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Showing 21 to 40 of 733 Records
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2009 (9) TMI 1059 - DELHI HIGH COURT
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... ... ..... on of law laid down by the Supreme Court and in our daily life we find such classifications being made in several other instances such as the voting age or the age of juvenility or the age of superannuation etc. In these cases, there is some rational basis for the age criterion being laid down but in the present case, merely "herding together" applicants on the basis of their age group, that is, 28 to 30 years cannot stand judicial scrutiny inasmuch as the age group selected has no relevance to merit, competence, knowledge or experience vis-à-vis candidates falling outside that age group. Also, no overriding public interest has been shown to us for making the classification on the basis only of age. 21. For all these reasons we find that the age discrimination carried out by the Petitioner cannot be sustained being arbitrary and contrary to the principles of Article 14 of the Constitution. 22. There is no merit in the writ petition. It is dismissed in limine.
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2009 (9) TMI 1058 - ITAT BANGALORE
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... ... ..... the amount was very small, the CIT(A) was of the view that 10% disallowance will suffice because such imprest amount was being handled by the Head of office of the assessee company. (c) It was submitted that some outstanding performances of the employees were rewarded by the Managaing Director of RNS Motros who had a personal rapport with them and to recognize and appreciate such performances of the employees, this expenditure was incurred which may be allowed as business promotion expenses. Considering the submission of the assessee company and the reasoning of the CIT(A), we are of the considered view that stand of the CIT(A) is fully justified which does not requires any interference. It is ordered accordingly. In the result - (i) the appeal of the assessee in the status of ‘firm’ is partly allowed; & (ii) the appeal of the assessee company in the status of ‘company’ is also partly allowed. Order pronounced in the open court on 11th Sept, 2009.
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2009 (9) TMI 1057 - COMPANY LAW BOARD, CHENNAI
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... ... ..... roperty, i.e., the third and fourth respondents. If there is breach of any contractual obligations the aggrieved parties can approach a competent court of law but not before this Bench. To protect the interests of the shareholders, this Bench can pass appropriate orders under Section 402 as stated supra. However at the same time this Bench cannot go beyond its scope more particularly when the proceedings under Section 397/398 are summary proceedings in nature. Learned Counsel for the petitioner relied upon the judgment (supra) is not applicable to the facts of the present case. In view of the facts and reasons stated above the petitioners are not entitled to relief as prayed at paragraph ix(i) of interim reliefs. The company petition is posted to October 28, 2009, at 2.30 p.m., for further adjudication and also to examine the other interim reliefs. The other respondents are hereby directed to file the counters within a period of three weeks and serve copies on the other side.
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2009 (9) TMI 1056 - SUPREME COURT
Murder - Offence Punishable u/s 307 and 302 r/w Section 34 IPC - Conflicting judgments of the trial court and the High Court - Whether view taken by the trial court's is possible or plausible? - The appellant and other accused and the deceased belonged to the Burma colony. All of them went to the temple and came out at 2.00 p.m. after worshipping and taking food from the temple. The crowd before the temple dispersed and people started running. Accused No. 3 threw an aruval on P.W.1 After receiving the injury, P.W.1 managed to run. Then accused No. 2 gave cut injury to Jambu on his head and back. Dhanapal stabbed Jambu on his chest. Accused No. 4 stabbed Jambu on his back. Thereafter, all the accused ran away with their weapons. The deceased was attacked near the house of one Subramania Thevar by the side of a light post. P.W.3 at about 2.00 p.m. on 8.5.1988 saw the deceased lying dead at the scene of crime.
The High Court in the impugned judgment set aside the acquittal recorded by the Sessions Judge and allowed the appeal filed by the State. The High Court held accused Nos. 1, 2 and 4 guilty for an offence punishable u/s 302 r/w Section 34 IPC and imposed sentence of life imprisonment and held accused No. 3 guilty for the offence punishable u/s 307 IPC and imposed sentence of five years.
It may be pertinent to mention that accused respondent Nos. 2 to 4 died during the pendency of appeal before the High Court. The only surviving appellant herein (who was accused No. 1 before the High Court) has filed the present appeal against the impugned judgment and order of the High Court.
HELD THAT:- There are conflicting judgments of the trial court and the High Court, therefore, we have carefully gone through the entire evidence de novo. The High Court, in our considered view, could not have shifted the burden of proof on the accused. According to the fundamental principles of the Evidence Act, it is for the prosecution to have proved its own case.
