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2012 (4) TMI 729 - DISTRICT & SESSIONS JUDGE, AT CHIKKABALLAPUR
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... ... ..... udge& CJM., Chikkaballapura, for disposal in accordance with law. Sd/- Prl. District & Sessions Judge, Chikkaballapura.
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2012 (4) TMI 728 - SUPREME COURT
Dishonor of Cheque - Section 138 of the NI Act - fraudulent and dishonest intention - double jeopardy or bar of Section 300(1) of Cr.P.C. - conflicting situations - the respondent no. 2 filed an FIR u/s 406/420 r/w Section 114 of IPC, for committing the offence of criminal breach of trust, cheating and abetment etc. In the criminal case filed u/s 138 of N.I. Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal, before the District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2 has preferred Criminal Appeal before the High Court of Gujarat which is still pending consideration. Appellant filed an application u/s 482 Cr.P.C., seeking quashing and Criminal Case, pending before the CJM, on the grounds, inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in criminal case u/s 138 of N.I. Act. Thus, he cannot be tried again for the same offence. In the facts of the case, doctrine of double jeopardy is attracted. The High Court dismissed the said application. Hence, this appeal.
HELD THAT:- the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved u/s 406/420 r/w Section 114 IPC. In the prosecution u/s 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable u/s 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge.
There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.
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2012 (4) TMI 727 - ITAT MUMBAI
Annual Letting Value of the properties u/s.23 - Held that:- A.O. was not justified in estimating the ALV of those flats in both the assessment orders on arbitrary basis. Accordingly, direct the A.O. to adopt standard rent as determined as per the Maharashtra Rent Control Act, 1999 if available or latest valuation made by the local authority Brahanmumbai Municipal Corporation (BMC) for the payment of the property tax whichever is higher, as ALV to be determined u/s.23(1)(a) of the Act in both the financial years relevant to A.Y's. 2005-06 and 2006-07. Ground no.2 in the A.Y. 2006-07 is allowed for the statistical purposes.
Determination of ALV u/s.23(1)(a) - Held that:- A.O. should determine the ALV of the said flat as per our directions in respect of ground no.2 and if the actual rent received by the assessee is higher as u/s.23(1)(b) then the same should be adopted. In our opinion, law is clear if the actual rent received by the assessee is more than the ALV determined u/s.23(1)(a) and in view of clause (b) to sec.23(1) actual rent received is to be adopted. In the present case, actual rent received by the assessee is more than the municipal rateable value and in view of clause (b) to sec.23(1) the A.O. has rightly adopted the said value. Accordingly, confirm the order of the Ld. CIT (A) on one flat at EL-DORDO Mumbai and dismiss ground no.3 for A.Y. 2005-06.
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2012 (4) TMI 726 - ANDHRA PRADESH HIGH COURT
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... ... ..... the property. In C.R.P.No. 1444 of 2011, the plea of the petitioner prima facie is well founded. The land in survey No. 266 of Manikonda lands was deleted and was included in the Nacharam Revenue Records correlated to survey Nos. 27/1, 27/2, 27/3 and 27/4. This was not adverted to by the Wakf Tribunal while passing a general order of injunction. As there is no serious dispute about this, we are of the considered opinion that the issue can be finally decided by the Wakf Tribunal in the suit. The petitioner, who entered into the development agreement with the land owners, may have to approach the Wakf Tribunal for necessary clarification in this regard, with reference to Section 52 of the Transfer of Property Act, 1882. In the result, for the above reasons, C.R.P.Nos. 4958, 5028 and 5314 of 2007 and 521, 1384 and 2304 of 2011 shall stand dismissed. C.R.P.No. 1444 of 2011 shall stand disposed of, subject to the observations made hereinabove. There shall be no order as to costs.
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2012 (4) TMI 725 - DELHI HIGH COURT
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... ... ..... not be held responsible and liable for the source and funds of Pankaj Aggarwal. Once and when there is no allegation that Pankaj Aggarwal is not an accommodation entry provider or Hawala operator, it is for Pankaj Aggarwal to explain the funds. The compromise application itself shows that there was a serious dispute between the respondent assessee and Pankaj Aggarwal. Even an FIR was registered against Pankaj Aggarwal, which was withdrawn on the said settlement. Every case cannot be put in a strait jacket and Section 68 invoked when the transaction itself is genuine and has been entered for business consideration between two parties. 11. In view of the aforesaid position we do not find any merit in the present appeal and the Tribunal has correctly allowed the appeal of the respondent-assessee holding that the conditions mentioned under Section 68 are not satisfied in the present case. The contentions and issues raised are basically factual. The appeal is dismissed. No costs.
