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Showing 61 to 80 of 931 Records
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2008 (9) TMI 979
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... ... ..... DER Delay condoned. Civil Appeal is dismissed.
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2008 (9) TMI 978
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... ... ..... l of Registration on 20th October, 2008, at 11 a.m. for the purpose of the enquiry. In the event the appellant does not appear before the said Authority on the aforesaid date, the enquiry should be deemed to be closed, but this will not prevent the appellant from seeking his remedy, if any, before any other forum. (c) If the Inspector General of Registration is satisfied that even the appellant's Sale Deed is genuine and some mistake in numbering may have occurred in the office of the District Registrar, South 24 Parganas, he shall take necessary steps to have the error corrected so that both the Sale Deeds are placed in the Book/Volume maintained in the office of the District Registrar. If, however, he arrives at a finding that the appellant's Sale Deed does not appear to be genuine, he shall close the enquiry and direct the District Registrar, South 24 Parganas, to take such action as indicated in the order of the High Court. 27. There will be no order as to costs.
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2008 (9) TMI 977
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... ... ..... entitled to the market rate of the land ₹ 20,338.98 per bigha. The claimant(s) would also be entitled to the benefit of Amending Act 68 of 1984 for calculating the solatium and interest under Sections 23(2) and 28 of the Act. The claimant(s) would, however, not be entitled to the benefit of Section 23(1-A) of the Act. First Appeal No.73 of 1983, First Appeal No.74 of 1983, First Appeal No.383 of 1983, First Appeal No.389 of 1983, First Appeal No.390 of 1983, First Appeal No.393 of 1983, First Appeal No.178 of 1984, First Appeal No.179 of 1984 and First Appeal No.(138) of 1991 are dismissed but the award of the Reference Court is modified to the extent that the claimant(s) would also be entitled to the benefit of Amending Act 68 of 1984 for calculating the solatium and interest under Sections 23(2) and 28 of the Act. The claimant(s) would, however, not be entitled to the benefit of Section 23(1-A) of the Act. Parties shall bear their own costs in all the First Appeals.
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2008 (9) TMI 976
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... ... ..... 1977 CTR (SC) 32 (1977) 106 ITR 1(SC) at p. 10 has observed as under "It has been said that the taxes are the price that we pay for civilization. If so it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well versed with the law on the subject. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue." (underlined, italicised in print, for emphasis by us 15. On the basis of the above discussion we conclude by holding that the AO was not justified in disallowing claim of deduction under s. 80-IB of the Act on the income from export incentive as the same was beyond the scope of his powers while framing the impugned assessment. Therefore we set aside the order of the CIT(A) and direct the AO to delete the disallowance in question. 16. Resultantly the appeal of the assessee is allowed.
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2008 (9) TMI 975
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... ... ..... ilent features of the products imported by the assessee in India and to imparting training to the customers to use the equipment. Thus, it cannot be said that the amount was paid for availing technical services but by using the technical knowledge the services were rendered to the assessee. The technology was never made available to the assessee. Rendering services by using technical knowledge or skill is different than charging fees for technical services. The persons rendering the services have imparted knowledge as to how the machineries will be used. Hence the amount does not come within the definition of "Fees for technical services" as defined in Explanation 2 to section 9(1)(vii) of the Act. Since the amount paid is not in the nature of fees for technical services, section 40(a)(i) Is not attracted. Therefore, there is no error in the order of the learned CIT(A), 13. In the result, the appeal is partly allowed. Pronounced in the open Court on 27th June 2008.
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2008 (9) TMI 974
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... ... ..... ted February 17, 1959 on this ground'. (8) We are of the opinion that the same principle applies to the present case and the Director, Consolidation of Holdings had no power to review his previous order dated April 3, 1958 rejecting the application of Harbhajan Singh under section 42 of the Act. It follows that the subsequent order of the Director, Consolidation of Holdings dated August 29, 1958 allowing the application of Harbhajan Singh was ultra vires and illegal and was rightly quashed by the High Court. " harassment may not be practised by any of the State authorities in ignorance of the fact that the Scheme is meant to promote and protect the industrial growth in the State. So also, if any order contrary to the interest of the industrial establishment is passed, then, at least a notice should be given and after granting opportunity of hearing any order can be passed by the competent authority in accordance with law. There shall however be no order as to costs.
