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2010 (8) TMI 1100 - BOMBAY HIGH COURT
Arbitration Proceedings - mode of settlement of dispute - objection raised u/s 18 - invoked jurisdiction - HELD THAT:- In the circumstances, we hold that respondent no.1- Council is not entitled to proceed under the provisions of Section 18 (3) in view of independent arbitration agreement dated 23.09.2005 between the parties. The petitioners and respondent no.2 shall, however, participate in the conciliation, which shall be conducted by respondent no.1-Council under the provisions of Section 18 (1) and (2). Respondent no.1-Council shall complete the process of conciliation within a period of two weeks from the date the parties appear before it. The parties are directed to appear before respondent no.1-Council on 25.10 .2010.
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2010 (8) TMI 1099 - DELHI HIGH COURT
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... ... ..... more clearly during the course of trial. The fact remains that the consumers have no way of knowing what is the exact quantity of shampoo in the sachets. Over the years the Courts have issued directions which have tended to arm the consumers. If the submissions of the defendant are to be understood in their correct context, it was never their intention to mislead its consumers. Therefore, if this submission of the defendant were to be accepted, in the fitness of things, the defendants ought on their own (eventhough there is no statutory obligation to do so) indicate on their sachets, from here on, the exact quantity of the shampoo contained in the sachets. The defendant is, accordingly, directed to do the needful. This arrangement shall obtain at least during the course of the trial. 15. Needless to say my observations made hereinabove will not impact the merits of the case, being prima facie in nature. With the aforesaid directions the captioned application is disposed of.
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2010 (8) TMI 1098 - SUPREME COURT
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... ... ..... committed the offence under Section 409 IPC and was awarded two years' sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellant's claim. The High Court considered appellant's grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaid fact-situation, that any other view could also be possible. 29. In view of the above, we find no force in the appeal and it is accordingly dismissed. No order as to costs.
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2010 (8) TMI 1097 - DELHI HIGH COURT
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... ... ..... Delhi. That by itself is insufficient, in the opinion of the Court, to hold that the Defendant is either trading in Delhi or cause of action of such nature is occurred, occasioning the Plaintiff to file the present suit. The two transactions at best would amount to a flash in the pan, which, in no way, establish that the dispute can be entertained as is sought to be urged by the Plaintiff. In Sector Twenty One Owner's Welfare Association v. Air Force Naval Housing Board 65 (1997) DLT 81, it was held that trivial or insignificant part of the cause of action arising at a particular place would not be enough to confer jurisdiction. 11. This Court is not persuaded to take a view different from that taken in Alberto's case (supra) where the plaint was returned. In the circumstances, the suit is returned to the Plaintiff to be filed before the Principal Civil Judge at Thane. Parties are directed to be present before the Principal Civil Judge, Thane, on 25th October, 2010.
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2010 (8) TMI 1096 - BOMBAY HIGH COURT
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... ... ..... etres is to be handed over to MTNL, no prejudice would be caused if respondent No.5 is directed to hand over the built up area of 1706 sq. metres to MTNL free of costs. We accordingly direct the respondent No.5 to hand over the above built up area to MTNL. A copy of this order be served upon the Post Master General at Mumbai. In case, the Post Master General of Mumbai has any claim over the built up area in question, it will be open to the said authority to take up the matter with MTNL and with Union of India in the concerned ministry. Since the MTNL has been allotted only built up area admeasuring 1706 sq. metres, we are not called upon to examine the claim of 5723.10 sq. metres made by the petitioner-MTNL in this petition. Any further claim of the petitioner-MTNL with regard to additional built up area, the petitioner-MTNL will be entitled to get the same adjudicated by the appropriate authority. The writ petition stands disposed of." Praecipe disposed of accordingly.
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2010 (8) TMI 1095 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... been framed. Again, the show cause notice alleged that the circular of September 14, 1999 had banned negotiated/synchronized trades and the appellant had violated the same. Only, if someone had read the circular before framing the show cause notice, such an allegation would not have been made. Again, the enquiry officer did not apply his mind and recorded findings on charges that were not there in the show cause notice. If he had seen the show cause notice he would have realised that the enquiry could not travel beyond that notice and that the charges as laid had to be established. Finally, the whole time member accepted the findings in the enquiry report without appreciating that those were beyond the show cause notice even though this plea was taken before him. He did not care to meet the argument. Having said this, we leave the matter at that. For the reasons recorded above, we allow the appeal and set aside the impugned order leaving the parties to bear their own costs.