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2012 (4) TMI 724 - ITAT DELHI
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... ... ..... not get any undue benefit rather such type of steps would go against him. This suggests that there cannot be any deliberate attempt at the end of the assessee for filing the appeal late or for not prosecuting the appeal. All these things could happen on account of some bona fide lapse either on account of non-receipt of notice or some communication gap. Therefore, in our opinion, ends of justice would meet if we grant one more opportunity to the assessee to explain the delay in filing the appeal and to prosecute the appeal before the Learned First Appellate Authority. Accordingly, we allow the appeal of the assessee set aside the order of the Learned CIT(Appeals) and restore all the issues before the Learned First Appellate Authority for readjudication. Learned First Appellate Authority shall provide due opportunity of hearing to the assessee before deciding the appeal. In the result, the appeal of the assessee is allowed. Decision pronounced in the open court on 27.04.2012
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2012 (4) TMI 723 - ANDHRA PRADESH HIGH COURT
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... ... ..... possession notice under Section 13(4), order of the Chief Metropolitan Magistrate/District Magistrate directing delivery of possession under Section 14, the auction/sale notice issued under Rules 8(1) and 8(6) of the Rules and confirmation of sale certificate. The cases on hand do not present any special circumstances or background to deviate from the dicta on exhaustion of alternative remedy. We therefore leave all questions open to be decided by the DRT/ DRAT, as the case may be, as and when the petitioners approached. We also observe that as the petitioners are pursuing their remedies, ex debito justitiae, the DRT/ DRAT may entertain the applications/appeals and decide them on merits, provided the measures initiated under Section 13(4) of the SARFAESI Act are not completed i.e., auction/sale is not completed, as yet. ( 28. ) In the result, for the above reasons, the writ petitions, as also all the miscellaneous applications shall stand dismissed with no order as to costs.
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2012 (4) TMI 722 - ITAT MUMBAI
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... ... ..... therefore no disallowance u/s. 40(a)(ia) of I.T. Act is to be made. 25. Considering the above decisions and the facts of the case before us, we hold that on reimbursement of expenses by assessee to DTL on account of availing services of employees of DTL as per agreement dt. 15.4.2004, assessee was not required to deduct TDS and accordingly AO was not justified to make disallowance u/s. 40(a)(ia) of Act, particularly, when DTL actually paid the salary to its employees and deducted TDS on the amount paid by it to its employees. The assessee only reimbursed the expenses towards part of salary and conveyance expenses etc. to DTL and therefore provisions of Sec. 194J does not apply to it. Therefore Ld. CIT(A) has rightly held that disallowance made by AO u/s. 40(a)(ia) is not sustainable. Accordingly, we uphold the order of Ld. CIT(A) by rejecting ground No. 2 of appeal taken by department. 26. In the result, appeal of department is dismissed. Order pronounced on 4th April , 2012
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2012 (4) TMI 721 - CESTAT, MUMBAI
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... ... ..... to correlate the required entries as per stock register and CENVAT credit account before the lower authorities. 4. Heard the learned Counsel and considered the submissions. 5. As prayed that they are willing to correlate the require entries of the goods returned to them and the same is cleared on payment of duty from their statutory records. Therefore the matter needs examination at the end of adjudicating authority. Accordingly, I remand the matter to the original adjudicating authority to verify/co-relate the disputed amount in the statutory records and thereafter pass an appropriate order after giving a reasonable opportunity of hearing to the appellant. 6. During the course of pending of the matter before the adjudicating authority the appellant shall not claim the amount which is lying with the department. If the appellant cooperate with the adjudicating authority, the adjudicating authority shall complete the proceeding within 60 days of the communication of the order.
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2012 (4) TMI 720 - SUPREME COURT
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... ... ..... o not attract the provisions of Section 195 Cr.P.C. (See Sachida Nand Singh & Anr. v. State of Bihar & Anr. , (1998) 2 SCC 493). 10. Mr. Ashok Kumar Sharma, learned counsel appearing for the petitioner, has placed a very heavy reliance on the judgment of this Court in Abdul Rehman & Ors. v. K.M. Anees-ul-Haq, JT (2011) 13 SC 271. However, it is evident from the judgment relied upon that the judgment in Sachida Nand Singh (Supra), which is of a larger Bench, has not been brought to the notice of the court. (See also Balasubramaniam v. State & Anr., (2002) 7 SCC 649). The petitioner is guilty of suppressing the material fact. Admittedly, filing of successive petition before the court amounts to abuse of the process of the court. Thus, we are not inclined to examine the issue any further. Considering the composite nature of the offences, we do not see any cogent reason to interfere with the impugned order. The petition lacks merit and is, accordingly, dismissed.