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2008 (9) TMI 973
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... ... ..... ws and such view has been accepted by the AO and on such issue proceedings could not have been taken under s. 263. Hence, the learned Director of IT (Exemptions) could not have directed the AO to tax a sum of ₹ 15,88,02,860. 7. The last grievance of the appellant is that power under s. 263 is given to the CIT and not to Director of IT (Exemptions). Hence, it was submitted that order passed by Director of IT (Exemptions) is without jurisdiction. 7.1 During the course of proceedings, the learned Departmental Representative has filed a copy of the Notification dt. 14th Sept., 2001. Vide this Notification, Director of IT (Exemptions), Bangalore, has been directed to perform all the functions of CIT. Such notification cannot be challenged before us. In view of such notification, it cannot be said that Director of IT (Exemptions) was not having the jurisdiction to pass order under s. 263. 8. In the result, the order under s. 263 is cancelled and the appeal is partly allowed.
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2008 (9) TMI 972
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... ... ..... s in the Bank was operated by the same person. In the records of the said estate owners, his bank transaction is not reflected. In-fact though all those account holders are also income tax assessees, the returns did not disclose the payment of the aforesaid amount to the assessee. Even the asessee accounts also did not disclose the receipt of the said amount from those account holders. It is only at the time of investigation when he was asked the source of this income, he pointed out that the said amount has some from transfer of amounts of the very same Bank account. It is in that context, a detailed investigation was made and it was found out that it is a clear instance of creation of accounts by way of name lending, a fraudulent practice. In those circumstances, the revisional authority was justified in rejecting the case of the petitioner and upholding the assessment order. In that view of the matter, I do not find any merit in tis petition, Accordingly, it is dismissed.
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2008 (9) TMI 971
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... ... ..... under Voluntary Declaration of Income Scheme 1997, which 2) What order? 3. the above substantial questions of law have been answered in ITA No. 186/2004 arising on identical facts and law decided on 22.09.2008 by a detailed order pronounced separately. 4. For the reasons assigned in the said appeal, ITA.No.186/2004, which is applicable on all fours to the facts of the present case, we answer the substantial question of law No.1 in affirmative and substantial question of law No. 2 as per final order and pass the following ORDER The appeal is allowed. The order passed by the Income-tax Appellate Tribunal, Bangalore Bench ‘C’ in ITA.No.604/Bangalore/2003 for assessment year 1998-99 confirming the order passed by the Commissioner of Income-Tax Hubli, who inturn had confirmed the order passed by the Assessing Officer is set aside and the matter is remitted to the assessing officer for passing fresh orders in the light of the observations made in the body of the order.
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2008 (9) TMI 970
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... ... ..... een declared under the application filed under Voluntary Declaration of Income Scheme 1997, which was accepted by the revenue? 2) What order? 3. The above substantial questions of law have been answered in ITA 186/2004 arising on identical facts and law decided on 22.09.2008 by a detailed order pronounced separately. 4. For the reasons assigned in the appeal, ITA 186/2004 which is applicable on all four to the facts of the case, we answer the substantial question of law no. 2 as per final order and pass the following ORDER The appeal is allowed. The order passed by the income tax Appellate Tribunal, Bangalore Bench ‘C’ in ITA 600/Bang/2003 for assessement year 1998-99 confirming the order passed by the commissioner of the income tax Hubli, who inturn had confirmed the order passed by the Assessing Officer, Hubli is set aside and the matter is remitted to the Assessing Officer for passing fresh orders in the light of the observations made in the body of the order.
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2008 (9) TMI 969
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... ... ..... er has not moved the High Court under Article 226 of the Constitution? Realizing the difficulty, learned counsel for the petitioner seeks permission to withdraw the S.L. P . Permission granted with liberty to move the High Court within two weeks, if so advised. For a period of two weeks, the Income Tax Department will not commence the assessment proceedings. Special Leave Petition is, accordingly, permitted to be withdrawn.
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2008 (9) TMI 968
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... ... ..... counsel for both the sides agree that the issue is covered by the decision of this Court in the case of CIT v/s Tata Chemicals Ltd., reported in 256 ITR 395 against the revenue. as regards question No.1 is concerned, the Tribunal has rejected the appeal filed by the revenue by relying upon the decision of the Tribunal in the case of J.M. Shares and Stock Brokers Ltd. v/s Deputy Commissioner of Income Tax, reported in (2004) 83 TTJ 1052. The learned counsel appearing for revenue is unable to point out whether the decision has been challenged by the revenue by filing appeal before this Court. In this view of the matter, none of the questions raised by the revenue deserve consideration. Appeal is dismissed.
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2008 (9) TMI 967
Suit for declaration, possession and injunction - High Court converted a suit for title into a suit for enforcement of an Easementary right - Principles relating to the object and necessity of pleadings - Violation of fundamental rules of civil procedure by High Court - whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted.
HELD THAT:- When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice
Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [1962 (4) TMI 97 - SUPREME COURT].
As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise.
The principles laid down in Bhagwati Prasad [1965 (10) TMI 67 - SUPREME COURT] and Ram Sarup Gupta [1987 (4) TMI 476 - SUPREME COURT] and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.
