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2009 (3) TMI 1064 - SUPREME COURT
Ad hoc appointments - Doctrine of equality - dozens appointments made without sanctioned posts and without following the procedure prescribed vide circular - violation of the rules and relevant instructions - Order of reinstatement - Equality of opportunity - The competent authority passed orders terminating the services of the respondents, who challenged the same by filing a petition under Article 226 of the Constitution of India, which was registered as CWJC No. 7816.
The respondents pleaded that the action taken against them was vitiated due to violation of the rules of natural justice and arbitrary exercise of power because the concerned authority did not give them the effective opportunity of hearing and the instruction contained in memorandum dated 16.4.1996 could not have been applied to their case because they had been appointed prior to cut off date specified therein i.e. 28.10.1991. The appellant herein contested the writ petition by asserting that the services of the writ petitioners were terminated because their initial appointments were illegal.
ld Single Judge relied upon the order passed in CWJC No. 5140 and quashed the termination of the respondents' services with a direction that they be reinstated with consequential benefits.
Letters Patent Appeal No. 61 of 2007 filed by the appellant was dismissed by the Division Bench on the ground that similar appeals filed in the cases of Arun Kumar and others and Arjun Chaudhary had already been dismissed. In the opinion of the Division Bench, a different view could not be taken in the case of the respondents because that would give rise to an anomalous situation.
HELD THAT:- For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (`the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.
In Union of India and Ors. v. N. Hargopal and Ors.[1987 (4) TMI 491 - SUPREME COURT] and Arun Kumar Nayak v. Union of India and Ors.[2006 (9) TMI 589 - SUPREME COURT] held that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television.
Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together.
SPOIL SYSTEM - A BIRD'S EYE VIEW:- With a view to insulate the public employment apparatus in independent India from the virus of spoil system, the framers of the Constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part, i.e., Part XIV with the title "Services under the Union and the States".
However, the hope and expectation of the framers of the Constitution that after independence every citizen will get equal opportunity in the matter of employment or appointment to any office under the State and members of civil services would remain committed to the Constitution and honestly serve the people of this country have been belied by what has actually happened in last four decades.
Unfortunately, some orders passed by the Courts have also contributed to the spread of spoil system in this country. The judgments of 1980s and early 1990s show that this Court gave expanded meaning to the equality clause enshrined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc.
In some cases, the schemes framed for regularization of the services of the backdoor entrants were also approved. As a result of this, beneficiaries of spoil system and corruption garnered substantial share of Class III and Class IV posts and thereby caused irreparable damage to the service structure at the lower levels. Those appointed by backdoor methods or as a result of favoritism, nepotism or corruption do not show any commitment to their duty as public servant. Not only this, majority of them are found to be totally incompetent or inefficient.
Whether the High Court was justified in directing reinstatement of the respondents with consequential benefits? - HELD THAT:- In view of the contradictory assertions made by the parties on the issue of legality of the respondents' initial appointment, the minimum which the ld Single Judge should have done was to call upon the respondents to produce copies of the advertisement issued by the competent authority and/or requisition sent to the employment exchange and letters of interview, if any, issued to them to prove that they were appointed by following a fair procedure and after considering the claims of all eligible persons.
However, without making any endeavour to find out whether the appointments of the respondents were made after following some procedure consistent with the doctrine of equality, the ld Single Judge quashed the termination of their services simply by relying upon the order passed in another case and by observing that the writ petitioners (respondents herein) had been appointed before the cut off date i.e. 28.10.1991 specified in letter dated 16.4.1996 and they had worked for almost 10 years.
The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of averments of the counter affidavit filed before this Court by Shri Prasannjeet Kumar Singh (respondent No. 3) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them, the respondents have not produced copy of the order by which their services were regularised. Perhaps none exists.
The statement furnished by counsel for the appellant, which is accompanied by documents marked `A' and `B', shows that in less than 7 months of the respondents appointment (except respondent No. 1 who is said to have been appointed with effect from 9.10.1991), Regional Director, Animal Husbandry, Gaya, is said to have written confidential memorandum bearing No. 20 dated 11.5.1992 (Annexure `A') to District Animal Husbandry Officer, Aurangabad, Gaya that ad hoc appointments made vide Memorandum No. 1467 dated 9.10.1991 are being regularized temporarily by the local appointments committee constituted on 11.5.1992.
