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2012 (1) TMI 429 - SUPREME COURT
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... ... ..... plication, by any statutory provision and conferred on any other tribunal or authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction. 13. In our view in the facts of the case the provision of Order XXIII shall not act as a bar against the suit filed by the Appellant. We, accordingly set aside the order of the High Court. As a consequence, the suit will be restored before the Munsif who is directed to accord it priority having regard to the fact that for the last 31 years it is stuck up on the issue of maintainability. The trial court should try to dispose of the suit without any delay, and in any case, not later than one year from the date of receipt/production of a copy of this order. 14. In the result, the appeal is allowed but with no order as to costs.
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2012 (1) TMI 428 - DELHI HIGH COURT
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... ... ..... further held that acts of giving the cheques were merged together to form the same transaction. Therefore, the accused should be charged and tried at one trial for such an offence. It was, however, held that even otherwise Section 220(1) of the Cr. P. Code permits for such a single trial. I am inclined to adopt the same view taken by the Madras High Court. Consequently, it will have to be held that the challenge given by the petitioners in this petition cannot be sustained. The learned Magistrate must be held to be right in holding that the petitioners can be tried at a single trial for the dishonour of all the 27 cheques. 18. Keeping in view the above discussion and the settled law in view, I am not inclined to interfere with the order passed by learned Metropolitan Magistrate, dated 15th April, 2011. 19. The interim order passed is vacated and Crl.M.A. No. 8602/2011 stands disposed of as such. 20. Accordingly, Crl. M. C. No. 2351/2011 is dismissed. 21. No order as to costs.
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2012 (1) TMI 427 - ITAT LUCKNOW
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... ... ..... claim of unsecured loan is concerned, relevant evidence was placed before the Assessing Officer to state that it was received through account payee cheque. Therefore, on both the issues, the Assessing Officer has accepted the claim of the assessee after making proper verification and enquiry. Therefore, his order cannot be called to be erroneous. For exercising jurisdiction under section 263 of the Act, the ld. CIT is required to be satisfied on both essential ingredients that the assessment order is erroneous as well as prejudicial to the interest of the Revenue. Since the impugned assessment order may be prejudicial to the interest of the Revenue, but it is not erroneous. Therefore, we are of the view that the ld. CIT has not properly exercised his jurisdiction under section 263 of the Act. We, therefore, set aside his order passed under section 263 of the Act. 14. In the result, both the appeals of the assessee are allowed. Order pronounced in the open court on 18.1.2012.
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2012 (1) TMI 426 - DELHI HIGH COURT
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... ... ..... narily resides, and shall be affixed in some conspicuous part of the Court- house. However, Clause (ii) of Section 82(2) Cr.P.C. is not mandatory and it states that the Court may also if it thinks fit direct a copy of the proclamation to be published in a daily newspaper circulated in the place in which such person ordinarily resides. Since Clause (ii) is not mandatory in nature, the non-adherence to the strict compliance thereon will not vitiate the process under Section 82 Cr.P.C. The abovementioned FIR for offence punishable under Section 174-A IPC is an independent cause of action and merely because the complaint case under Section 138 NI Act is settled, there is no reason that the abovementioned FIR be also quashed. 11. The present petition and application are clearly an abuse of the process of the Court by the Petitioner. Hence the same are dismissed with a cost of Rs. 5000/- to be paid to the Delhi High Court Legal Services Committee by the Petitioner within two weeks.
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2012 (1) TMI 425 - SUPREME COURT
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... ... ..... we are constrained to say that we are distressed beyond words to find that the case relating to the attempt on the life of the CJI remains stuck up at the stage of the appeal even after about 37 years of the occurrence. We are informed that the other case of the killing of Shri L.N. Mishra is still mired before the trial court. We do not wish to make any comment on that case as that is the subject matter of Writ Petition (Criminal) Nos. 200 and 203 of 2011 that remains pending before this Court. But so far as the present case is concerned, we would request the Chief Justice of the Delhi High Court with all the strength at our command to take notice of the inordinately long time for which these appeals (Criminal Appeal Nos. 436 443 of 1996) are pending before the High Court and to put a tab on them so as to ensure that the appeals are disposed of without any further delay and in any case not later than six months from the date of the receipt/production of a copy of this order.
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2012 (1) TMI 424 - SC ORDER
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... ... ..... ne ORDER The special leave petition shall stand over for eight weeks. In the meantime, we direct the Settlement Commission to dispose of the pending proceedings vide Application No.563/KNK-III/15/2000-IT, from the date of receipt of this Order.