A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right.
It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs.
In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage.
We accordingly allow these appeals and set aside the judgment and order of the High Court and restore the judgment of the first appellate court. Parties to bear respective costs.
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2008 (9) TMI 966
Refund - Unjust enrichment - the decision in the case of CEMENT CORPN. OF INDIA LTD. Versus COMMISSIONER OF C. EX., ROHTAK [2006 (10) TMI 366 - CESTAT, NEW DELHI] contested - Held that: - the decision in the above case upheld - SLP dismissed.
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2008 (9) TMI 965
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... ... ..... .4896 to 4900 of 2008 are concerned and the order dated 08.10.2007 passed by the Settlement Commission so far as Special Civil Application No.28680 of 2007 and the order dated 11.04.2007 passed by the Settlement Commission so far as Special Civil Application No.6127 of 2008 are hereby set aside to the extent it challenges or confines the challenge regarding non-waiver of penalty and fine. For this very limited aspect, the matter has been remanded back to the Settlement Commission for a fresh consideration on this aspect in accordance with law. The Settlement Commission, therefore, shall issue fresh notice to the petitioners and after hearing them, shall pass the order afresh in accordance with law after considering the various orders as well as the judicial pronouncements that may be referred to and relied upon by the petitioners and shall pass a reasoned order with specific reason while dealing with each of these matters. 17.Accordingly, the present petitions stand allowed.
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2008 (9) TMI 964
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... ... ..... anifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378). 27. At this juncture, it would be necessary to take note of a maxim "Ad ea quae frequent accident jura adaptantur" (The laws are adapted to those cases which more frequently occur). 28. The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672). 29. As noted above, Clause 4(a) is subject to Clause 6 and the proviso appended to Clause 4 is in the nature of exception. The High Court's view is a rational one on the facts of each case. These are not the cases where any interference is called for. The appeals are dismissed but without any order as to costs.
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2008 (9) TMI 963
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... ... ..... ferred to the Assessing Officer at Kanpur. In this eventuality, we feel that the communication dated 27.08.1992 is not backed by any speaking order. The application filed by the petitioner under Section 119 (2)(b) of the said Act has been rejected summarily without any reasons being recorded for the same. On this ground alone, we set aside the order of rejection and direct that the petitioner’s application under Section 119(2)(b) of the said Act is revived before the Central Board of Direct Taxes. The Board shall decide the application afresh after giving an opportunity of hearing to the petitioner. o p /o p The application would thereafter be disposed of by a speaking order. Since this is an old matter, we hope that the Board shall dispose of the said application as expeditiously as possible and preferably within 8 weeks. o p /o p The writ petition stands allowed. No order as to costs. A copy of this order be communicated to the Central Board of Direct Taxes. o p /o p
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2008 (9) TMI 962
Pre-deposit - requirement to deposit complete duty amount as requirement of pre-deposit - appeal maintained.
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2008 (9) TMI 961
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... ... ..... given by the Board of Approval. The CIT carries different opinion, which is not vested with the CIT with the power to re-examine record and express different opinion. It is because the AO has exercised the quasi judicial power vested in him and in accordance with law, he arrived at a conclusion and such conclusion cannot be termed to be erroneous strictly because the CIT does not agree/satisfy with the action and decision of the AO. The decisions cited by the Departmental Representative are distinguishable on facts as those cases have been decided by the Courts considering the facts of respective cases which are not similar to the facts of the case under consideration. 6.4 In the light of the above discussion, we find that the order of the AO is not erroneous, therefore, the action of the CIT under s. 263 is not in accordance with law. Thus, the order of CIT is hereby quashed and the order of the AO is hereby restored. 7. In the result, the appeal of the assessee is allowed.
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2008 (9) TMI 960
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... ... ..... al construction of the plant, can be considered either as "inputs" in the finished goods or as "capital goods" for grant of Cenvat Credit. 5. We have carefully considered the submissions from both sides, the case records and the case laws cited before us. We find that in the context of the cited decision of the Bombay Bench of the Tribunal in the case of M/s. Bhushan Steel and Strips Ltd. vs. CCE - 2008 (223) ELT 517 (Tri.-Mum.), the matter has been examined by the Principal Bench headed by the Hon'ble President and it has been decided to refer the matter to a Larger Bench vide Vandana Global Ltd. vs. CCE - 2008 (88) RLT 176 (CESTAT-Del). Hence, we are of the view that it would be just and proper if this case involving similar matter is also placed before the Hon'ble President for reference to the same Larger Bench, which has considered the case of Vandana Global Ltd. (cited supra). We order accordingly. Pronounced in the open Court on 25.09.2008.
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