According to P.W.2, the occurrence took place after deceased and the witnesses came to the temple and after worshipping and taking food they came out at 2.00 p.m. The stomach of the deceased must, therefore, contain food particles. Whereas, according to the doctor, who conducted the autopsy over the dead body of the deceased, found that the stomach was empty. This casts serious doubt on the veracity of the testimony of P.W.2. The trial court also rejected the testimony of another eye witness P.W.3.
P.W.10, Inspector of Police, took up the investigation and went to the scene of occurrence at 6.30 p.m. and on account of lack of sufficient light, he did not hold the inquest, but went and searched for the accused after posting two constables to guard the body of the deceased.
The trial court was of the opinion that the medical evidence also does not support the prosecution case. The trial court was of the view that on such quality of evidence it would not be safe to record the conviction and acquitted the accused.
The High Court was not justified in weaving out a different and new prosecution version. The Court is under the bounden duty and obligation to deal with the evidence as it is. No improvement or rewriting of evidence is permissible. In the instant case, P.W.1 had turned hostile and P.W.3 also did not support the prosecution case. The testimony of P.W.2 is also not wholly reliable.
On proper evaluation of the trial court judgment, we hold that the view taken by the trial court was certainly a possible or a plausible view. It is a well settled legal position that when the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting its reasons by the High Court. In our considered view, the impugned judgment of the High Court is contrary to the settled legal position and deserves to be set aside.
This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.
In Tota Singh and Anr. v. State of Punjab [1987 (4) TMI 495 - SUPREME COURT], the Court reiterated the same principle in the following words: ''Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.''
In Bhagwan Singh and Ors. v. State of M.P.[2002 (3) TMI 918 - SUPREME COURT], the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
In Ghurey Lal v. State of Uttar Pradesh [2008 (7) TMI 951 - SUPREME COURT], a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. The exercise of surveying relevant judgments has again been taken with the hope that the Appellate Courts would keep in view the settled legal position while dealing with the trial courts' judgments of acquittals.
The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is certainly a possible or plausible view. The settled legal position as explained above is that if the trial court's view is possible or plausible, the High Court should not substitute the same by its own possible view. In the facts and circumstances of this case, the High Court in the impugned judgment was not justified in interfering with the well reasoned judgment and order of the trial court.
Consequently, this appeal filed by the appellant is allowed and disposed of and the impugned judgment of the High Court is set aside.
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2009 (9) TMI 1055 - ITAT AHMEDABAD
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... ... ..... by the Assessing Officer in the search or in the investigation. 13. In the present case, the Assessing Officer has only repeated the addition made in the original assessment proceedings indicating there that he does not have any fresh material. Since no fresh material was pointed out to us, we are unable to take a different view than taken by the Tribunal in the case of Meghmani Organics Ltd.(supra). As a result, we hold that there is no reason to disturb the findings of the Learned CIT(Appeals). The same is confirmed. 14. In the result, the appeal of the Revenue for Assessment Year 2001-02 is dismissed. 15. The issues involved in other appeals filed by the Revenue are same except difference in the figure of depreciation. For the same reasoning given above, we uphold the orders of the Learned CIT(Appeals) and dismiss the appeals of the Revenue. 16. In the result, all the seven appeals of the Revenue are dismissed. Order signed, dated and pronounced in the Court on 11/09/2009.
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2009 (9) TMI 1053 - SC ORDER
Refund claim - Activity of sale and purchase of units of mutual fund schemes - it was held by CESTAT that as the ‘Business Auxiliary Service’ provided by a commission agent by way of sale and purchase of “goods’ stands exempted under Notification No. 13/2003, the conclusion is irresistible that the respondents were not liable to pay any service tax for service rendered as commission agent in connection with sale and purchase of units of mutual fund schemes during the relevant period.
HELD THAT:- Appeal admitted.
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2009 (9) TMI 1052 - SUPREME COURT
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... ... ..... as well as that of the Employees State Insurance Court and remand the matter to the Employees State Insurance Court for deciding the same after impleading the workers of the respondent No. 1 Board or their union in a representative capacity. Since, the case pertains to the year 1987, we request the Employees State Insurance Court to decide the same expeditiously. 8. Appeal allowed. No order as to the costs. Civil Appeal No. 8336/2004 9. For the reasons stated in order passed in Civil Appeal No. 8335/2004, this appeal is also allowed and the impugned judgment of the High Court as also of the Employees Insurance Court are set aside and the matter remanded to the Employees State Insurance Court for deciding a fresh after impleading the workers of the Respondent No. 1 or their union in a representative capacity. Since, the case pertains to the year 1987, we request the Employees State Insurance Court to decide the same expeditiously. 10. Appeal allowed. No order as to the costs.