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2010 (8) TMI 1094 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... they contribute to the price discovery and that all those in the market willing to trade in the scrip have the benefit of the best possible price. According to the Board, the trades which are executed through the trading system of the exchange meet all these requirements. We are, therefore, satisfied that the trades executed by the two appellants as brokers on behalf of the buyer and sellers were in accordance with the aforesaid circular and did not in any way violate Regulation 4 of the Regulations. Moreover, the trades executed on behalf of UTI were not speculative in nature and were delivery based. When the trades executed by the appellants were perfectly legal and in accordance with the circular issued by the Board itself, there is no question of the appellants having violated the code of conduct. In this view of the matter, the impugned order cannot be sustained. In the result, the appeals are allowed and the impugned order set aside. Parties shall bear their own costs.
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2010 (8) TMI 1093 - CESTAT, CHENNAI
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... ... ..... was introduced only w.e.f. 13.2.2003 and not from July 2000 and therefore not applicable for clearances prior to 13.2.2003. The Commissioner (Appeals) set aside the impugned order loading the value of molasses by 15 and including the element of selling and administration expenses in the cost of manufacture ; hence this appeal by the Revenue. 2. We have heard both sides. The only contention of Revenue in this appeal is that CAS-4 has only prospective effect and cannot be applied retrospectively so as to cover clearances during the period prior to 13.2.2003. However, we find that in the case of Arthi Industries Ltd. v. CCE Vapi 2005 (186) ELT 208 and Ashima Denims Ltd. v. CCE Ahmedabad 2005 (191) ELT 318, it has been held that CAS-4 costing principles can be adopted retrospectively. 3. Following the ratio of the above decisions, we see no warrant to interfere with the impugned order and accordingly uphold the same and dismiss the appeal. (Dictated and pronounced in open court)
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2010 (8) TMI 1092 - JHARKHAND HIGH COURT
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... ... ..... udication. In the present writ petition of the petitioner what can only be seen is whether the order of the Commission is violative of any statutory provision. No such argument has been advanced by the counsel in the case that there was any statutory violation made by the Commission. 4. In that view of the matter, this court would be slow in interfering, while exercising its jurisdiction when the petitioner after admission of the contents of the notice issued to the petitioner has only been charged with penalty. The interest and prosecution has not been enforced. There being no statutory violation alleged by Settlement Commission the argument in relation to the Section 11AC would not be available to the petitioner as there was no adjudication. The order of the Commission has proceeded on admission of the petitioner. 5. In that view of the matter, we think that no interference is required to be called for by this Court. This writ petition is, accordingly, dismissed.
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2010 (8) TMI 1091 - SUPREME COURT
Imposition of Death Sentence - HELD THAT:- we would like to take note of the fact that this crime occurred right in the middle of a busy city. Innocent girls trapped in a burning bus were shouting for help and only the male students from their University came to their rescue and succeeded in saving some of them. There were large number of people including the shopkeepers, media persons and on-duty police personnel, present at the place of the "Rasta Roko Andolan", which was very close to the place of the occurrence of the crime, and none of them considered it proper to help in their rescue.
In order to succeed in their mission, Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran(A.3) and C. Muniappan (A.4) went to the extent of sprinkling petrol in a bus full of girl students and setting it on fire with the students still inside the bus. They were fully aware that the girls might not be able to escape, when they set the bus on fire. As it happened, some of the girls did not escape the burning bus. No provocation had been offered by any of the girls. Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran(A.3) and C. Muniappan (A.4) did not pay any heed to the pleas made by Dr. Latha (PW1) and Akila (PW2), the teacher, to spare the girls. As a consequence of the actions of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and C. Muniappan (A.4), three girls stood to death and about 20 girls received burn injuries on several parts of their bodies. There can be absolutely no justification for the commission of such a brutal offence. Causing the death of three innocent young girls and causing burn injuries to another twenty is an act that shows the highest degree of depravity and brutality on the part of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and C. Muniappan (A.4).
Thus, the manner of the commission of the offence in the present case is extremely brutal, diabolical, grotesque and cruel. It is shocking to the collective conscience of society. We do not see any cogent reason to interfere with the punishment of death sentence awarded to Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and C. Muniappan (A.4) by the courts below. Their appeals are liable to be dismissed.
In view of the above, all the appeals are dismissed.