What is most amazing to notice is that the local appointments committee was constituted on 11.5.1992, the committee met on the same day and regularised the ad hoc appointments and on that very day the Regional Director sent confidential letter to his subordinate, i.e., the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore, we have no hesitation to hold that the exercise undertaken by Regional Director for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce.
Therefore, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the ld Single Judge gravely erred by directing their reinstatement with consequential benefits.
The issue which remains to be considered is whether the Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of Letters Patent Appeals filed in other cases.
In our view, the approach adopted by the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.
In view of the above stated legal position, the order passed by the Division Bench dismissing the Letters Patent Appeal cannot be sustained.
Appeal is allowed, the orders of the ld Single Judge and Division Bench are set aside and the writ petition filed by the respondents is dismissed.
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2009 (3) TMI 1063 - CESTAT BANGALORE
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... ... ..... ey are required to set aside by allowing the parties’ appeals. Parties’ appeals are allowed. Insofar as the revenue appeal is concerned the order passed by the Commissioner (A) is correct. He has examined the definition of consumables and has correctly decided the issue in the light of the circular given. There is no merit in this revenue appeal and the same is rejected.” In can be seen from the process as declared by the appellant, before the Adjudicating authority, that wax is used for grazing purpose only. As such, we find that ratio on the above two decisions squarely covers the issue in favour of the assessee. 7. Accordingly, respectfully following the ratio of the said decisions, we are of the considered view that the impugned order is not sustainable and liable to be set aside and we do so. We allow the appeal with consequential relief if any. (Operative portion of the order has been pronounced in the Court on completion of hearing on 19-3-2009)
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2009 (3) TMI 1062 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... d the details of valuation obtained for the conduct of sale for the purpose of determining the used price. (c) Sale shall be advertised with a specific clause that the winding up proceedings are pending before the company court, with details of case number and the court of adjudication. (d) The expenses already incurred for the conduct of the sale by the official liquidator shall be deducted from out of the sale proceeds before any appropriation or disbursement and deposited with the official liquidator. (e) The reconstruction company shall place before the company court the details of its claim and all expenses incurred before the company court, before making any appropriation to itself and disbursed. (f) The surplus proceeds over what is lawfully due to it shall be deposited to the credit of the company (in liquidation) before the official liquidator. 26. The application filed by the reconstruction company and other connected application are disposed of in the above terms.
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2009 (3) TMI 1061 - SC ORDER
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... ... ..... Amey Nargolkar, Adv., Mr. Kul Bharat, Adv., Mr. B.V. Balaram Das, Adv. ORDER Delay condoned. Dismissed.
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2009 (3) TMI 1060 - SC ORDER
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... ... ..... vam, JJ. ORDER Appeal dismissed.
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2009 (3) TMI 1059 - DELHI HIGH COURT
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... ... ..... e of their authorised representatives. Notice of the meetings shall also be published in the newspaper The Statesman (English edition) and Veer Arjun (Hindi edition) in terms of the Companies (Court) Rules, 1959, at least 21 days before the date appointed for the meetings. ( 16. ) The chairpersons and alternate chairpersons will be at liberty to issue suitable directions to the management of the applicant -companies so that the aforesaid meetings of the minority equity shareholders of the transferor company and equity shareholders of the transferee company are conducted in a just, free and fair manner. The fee of the chairpersons for the aforesaid meetings shall be ₹ 50,000 each and the fee of the alternate chairpersons shall be ₹ 45,000 each, in addition to meeting their incidental expenses. The chairpersons will file their reports within two weeks from the date of holding of the above said meetings. ( 17. ) The application stands allowed in the aforesaid terms.
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2009 (3) TMI 1058 - SUPREME COURT
Order for Cancellation of licence - "diazepam" detected on chemical examination of the toddy seized - defaulted in payment of kist, committed an offence punishable u/s 57A(iii) and Section 55(1) of the Abkari Act - Interpretation of the provisions of the Kerala Abkari Act and the Rules framed as the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 ("the Rules") - Heydon’s Rule - HELD THAT:- Although the license was granted for one year, appellants had in fact entered into a contract for three years. Indisputably, they participated in the bid which was held for a period of three years. The effect of the bid for the said period, however, would be considered a little later.