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2009 (9) TMI 1051 - SUPREME COURT
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... ... ..... order as to costs in this appeal. CIVIL APPEAL No. 5777 OF 2006 32. This appeal under Section 116A of the Act has been preferred by the 2nd respondent in C.A. No. 5033 of 2006, who had unsuccessfully contested the election as a candidate of the Kerala Congress (M). As noted above, the appellant in the said appeal, who was declared elected had got 2,56,411 votes; the election petitioner got 2,55,882 votes and the appellant in this appeal had secured 2,09,880 votes. The short grievance of the appellant is that election of P.C. Thomas having been set aside, instead of declaring the election petitioner as elected; the High Court should have declared the appellant as elected from 12 H.P. Muvattupuzha Parliamentary Constituency. 33. In our opinion, fresh election to the said parliamentary constituency having already taken place in this year, this appeal is rendered infructuous and has to be dismissed on that ground. It is ordered accordingly. A reproduction from ILR (Kerala Series)
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2009 (9) TMI 1050 - ITAT AHMEDABAD
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... ... ..... e stock in trade of shares in to investments at their book value and the CBDT circular itself envisaging the possibility of having two portfolios, i.e., an investment portfolio comprising of securities which are to be treated as capital assets and a trading portfolio comprising of stock-in-trade which are to be treated as trading assets, we are of the opinion that the assessee’s version that these shares were held by way of investment in the year under consideration has to be accepted. Consequently, we have no hesitation in vacating the findings of the ld. CIT(Appeals) and accordingly, direct the AO to assess the profit on sale of the said shares under the head capital gains. Therefore, ground no. 1 is allowed. 7.. Ground No.2 in appeal was not pressed before us while no additional ground having been raised in terms of the residuary ground, both these grounds are dismissed. 8. In the result, appeal is partly allowed. Order pronounced in Open Court on11th September,2009.
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2009 (9) TMI 1049 - SUPREME COURT
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... ... ..... he writ petition. In this case also, the appellants have not yet filed counter affidavit to the writ petition of the respondents. That being the position and in view of the fact that the final relief could not be granted at the interim stage, we set aside the impugned order and vacate the interim order passed by the High Court. We are informed that now the affidavits have already been exchanged and the matter is ready for hearing. That being the position, we request the learned Single Judge of the High Court to decide the writ petition at an early date, preferably within three months from the date of supply of a copy of this order to it. For the reasons aforesaid, the impugned order is set aside. The appeal is allowed to the extent indicated above. There will be no order as to costs. We make it clear that we have not gone into the merits of the appeal, which shall be gone into by the High Court at the time of disposal of the writ petition. Tarun Chatterjee And R.M. Lodha, JJ.
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2009 (9) TMI 1048 - ITAT CHENNAI
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... ... ... ... ..... mpany to its subsidiary during the previous year relevant to AY2004-05, within the meaning of section 2(22)(e) of the Act. And on this ground alone the impugned addition of ₹ 4,16,12,082, made in AY 2004-05, becomes unsustainable. We hold accordingly. 8. We like to make it clear that we have not gone into the correctness or otherwise of the other reasons, given by the CIT(A) in his order, for deleting the above addition." On perusal of the above noted conclusion, we find that each and every aspect of the matter has been considered and moreover, the ld. DR could not be able to point out any apparent mistake and as such, while considering the entirety of facts and circumstances, we do not find any valid ground to rectify the order. Therefore, we dismiss the application of the Department being devoid of any merits. 5. In the result, the miscellaneous application of the Department gets dismissed. The order is pronounced soon after the conclusion of hearing on 30.07.10.
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2009 (9) TMI 1047 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ibit P16 Under Postal Certificate (for short UPC') Exhibit P17. However, there is nothing on record to suggest that defendant No.3 had, in fact, been served with the said notice. The UPC was dispatched on 8.4.1987 and the sale deed was executed on 13.4.1987 just after five days of the dispatch of the said UPC. But there is nothing on record to suggest that, in fact, notice had been delivered to defendant No.3 before the execution of the sale deed. Hence, the finding of the learned Additional District Judge to the effect that defendant No.3 was not a bona fide purchaser is based on misreading of evidence. In these circumstances, since the plaintiff has no concern with the suit property, her suit was liable to be dismissed. The substantial question of law stands answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree of the learned Additional District Judge are set aside and the judgment and decree of the learned trial Court are upheld.