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2012 (1) TMI 423 - ITAT KOLKATA
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... ... ..... or deduction u/s. 80IB of the Act and he allowed accordingly. Subsequently, he noticed that the audit report in Form No. 10CCB is not enclosed with the return of income or even it was not filed during the course of assessment proceedings. He accordingly, reopened the assessment after recording reasons and issuing notice u/s. 148 of the Act for the reason that audit report in Form No. 10CCB is not available. We find that the assessee is not making any fresh claim for deduction u/s. 80IB of the Act but merely furnishing the documents to substantiate its claim made during the course of assessment and even reassessment proceedings. Hence, we find no infirmity in allowing the claim of deduction even though the assessee has filed audit report in Form No. 10CCB during the course of reassessment proceedings. We uphold the order of CIT(A) and this issue of revenue s appeal is dismissed. 9. In the result, appeal of revenue is dismissed. 10. Order pronounced in open court on 20.01.2012.
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2012 (1) TMI 422 - ITAT BANGALORE
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... ... ..... upreme Court and the conditions laid down there-under. 7. In view of the same, we deem it fit and proper to remit the issue to the file of the AO for reconsideration in accordance with law laid down by the Hon’ble Supreme Court in the case of Rotork Controls (I) Pvt. Ltd cited (Supra). Needless to mention that the assessee shall be given a fair opportunity of hearing. 8. Coming to the Cross-objection of the assessee, we find that the assessee has filed the cross-objection against the findings of the Assessing Officer. Thus, it can be seen that it is only in support of the CIT(A)’s order, wherein the assessee has got relief. As we have already set aside the order of the CIT(A) to the file of the AO, this cross objection has become infructuous and needs no adjudication. 9. In the result, the appeal filed by the Revenue is allowed for statistical purposes and the cross objection filed by the assessee is dismissed. Order pronounced in the open court on 30th Jan, 2012.
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2012 (1) TMI 421 - DELHI HIGH COURT
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... ... ..... of not taking any coercive process against the petitioners. After all, the police have no magic wand in their hand to extract the documents until and unless the petitioners are subjected to custodial interrogation. 37. I feel that the petitions are without any merit and the same are accordingly dismissed and the interim order stands vacated. 38. I feel that the petitioners have abused the processes of law by invoking provision of Section 482 Cr.P.C. The petitions are accordingly dismissed, with a cost of Rs. 1,00,000/- each to be recovered from the petitioners for having taken so much time of the Court and the Registry during all these years. The aforesaid cost shall be recovered after expiry of 120 days from the date of the order by the learned ACMM by resorting to provision under Section 421 Cr.P.C. 39. A copy of this order be sent to the learned ACMM after expiry of 120 days to recover the aforesaid cost until and unless the same is set aside by the Apex Court. Dismissed.
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2012 (1) TMI 420 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... s related to amount of enhanced compensation and also interest thereupon, this Court considering similar matter in Kulwant Rai and others v. State of Haryana and others, CWP No. 10333 of 2011 decided on 2.6.2011, noticed that the interest element on enhanced compensation was taxable in the year of receipt and in such a situation, the petitioners were required to file the income tax returns as tax was payable on the said amount. It was further observed that the petitioners have an alternative remedy by way of filing the income tax returns and getting the tax deducted at source adjusted against their tax liability. If any amount deducted at source was found to be in excess of the tax liability, the petitioners were entitled to refund in accordance with the provisions of the Act. 7. In view of the above, the writ petition is disposed of with liberty to the petitioners to file the income tax returns and seek refund of excess tax deducted at source, if any, in accordance with law.
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2012 (1) TMI 419 - ITAT CHENNAI
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... ... ..... ed A.R. pointed out that ld. CIT(Appeals) followed the decision of Honble jurisdictional High Court in the assessees own case reported in 318 ITR 435 and decided that lease equalization charge debited was not a reserve and could not be added back to profits of company under Section 115JA of the Act. 9. Learned D.R. fairly admitted that the issue stood covered in favour of assessee by the above decision of Honble jurisdictional High Court. 10. We do not find any decision of Honble Apex Court which goes against the decision of Honble jurisdictional High Court in the assessees case mentioned supra, where it was held that lease equalization charges could not be considered as reserve and added back to the profits for working out the book profit. We do not find any error in the order of ld. CIT(Appeals). 11. Ground No.3 stands dismissed. 12. In the result, appeal filed by the Revenue is dismissed. Order pronounced in the open court after conclusion of hearing on 31st January, 2012.