As the said auction was confirmed, appellants started conducting their businesses. Indisputably, they furnished security. Some of them paid their kist regularly. Two sets of proceedings were initiated, as noticed hereinbefore, one in terms of Rule 6(28) and another in terms of Rule 6(30) of the Rules.
The principles contained in the Heydon’s Rule shall squarely be attracted in this case. It is a settled principle of interpretation of statute that when an amendment is made to an Act, or when a new enactment is made, Heydon’s rule is often utilized in interpreting the same. For the purpose of construction of Rule 6(30), as it stands now, the Court is entitled to look to the legislative history for the purpose of finding out as to whether the mischief prior to such amendment is sought to be rectified or not. Applying the Heydon’s rule, we have no other option but to hold that such was the intention on the part of the Rule making authority.
It is also not a case that forfeiture was ordered in view of the judgment of conviction passed against the licensees. The step taken by the respondent State, for forfeiture of amount of deposit as also recovery of the amount of loss purported to have been sustained by them, could have taken recourse to in terms of Rule 6(34) if they were convicted. Recourse thereto could have been taken only by the appropriate authority. The same would not automatically follow only because the licence was cancelled in terms of Rule 6(30) of the Rules. Therefore, the Board, in our opinion, was not correct to hold that the consequences laid down in Rule 6(28) would automatically be attracted. We have noticed hereinbefore that the order passed under Rule 6(28) of the Rules must be confirmed by the Excise Commissioner. Such is not the requirement in case of cancellation of licence under Rule 6(30).
We are of the opinion that it was impermissible for the Assistant Commissioner of Excise to pass the said order dated 19.12.1997 opining that the consequences of forfeiture under rule 6(28) is automatic upon cancellation of licence under Rule 6(30).
We have noticed hereinbefore that the Commissioner of Excise being a higher authority had already expressed his opinion that application of Rule 6(28) of the Rules is automatic consequent upon the cancellation of licence in terms of sub-rule (30) of Rule 6. Assistant Commissioner of Excise could not have taken a different view.
If only the Assistant Commissioner of Excise had the original authority to issue such a notice and not the Commissioner of Excise being an higher authority, the law laid down by this Court in Commissioner of Police, Bombay vs. Gordhandas Bhanji [1951 (11) TMI 17 - SUPREME COURT] would have been applicable. The proceeding, thus, in a case of this nature should have been initiated by the Assistant Commissioner of Excise and not by the Commissioner of Excise. Where the statutory authority, it is well known, exercises his jurisdiction conferred on him by a statute, he has to apply his own mind and the procedures laid down therefore must be scrupulously followed.
It is furthermore a well settled principle of law that a statutory authority must exercise its jurisdiction within the four corners of the statute. Any action taken which is not within the domain of the said authority would be illegal and without jurisdiction.
Damages can be imposed on a licensee either for violation of the provisions of a statute on the part of the licensee and/or under the contract. So far as the damages to be levied under statute is concerned, it will be governed by the provisions of the statute. However, if damages are to be computed under the contract, the provisions of the Indian Contract Act and/or the terms of the contract would be relevant. Ordinarily, they should not be mixed up. If having regard to the provisions of Section 18A of the Act no contract for a period of more than one year could have been granted, damages could not have been calculated on the basis of the contract.
The order of cancellation as also the forfeiture of security amount was passed. No statement had been made as to how and in what manner the State suffered any loss. If the amount of security is to be taken into consideration indisputably there would be no default.
We may not moreover lose sight of another fact. Raids were conducted; shops were sealed on specific allegations, namely, the licensees had mixed some poisonous substance with liquor. They were prosecuted for adding ‘Diazepem’. Evidently, the fact that the chemical report showed that ‘Diazepem’ had been mixed with toddy have prejudiced the licensing authority. Such prejudice is apparent even on the face of the impugned order passed by the High Court.
Therefore, we are of the opinion that it was not a case where even Rule 6(28) could have also been resorted to. As we have not applied our mind to the judgment rendered by the criminal court leading to the acquittal of the appellants, we leave the parties to seek any other remedies available to them in law,
The impugned judgment of the High Court is set aside. These appeals are allowed. Consequently the Writ Petitions stand allowed to the extent indicated above.