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2009 (9) TMI 1046 - BOMBAY HIGH COURT
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... ... ..... succeeds, the Debts Recovery Tribunal would be competent and obliged to grant such relief as may be necessary even to the extent of ordering status-quo ante to be restored. Thus understood, the Respondents would not suffer any prejudice, if the Petitioner is allowed to formally pray for that relief. In view of the legal position now restated by the Apex Court in the case of Authorised Officer, Indian Overseas Bank (supra), we have no hesitation in allowing the Writ Petition. 13. Accordingly, this Petition succeeds. Rule is made absolute. The impugned Judgment and Order passed by the Tribunal dated 13th May 2009 below Exhibit 21 in Securitization Application No.86 of 2007 as well as Judgment and Order dated 18th June 2009 passed by the Appellate Tribunal in Misc.Appeal No.138 of 1999 are quashed and set-aside and instead, the Application Exhibit 21 in SA No.86 of 2007 praying for amendment of the Securitisation Application No.86 of 2007 is made absolute. No order as to costs.
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2009 (9) TMI 1045 - GUJARAT HIGH COURT
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... ... ..... date as mentioned in the scheme. 34. In view of the aforesaid, the scheme deserves to be modified to the extent that the appointed date shall be 1-4-2009 and not 1-4-2008 as provided in the scheme. Hence, order accordingly. 35. No other adverse circumstances are brought to the notice of this Court. 36. Hence, the present Scheme of Amalgamation is sanctioned as per the provisions of the Companies Act. 37. Petitions are allowed to the aforesaid extent. 38. The fees of the Central Government Standing Counsel shall be paid by the petitioning Companies which is quantified at ₹ 2,500 for each petition. The fees of the Official Liquidator is quantified at ₹ 1,500 in each petition, preferred by the transferor Companies. It will be open to the concerned petitioning Company to pay the cost of Central Government to the learned Assistant Solicitor General/Standing Counsel, Shri P.S. Champaneri, as well as to the Official Liquidator by 'Account Payee' cheques directly.
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2009 (9) TMI 1044 - DELHI HIGH COURT
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... ... ..... and the Defendant. Looked at from any angle without evidence being led, issue No. 3 also cannot be decided. 39. In conclusion, this Court holds that (i) Issue No.2 is decided against the Defendant and in favour of the Plaintiff and it is held that the suit is not barred under Order II Rule 2 CPC. (ii) The prayer for recovery of money against the Defendant is barred by limitation and is therefore rejected. (iii) Issue Nos. 1 and 3, although preliminary issues, cannot be decided at this stage without evidence being led. These issues will accordingly be decided along with other issues at the final stage. 40. For the aforementioned reasons, the case now be listed before the learned Joint Registrar on 10th November 2009 on which date the Plaintiff will file the affidavit by way of examination of chief of its witnesses. The learned Joint Registrar is requested to fix a schedule for the completion of the recording of the evidence. 41. List before the Court thereafter for arguments.
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2009 (9) TMI 1043 - MADRAS HIGH COURT
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... ... ..... under the DEPB Scheme. The difference drawn by the Supreme Court in the above judgments make it clear that under the DEEC Scheme, the clearance is allowed duty free, whereas under DEPB Scheme, the exporters are issued DEPB scrips which allows them specific amounts to be utilised for payment of Customs duty. Therefore, the importers, who use DEPB scrips, pay duty not by cash but only by way of credit. This is clear from the judgment of the Supreme Court extracted above. Therefore, the goods cleared under DEPB Scheme cannot be treated an exempted goods, but they can only be treated to be duty-paid goods and therefore, the interest is payable as per Section 61(2) of the Act. The debit of any amount under the DEPB Scheme is a mode of payment of duty on the imported goods and cannot be treated as exempted goods, unlike the goods under DEEC Scheme. We are unable to answer the questions raised by the appellant in its favour. Therefore, the civil miscellaneous appeals are dismissed.
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2009 (9) TMI 1042 - ITAT AHMEDABAD
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... ... ..... , the decision would apply mutatis mutandis to section 10B. Respectfully following the same, we find that in the instant case, it is not the fact that the assessee has received sale proceeds of exports and deposited the same in any bank account and earned exchange fluctuation gain at the time of withdrawal from the said bank account. On the other hand, the facts of the case is that the assessee made an export sale and recorded the sale value at the value mentioned in the invoice and later on when it actually received the sale proceeds due to change in rate of exchange the assessee received more sale proceeds of exports and thereby earned exchange fluctuation gain. Therefore, respectfully following the above cited decision of the Tribunal, we confirmed the order of the Learned Commissioner of Income Tax(Appeals) and dismissed the ground of appeal of Revenue. 7. In the result, the appeal of the Revenue is dismissed. Order signed, dated and pronounced in the Court on 09.09.2009.