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2010 (8) TMI 1090 - GUJARAT HIGH COURT
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... ... ..... rusal of the products mentioned in the said Heading it is apparent that the product in question, even if the same were held to be a cosmetic would fall only under the category of “Perfumed Hair Oil” as the product in question cannot in any manner be said to be brilliantine, hair lotion, pomade and cream, hair dye or shampoo. In the circumstances, at best the product could have been classified under Chapter 33 sub-heading 3305.10 and not under sub-heading 3305.99. 34. In the light of the aforesaid discussion, the petition succeeds and is accordingly allowed. The impugned order dated 12-4-1999 passed by the Tribunal in Appeal No. E/2186-R/98-Bom as well as order dated 11-3-2000 passed by the Tribunal in Application No. E/ROM-580-R/99-Mum are hereby quashed and set aside. It is held that “Trichup Oil” manufactured by the petitioner falls for classification under tariff sub-heading 3003.39. Rule is made absolute accordingly with no order as to costs.
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2010 (8) TMI 1089 - ITAT MUMBAI
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... ... ..... or commercial right” because what s. 32(1)(ii) contemplates is “business or commercial rights” relating to intellectual properties and not all categories of business or commercial rights. Since a BSE card is not a business or commercial right relating to intellectual property rights depreciation cannot be allowed on it; (3) The fact that a BSE card is a capital asset and liable for capital gains tax is irrelevant because s. 32 does not allow depreciation on all capital assets but only on capital assets which fall in the enumerated categories. 28. In view of the above decision of the Hon'ble Bombay High Court, the assessee is not entitled to claim deprecation on BSE card. We therefore reverse the order of learned CIT(A) and restore the order of the Assessing Officer. In the result, appeal by the revenue is partly allowed. 29. In the result, both the appeal by the revenue and assessee, are partly allowed. Order was pronounced on 20th Day of August, 2010.
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2010 (8) TMI 1088 - BOMBAY HIGH COURT
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... ... ..... es as regards the alleged transfer of the entire shareholding of the first respondent are expressly kept open. 19. Hence, the appeals are disposed of by passing the following order (i) The impugned order is set aside. (ii) It is held, in the facts of the case, that unless the first respondent establishes that he was a member of the said Company on the date of filing the Company Petition under Section 397/398 of the Companies Act, 1956, the said petition cannot be entertained. (iii) It will be open for the first respondent to file appropriate proceedings for rectification or for establishing his membership/shareholding of the said Company. (iv) The Company Petition filed by the first respondent will remain stayed till disposal of such proceedings. (v) If such proceedings is not filed within 12 weeks from today, the Company Petition shall stand dismissed. (vi) The Company Applications No. 61 and 62 of 2009 stand disposed of. (vii) The appeals are partly allowed on above terms.
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2010 (8) TMI 1087 - ITAT AHMEDABAD
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... ... ..... partners. There is no specific provision in the clauses of the partnership deed in this case as is reproduced in the impugned order to advise charge interest on debit balance. The assessee pleaded that in this year the partners have decided not to charge any interest on debit balance of the partners. Therefore, the AO was not justified in directing to charge notional interest on the debit balance of the partners. Moreover, the interest is calculated on the debit balance as on 01-04-2006, according to the findings of the learned CIT(A) which is the beginning of the financial year to the assessment year under appeal. Considering the above, we do not find any justification to charge any notional interest on the debit balance of the partners account. Considering the facts and circumstances of the case, we set aside the orders of the authorities below and delete the addition. 5. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 31-08-2010
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2010 (8) TMI 1086 - SUPREME COURT
Petition filled u/s 34 of the Arbitration and Conciliation Act, 1996 (‘Act’) - non-award of interest pendente lite - HELD THAT:- We are of the view that the decisions in Engineers-De-Space-Age[1995 (12) TMI 400 - SUPREME COURT] and Madnani [2009 (12) TMI 1007 - SUPREME COURT] are inapplicable for yet another reason. In Engineers-De-Space- Age and Madnani the arbitrator had awarded interest for the pendente lite period. This court upheld the award of such interest under the old Act on the ground that the arbitrator had the discretion to decide whether interest should be awarded or not during the pendente lite period and he was not bound by the contractual terms insofar as the interest for the pendente lite period. But in this case the arbitral tribunal has refused to award interest for the pendente lite period. Where the arbitral tribunal has exercised its discretion and refused award of interest for the period pendente lite, even if the principles in those two cases were applicable, the award of the arbitrator could not be interfered with. On this ground also the decisions in Engineers- De-Space-Age and Madnani are inapplicable. Be that as it may.
For the aforesaid reasons, we find no merit in these appeals and they are dismissed.
