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2011 (9) TMI 1175 - ITAT MUMBAI
... ... ... ... ..... nsidered the submissions of Ld. Representatives of the parties and earlier order of Tribunal in assessee's own case for A.Y. 2003-04 (supra). Respectfully following the earlier order of Tribunal, we set aside the order of Ld. CIT (A) on the above issue and restore it to the AO for his consideration in accordance with law and after considering such material as may be placed before him. Needless to say that AO will give adequate opportunity of being heard to the assessee on the above issue and will pass a speaking order. Hence, Grounds No. 12 & 13 of the appeal of the assessee is allowed for statistical purposes. 42. In respect of grounds No. 14 of the appeal filed by the assessee in respect of levy of interest u/s. 234B of the I.T. Act, it is consequential and does not require any specific adjudication. 43. In the result, appeals of the department as well as assessee for assessment year 2004-05 are allowed in part. Order pronounced on this 30th day of September, 2011.
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2011 (9) TMI 1174 - SUPREME COURT
... ... ... ... ..... uestion of law and the inferences drawn by the first appellate court were wholly unwarranted. The fact that was proved was possession of suit portions which was not in dispute, but not tenancy in regard to the suit portions, which was in dispute. In the absence of any documentary evidence showing the tenancy or payment of rent, the evidence of PWs.1 and 2 is more trustworthy and probable than the uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3 does not have any bearing on the issue of tenancy claimed by Respondents). We therefore find that the judgments of the first appellate court and the High Court are unsustainable and the finding of the trial court that Respondents are gratuitous licensees was correct and justified. 28. Therefore, we allow this appeal, set aside the judgment of the High Court and the first appellate court and restore the decree for possession of the suit portions granted by the trial court. Parties to bear their respective costs.
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2011 (9) TMI 1173 - SC ORDER
... ... ... ... ..... ay condoned. The Special Leave Petition is dismissed.
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2011 (9) TMI 1172 - ITAT BANGALORE
... ... ... ... ..... y issuing notice u/s. 148 first and thereafter to decide the case afresh in accordance with the law, after providing due and reasonable opportunity of being heard to the assessee. Since we have remanded the case to the file of AO, we do not consider it fit and appropriate to go into the other grounds raised by the assessee on merits of the case. 13. In all the other appeals of the assessee also, the aforesaid legal ground has been raised, so our findings given above shall apply mutatis mutandis for other assessment years involved under consideration. 14. As far as the appeals filed by the department are concerned, since we have remanded the case to the file of the AO, therefore the AO is directed to consider the grounds raised by the department in its appeal while deciding the case of the assessee. 15. In the result, the appeals by the assessee as well as by the department are allowed for statistical purposes. Pronounced in the open court on this 28th day of September, 2011.
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2011 (9) TMI 1171 - SC ORDER
... ... ... ... ..... re, since the matter is pending before the Rajasthan High Court. Having regard to the above, these appeals are treated as withdrawn, with liberty to the appellant to move the appropriate High Court on the same sets of facts and question of law involved. It has been submitted by Mr. Salve, learned senior counsel appearing for the respondent, that the question of the High Court’s jurisdiction to entertain the matter, will not be raised by the respondent herein.
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2011 (9) TMI 1170 - ITAT AHMEDABAD
... ... ... ... ..... act bifurcation of the entertainment expenses, etc. are not placed before us, therefore, we are not in a position to comment about the exact nature of those expenses and whether they were found to be verifiable by the AO, or else they are incurred wholly & exclusively for the business of the assessee. In the interest of justice, we therefore deem it proper to restore this ground as well back to the stage of AO, so that alongwith the other investigation as referred above, he can verify the nature of expenses and can decide in the light of the past history of the case. For statistical purposes, this ground also may be treated as allowed. 10. Rest of the grounds are in respect of charging of interest and initiation of penalty proceedings which are being general in nature require no independent adjudication at this stage. 11. In the result, Assessee’s appeal is partly allowed but for statistical purposes. Order signed, dated and pronounced in the Court on 30/ 09 /2011.
