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2008 (9) TMI 1039
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... ... ..... fidavit to the trial court and also state on affidavit that he would not undertake a foreign visit on the effective dates of hearing in the trial court i.e. when the evidence in this case is being recorded. 8. In view of the aforesaid relief being granted to the petitioner, learned Counsels for the petitioner do not and cannot have any possible objection to the enhancement of the surety bond amount to Rupees one crore. Meaning thereby, a bond of Rupees one crore would be furnished by the petitioner to be trial court within three weeks from today and in any case, before the petitioner proceeds on a visit abroad and the said bond would be kept alive during the trial of this case. This will take care of the apprehension of the CBI expressed in this matter. Liberty is granted to the respondent to get this order revoked in the event of petitioner failing to comply with this order at any point of time during the trial. 9. These three petitions stand disposed in the aforesaid terms.
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2008 (9) TMI 1038
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... ... ..... that there is no scope for filing an appeal. In that case, there is no question of a decision of this Court on the point being rendered. Obviously, the Assessee will not file an appeal questioning the view expressed vis- -vis the circular. It has to be the revenue authority who has to question that. To lay content with the circular would mean that the valuable right of challenge would be denied to him and there would be no scope for adjudication by the High Court or the Supreme Court. That would be against very concept of majesty of law declared by this Court and the binding effect in terms of Article 141 of the Constitution. The reference is accordingly answered holding that the correct view has been expressed by Kalyani's case (supra) as noted in the reference order. The appeals filed by the revenue are allowed while those filed by the Assessee stand dismissed. K.G. Balakrishnan, C.J.I. I agree. H.S. Bedi, J. I agree. P. Sathasivam, J. I agree. J.M. Panchal, J. I agree.
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2008 (9) TMI 1037
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... ... ..... e purpose of completing the departmental proceedings. His entitlements, if any, would be adjudicated by the authorities depending upon the result of the disciplinary proceedings. 8. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. There shall not be any reinstatement but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced. 9. Learned Counsel for the writ petitioner-respondent submitted that he has already retired and, therefore, he is not interested in pursuing the remedy. He may be given the chance of moving the authorities for varying the order of termination to one of compulsory retirement. If any representation in this regard is made to the concerned authority, the same shall be considered in its proper perspective. We express no opinion in that regard. 10. The appeal is allowed to the aforesaid extent.
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2008 (9) TMI 1036
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... ... ..... Delay condoned. The Civil Appeal is dismissed on facts.
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2008 (9) TMI 1035
The appeal is admitted - substantial question of law framed for adjudication.
... ... ... ... ..... Appellate Tribunal is correct in directing allowance of deduction under section 80HHD of the Income Tax Act, 1961, with reference to the receipts of the approved hotel instead of proportion of the foreign exchange earnings to the profit and total turn over of the assessee? 10. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is correct in holding that the self assessment tax paid was to be deducted from the tax payable as per the assessment order for the purposes of calculating interest payable under section 234A of the Income Tax Act, 1961, though the section does not provide therefor? 3. Let the Paper Book be filed within 8 weeks from date. Let the appeal be listed for hearing 12 weeks hence. 4. All parties concerned are to act on a xerox signed copy of this order on the usual undertakings. 5. 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 (9) TMI 1034
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... ... ..... learned counsel for the revenue on the judgment of the Supreme Court in the case of Asian Paints (India) Limited Vs. Collector of Central Excise, Bombay reported in 2002 (142) E.L.T. 522 (S.C.) is misplaced considering the judgment of the Special Bench which was appointed by the Hon ble Supreme Court in that case. Hence, the appeal is rejected.
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2008 (9) TMI 1033
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... ... ..... l, he did not inform his client, i.e. the petitioner, about this. It is noteworthy that as soon as it came to the petitioner's knowledge that the said award has been passed against it, steps were taken by it to get all the relevant records of the cases from its counsel. In addition, the petitioner even filed a complaint against its counsel with the Bar Council of India. 14. Under the circumstances, I am of the opinion that the petitioner should not be made to suffer for the inaction and negligence of the petitioner's counsel. It deserves to be given a fair opportunity to present and defend its case. 15. Consequently, impugned award dated 3.3.2006 in ID No.145/2005 is set aside, the matter is remanded to the Labour Court for decision afresh after issuing the requisite notice to all parties and proceeding with the matter de novo from there. The Labour Court is directed to deal with and decide the matter within six months from today. 16. The writ petition is disposed of.
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2008 (9) TMI 1032
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... ... ..... the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal 1989CriLJ288 . 41. The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police 2003CriLJ3705. 42. In the present case, though the judgment is not happily worded and some of the reasonings are not legally supportable but the ultimate conclusion is a possible view. That being so, we decline to interfere in this appeal which is dismissed. The bail bond executed in the present case by the respondent shall stand discharged.
