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2010 (2) TMI 1324
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... ... ..... n an application by such accused, all the persons can be tried together, shows that even in cases where the provisions of Section 223 are not covered also, in certain circumstances, joint trial can be held with regard to different accused i.e., on an application by the accused to the concerned Magistrate. Thus joint trial is not totally prohibited and that would not vitiate the trial, as long as no prejudice is shown to have been caused to the accused. 23. In City Automobiles case (supra) it was held that provisions contained in Part-B of Chapter XVII under which the present provisions fall are only enabling provisions and the infraction thereof is neither illegal nor would vitiate the trial. Thus even assuming that there is some procedural illegality that would not vitiate the trial. 24. In all these circumstances, it has to be held that in the present case there is no illegality in holding a joint trial. 25. In the result, the petition fails and it is accordingly dismissed.
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2010 (2) TMI 1323
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... ... ..... of the enactment before it that the Supreme Court has construed the words conjunctively. It is in that context that it has referred to the plain and grammatical meaning and attributed the same to the legislature. The part separated by the word and has been read conjunctively in several cases. In due decision reported in A.I.R. 1993 SC 1212 Paras Ram V/s. State of Haryana the word and has been interpreted conjunctively (Arms and Ammunitions) so as to set aside the conviction under TADA. 27. The decisions therefore must be seen in the peculiar factual backdrop, the setting in which the word occur, the legislative intent and object, so also, the context. If the words are not interpreted by applying those principles, then, confusion and chaos may result, which is to be avoided at all costs. Therefore, the decisions cited are clearly distinguishable. In the result, the Criminal Application is dismissed. 28. Rule discharged. 29. Ad interim order, if any, to stand vacated forthwith.
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2010 (2) TMI 1322
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... ... ..... t staff in the light of the fact that the assessee successfully carrying out all other activities of the trust. In our opinion, the assessee has not show any reasonable cause for not filing the return of income in accordance with the provisions of s.139 of the Act. Accordingly in our opinion penalty is leviable u/s 272A(2)(e) of the IT Act in all assessment years. 8.10. For the assessment year 1997-98 the assessee submitted that time limit for filing the return of income even u/.s 148 expired on 31.3.2004. The return filed on 16.10.2004 is beyond time and no penalty could be levied. This arguments of the assessee hold merit. Since we have already held earlier para that penalty be leviable for non filing return of income till the time available to file the return of income u/s 139(4) as such, the question of filing the return of income u/s 148 is not relevant. 9. In the result, the five appeals of the assessee stand partly allowed. Order pronounced in the open Court 11.2.2010.
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2010 (2) TMI 1321
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... ... ..... tra, Adv., Mr. B.V. Balaram Das, Adv. For the Respondent None ORDER Heard learned counsel for the petitioner. Delay condoned. The special leave petition is dismissed.
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2010 (2) TMI 1320
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... ... ..... owed for statistical purposes. 9. The next grounds of this appeal of the assessee is as regards to general ground, ground of levy of interest u/s.234A, 234B and 234C of the Act and initiation of penalty u/s.271(1) of the Act. At the outset the Ld. counsel for the assessee has not pressed these issues and accordingly the same are dismissed as not pressed. Now coming to assessee s appeal in ITA No.161/Ahd/2009. 10. This appeal by the assessee is against the order of CIT(A) in confirming the levy of penalty u/s.271(1)(c) of the Act on account of variation of consumption of raw materials compared to standard input output ratio. As above, this issue has already been allowed in quantum appeal in ITA No.519/Ahd/2007 of the assessee, the penalty u/s.271(1)(c) of the Act cannot survive. Accordingly, this appeal of the assessee on penalty u/s.271(1)(c) of the Act is allowed. 11. In the result, both appeals of the assessee are partly allowed. Order pronounced in Open Court on 25/02/2010
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2010 (2) TMI 1319
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... ... ..... the statement of the eye witnesses, PW-1. There has been no delay in registration of the case and in fact even a counter case was registered which did not result in favourable culmination for the accused. It may also be noticed that the learned trial court as well as the High Court has referred to the statement of the accused recorded under Section 313 of Cr.P.C. which to some extent falls in line with the case of the prosecution. 34. The cumulative effect of the above discussion is that we do not see any reason to interfere with the judgment of the High Court. The High Court has not exceeded its jurisdiction in law and with reference to the evidence on record while reversing the judgment of acquittal to one that of conviction. So far as the conviction of the accused under Section 25(1) of the Act is concerned, no arguments were addressed. In any case we see no reason to interfere with the said finding of the courts below. 35. In the result, the appeal fails and is dismissed.