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2011 (9) TMI 1169 - THE SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Shares acquired without making any public announcement - Violation Of the Regulation 11(1) of the Securities and Exchange Board of India Regulations, 1997 (the takeover code) - acquired 6.17 per cent of the equity capital - Appellant crossed the permissible creeping acquisition limit of 5 per cent in a financial year - HELD THAT:- The shares acquired by the Appellant company and the holding of the two Naras has to be clubbed for the purposes of Regulation 11(1) of the takeover code as they were acting in concert. When we do this, it becomes clear that the Appellant crossed the permissible creeping acquisition limit of 5 per cent thereby triggering Regulation 11(1) of the takeover code and not having made a public announcement, violated the said provision. The learned senior counsel for the Appellant is right only to the extent that the Appellant company did not act in concert with any promoter of the target company other than the Naras and that is of No. consequence. Even if the shareholding of the other promoters is excluded, the shareholding of the Naras and the Appellant together is enough to trigger Regulation 11(1). In this view of the matter, No fault can be found with the conclusion arrived at by the whole time member that Regulation 11(1) got triggered and the Appellant by not making a public announcement violated the said provision. The question posed in the opening part of the order is answered in the affirmative.
Direction issued - The Board need not give reasons as to why such a direction is being issued because that is the mandate of Regulations 10, 11 and 12. However, if the issuance of such a direction is not in the interest of the securities market or for the protection of interest of investors, the Board may deviate from the normal rule and issue any other direction as envisaged in Regulation 44 of the takeover code. In that event, the Board should record reasons for deviation. In the case before us No reasons have been recorded for deviating from the normal rule and we find No ground for deviation.
Thus, we modify the direction issued by the whole time member and direct the Appellant to make a public announcement to acquire the shares of the target company in accordance with the provisions of the takeover code. For this limited purpose, the Appellant shall now approach the Board within one week to comply with the procedural requirements in this regard.
In the result, the appeal is dismissed and the direction issued by the whole time member modified as stated. There is No order as to costs.
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2011 (9) TMI 1168 - ITAT DELHI
... ... ... ... ..... Rule 8D is clearly not applicable. 6.1 It was further held that even prior to A.Y. 2008-09, when Rule 8D was not applicable, the Assessing Officer has to enforce the provisions of sub-section (1) of Section 14A. For that purpose, the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act. The Assessing Officer must adopt a reasonable basis or method consistent with all the relevant facts and circumstances after furnishing a reasonable opportunity to the assessee to place all germane material on the record. 6.2 Respectfully following the above precedent, we set aside the issue to the files of the Assessing Officer to consider the same afresh, in light of the Hon’ble High Court decision cited above. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 05/9/2011, upon conclusion of hearing.
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2011 (9) TMI 1167 - COMPANY LAW BOARD, NEW DELHI
... ... ... ... ..... th for which purpose the R-5-company is required to appoint an auditor and valuer to ascertain the siphoned off sums of money and the market price of the immovable asset of the R-5-company on the date of sale shown by the R-1. The R-1 is hereby directed to bring back the amounts so ascertained to the R-5-company's account within a period of three months. R-1 is also required to pay cost of ₹ 20,000 to the petitioner for having acted in violation of the CLB's orders. Further, to meet the ends of justice increase in the authorised share capital, all allotments of shares and appointment of additional directors done by R-1 are hereby set aside being void ab initio, all resolutions, statements and forms filed with the RoC are hereby cancelled restoring the status quo ante as it was prior to 9th May, 2008. CP No. 15(ND) 2010 and CA No. 168/2010 are disposed of in the above terms. All other CAs also stand disposed of. All interim orders stand vacated. Cost as ordered.
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2011 (9) TMI 1166 - DELHI HIGH COURT
... ... ... ... ..... spect of the matter. 27. We may only note that it is not disputed on behalf of the respondent that as on 31.03.2009, the net worth of the sick industrial company turned positive. In these circumstances, the best course, in our considered view, keeping the interest of both parties in mind; would be to set aside the impugned judgments of the AAIFR and the BIFR, and remand the matter to the BIFR for the limited purpose of re-considering the provisions of the impugned paragraph 14.3 (b) of the sanctioned scheme. 28. We order accordingly. For this purpose, the parties along with their authorized representative shall appear before the BIFR on 10.10.2011. The BIFR shall consider the issue after hearing the submissions of both the sides and pass an order within a period of six (6) weeks from the date of receipt of a copy of this order. A copy of this order be also sent expeditiously to the BIFR and the AAIFR. 29. With the aforesaid observations, the writ petition stands disposed of.