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2008 (9) TMI 1031
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... ... ..... vi) The direction issued by the Competent Authority that the respondent is at liberty to appropriate the amount of security deposit towards the arrears of damages is also upheld and confirmed by this order. (vii) Petition disposed of on the above terms with costs. 15. At this stage, counsel for the petitioner submits on instructions that petitioners are inclined to carry the matter in appeal before the Apex Court. For that purpose, it is requested that the possession of the petitioners be protected. There is no difficulty in accepting this request. However, the same is acceeded on condition that the petitioners shall deposit the entire arrears in terms of this order in this court within four weeks from today. It is ordered that the possession of the petitioners shall not be disturbed in respect of the suit premises till 24th October 2008 subject to petitioners filing usual undertaking in this court within two weeks from today and comply with the order of deposit as aforesaid.
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2008 (9) TMI 1030
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... ... ..... ferent from those manufactured earlier by such undertaking in case of units undertaking diversification, and (ii)manufactured in excess of base production in such undertaking in case of units undertaking expansion or modernisation. Though the petitioner has made an effort to set up the case of diversification but from the facts of the case, it is very much obvious that he had already been manufacturing cork of cold drinks, technical name of which is 'spum line crown cork' whereas now by the modern machines 'double lip dry blend crown' is being manufactured and use of both produces is the same as they are used for the purpose of packing the bottles of cold drinks. The modernisation of machines and equipments for the purpose of production of goods unless the produced goods are different, does not make out the case for granting eligibility certificate. Under the circumstances, I do not find any error in the order passed by the Tribunal. The revision is dismissed.
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2008 (9) TMI 1029
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... ... ..... ssessee is entitled for the deduction u/s 36(1) (iii) on the basis of provisions of law as laid down by the Hon'ble Supreme Curt in the case of S.A. Builders 288 ITR (SC).” 9. Thus, it is apparent that the Tribunal has dealt with alternative contention raised by the respondent assessee and applying the settled legal position as regards applicability of Section 36(1)(iii) of the Act allowed the appeal. 10. The factors urged by the appellant - revenue may have material bearing in relation to claim u/s 57(iii) of the Act. The tribunal not having granted deduction under the said provision those factors lose their significance when the Tribunal considers allowability of deduction of the claim u/s 36(1) (iii) of the Act. In fact there is nothing on record to point out that the transaction was not governed by the principle of commercial expediency. 11. In the circumstances, in absence of any question of law, much less a substantial question of law, the appeal is dismissed.
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2008 (9) TMI 1028
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... ... ..... . and since the suit relates to questions of difficulty and importance, the same are not to be dealt within the Application to revoke the leave, under Clause 12 of the Letters Patent and in that view of the matter, we set aside the impugned order dated 5.9.2007 passed by the learned single Judge in Application No. 6025 of 2007 in Civil Suit No. 798 of 2006, and resultantly, this Original Side Appeal filed by the Appellant/Plaintiff, it allowed, leaving it open for the parties to bear their own respective costs. 49. We also opine that since the suit (Civil Suit No. 798) is of the year 2006 and considering the nature of controversies involved in the case, it is fit and proper for the parties to work out their remedies in the main suit in C.S. No. 798 of 2006 conclusively, wherein, they can lead oral and documentary evidence to substantiate their case, and thrash out the matter in its entirety, enabling the Court to hear the said Suit finally and to render its findings on merits
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2008 (9) TMI 1027
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... ... ..... hra, Adv., Mr. Ankur Saigal, Adv., Ms. Bina Gupta, Adv., Mr. Ananya Kumar, Adv., Mr. Somasekhar Sundres an, Adv. For Respondent None. ORDER The Civil Appeal is dismissed.
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2008 (9) TMI 1026
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... ... ..... of Civil Procedure by Amending Act of 2002 with effect from 1st July, 2002, no Letters Patent Appeal would be maintainable against the judgment rendered by the learned Single Judge of the High Court under the provision of Section 173 of the Motor Vehicles Act, 1988. (b) Appeal against the judgment of the learned Single Judge in exercise of its appellate jurisdiction under Section 173 of the Motor Vehicles Act, 1988 even with the aid of Clause 15 of the Letters Patent is not maintainable, and in fact, in both these situations, the Appellate Court would have no jurisdiction to entertain and decide such an appeal. 117. Having answered the above questions of law, and in view of the fact that the Appeals themselves have been placed for decision before this Bench, we have no hesitation in holding that these appeals are not maintainable. Consequently, both these Appeals are dismissed. However, in the facts and circumstances of the cases, the parties are left to bear their own costs.
