has not been transferred to the customers mentioning not only credit notes but also cheques issued to the customers. In this view of the matter, we see no reason to interfere. Appeal is, therefore, rejected.
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2008 (8) TMI 996
... ... ... ... ..... er and above the limits prescribed in the Companies Act, 1956 could not even be construed as salary so as to fall within the fold of taxation under Section 15 of the IT Act, 1961. The Tribunal confirmed the conclusion of the CIT(A) that the amount of ₹ 10,17,112 was not assessable as an income. 7. We have heard the counsel for the parties and have examined the facts as well as the legal position in detail and we find that the Tribunal has rightly confirmed the finding returned by the CIT(A). Both the said authorities have returned a finding of fact that the refund of ₹ 10,17,112 was neither voluntary nor was it for any extraneous consideration and that the refund was made merely with a-view to comply with the provisions of the Companies Act, 1956. 8. In these circumstances, the view sought to be canvassed by the Revenue cannot be accepted and was rightly rejected by the Tribunal. No substantial question of law arises for our consideration. The appeal is dismissed.
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2008 (8) TMI 995
... ... ... ... ..... onsidered by the Tribunal, in our opinion, is not proper because that judgment though interprets the term “industrial undertaking” it interprets the term “industrial undertaking” found in sub-section (1) of Section 32A of the Income Tax Act. For the purpose of section 35D of the Act that judgment is not relevant. In our opinion, in so far as interpretation of the term “industrial undertaking” found in section 35D of the Act is concerned, the tribunal has rightly considered the meaning of the term “industrial undertaking” common parlance. We see no question of law arising. The appeal is, therefore, rejected.
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2008 (8) TMI 994
... ... ... ... ..... ority. The tax, as we find, has been imposed in the light of the decision of Gannon Dunkerly (supra). 11. From the discussions made above, the irresistible conclusion is that the sales tax has been levied in the orders of assessment in respect of the amount received pertaining to items of work completed during the financial year. The clarification in Annexure-1, which unilaterally takes away the claim of the petitioner for reimbursement, is contrary to Clause-45.2 of the General Conditions of Contract and Section 5(2)(AA) of the Orissa Sales Tax Act as well as the decision of the apex Court in Gannon Dunkerly (supra). Accordingly, the clarification letter dated 7.11.2001 (Annexure-1) issued by the Financial Adviser-cum-Additional Secretary to Government, Department of Water Resources is quashed and the O.Ps. are directed to grant appropriate reimbursement in terms of Clause-45.2 of the General Conditions of Contract, as claimed by the petitioner. R.N. Biswal, J. 12. I agree.
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2008 (8) TMI 993
... ... ... ... ..... d by the decision of this Court in the case of Suvidhe Limited v. Union of India 1996 (82) E.L.T. 177 (Bom.) . No question of law arises in this appeal. Hence, rejected.
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2008 (8) TMI 992
... ... ... ... ..... BIKANER & ORS. In that view of the matter, this appeal is also allowed for the same reasons, and the matter is sent back to the learned Tribunal, for deciding the matter afresh, keeping in view the observations and directions, given in aforesaid judgment dated 03.7.2008.
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2008 (8) TMI 991
... ... ... ... ..... s no indication of a different legislative intent. If we apply the above principle to Section 3(g), the definition clause 3(g) has not enumerated any specific category. The subject of the enumeration is also not constituted a class or category. The class or category, if any, is exhausted by the enumeration. There is a specific indication about the legislative intent by means of a declaration under Section 2. Hence, the application of principle of ejusdem generis to understand the meaning of the expression "for providing any other amenity for the benefit of Harijans" cannot be legally sustained. 25. For the foregoing reasons, the order passed by the learned single Judge dated 17.2.2003 made in W.P.Nos.5881 and 5882 of 2000 is hereby set aside and the writ appeals are allowed and writ petitions are dismissed. However, there is no order as to costs. Consequently, the connected W.A.M.Ps are closed. usk To The District Collector, Tiruchirappalli District, Tiruchirappalli
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2008 (8) TMI 990
... ... ... ... ..... pt the contention in this regard. Firstly, it is an interim order, a prima facie view taken in the matter and secondly, such an order is not binding upon this Bench while deciding the matter finally. In any case, we are not persuaded to take similar view in the matter. The case put forth before the Court has to be decided on the basis of the materials on record and the law applicable thereto. We cannot be allowed to be swayed away by emotions and the theory of ifs and but. The judicial decision has to be based on the facts placed before the Court, the issues which arise in the matter and the law relevant for deciding such issues. We have not been persuaded in any manner to take the similar view which was taken by the Division Bench while passing the impugned order. 45. In the facts and circumstances of the case, therefore, we find no case is made out for interference in writ jurisdiction, and hence the petition fails and is hereby dismissed. The rule is discharged with costs.
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2008 (8) TMI 989
... ... ... ... ..... 7(1)(b) of the said Act but also u/s 7(1)(a) of the said Act. Since the authorities have properly explained the delay that has occurred (and not caused) in execution of the detention order and since the detenu has miserably failed to prove that though the detenu was available for being served with the detention order, the said authorities have not acted promptly, we find no reason to interfere with the detention order. 24. Inasmuch as the contention of the petitioner that no efforts were made for cancellation of the bail granted to the detenu on 11th November 2005 and that therefore, the detention order is liable to be set aside is concerned, an identical contention has been rejected by the Division Bench of this Court in the case of Smt. Poonam Rajeev Pathak (paragraph 11) (supra). We are in respectful agreement with the same. 25. No other point was pressed and/or argued on behalf of the petitioner. 26. This Writ Petition is accordingly dismissed and the rule is discharged.
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