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2010 (2) TMI 1318
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... ... ..... ays from the service of the demand notice dated 23-3-2004. Thus in view of aforesaid dictum, the impugned complaint of the applicant could not be deemed to be barred by time. Therefore, in view of above-mentioned discussion, I have not found any perversity in the impugned judgment requiring any interference at this stage under the revisional jurisdiction of this Court. Consequently, this revision is hereby dismissed at the stage of motion hearing. In such premises, the interim order passed earlier for suspension of the above-mentioned sentence has come to an end. Pursuant to it, the applicant is directed to surrender himself before the trial Court on or before 28-2-2010 to serve the remaining jail sentence awarded by the Courts below. If the applicant is not surrendered within the aforesaid period then, the trial Court shall be at liberty to take appropriate steps to service the remaining sentence to the applicant. Petition is dismissed as indicated above. Petition dismissed.
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2010 (2) TMI 1317
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... ... ..... ed the parameters on which the stay application should be disposed of. Thus, the CIT (Appeals) may be directed to dispose of the stay application in view of the parameters provided by the Bombay High Court in the aforesaid decision. In view of the aforesaid facts and circumstances, the writ petition is disposed of directing the Commissioner of Income Tax (Appeals), Meerut to dispose of the stay application expeditiously preferably within a period of two weeks from the date of presentation of a certified copy of this order in the light of the parameters provided by the Bombay High Court in the case of KEC International Ltd. v. B.R. Balakrishnan and others (Supra) in accordance to law without being prejudiced by the order passed by the Additional Commissioner of Income Tax, Range-2, Meerut rejecting the stay application. Having regard to the huge demand, the Commissioner of Income Tax (Appeals), Meerut is further directed to decide the appeal expeditiously as early as possible.
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2010 (2) TMI 1316
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... ... ..... save a coercive proceedings qua the assets of the sick company, could also not be proceeded with further. 9. The counsel for the appellant/plaintiff has also invited our attention to Section 33 of the CPC to contend that after hearing, it is the obligation of the Court to pronounce the judgment. He contends that Section 33 of the CPC will overrule Section 32 of SICA. We are unable to accept the aforesaid argument. Section 33 of the CPC is in existence since much prior to the promulgation of SICA and the non-obstante clause in Section 22 will cover Section 33 of the CPC also. If the contention of the counsel for the appellant were to be accepted, then even an appellate/revision/writ court would not be entitled to stay pronouncement of judgment in a suit / proceeding before the Court below after the orders have been reserved. Such interpretation cannot be permitted in law. 10. There is no merit in the appeal. The appeal is dismissed. However, in the facts no order as to costs.
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2010 (2) TMI 1315
Negotiable Instruments Act - offence punishable u/s 138 - cheque not issued on the date mentioned - ascertaining the age of the writings and the age of the ink used for the writing - HELD THAT:- Considering the matter on record and relying on different decisions we are of opinion that there is no expert in terms of Section 45 of the Indian Evidence Act available who could be in a position to offer any opinion regarding the age of the ink by adopting any scientific method. In view of all the above, we are inclined to interfere with the order of the learned Sessions Judge.
In the result, the revision is allowed and the impugned order of the learned Sessions Judge is set aside and the order of the learned Judicial Magistrate No. II, Pollachi is restored. Consequently, connected Miscellaneous Petition is closed.