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2008 (9) TMI 1025
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... ... ..... courts to ensure that independence of judiciary is not compromised and every judicial officer should feel that he can freely and fearlessly give expression to his own opinion. This is absolutely imperative in maintaining the independence of judiciary. (XXI) The superior courts' judges must always bear in mind that no greater damage can be caused to the administration of justice and to the confidence of people when judges at superior courts express lack of faith either in ability or integrity of subordinate judges. 51. On consideration of the totality of the facts and circumstances, the impugned order passed by the learned Single Judge cannot stand scrutiny of law as far as passing the remarks and strictures against the appellant are concerned and consequently we deem it appropriate to set aside the impugned order to the extent of expunging the remarks made against the appellant in the said order. We order accordingly. 52. The appeal is accordingly allowed and disposed of.
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2008 (9) TMI 1024
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... ... ..... light of the observations/directions given in para 75 above, after giving reasonable opportunity of hearing to the assessee. 80. Before parting, we would like to place on record our deep sense of appreciation for the strenuous efforts put forth by the counsels on either side not only in emphatically putting forth their respective view points alongwith plethora of case-law on various issues, but also thereby in assisting the Bench in arriving at the right conclusions on the core issues that arose for the first time for adjudication before this Tribunal in the case of the assessee, Hyderabad Race Club, having fifty years of standing and which may have national ramifications in the cases of other assessees, viz. race clubs, across the country. 81. In the result, assessee's appeals, viz. ITA Nos. 212 and 710/Hyd/08 are partly allowed for statistical purposes and Revenue's appeals, viz. ITA Nos. 972-973/Hyd/08 are dismissed. Order was pronounced in the court on 26.9.2008.
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2008 (9) TMI 1023
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... ... ..... e the right or liability can be enforced and this supports this approach. 9. The learned Single Judge's view that the provisions of Section 78 of the Amendment Act have no application to the proceedings which stood concluded before the appointed day appears to be the correct view governing the issue. Since the Chapter IV-A in question was merely repealed, the situation has to be dealt with in line with Section 6 of the General Clauses Act. The provisions of Section 78 are conditional provisions and are not intended to cover cases where the application for EMR had been rejected with reference to Section 21 of the Amending enactment. As noted above, Chapter IV A was repealed. The effect of the repeal has to be ascertained in the background of Section 6 of the General Clauses Act. That being so, the order of the Division Bench cannot be sustained and that of the learned Single Judge has to operate. The appeal is allowed but in the circumstances without any order as to costs.
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2008 (9) TMI 1022
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... ... ..... fere with the orders of the courts below. In our view, in the facts and circumstances of the case, the courts below were perfectly justified in rejecting the prayer for amendment of the written statement and the counter claim. 20. In view of our findings made hereinabove, that on the date of filing of the amendment petition, the claim as made by the appellants in their amendment petition was already barred, no purpose would be achieved by allowing the amendment which has already stood barred by the law of limitation. 21. For the reasons aforesaid, we are of the view that the courts below had exercised their discretion in a proper manner in the matter of rejecting the amendment of the pleadings. We, therefore, do not find any merit in this appeal Accordingly, the appeal is dismissed. However, the trial court is directed to dispose of the suit as early as possible preferably within a year from the date of supply of a copy of this order to it. There will be no order as to costs.
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2008 (9) TMI 1021
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... ... ..... cheque of the nature mentioned in Section 138 of the N.I. Act, the presumption under Section 139 would arise that it is for the discharge, in whole or in part, or any debt or other liability. But, such a presumption is rebuttable and the accused can prove the non-existence of any debt or other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witnesses adduced by the complainant. 11. In the instant case, in view of the foregoing discussion, it is explicitly clear that the presumption under Section 139 of the N.I. Act is rebutted from the evidence of the complainant, itself. 12. The complainant could not prove the existence of any debt or other liability of the accused and, thus, the accused cannot be held liable. 13. Since, the complainant could not overtly prove the culpability of the accused, the leave to appeal is liable to be dismissed and the impugned order of acquittal of the accused is upheld.
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2008 (9) TMI 1020
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... ... ..... ncluding Rule 149 of the Rules. 12. In view of the specific mandate made under the Act and Rules, we hold that the Co-operative Societies, including the Bank in question or its Board of Directors, cannot enter into any settlement with regard to wages of paid employees and staffs, without prior approval of the State Government. 13. It is informed that the respondent Bank has not framed any bylaw under Rule 149. If no such by-law has been framed by the Bank prescribing the condition of service, such as scale of pay of its employees and staff in that case, it is always open to the State Government to make minimum prescription of the scale of pay to be paid in favour of such employees and staffs. 14. We find no illegality in the impugned Government Orders and therefore, we are not inclined to interfere with the order passed by the learned single Judge. Accordingly, the appeals are dismissed. However, there is no order as to costs. Consequently, M.P.No.1 of 2008 is also dismissed.
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