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2011 (9) TMI 1165 - CESTAT MUMBAI
... ... ... ... ..... r adjournment. The notice issued to the appellant firm on the address given in the appeal memorandum returned with postal endorsement ‘left’. In these circumstances, the appeals are dismissed for non prosecution. (Dictated in Court.)
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2011 (9) TMI 1164 - DELHI HIGH COURT
... ... ... ... ..... counsel for the appellant which prompted the Tribunal to proceed with the same. At the same time we may also take note of the aspect that litigant cannot be allowed to suffer because of the mistake of the counsel. However, this is disputed by learned counsel for the respondent. 9. In the present case, learned counsel engaged by the appellant, for two reasons did not wish to argue the matter before the Tribunal. Instead of informing the appellant about the same, he chose to write the aforesaid letter to the Tribunal on behalf of the appellant. 10. Under these circumstances, we are of the view that interest of justice would be sub-served if one opportunity is granted to the appellant to argue this case before the Tribunal. For this reason alone we set aside the impugned order passed by the Tribunal and remand this case back to the Tribunal for fresh decision after giving opportunity to the appellant. 11. The present appeal is disposed of in the abovesaid terms.
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2011 (9) TMI 1163 - COMPANY LAW BOARD , NEW DELHI
... ... ... ... ..... TOCL and TAIL on receipt or to be received the fair value of their stake, the disputes are getting sorted out. With the Company Law Board's orders in Execution Applications Nos. 471 of 2009, 474 of 2010 and 475 of 2010, the exchange process as per the consent decree has almost been streamlined. At this stage, the order initiating of contempt proceedings in a matter having allegations and counter allegations shall be detrailing the implementation of the consent decree in letter and spirit. Hence, to end the disputes between the consenting parties in these family companies, C. A. Nos. 500 of 2010, 131 of 2011 and 166 of 2011 are hereby dismissed in the interest of the companies and the consent decree in a family company to which the Company Law Board attaches due importance in exercise of its equitable jurisdiction. 64. C. A. Nos. 471 of 2009, 474 of 2010, 475 of 2010, 500 of 2010, 131 of 2011 and 166 of 2011 are hereby disposed of in the above terms. No order as to costs.
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2011 (9) TMI 1162 - ITAT JAIPUR
Addition u/s 68 - peak credit addition - Held that:- AO has allowed the peak credit in respect of a particular lender. The peak credit of each lender has been considered for arriving at the peak addition to be made in each year. It is not the case of the assessee that he himself is a lender. In case the assessee has given an admission that the money belonged to him then credits of the lenders should have been merged. The assessee in spite of filing the letter of disclosing the additional income, has not honoured such disclosure. The names of lenders are available in the diaries and the assessee has contended that he is getting 0.10% brokerage. AO was justified in considering the peak in respect of each lender and computing the undisclosed income for three years in view of Section 68 . We therefore, uphold the orders of the AO and the orders of the ld. CIT(A) are vacated.
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2011 (9) TMI 1161 - CALCUTTA HIGH COURT
... ... ... ... ..... aid second lease being declared to be void then on expiry of three years from the date of initial lease the company has become monthly tenant under the Andhra Pradesh Rent Act, 1960. We have examined this aspect of the matter, Mr. Sen has appropriately pointed out that the Andhra Pradesh Rent Act, 1960, has no application in this case. In view of section 32(c) of the said Act for the reasons correctly recorded by the learned trial judge at page 478 of the paper book that the said Andhra Pradesh Act in the year 2001 received the assent of the Governor, and on April 2005, it was published in the Andhra Pradesh Gazette on the following date, hence at the time of creation of first lease or renewal of the lease the aforesaid protective umbrella under the law was not in the statute book. 28. In view of the discussion as above we hold that there is no substance in the appeal, accordingly the same is dismissed and there will be no order as to costs. S.K. Chakraborty, J. 29. I agree.
