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2012 (2) TMI 672
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... ... ..... or the reasons mentioned therein, concurred with the proposed order of Ld. JM on the question referred to him. In view of the above, as per majority view, the appeal of the assessee on the issue referred to the Ld. Third Member stands allowed. There were other grounds in this appeal, on which there was no difference of opinion and, therefore, decision on those grounds in the proposed orders of Ld. Members remains the same. 3. In the result, the assessee’s appeal is treated as allowed for statistical purposes. Pronounced accordingly on 17-02-2012.
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2012 (2) TMI 671
Ramlila maidan Incident - whether an order passed u/s 144 crpc by the authorities stands protected under the restriction clause of Article 19 of the Constitution of India or does it violate the rights of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours - The basic requirements for passing an order u/s 144 CrPC can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 CrPC. the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility.
Test of 'proximate and direct nexus with the expression' - the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.
The restriction must be provided by law in a manner somewhat distinct to the term 'due process of law' as contained in Article 21 of the Constitution. If the orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be proportionate to the right restricted as well as the requirement of the society, for example, an order passed u/s 144 CrPC. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 CrPC and, therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable restriction.
The distinction between 'public order' and 'law and order' is a fine one, but nevertheless clear. A restriction imposed with 'law and order' in mind would be least intruding into the guaranteed freedom while 'public order' may qualify for a greater degree of restriction since public order is a matter of even greater social concern. 'security of the state' is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of 'public order' and 'law and order'.
HELD THAT - In the present case, the State and the Police could have avoided this tragic incident by exercising greater restraint, patience and resilience. The orders were passed by the authorities in undue haste and were executed with force and overzealousness, as if an emergent situation existed. The decision to forcibly evict the innocent public sleeping at the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by the police independently or in consultation with the Ministry of Home Affairs is amiss and suffers from the element of arbitrariness and abuse of power to some extent. The restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material facts. It was an invasion of the liberties and exercise of fundamental freedoms. The members of the assembly had legal protections available to them even under the provisions of the CrPC. Thus, the restriction was unreasonable and unwarrantedly executed. The action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in our Constitution. Except in cases of emergency or the situation unexceptionably demanding so, reasonable notice/time for execution of the order or compliance with the directions issued in the order itself or in furtherance thereto is the pre-requisite. It was primarily an error of performance of duty both by the police and Respondent No. 4 but the ultimate sufferer was the public at large.
It is nobody's case that the directions issued by the appropriate authority as well as the Police had not been carried out by the organisers. It is also nobody's case that the conditions imposed in the letters granting permission were breached by the organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy Commissioner of Police, Central District, who was the officer directly concerned with the area in question, had issued a restricted circular containing details of the arrangements, the objectives and the requirements which the deployed forces should take for smooth organization of the camp at Ramlila Maidan. The threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence. The order passed u/s 144 CrPC does not give any material facts or such compelling circumstances that would justify the passing of such an order at 11.30 p.m. on 4th June, 2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquility for the authorities to pass orders of withdrawal of permission at 9.30 p.m. on 4th June, 2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25th May, 2011 to 3rd June, 2011 and directions in that behalf had been issued. Exercise of such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the State would aid the exercise of fundamental rights rather than frustrating them. The mere change in the purpose or in the number of persons to be gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave concern for the authorities to pass the orders late in the night. In the Standing Order issued by the Police itself, it has been clarified that wherever the gathering is more than 50,000, the same may not be permitted at the Ramlila Maidan, but they should be offered Burari ground as an alternative. This itself shows that the attempt on the part of the authorities concerned should be to permit such public gathering by allotting them alternative site and not to cancel such meetings.
B.S. Chauhan, JJ - I respectfully agree with all the observations and the findings recorded by my colleague and I also concur with the observation that the findings recorded on the sufficiency of reasons in the order
There was no gossip or discussion of something untrue that was going on. To the contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic training, fast asleep. The assembly was at least, purportedly, a conglomeration of individuals gathered together, expressive of a determination to improve the material condition of the human race. The aim of the assembly was prima facie unobjectionable and was not to inflame passions. It was to ward off something harmful. What was suspicious or conspiratory about the assembly, may require an investigation by the appropriate forum, but to my mind the implementation appears to have been done in an unlawful and derogatory manner that did violate the basic human rights of the crowd to have a sound sleep which is also a constitutional freedom, acknowledged under Article 21 of the Constitution of India.
RIGHT TO SLEEP - It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state. Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle.
HELD THAT:- In Present case, as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society.