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2009 (3) TMI 1057 - SUPREME COURT
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... ... ..... From the materials placed before the court there cannot be any doubt whatsoever that the State exercises a deep and pervasive control over the affairs of the Sansthan, the Cane Commissioner being at the helm of the affairs. The Accounts Officer is the officer of the State Government and, is also sent on deputation. The Majority of members of the Governing Council, as noticed hereinbefore, are holders of different offices of the State Government. They play a vital role in carrying out the affairs of the Sansthan. They alone have power to appoint anybody of their choice on the post. It is required to obey all the directions issued by the State Government from time to time. We, therefore, are of the opinion that the Full Bench of the High Court has rightly held the Sansthan a ‘State’ within the meaning of Article 12 of the Constitution of India. 16. For the reasons aforementioned, the appeal is dismissed with costs. Counsel’s fee assessed at ₹ 50,000/-.
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2009 (3) TMI 1056 - SUPREME COURT
Application for grant of probate - Disputed Will - Effect of pendency of a probate proceeding vis-`-vis a criminal case involving allegations of forgery of a Will - Judgment in rem - appellant filed an application for quashing of the FIR which was, however, dismissed observing that the appellants would be at liberty to move the trial court by way of moving an application for stay of the criminal trial pending adjudication of the question of the genuineness of the Will by the Civil Court.
HELD THAT:- Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.
As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.
We have noticed the decision in K.G. Premshanker [2002 (9) TMI 849 - SUPREME COURT]. Mr. Dwivedi, however, would submit that the court therein was concerned with a case involving Section 42 of the Evidence Act. The learned counsel may be correct as it was held that Section 41 is an exception to Sections 40, 42 and 43 of the Act providing as to which judgment would be conclusive proof of what is stated therein.
Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of Section 41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Law envisages not only genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of Section 63(c) of the Indian Succession Act, and Section 68 of the Evidence Act.
FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a trespass. Appellant admittedly is facing trial u/s 420, 468 and 448 of the IPC. It is, thus, possible that even if the Will is found to be genuine and that no case u/s 468 of the IPC is found to have been made out, appellant may be convicted for commission of other offences for which he has been charged against, namely, trespass into the property and cheating. If it is found that the appellant is guilty of trespass, he may be asked to handover possession of the premises in question to the complainant.
Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed before the Jharkhand High Court. Since 2003 not much progress has been made therein. The Will has not been sent to the handwriting expert for his opinion, which is essential for determination of the question in regard to the genuineness of the Will. It is alleged that the Will was registered at Hazaribagh after the death of the testatrix. For the last seven years in view of the pendency of the matters before the High Courts in different proceedings initiated by the appellant, the criminal case has not proceeded, although as noticed hereinbefore charge-sheet has been filed and cognizance of the offence has been taken.
We, therefore, are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India having regard to the facts and circumstances of the present case.
We find no merit in this appeal. The appeal is dismissed.
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2009 (3) TMI 1055 - BOMBAY HIGH COURT
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... ... ..... me Tax Act, 1961 in respect of octroi collected by the agent appointed by the assessee ? ii) Whether on the facts and in the circumstances of the case, the ITAT is justified in holding that .octroi. collectible by the assessee is different than .toll. leviable by the assessee and thus is not within the ambit of 206C(1C) of the Income Tax Act, 1961 ?
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2009 (3) TMI 1054 - DELHI HIGH COURT
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... ... ..... Chapter XIV-B is intended to provide a mode of assessment of undisclosed income, which has been detected as a result of search. As the statutory provisions go to show, it is not intended to be a substitute for regular assessment. Its scope and ambit is limited in that sense to materials unearthed during search. It is in addition to the regular assessment already done or to be done. The assessment for the block period can only be done on the basis of evidence found as a result of search or requisition of books of account or documents and such other materials or information as are available with the Assessing officer. Evidence found as a result of search is clearly relatable to section 132 and 131A. 8. In view of our discussion above we find there is no room for interference in the impugned judgment. The findings returned by the Tribunal and the CIT(A) are pure findings of fact. No substantial question of law arises for our consideration. Resultantly, the appeal is dismissed.