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2011 (9) TMI 1160 - SUPREME COURT
... ... ... ... ..... hold that at the end of the period of probation an order confirming the officer is required to be passed and if No. such order is passed and if he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer. 17. In our considered opinion, the ratio of the aforesaid decision is also clearly applicable to the facts of the present case. In the present case, in the appointment letter issued to the Appellant, it was specifically mentioned that his service would be regularised only when his performance during the probation period is found to be good/satisfactory. 18. In view of the aforesaid stipulation, so long an order is not passed holding that the service of the Appellant is good and satisfactory, it could not have been held that his service could be regularised automatically by a deeming provision. 19. In that view of the matter, we find No. merit in these appeals which are dismissed leaving the parties to bear their own costs.
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2011 (9) TMI 1159 - CALCUTTA HIGH COURT
... ... ... ... ..... ited by Mr. Chatterjee in case of Gurtner v. Circuit reported in (1985) 1 All E.R. 328 was rendered in civil action not in the proceedings of this nature under sections 397 and 398 of the said Act. Hence this decision does not lend any persuasive assistance. 27. In view of the aforesaid discussion we think that this appeal is not maintainable and the same is also dismissed. We are of the fimn view that Mr. Chatterjee's client cannot come and join in this proceedings in any manner, particularly when the comprehensive civil suit has already been filed. However, we feel that the proceedings pending before the Company Law Board shall be expeditiously disposed of. We therefore, direct the Company Law Board to dispose of as early as possible preferably within a period of two months from the date of communication of this order. However, it will be open for Mr. Chatterjee's client if so advised to bring appropriate action in accordance with law. S.K. Chakraborty, J. I agree.
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2011 (9) TMI 1158 - KARNATAKA HIGH COURT
... ... ... ... ..... er section 11, the Chief Justice or his Designate is required to decide only two issues, that is whether the party making the application has approached the appropriate court and whether there is an arbitration agreement and whether the party who has applied under section 11 of the Act, is a patty to such agreement. Therefore, the Chief Justice exercising jurisdiction under section 11 of the Act has to only consider whether there is an arbitration agreement between the petitioner and the respondent/s in the application under section 11 of the Act. Any wider examination in such a summery proceeding will not he warranted. In the light of the above, the petition is allowed. As the parties are unable to agree on an arbitrator, the matter is referred to Shri Justice Chandrashekariah, Former Judge, High Court of Karnataka, No. 2737, 7,h A Main, 2nd Stage, Banashankari, Bangalore-560 070, as the sole arbitrator to enter upon the reference and to adjudicate on the matter in dispute.
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2011 (9) TMI 1157 - SUPREME COURT
Crime committed for killing two children - Judgment of conviction u/s 302 IPC - penalty of death sentence, delivered - High Court noted is the brutal, diabolical and dastardly nature of assault by the Appellant on the two innocent children - trauma produced on the mother of children - breach of trust - revenge of the Appellant towards the children, as the father of the children did not extend financial help to him - issued notice on the limited question of quantum of sentence - evolution of sentencing structure and the concept of mitigating circumstances in India relating to death penalty - effective opportunity of hearing contemplated under Section 235(2) of Code of Criminal Procedure provided or not?
HELD THAT:- This Court held in Jagmohan Singh [1972 (10) TMI 137 - SUPREME COURT] that the test of reasonableness cannot be applied by this Court in the same manner as is done by the United States Supreme Court in view of the existence of 'due process clause' in the United States Constitution. The learned Judges quoting from the commentary by Ratanlal's, Law of Crimes, (Twenty-second edition), referred to certain mitigating and aggravating circumstances, but opined that the said list is not exhaustive.
However, the aforesaid position substantially changed with the introduction of a changed sentencing structure under the present Code of Criminal Procedure, 1973. If we compare the 1898 Code with 1973 Code, we would discern lot of changes between the two Codes in sentencing structure.