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2012 (2) TMI 670
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... ... ..... r to the facts of the issue involved in grounds Nos.6 and 7 in assessee’s appeal for the assessment year 2007-08, therefore, the plea taken by them in the said assessment year may be considered while deciding the above grounds of appeal. 34. We have carefully considered the submissions of the rival parties and perused the material available on record. In the absence of any distinguishing feature brought on record by the parties and keeping in view that the facts the plea taken by the above parties are similar to the facts of the above issues involved in ground Nos.6 and 7 for the assessment year 200708, we restore this issue to the file of the AO to follow our findings recorded in the paragraph 21 of this order. We hold and order accordingly. The grounds taken by the assessee are, therefore, partly allowed for statistical purposes. 35. In the result, the assessee’s appeals stand partly for statistical purpose. Order pronounced in the open court on 8th Feb., 2012.
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2012 (2) TMI 669
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... ... ..... l Katiyar, For Respondent(s) Mr. Ajay Vohra,Adv. Ms. Kavita Jha,Adv. ORDER Delay condoned. The special leave petitions are dismissed.
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2012 (2) TMI 668
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... ... ..... eard rival contentions and gone through the entire material available on record. In our considered view, CIT(A) has admitted the additional evidence without fulfilling the categorical conditions laid down in Rule 46A, as explained by Hon’ble Delhi High Court in the case of Manish Build Well Pvt. Ltd.(supra). Consequently, his order on this issue is not tenable, however, the issue of merits remains. Besides, from the record it emerges that the assessee wanted to file only government records and revenue record about crops. In the entirety of facts and circumstances, the interest of justice will be served if the matter is set aside, restored back to the file of AO to decide the same afresh after affording the assessee sufficient opportunity of being heard. In view of these facts, the revenue’s appeal stands allowed for statistical purposes. 8. In the result, revenue’s appeal stands allowed for statistical purposes. Order pronounced in open court on 13-02-2012.
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2012 (2) TMI 667
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... ... ..... ose of expenditure must be to keep the trade going further fortifies the case of the assessee. Admittedly, the connection between expenditure and object must be real and not remote and illusory. The Hon'ble Bombay High Court in CIT v. Sales Magnesite Private Limited; 214 ITR 81 clearly held that the commercial expediency must be decided from the point of view of a businessman but at the same time the expenditure must be directly and intimately connected with the trader. The factual finding mentioned in the impugned order was not controverted by the Revenue,therefore, by following the aforesaid judicial pronouncements and the decisions contained in the impugned order, we find no infirmity in the conclusion drawn by the learned Commissioner of Income Tax (Appeals). It is affirmed. Finally, the appeal of the Revenue is dismissed. This order was pronounced in the open in the presence of learned representatives from both the sides at the conclusion of the hearing on 8.2.2012.
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2012 (2) TMI 666
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... ... ..... accepted the interest - income realised by the assessee in other assessment years as business income; (ii) The assessee had an investment arm which was demerged later into a separate company and (iii) There were decisions of coordinate benches including in relation to the assessee itself. It has based on this appraisal of the facts that the Tribunal has held that the interest realized on debentures would have to be taxed as business income. The facts which have been adverted to in the order of the Tribunal would indicate that the assessee had an investment activity of its own which came to be demerged subsequently into a separate company. There was evidently therefore a systematic activity involving investment. These circumstances, which have led to the formulation of the view of the Tribunal are sufficient to support the final conclusion. Considered in this perspective therefore, the appeal would not raise a substantial question of law. The appeal is accordingly dismissed.
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2012 (2) TMI 665
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... ... ..... a situation like the present situation, the AO ought to have justified this departure from the earlier accepted position whereby similar claim has been accepted in the past. It is in the background the onus was on the AO to justify the denial of deduction under s. 80IB in view of the past history. Therefore, in this background there is no justification to uphold the stand of the IT authorities to deny the claim of the assessee for deduction under s. 80IB in relation to the profits and gains. - Saurashtra Cement & Chemical Industries Ltd. vs. CIT (1979) 11 CTR (Guj) 139; (1980) 123 ITR 669 (Guj) and CIT vs. Paul Brothers (1995) 216 ITR 548 (Bom) relied on.” 9. In view of the above discussion, we are of the opinion that the assessee's claim u/s. 80IB(11A) has to be allowed in this assessment year also. Accordingly, the claim of the assessee is allowed. 10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 3rd February, 2012.