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2010 (8) TMI 1085 - ITAT KOLKATA
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... ... ..... vouchers were getting signed by them for the amounts paid to them for such expenses. Hence, the same should be allowed in full. We also find that the Ld. CIT(A) restricted the disallowance to 10 out of the total expenditure claimed by the assessee as the expenses of the assessee were not properly vouched was accepted to some extent. Therefore, we find that the restriction of disallowance as made by the Ld. CIT(A) is reasonable considering the volume of the expenses claimed by the assessee and in the absence of any controverting material brought on record by the assessee, we do not find any necessity to interfere with the order of the Ld. CIT(A) in this regard and the same is hereby upheld. This ground of appeal of the assessee is, therefore, dismissed. 13. Ground no. 6 is consequential in nature and does not require any adjudication. 14. In the result, the appeal of the assessee is partly allowed for statistical purposes. 15. Order is pronounced in the open court on 31.8.10.
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2010 (8) TMI 1084 - GUJARAT HIGH COURT
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... ... ..... s. 5. In the Official Liquidator Report, the State Government is also a party and an affidavit-in-reply is filed by one Mr. Sharadkumar Shah, Commercial Tax Officer, Kadi. It is stated in the said affidavit that as on 31st December, 2009 an amount of ₹ 4,13,787/-, remained unpaid by the Company (in liquidation) and hence the said liability should be discharged by the Official Liquidator. The dues of the Commercial Tax Officer are pertaining to the prewinding- up period and for recovery of the said dues, the Commercial Tax Officer will have to lodge his claim before the Official Liquidator and the amount shall be paid by the Official Liquidator in accordance with the provisions contained in Section 530 of the Companies Act, 1956. On realization of full sale-consideration the Official Liquidator shall immediately start the process for distribution amongst the claimants. 6. With these directions and observations, this Official Liquidator Report is accordingly disposed of.
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2010 (8) TMI 1083 - DELHI HIGH COURT
Look-out Circular (LOC) - Red Corner Notice (RCN) issued by Delhi Police and Interpol - petitioner emotionally tortured his wife while his family physically tortured his wife - RCN described the petitioner as “fugitive wanted for prosecution”. A warning is there that the petitioner may be “dangerous” and “violent” - The petitioner claimed that he was a Canadian citizen since January, 2004 and a person of Indian origin. He had married one Ms. Reema Salkan on 24th March, 2002 according to Hindu rites and ceremonies. The facts reveal that wife of the petitioner was not able to join the petitioner in Canada, as difference arose between the parties in the very beginning. The petitioner alleged that he was compelled to withdraw the sponsorship made by him for his wife Reema in view of certain developments.
A complaint against the petitioner and his parents and married sister was filed at Crime Against Women Cell (CAW Cell) u/s 498-A/406 IPC making various allegations. Later on, an FIR was registered on 22nd April, 2003 on the basis of this complaint. The parents and sister of petitioner obtained anticipatory bail from the court. Since petitioner was in Canada, he could not be arrested by the police.
ADC of Police wrote a letter dated 27th May, 2003 to Foreigners Regional Registration Office (FRRO) for opening LOC against the petitioner, a letter seems to have also been written to Interpol Wing of CBI on 11th June, 2003 for opening and issuance of a Red Corner Notice and service of summons on the petitioner in Canada.
HELD THAT:- In the present case, petitioner’s address in Canada was well known to the police as well as to the complainant. No effort was made by the police to initiate extradition proceedings against the petitioner from Canada to Delhi despite the fact that even according to police; the petitioner is wanted since 2003. The information given in RCN is that the petitioner emotionally tortured his wife while his family physically tortured his wife. The RCN requirements provide that the request has to be made to the country if the country is linked by Bilateral Extradition Treaty or by any other Convention or Treaty containing provision of Extradition Treaty.
LOC was issued against the petitioner soon after the registration of FIR. It is alleged by the petitioner that LOC was issued in view of the fact that complainant’s close relative was an IPS officer. This allegation of the petitioner finds support from the fact that the punishment stated by the police to Interpol in respect of the offences committed has been deliberately given as 10 years while the prescribed punishment is maximum 3 years imprisonment.
The petitioner’s description of being ‘violent and dangerous’ also has been added malafidly, with ulterior motive, in view of the fact that allegations against petitioner were of only of emotional torture. Offence of kidnapping was given as the reasons for issuance of RCN, which on the representation of petitioner was removed. It is apparent that the LOC & RCN were issued for extraneous reasons by an officer who was not authorized. The petitioner has also highlighted the difference in statements made by witnesses on different occasions. Since the matter pertaining to these offences is sub judiced, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.
Look-out-Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.