The most significant change brought about by the incorporation of the recommendation of the 41st Law Commission (supra), is the giving of an opportunity of hearing to the accused on the question of sentence. This is the incorporation of the great humanizing principle of natural justice and fairness in procedure in the realm of penology. The trial of an accused culminating in an order of conviction essentially relates to the offence and the accused under 1898 Code did not get any statutory opportunity to establish and prove in such trial the mitigating and other extenuating circumstances relating to himself, his family and other relevant factors which are germane to a fair sentencing policy.
This opportunity of hearing at the post conviction stage, gives the accused an opportunity to raise fundamental issues for adjudication and effective determination by Court of its sentencing discretion in a fair and reasonable manner.
The importance of Section 235(2) of 1973 Code has been explained by this Court in several decisions and its importance can hardly be overemphasized in a case where prosecution demands the imposition of death penalty and the court awards the same.
Therefore, it is clear from the finding of the High Court that there is no evidence to show that the accused is incapable of being reformed or rehabilitated in society and the High Court has considered the same as a neutral circumstance. In our view the High Court was clearly in error. The very fact that the accused can be rehabilitated in society and is capable of being reformed, since the State has not given any evidence to the contrary, is certainly a mitigating circumstance and which the High Court has failed to take into consideration.
The High Court has also failed to take into consideration that the Appellant is not a continuing threat to society in the absence of any evidence to the contrary. The High Court has only considered that the Appellant is a first time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court's view of mitigating circumstance has been very truncated and narrow in so far as the Appellant is concerned.
This Court observed that this was a dastardly murder of two helpless persons for no fault on their part. But this Court commuted the death sentence to life imprisonment taking into consideration following factors, firstly that there was no pre-meditation in the act of the accused. This was at the spur of the moment as accused did not come armed with any weapon. Secondly it is unknown under what circumstances accused entered the house of deceased and what prompted him to assault the boy. Thirdly the cruel manner in which the murder was committed cannot be the guiding factor in favour of death sentence. Fourthly the accused himself has two minor children.
In Smt. Triveniben v. State of Gujarat [1989 (2) TMI 404 - SUPREME COURT], the Constitution Bench of this Court, following the Bachan Singh ratio, held "death sentence cannot be given if there is any mitigating circumstance in favour of the accused. All circumstances of the case should be aggravating"
The concept of 'rarest of rare' which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. The ratio in Bachan Singh [1980 (5) TMI 112 - SUPREME COURT] has received approval by the international legal community and has been very favourably referred to by David Pannick in 'Judicial Review of the Death Penalty: Duckworth'
We hold that death sentence cannot be inflicted on the Appellant since the dictum of Constitution Bench in Bachan Singh [1980 (5) TMI 112 - SUPREME COURT] is that the legislative policy in Section 354(3) of 1973 Code is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration. Bachan Singh (supra) further mandates that in considering the question of sentence the Court must show a real and abiding concern for the dignity of human life which must postulates resistance to taking life through law's instrumentality. Except in 'rarest of rare cases' and for 'special reasons' death sentence cannot be imposed as an alternative option to the imposition of life sentence.
We are of the view that in the facts of this case the death sentence imposed by the High Court cannot be sustained and the death sentence imposed upon the Appellant is substituted by the sentence of imprisonment for life.
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2011 (9) TMI 1156 - SUPREME COURT
... ... ... ... ..... es in such situations, and that cannot be approved in view of the law already laid down by this Court. This is apart from the view that we have taken, that the Committee is validly constituted under Rule 1(q) in view of the necessity arising due to the recusal of the President of BCCI from the Committee. 33. This being the position, we find no error in the judgment and order dated 15.7.2010 passed by the Division Bench of the Bombay High Court in Writ Petition No.1370 of 2010. Similarly, we do not find any error in the order of the Disciplinary Committee declining to recuse, or the decision of the Annual General Meeting of the first respondent to extend the term of this Disciplinary Committee for the inquiry against the petitioner. Consequently, there was no error in the two judgments of the High Court upholding those two decisions as well. 34. For the reasons stated above, all the three petitions are dismissed, though parties can certainly bear their cost of the litigation.
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