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2009 (9) TMI 1041 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... ourt cannot be taken as an order for the purposes of the present appeal, particularly when the Supreme Court has directed that we should not be influenced by any observation made by the High Court. The earlier appeal (Appeal No. 97 of 2008) filed by the appellant was entertained in view of the directions issued by the High Court observing that the plea made in paragraph 13 of the affidavit be taken as the decision of the Board for the purposes of the appeal. There is no such direction regarding violation of Regulation 12 of the Takeover Code. Therefore, we have no hesitation in holding that the present appeal is not maintainable. 4. In the result, the appeal fails and the same is dismissed. Since the appellant suppressed material facts from the Apex Court, he shall bear the costs of the respondents which are assessed at ₹ 50,000/- to be shared by them equally. The application filed by the appellant seeking to raise additional grounds in the appeal also stands dismissed.
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2009 (9) TMI 1040 - BOMBAY HIGH COURT
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... ... ..... the matters enumerated in Lists I and III of the Seventh Schedule, however, subject to two explanations engrafted in the proviso to Clause (1) and in clause. 25. In our view, the petition deserves to be dismissed and, we, accordingly, dismiss the petition, however, without any order as to costs. Rule discharged. Learned Counsel appearing for the petitioner seeks suspension of this order for two weeks for enabling the petitioner to approach the Hon'ble Supreme Court. We have heard the learned ASG, who opposes the prayer. We have noticed that the Hon'ble Supreme Court had stayed the communication of the Superintendent of Police and Foreigners Registration Officer, Panaji, Goa by order dated 25.08.2009 till the disposal of this Writ petition. It was directed to be disposed of on or before 14.09.2009. In this view of the matter, we suspend operation of this order for two weeks, from today. Certified copy expedited at the request of the Counsel on behalf of the petitioner.
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2009 (9) TMI 1038 - DELHI HIGH COURT
Grant of concessional rates to magazines - advertisement in the Reader's Digest issue - HELD THAT:- The advertisement in question was by Canara Bank. It was contended in that said case that "the petitioner collected the advertisement, printed it, put it at a proper place in the magazine, bound the magazine and distributed the magazine." It was observed that the advertisement had been printed for the advertiser, namely the Canara Bank and then had been sent to the publisher, i.e., Reader's Digest, for distribution. Therefore, Clause I of the note below Clause 132 of the Post Office Guide (Corresponding to Clause 139 referred to hereinbefore) was attracted. As regards the numbering of the pages it was found that they were numbered as 148 c, etc. and therefore if the pages were pulled out, it did not detract from the value of the magazine. However, it was clarified that if the pages had been numbered consecutively it would not infringe note (i).
We turn to the impugned advertisement itself. The first page of the advertisement indicates the page number as 55 and at the bottom it is clearly printed: "Reader's Digest/December 2005". Although the other pages of the Calendar 2006 are not consecutively numbered, the last page indicates the page number as 82 and again at the bottom carries the words "Reader's Digest/December 2005". This, therefore, conforms to the requirement of the clarification issued by the department on 25/28.06.1999.
In the impugned letter dated 21.11.2005 written by the department declining the concessional tariff it is merely stated that the calendar did not conform to the conditions contained in the letter dated 09.10.2001. That letter had stated that "advertisement will be numbered in running numerical sequence and will also have the name of the issue, month printed in the prominent position". The specific conditions listed out in this letter have already been extracted in para 3 hereinbefore. This Court does not find any of them having been violated as far as the present case is concerned. Further the need for numbering each page of the advertisement was already dispensed with by the department itself in its clarificatory circular dated 25/28.06.1999.
This Court finds that the advertisement in question forms part of the December 2005 issue of Reader's Digest and the pages of the advertisement have been expressly included in the total number of pages of the said issue. The first and last page of the advertisement is in sequence with the overall pagination of the issue. The name of the magazine and issue month is printed in a prominent position both in the first and last page of the magazine. Further to remove any doubts the readers have been informed in page 1 of the issue that the issue includes the Toyota advertisement which is at pages 55 to 82 of the magazine.
Accordingly, this Court finds no ground to interfere with the impugned judgment of the learned single Judge. The appeal is accordingly dismissed.
In the considered view of this Court, the impugned advertisement is in conformity with the requirement of the law as explained by the circulars issued by the department itself. Consequently, there is no merit in the appeal. It is dismissed.
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