The questions raised in the reference are as under:
What are the categories of cases in which the investigating agency can seek recourse of Lookout-Circular and under what circumstances? - Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
What procedure is required to be followed by the investigating agency before opening a Lookout-circular? The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.
What is the remedy available to the person against whom such Look-out-Circular has been opened? The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can intervene? LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.
The petitions stand disposed of in above terms.
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2010 (8) TMI 1082 - ITAT AHMEDABAD
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... ... ..... 1961 - Business disallowance - Gratuity - Assessment year 1979-80 - Assessee-company claimed deduction under section 40A(7) (b) (i) on account of gratuity actually deposited in fund created by it - Whether such a claim could only have been disallowed if it had been proved that gratuity, in respect of which said payment had been made, had not become payable during previous year - Held, yes - Whether in absence of such a case made out by revenue, Tribunal was right in holding that grant of approval of gratuity fund was not relevant for purpose of instant case as said deduction was not being claimed on account of any provision and amount of gratuity was an allowable deduction - Held, yes”. 5. Considering the above aspects, we do not find any infirmity in the order of the learned CIT(A) in deleting the addition. There is no merit in the departmental appeal. Same is accordingly dismissed. 6. As a result, the departmental appeal is dismissed. Order pronounced on 06-08-2010.
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2010 (8) TMI 1081 - ITAT MUMBAI
Assessment u/s 153A - Whether incriminating documents found during the course of search? - Rejection of claim u/s 80IB(10) - HELD THAT:- There is not only a statement of having made e-xcessive claims, but it is followed up by su-motto surrender of the claims made earlier u/s. 80IB(10) of the Act. Just because there is no statement or withdrawal of claim for this particular assessment year, it cannot be said that there is no possibility of the assessee not having made the false claim u/s 80IB(10) during this year. Once during the course of search, certain information has come to light, that the assessee has made certain false claims, on a particular issue, in our considered opinion, the AO has jurisdiction to examine the validity of the claim of exemption u/s 80IB(10) in all the assessment years, while processing the returns of income u/s. 153A read with section 143(3). Thus in view of the information that has come to light during the course of search and seizure operations on the claims of exemption made by the assessee u/s 80IB(10) during the period prior to the search, it is held that there is information, which is intangible material, unearthed as a result of search, and this material can be used for the purpose of assessment made u/s 153A read with section 143(3). Hence, on facts, we fully agree with the submission of the ld. Departmental Representative
Deduction u/s.80(IB)(10) - whether the project is constructed on a plot of land which is more than one acre.? - HELD THAT:- Additional housing project constructed on an existing project, which fulfils the requirement of the size of the plot of land of minimum 1 acre, would be eligible for deduction u/s 80IB(10). This clarification, in our considered opinion supports the literal interpretation pleaded by the learned counsel for the assessee.
In view of the factual position that the project in question is purely a residential project without a commercial element and as this project is located on a plot of land of a size of 1.43 acres as following VANDANA PROPERTIES case [2009 (4) TMI 530 - ITAT MUMBAI] we allow this ground of the assessee.
Eligibility for exemption u/s.80IB(10) of Pocket 10 MIDC - Whether FAA has erroneously considered 10% of the plot area instead of considering 10% of the total constructed area while examining the eligibility for exemption? - HELD THAT:- As per the mandate Tribunal in the case of Brahma Associates [2009 (4) TMI 215 - ITAT PUNE] as already referred above while dealing ground No.1, what is to be considered is 10% of the built up area and not 10% of the plot area. Thus we set aside this issue to the file of the AO for examining, if the assessee’s built up commercial area is less than or more than 10% of the total built up area. If the commercial built up area is less than 10% of the total built up area, the case of the assessee should succeed. If it is not so, the assessee will not be entitled for any exemption u/s.80IB(10). With these observations we set aside the issue to the file of the A.O. for fresh adjudication. In the result, this ground is allowed for statistical purposes
Addition made u/s 2(22)(e) - financial transactions between sister concerns - HELD THAT:- The Hon’ble Delhi High Court in the case of CIT vs. Ambassador Travels P. Ltd. [2008 (4) TMI 428 - DELHI HIGH COURT] held that when the assessee entered into normal business transaction as a part of day to day business activity, this cannot be treated as loans or as advances.
We accept the arguments of the learned counsel for the assessee that the transactions between these sister concerns are business transactions and are guided by commercial expediency and are mere diversion of funds and are neither a loan or advance as contemplated u/s 2(22)(e). Thus this ground of the assessee is allowed.
Appeals are allowed in part.
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