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2012 (2) TMI 664
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... ... ..... he Commissioner even to cancel the registration granted under any of the clauses of sub-section (1) of section 12A. In that view of interpretation, we are of the considered view that there was no power vested with the Commissioner to cancel or withdraw the registration granted to the assessee under section 12A(a) in the year 1974.” Emphasis supplied Therefore, respectfully following the aforesaid decision of Hon’ble Delhi High Court as also the decisions of coordinate Benches of the Tribunal relied on by the learned counsel, we hold that the cancellation of registration by the ld. C.I.T. by invoking provisions of sec. 12AA(3) of the Act was not in accordance of law and as a result, the impugned order of ld. C.I.T. dated 22/06/2010 is vacated and as a corollary thereto, the registration granted to the assessee-trust u/s. 12A of the Act stands restored. 6. In the result, the appeal of the assessee is allowed. This order is pronounced in the open Court on 24.2.2012.
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2012 (2) TMI 663
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... ... ..... was directed not to be recovered. When this appeal was admitted, stay as prayed by the appellant was declined, but it was made clear that the payment made by the appellant pursuant to the judgment of the High Court will be subject to the decision of appeal. Mr. Mariarputham, learned counsel for the appellant submitted that the appeal is canvassed basically in view of the principle involved. In view thereof, although the appeal is allowed, the additional pension paid to the first respondent as the President of the State Commission till the end of February 2012, will not be recovered from him. However, from March, 2012 onwards the first respondent shall be entitled to receive pension only for the service rendered by him as a High Court Judge. In view of divergence of opinion in terms of separate judgments pronounced by us in this appeal today, the Registry is directed to place the papers before Hon’ble the Chief Justice for appeal being assigned to an appropriate Bench.
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2012 (2) TMI 662
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... ... ..... his Court has been followed by the High Court of Madras in Kotak Mahindra Bank Ltd. v. Sivakama Sundari S. Narayana S.B. Murthy (2011) 6 CTC 11. That Court observed as under "25. In the Absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the court within whose jurisdiction an award was passed as the court which passed the decree, it is not open for any executing Court (i) either to demand transmission from any other Court; (ii) or to order transmission to any other Court." 5. In the light of the above decisions, the prayer made in the present petition is declined. It will be open to the DH to approach the competent Court in Bangalore, Karnataka for execution of the Award in accordance with law. 6. The petition is disposed of.
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2012 (2) TMI 661
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... ... ..... has examined the same evidences and has come to a conclusion. Even on merits, the learned CIT has not disputed the genuineness of the agreement between the assessee and CABL. The amount of ₹ 1 crore or an amount of ₹ 6 crores, the payment is on account of the Non- Compete agreement and for the purpose of Non-Compete and in view of the decision of the Hon'ble Supreme Court in the case of Guffic Chem. P. Ltd., reported in 332 ITR 602, the same cannot be brought to tax by applying the amended provisions of section 28(va) of the Act. In the circumstances, we are of the view that the order of the learned CIT passed under section 263 of the Act is only on the basis of difference of opinion from that of the Assessing Officer which is not permissible. In the circumstances, the order passed under section 263 of the Act by the learned CIT stands quashed. In the circumstances, the appeal of the assessee is allowed. 7. The order was pronounced in the court on 24/02/2012.
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2012 (2) TMI 660
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... ... ..... r direction here as has to be followed in the case of ACIT v. Shri P. Rajendra Rao in ITA No. 589/Mds/2008 and decide the appeal afresh.” 5. In view of the submissions made before us by the ld. DR to which no serious objection was made by the ld. AR of the assessee, we, following the above order of the Tribunal in the case of Shri M. Ranjan Rao, set aside the orders of lower authorities and restore the matter back to the file of the ld. CIT(A) with the same directions as contained in the order in the case of Shri M. Ranjan Rao quoted above. The ld. CIT(A) shall allow reasonable opportunity of hearing to both the parties before adjudicating the issue afresh. The grounds of appeal of the Revenue are allowed for statistical purposes. 6. No other point has been urged by the Revenue except the above point. 7. In the result, the appeal of the Revenue is allowed for statistical purpose. Order pronounced at the close of the hearing in the presence of the parties on 15.02.2012.
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2012 (2) TMI 659
Power of CIT to cancel registration of trust u/s 12AA(3) - Assessee trust has received “capitation fees” in the garbs of donations from and on behalf of the students for giving them admission. CIT cancelled the registration granted to assessee trust in the year 2000 by invoking the provisions of s.12AA(3). The assessee’s contention is that the powers conferred on the ld. C.I.T. u/s. 12AA(3) did not extend to cancellation of registration granted u/s. 12A. - HELD THAT:- There was no power vested with the Commissioner to cancel or withdraw the registration granted to the assessee u/s 12A(a) in the year 2000. This power came to be incorporated by way of amendment introduced by the Finance Act, 2010, with effect from June 1, 2010. Thus, the impugned order of ld. C.I.T. vacated and as a corollary thereto, the registration granted to the assessee-trust u/s. 12A of the Act stands restored.