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2012 (1) TMI 418 - ITAT JODHPUR
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... ... ..... owance to 20% which comes to Rs. 42,882/-. This ground was also raised by the assessee against confirming the disallowance. However, the same has not been pressed. 25. After going through the orders of AO and ld. CIT (A), we see no unreasonableness in the finding of ld. CIT (A) who was reasonable in restricting the disallowance to 20% against 50% disallowed by AO which was disallowed on adhoc basis only. Accordingly, we confirm the order of ld. CIT (A) in this respect. 26. Ground No. 4 we have already disposed off. 27. Ground No. 5 is against deleting addition of Rs. 61,490/- on account of low household expenses. 28. Since ld. CIT (A) followed the order of his predecessor for earlier year, therefore, here also we find no unreasonableness in the order of ld. CIT (A). Accordingly, order of ld. CIT (A) is confirmed on this issue also. 29. In the result, appeal of the assessee is allowed in part and appeal of the department is dismissed. 30. The order is pronounced on 19.01.2012.
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2012 (1) TMI 417 - SUPREME COURT
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... ... ..... ees of flexibility or adjustment which do not lower the stated requirement. There has to be some difference between what is equivalent and what is exact. Apart from that after a person is provisionally selected, a certain degree of reasonable expectation of the selection being continued also comes into existence. 9. Considering these aspects of the matter, we are of the view that the Appellant should be considered reasonably and the provisional appointment which was given to her should not be cancelled. We order accordingly. 10. However, we make it clear that we are passing this order taking in our view the special facts and circumstances of the case. We hope and expect the Respondent Rajasthan Public Service Commission shall make a suitable recommendation in the light of the observation in this judgment within four weeks from today and the State, which is also a party, will make an appointment accordingly within four weeks thereafter. 11. The appeal is disposed of. No costs.
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2012 (1) TMI 416 - SUPREME COURT
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... ... ..... aw and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts. 14. Considering the aforesaid vital questions, we dispose of this appeal by directing the second Respondent, the Additional Director General of Police, State CID, Pune Division, Pune, Maharashtra to order a proper investigation in the matter by deputing a senior officer from his organization to undertake a thorough investigation and examine in detail the facts and circumstances of the case and then furnish a report to the trial Court within a period of three months from the date of taking charge of the investigation. The investigation is to be taken up within two weeks from the date of service of this order on the second Respondent. The matter shall thereafter proceed in accordance with law. We hope and expect an impartial investigation of the case will take place. 15. The appeal is accordingly allowed to the extent indicated above.
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2012 (1) TMI 415 - ITAT CHANDIGARH
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... ... ..... t in Raja Ram Contractors Vs. CIT in ITA No. 689 of 2009, date of decision 7.4.2010, has upheld application of net profit rate of 10% as Net Profit Rate. It has been further laid down by the Hon'ble Jurisdictional High Court that where the books of account have been rejected, the estimation of income by applying of flat rate inherently involves an element of subjectivity.“ 8. In view of the aforesaid decision and the facts being similar, we find no merit in the adoption of NP rate of 12% to determine the income in the hands of the assessee. We direct the Assessing Officer to determine the income in the hands of the assessee by applying the net profit rate of 7% as the assessee has failed to produce complete vouchers to establish its case. The ground No.2 of appeal raised by the assessee is dismissed and ground No.3 is partly allowed. 9. In the result, the appeal filed by the assessee is partly allowed. Order Pronounced in the Open Court on 27th day of January, 2012.