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2009 (3) TMI 1053 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (3) TMI 1052 - SUPREME COURT
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... ... ..... ariff remained with the Board under the Electricity (Supply) Act 1948 as it was not repealed by the Electricity Regulatory Commission Act 1998. The Parliament could not have intended to bring about a situation where no authority would be empowered to determine the tariff between the date of coming into force of the ERC Act, 1998 and the constitution of the commission. It is only after the Regulatory commission is constituted that it will be the sole authority to determine the tariff. 35. We are, therefore, of the considered opinion that this clarification in regard to the decision rendered by a two Judge Bench of this Court in BSES (supra) would be sufficient to answer the reference. 36. Mr. Venugopal would, however, submit that other contentions/substantial questions of law have been raised in the appeal. Such questions may be determined by an appropriate 2 Judge Bench. 37. This reference is answered accordingly. 38. The matter may now be placed before an appropriate Bench.
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2009 (3) TMI 1051 - SC ORDER
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... ... ..... 377; 10,000/-, no reason to interfere. Question of law is kept open. Special Leave Petition is dismissed.
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2009 (3) TMI 1050 - ITAT MUMBAI
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... ... ..... items of hundis which had not been explained by the assessee.” 21.4 In the light of the above discussion, we find that the AO has no power to admit fresh claim otherwise than revised return but appellate authorities including CIT(A) & ITAT have power to admit such claim. Without prejudice to the above finding, we admit the assessee’s claim which is in accordance with the judgment of the Apex Court in the case of Goetz India Ltd. (supra). In the interest of natural justice and keeping in view the ratio laid down by the Apex Court in the case of Goetze (India) Ltd., 284 ITR 323, we remit the matter back to the file of the CIT(A) with a direction to decide the issue on merit in accordance with law after providing reasonable opportunity of hearing to both the sides. 22. In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is allowed for statistical purposes. Pronounced on this 23rd day of March, 2009.
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2009 (3) TMI 1049 - SUPREME COURT
Power of Magistrate to frame the charge - discharge of the accused on the ground that the charge is groundless - Whether, even before any evidence is led u/s 244 CrPC, can the Magistrate straightaway proceed to frame a charge - HELD THAT:- It must be, at this stage, borne in mind that the word used in Section 246 CrPC is "evidence", so also, in Section 244 CrPC, the word used is "evidence". Therefore, ordinarily, the scheme of the Section 246 CrPC is that, it is only on the basis of any evidence that the Magistrate has to decide as to whether there is a ground to presume that the accused has committed an offence triable under this Chapter.
We must note that while Section 245(2) CrPC speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in entirely different sphere. An order u/s 245(2) CrPC results in discharge of the accused, whereas, an order u/s 246 CrPC creates a situation for the accused to face a full-fledged trial. Therefore, the two Sections would have to be interpreted in slightly different manner, keeping in mind the different spheres, in which they operate.
There is only one judgment of the Andhra Pradesh High Court in Verendra Vs. Aashraya Makers[1999 (4) TMI 661 - ANDHRA PRADESH HIGH COURT], which has taken the view that the Magistrate can frame the charge even without any evidence having been taken u/s 244 CrPC. We do not think that is a correct expression of law, as the right of the accused to cross-examine the witnesses at the stage of Section 244(1) CrPC would be completely lost, if the view is taken that even without the evidence, a charge can be framed u/s 246(1) CrPC. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) CrPC. The accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored.
Unfortunately, the earlier cases of the same Court, were brought to the notice of the Learned Judge. Again, the Learned Judge has not considered the true impact of the clause "at any previous stage of the case", which could only mean that even with a single witness, the Magistrate could proceed to frame the charge.
It is clear that the opportunity to the accused to cross-examine the witnesses is lost, as the Trial Court has straightaway proceeded to frame the charge. In that view, we would have to quash the order, framing the charge. It is accordingly, quashed. The matter will now go back before the Trial Court, where the prosecution may offer the witnesses u/s 244(1) CrPC and the opportunity to cross-examine, would be offered to the accused. It is only thereafter, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The charge framed in this case is clearly premature, in view of the reasons given by us. The order framing the charge would, therefore, have to be set aside.