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2010 (2) TMI 1314
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... ... ..... ruction and it was not involved in planning and development of infrastructure facility as a whole - It was also noted that assessee was bound to carry out construction work as per requirements of State Government(s)/statutory bodies and could not deviate by even an inch from plan assigned to it - Whether on facts, it was clear that assessee was a mere contractor and not developer and, therefore, its claim for deduction under section 80-IA(4) failed on both counts, viz., it was neither a developer nor it fitted into any of categories of eligible business of (i) developing, (ii) maintaining and operating infrastructure facility on one hand or (iii) developing, maintaining and operating any infrastructure facility on other - Held, yes.” 7. Respectfully following the above order, we set aside the order of the learned CIT(A) and restore the order of the Assessing Officer. 8. In the result, Revenue’s appeal is allowed. Order pronounced on this 2nd day of February, 2010.
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2010 (2) TMI 1313
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... ... ..... ard the rival submissions and perused the relevant material on record. Both the sides are in agreement that the facts and circumstances of this appeal are mutatis mutandis similar to those considered by the Larger Bench of the Tribunal in the case of M/s.B.T.Patil & Sons Belgaum Construction Private Limited Vs. ACIT (2010) 36 SOT 171 (Mum) (LB) in which it has been held that the benefit of deduction u/s.80-IA(4) is available only to the developer of infrastructure facility and not to a contractor. The learned Counsel for the assessee could not point out any distinguishing feature in the facts of the case considered by the Larger Bench (supra) vis-à-vis those of the instant case. Respectfully following the precedent we overturn the impugned order on this issue and restore the order of the A.O. It is, therefore, held that the assessee is not entitled to deduction u/s 80IA(4). 4. In the result, the appeal is allowed. Order pronounced on this 9th day of February, 2010.
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2010 (2) TMI 1312
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... ... ..... 998 what was due was only Rs. 10,975/-, though on 08.01.1998, the date of issuing post dated cheque for Rs. 17,745/- was due. It was held that the cheque issued was for much higher amount than was actually due and therefore it cannot be said that the cheque was issued towards debt or other liability within the meaning of Section 139, and offence under Section 138 of the Negotiable Instruments Act is not committed. In said case the Court distinguished between 'liability' and 'security' and observed that both cannot be mixed or acted upon simultaneously. In para 6 it is observed that if the act of a person in discharge of liability is not done, then security comes in picture and if the act in discharge of a liability is performed then security would not have any legal force. 25. After having considered all aspects, in my opinion, this is not a case where leave to file appeal against order of acquittal can be granted. Hence, the Criminal Application is dismissed.
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2010 (2) TMI 1311
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... ... ..... additional benefits. The said observations, cannot therefore be of any assistance to consider the applicability of the old Scheme for compassionate appointment vis-a-vis the new Scheme for ex gratia payment. 20. The Respondent was not entitled to be considered for compassionate appointment. The High Court was not justified in quashing the communication dated 31-1-2006 or in directing reconsideration of the case of the Respondent for compassionate appointment. 21. We therefore allow this appeal in part as follows (i) The orders of the learned Single Judge and the Division Bench are set aside. (ii) The Respondent and/or his family may file a fresh application under the new Scheme, as directed by the Bank in its letter dated 31-1-2006. (iii) The Appellant Bank is directed to process such application under the new Scheme, if and when made, and pay the lump sum ex gratia amount due in terms of that Scheme, to the beneficiaries, within four months of the receipt of the application.
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2010 (2) TMI 1310
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... ... ..... hand, if the suit is laid in Calcutta the Plaintiff, who would anyway have to come to India to prosecute the case, will go to Calcutta instead of Chennai. It makes no difference to the applicant. 17. The above decisions are fully applicable to the present factual position of the case. Thus, the averments made in the plaint do not make out any part of the cause of action and thus the Plaintiff has not shown any part of the cause of action which has arisen within the local limits of this Court. Therefore, the learned Single Judge was perfectly correct in revoking the leave originally granted in favour of the Appellant, and consequently, the application for interim injunction has been dismissed. This Court is unable to see any merit in both the appeals. 18. In the result, both these original side appeals fail, and the same are dismissed confirming the order of the learned Single Judge. The parties are directed to bear their costs. Consequently, connected M Ps are also dismissed.