Decision in the case of DIT (EXEMPTIONS) VERSUS MOOL CHAND KHAIRATI RAM TRUST [2011 (4) TMI 563 - DELHI HIGH COURT], relied upon.
Decision in favour of Assessee.
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2012 (2) TMI 658
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... ... ..... ight person. The investigation is still pending and has not been disposed of and no firm conclusion has been reached. The facts are being verified. The Assessing Officer has to reach a conclusion and if required proceedings under Section 153C may have to be initiated. We do not see any reason to interfere with the order passed by the Assessing Officer rejecting the application for release of the seized amount. To direct release at this stage will be premature and will result in holding/observing that the facts stated by the petitioner and the 11 parties are correct and the said cash belongs to the 11 parties and it is not their non-accounted for income. The said 11 customers are not even parties to the writ petition. 7. The inquiry and verification has to be completed within the time fixed in the Act. We hope and trust that respondent-revenue shall conduct the investigation expeditiously and as soon as possible. With the aforesaid observations the writ petition is dismissed.
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2012 (2) TMI 657
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... ... ..... ether the evidence to be adduced in respect of the part played by them shall be sufficient to warrant a conviction or not. On the other hand, it has been made clear in the complaint that all of them participated in the marriage and all of them played a vital role in the marriage knowing fully well that the marriage of the first accused with the respondent/complainant was subsisting. Statements have also been recorded to the effect that they had also stated since the respondent/complainant could not give birth to a male child, they had to go for the second marriage of the first accused. If all these aspects are taken into consideration, we have to come to the necessary conclusion that the said contention of the petitioners as a ground for quashing the complaint also deserves rejection. 16. For all the reasons stated above, this Court decides the petitions against the petitioners and dismisses both the petitions. Accordingly, both the criminal original petitions are dismissed.
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2012 (2) TMI 656
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... ... ..... 8. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments. 19. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. Ordered accordingly.
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2012 (2) TMI 655
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... ... ..... s the Arbitrator could not ignore such express bar in the contract. 10. Appling the aforesaid principle to the facts of this case, the clear answer would be that the Arbitrator had no power to award pendente lite interest. As pointed out above, Clause 16(2) of GCC stipulates in no uncertain terms that the interest would not be payable. The said Clause reads as under - “16(1) xxx xxx xxx (2) Interest on amounts - No interest will be payable on the earnest money or the security deposit or amounts payable to the Contractor under the contract, but Government Securities deposited in term of sub-clause (1) of this clause will be repayable with interest accrued thereon.” 11. We, thus, are of the view that the award of pendente lite interest by the Arbitrator was not legally justified. That order of the learned Single Judge making the award a rule of the Court on this aspect is set aside. 12. The appeal is disposed of accordingly. 13. There shall be no order as to costs.
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2012 (2) TMI 654
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... ... ..... lity of interest free funds in the hands of the assessee. Therefore, this Tribunal is of the opinion that the assessing officer has to examine the availability of interest free funds at the hands of the assessee in the light of the judgment of the Supreme Court in the case of Munjal Sales Corporation (supra). Since the lower authorities have not examined the issue in the light of the judgment of the Apex Court, the order of lower authority is set aside and the issue of disallowance of interest to the extent of ₹ 1,63,066 is remitted back to the file of the assessing officer. The assessing officer shall reexamine the matter in the light of judgment of the Apex Court in the case of Munjal Sales Corporation (supra) and thereafter decide the issue in accordance with law after giving opportunity of hearing to the assessee. 16. In the result, the appeal of the assessee is allowed, for statistical purpose. Order pronounced in the open court on this 29th day of February, 2012.
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2012 (2) TMI 653
No show cause notice was issued either to the appellant No.1 or to the National Multi Commodity Exchange of India Limited–respondent No.3 - Held that:- In absence of any show cause to appellant No.1 as well as the respondent No.3–NMC, the impugned Order dated 23rd July, 2011, passed by the respondent No.1 is contrary to the principle of natural justice and no action could be taken either against appellant No.1 or respondent No.3. NMC in pursuance of the impugned order passed by the respondent No.1 – Commission and the same deserves to be quashed and set aside so that a fresh order/decision may be passed by the respondent No.1-Commission on the points raised by the appellants No. 1 and 2 as well as respondent No.3, after issuing a show cause notice, inviting objections and also after considering the objections and after affording opportunity of hearing to all necessary parties.
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