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2012 (1) TMI 414 - ITAT AHMEDABAD
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... ... ..... observed that in any case, this issue was debatable and on such debatable issue, penalty u/s 271(1)(c) could not be levied. We find that this issue being debatable and there being decisions in favour of the assessee at the time of filing of return for the relevant assessment year, it could not be said that the conduct of the assessee in claiming the deduction was not bona fide. In this view of the matter, we hold that it is not a fit case for levy of penalty u/s 271(1)(c) of the Act which was accordingly cancelled by the CIT(A) and the order of Ld. CIT(A) is confirmed. Ground No.3 of the revenue’s appeal is dismissed. 16. In the result, appeal of the revenue is dismissed. 17. In the combined result, the appeal of the assessee in I.T.A. No. 3455/Ahd/2010 is allowed and the appeal of the revenue in I.T.A. No. 3188/Ahd/2010 and the cross objection in C.O. No.07/Ahd/2011 of the assessee are dismissed. 18. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (1) TMI 413 - ITAT BANGALORE
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... ... ..... evision order did not deal with privilege fee disallowed by the AO. Therefore, according to him, the appeal filed by the assessee is maintainable. 6. The learned DR however, supported the order of the CIT(A). 7. Having considered the rival contentions and the material on record, we find that the order of the CIT(A) is to be upheld as the order passed u/s 143(3) was set aside by the revision order u/s 263 whereby the entire assessment has been set aside for denovo consideration of the AO. The Assessing Officer has also given effect to the order of the CIT u/s 263 by passing assessment order u/s 143(3) read with sec. 263. In these circumstances, the order u/s 143(3) dated 30.10.2006 has become non-est and the appeal against non-est assessment is not maintainable. 8. In view of the same, we uphold the finding of the CIT(A) and the assessee’s appeal is dismissed. 9. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 18th Jan, 2012.
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2012 (1) TMI 412 - SUPREME COURT
Arbitration Proceedings - application u/s 34 for setting aside an award made after lapse of three months - District Court had Christmas vacation - benefit of that period over and above the cap of thirty days as provided in Section 34(3) - Whether the Appellants are entitled to extension of time u/s 4 of the 1963 Act - Two contracts were entered into between the Appellants and the Respondents -(i) for construction of Tezpur Town Water Supply Scheme and (ii) for construction of Tinsukia Town Water Supply Scheme - disputes arose between the parties - resolve such disputes, sole arbitrator was appointed u/s 11 - Appellants filed application u/s 16 questioning the jurisdiction of the sole arbitrator - no arbitration clause in the agreement - application rejected by the sole arbitrator and passed two awards - Appellants made two applications for setting aside the awards.
HELD THAT:- Section 4, enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. Section 2(j) of the 1963 Act defines 'period of limitation' which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and 'prescribed period' means the period of limitation computed in accordance with the provisions of this Act.
Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows Sub-section (3) of Section 34 of the 1996 Act is not the 'period of limitation' and, therefore, not 'prescribed period' for the purposes of making the application for setting aside the arbitral award.
The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to Sub-section (3) of Section 34 of the 1996 Act being not the 'period of limitation' or, in other words, 'prescribed period', in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.
Seen thus, the applications made by the Appellants, for setting aside the arbitral award were liable to be dismissed and have rightly been dismissed by the District Judge, as time barred.
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2012 (1) TMI 411 - MADRAS HIGH COURT
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... ... ..... r the Mines and Minerals (Development and Regulation) Act, the court shall take cognizance only on a complaint filed by a person authorized in that behalf by the Central Government or State Government and not on a police report. (v) In the State of Tamil Nadu, so long as the notification issued under G.O.Ms. No. 114, Industries (MMC.I) Department, dated 18.09.2006 authorizing the Inspectors of Police to file complaints under Section 22 of the Mines and Minerals Act, is in force, on completing the investigation in respect of the offence under section 21 of the Mines and Minerals Act, it will be lawful for the Inspector of Police concerned, as an authorized person, to file a complaint under Section 22 of the Mines and Minerals Act before the jurisdictional Magistrate, upon which the Magistrate may take cognizance. 47. With these answers, we return the case papers to the Registry with a direction to the Registry to list the cases before the Hon'ble single Judge for disposal.
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2012 (1) TMI 410 - KERALA HIGH COURT
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... ... ..... by the petitioner will stand confirmed and the Assessing Officer under the Central Income Tax Act namely, first respondent, is directed to waive collection of tax on so much of the business income assessed from sale of crude palm oil for and up to the assessment year 2004-2005. 6. In view of our judgment in ITA382/2010 and connected cases referred above, agricultural income tax assessments completed from 2005-06 onwards will stand set aside with direction to the second respondent to modify the assessments for all assessment years in line with the assessments completed by the first respondent under Central Income Tax Act and assess only so much of the income attributable to agricultural operations under the AIT Act. Excess tax if any paid under the AIT Act should be refunded to the petitioner. 7. Petitioner will remit tax to the Central Income Tax Department for the assessment years 2005-06 onwards based on the Central Income tax assessments. Writ Petition is allowed as above.
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