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2010 (2) TMI 1309
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... ... ..... basis. 7. On the last date of hearing, time was granted to Revenue to find out whether the order passed by the Jt. Commissioner vide order dated 25/7/2006 vide which the demand was dropped is received. Ld. JDR submitted that the order is accepted by the Commissioner of Central Excise and produced the letter dated 17/06/2009 from the office of Commissioner of Central Excise, Kolkata-II to this effect. 8. As the demand which was raised by the separate show cause notice on the same evidence was dropped by the adjudicating authority vide order 25/7/2006 subsequent to the present impugned order and the order is accepted by the Revenue, therefore we find it is a fit case for reconsideration by the adjudicating authority. Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after affording opportunity of hearing to the appellant. The appeals are disposed off by way of Remand. (Dictated and pronounced in the open court)
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2010 (2) TMI 1308
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... ... ..... y the Tribunal by its order dated 22.1.10. However, upon examination of the two orders, it is clear that the remand order, as passed by the High Court has not been complied with. Neither the first appellate authority nor the Tribunal have examined or discussed the agreement dated 1.4.03, in order to reach the conclusion as to whether the transactions were stock transfers or otherwise. As the two authorities have not fulfilled and complied with the orders of the High Court in its true spirit, the matter is being remanded to the Tribunal for fresh consideration in the light of the order passed by the High Court in T.T.R. No.1534 of 2008 dated 20.1.09. The matter remanded to the Tribunal shall be decided by the Tribunal within a period of three months from the date of presentation of a certified copy of this order being placed before it. A certified copy of this order shall be placed before the Tribunal within next 15 days. With the above direction, this revision is disposed of.
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2010 (2) TMI 1307
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... ... ..... as the facts are clearly covered by the decision in the case Brahma Associates 315 ITR(AT) 266 (SB). In terms of percentage the commercial area constitutes 6.15% of the total constructed area. The decision in the case of M/s. Laukik Developers relied upon by the Revenue in the grounds of appeal has been considered and overruled by the decision of the Special Bench in the case of Brahma Associates (supra). In view of the order of the Special Bench there is no need to differ from the findings of the CIT(A) in granting proportionate deduction. Accordingly the order of the CIT(A) is confirmed and Revenues’ appeals are dismissed. 9. The cross objections are in support of the CIT(A)’s order and since the order is confirmed the cross objections become academic in nature. Accordingly they are treated as dismissed. 10. In the result, the appeals of the Revenue and the cross objections of the assessee are dismissed. Order pronounced in the open court on 17th February 2010.
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2010 (2) TMI 1306
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... ... ..... t cost should have been only 25% and not one-third as adopted by the Reference Court. Therefore, by adopting a cut of 25% towards development cost, we arrive at the market value as ₹ 4,26,670/- per acre. 12. The Reference Court has awarded the additional amount under Section 23(1A) and solatium under Section 23(2) but did not award interest under Section 28 of the Act. But the High Court has awarded all the statutory benefits, that is 12% additional amount under Section 23(1A), solatium of 30% under Section 23(2) and interest @ 9% per annum for a period of one year from the date of taking possession and 15% per annum thereafter. It does not call for interference. 13. We, therefore, allow the appeals of the Corporation and reduce the compensation to ₹ 4,26,670/- per acre (instead of ₹ 6,79,935/- per acre awarded by the High Court) with all statutory benefits. Consequently, appeals filed by the land owners are dismissed. Parties to bear their respective costs.
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2010 (2) TMI 1305
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... ... ..... . We make it clear that such applicants, who have moved by way of impleadment/intervention applications, would not be entitled to an unconditional stay. They will not be entitled to the benefit of this order passed today. The State would be entitled to move against each of such applicants in accordance with law. This clarification is required to be given as we are informed by the learned senior counsel appearing for the Department that number of assessees, who have not moved this Court by filing special leave petitions/civil appeals, are also refusing to pay Entry tax. The order passed today is confined only to the parties whose names are mentioned in List-A and List-B hereinabove. The intervention and impleadment applications, however, will remain on the file of this Court, they will not be dismissed, but they will remain confined only to the question of constitutional validity of the impugned law and in each of such cases, it is made clear that there is no stay on recovery.
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