We are not expressing anything on merits, particularly because we have directed the evidence of the prosecution to be led u/s 244 (1) CrPC. Any expressions on our part are likely to cause prejudice to the prosecution, as the case may be, accused. We are, therefore, leaving the matter at this.
Accordingly, the appeal is disposed of with the direction that the matter shall now go back to the Trial Court and the Trial Court shall proceed to examine all the witnesses offered by the prosecution and it is only after the evidence of those witnesses is recorded, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The appeal, thus, succeeds partly.
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2009 (3) TMI 1048 - ITAT DELHI
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... ... ..... have visited. The expenditures clearly are for the purpose of business. Once there is a business nexus, the department ought to have accepted reasonable expenses incurred in relation thereto. In the case of Continental Carriers (P) Ltd. (supra), an identical issue came up before the ITAT and the Tribunal has accepted much larger percentage of such expenditure. Although it cannot be factually stated that the two cases have identical facts but at least the defects pointed out in both these cases are almost identical in nature. In our view, the assessee has a large export turn over and has also large purchases of raw material from the countries wherein travel to these countries are disputed by the revenue. In our view, the claim of the assessee is reasonable and should have been accepted. The addition made by the AO and sustained by the CIT(A) on the issue in question is, therefore, deleted. 7. In the result, assessee’s appeal is allowed. Order pronounced in open court..
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2009 (3) TMI 1047 - GUJARAT HIGH COURT
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... ... ..... ground between the parties that the issue now stands concluded by order dated 10.09.2008 rendered in Tax Appeal No.444 of 2008 in the case of The Commissioner of Income Tax-Ahmedabad-II Vs. Gujarat Gas Co. Ltd., wherein identical issue was involved and the Tribunal's order has been upheld by the High Court. During course of hearing the learned counsel for the appellant-revenue submitted that the Assessing Officer having not processed the claim of depreciation on merits, the Assessing Officer must be directed to grant depreciation on written down value of the assets in question. (4) In light of the aforesaid order dated 10.09.2008 it is held that the transactions were genuine transactions and the Tribunal has not committed any error in allowing claim of depreciation. All the three questions stand answered accordingly. The Assessing Officer shall now process the claim of depreciation in accordance with law. The appeal stands dismissed accordingly with no order as to costs.
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2009 (3) TMI 1046 - CESTAT CHENNAI
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... ... ..... n of foreign currency for failure to declare, fine amounts and penalty amounts have been reduced. Following the ratio of the Tribunal in Philip Fernandes Vs. Commissioner of Customs (Airport), Mumbai 2001 (131) ELT 250 (Tri.Mumbai) and Halithu Ibrahim Vs. Commissioner of Customs (Airport), Chennai 2005 (183) ELT 307 (Tri.Chennai) and having regard to the value of the goods being about 58 lakhs, we reduce the fine from ₹ 32,00,000/- to ₹ 7,50,000/- (Rupees seven lakhs and fifty thousand only) and penalty from ₹ 5,00,000/- to ₹ 1,00,000/- (Rupees one lakh only). We are informed foreign currency seized from the appellant-passenger has been sold and ₹ 56,00,000/- Indian currency has been realized. Out of such sale, the prayer of the appellant for return of the sale proceeds after deducting the fine of ₹ 7,50,000/- and penalty of ₹ 1 lakh, is allowed. 3. The appeal is thus partly allowed as above. ( Dictated and pronounced in open court )
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2009 (3) TMI 1045 - CESTAT NEW DELHI
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... ... ..... ₹ 5,000 (Rupees Five thousand only). The appeal is allowed on the above terms. 5. In the above findings, the reasons for not accepting the Chartered Engineer's certificate for enhancing the assessable value has been clearly spelt out by the Commissioner (Appeals). No valid reason has adduced to interfere with the said findings of the Commissioner (Appeals). The Commissioner (Appeals), however, upheld the confiscation for having imported second-hand photocopiers without the required licence. Taking into account the fact that it was the first time import by the Respondent, and taking into account the enhancement of value not upheld by him, the Commissioner (Appeals) has shown leniency by reducing the redemption fine and penalty. He has, particularly, recorded that the Respondent has not mis-declared any description. Under these circumstances, we do not find any reason to interfere with the order of the Commissioner (Appeals). 6. Appeal by the department is rejected.
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