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2012 (4) TMI 719 - SUPREME COURT
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... ... ..... lier interim arrangement was possible on account of the lesser number of parties, but in the present circumstances, the same will not be workable in view of the number of candidates who are likely to contest the elections and are required to be provided with free symbols in each constituency. 29. However, while we are not inclined to make any interim arrangement regarding the allotment of election symbols for the forthcoming General Assembly Elections, we make it clear that this is only a tentative view, which shall not, in any way, affect the final outcome of the pending Writ Petitions and Special Leave Petitions. We also make it clear that this order will not prevent the Election Commission from considering any representation that may be made by the political parties and from accommodating their prayer for a common symbol, to the extent practically possible. 30. Let these eleven Writ Petitions and three Special Leave Petitions be listed for final disposal on 3rd May, 2011.
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2012 (4) TMI 718 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... on of the shareholding of the petitioner is hereby restored. II. The petitioner shall have equal representation on the Board of the R-1-company. III. The petitioner shall also be one of the authorised signatories to the bank accounts of the R-1-company. IV. The respondents are hereby directed to take steps to shift the registered office either to the initial registered office of the company or to a place agreeable to all the three groups. V. The R-2 and R-3 are hereby required to bring back the siphoned off amounts, as already ascertained by the auditors, to the bank accounts of the R-1-company within three weeks of receipt of this order. VI. The respondents must ensure that the petitioner is enabled to participate in the affairs of the company and is allowed access to the accounts and other documents of the R-1-company. CP No. 63(ND)/2010 is disposed of in the above terms. All CAs also stand disposed of with this order. All interim orders stand vacated. No order as to cost.
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2012 (4) TMI 717 - DELHI HIGH COURT
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... ... ..... le of law enunciated in both M.V. Shankar Bhat (supra) and Mayawanti vs Kaushalya Devi (supra) is well taken; it is the applicability to the facts, which is questioned. Undoubtedly, the first case pertained to whether or not parties had arrived at a concluded contract, while the second case laid down the principle that specific performance can be sought of only a valid contract. We have come to a conclusion, though prima facie, that the MOU is a concluded legally enforceable agreement. The test evolved in these cases is fulfilled. In so far as the last judgment is concerned, which is a judgment of this court, in fact supports the case of the respondent. 10. Therefore, for the reasons given above, we are of the view that the appeal deserves to be dismissed with cost. It is ordered accordingly. The appellant shall pay a cost of ₹ 25,000/- to the respondent. 11. Needless to state, the observations made hereinabove will have no impact on the final adjudication in the case.
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2012 (4) TMI 716 - CHHATTISGARH HIGH COURT
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... ... ..... the loan taken by him but he utterly failed to substantiate the same by adducing legal and cogent evidence therefor, in the absence whereof, a registered sale-deed cannot be termed as nominal transaction. On the other hand, plaintiff had successfully proved his title by proving registered sale deed executed by appellant in his favour. When the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves circumstances, showing the sale deed as fictitious one or colourable device, which cloaked something else, the plaintiff cannot be nonsuited. ( 10. ) For the reasons mentioned hereinabove, I do not find any infirmity in the approach of first Appellate Court in decreeing the plaintiff's suit. The substantial question of law formulated by this Court is answered accordingly in favour of respondent No.l/ plaintiff. In the result, the appeal fails and is dismissed. No order as to costs.
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2012 (4) TMI 715 - ITAT DELHI
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... ... ..... her hand, vehemently objected to such plea of the learned A.R. and pointed out that all grounds and objections have been decided together as they were mixed on facts and law points. Hence, the order of the ld. DRP is just and proper in the facts and circumstances of the case. 7. As the detailed and proper findings of the DRP are not before us, we are of the opinion that without dealing with the grounds submitted before us, the matter deserves to be remitted back to the DRP for proper adjudication on all the objections and grounds raised by the assessee, after fresh hearing of both the parties delivering a speaking elaborate order as per requirement of law and procedure accepted by the courts and also by the authorities working as quasi-judicial functionaries. 8. In the light of above discussion, the appeal of the assessee is allowed and the matter is remitted back for fresh adjudication with above directions to the DRP. Order pronounced in the open court on 12th April, 2012.
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2012 (4) TMI 714 - ITAT MUMBAI
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... ... ..... d and gone through the orders of the authorities below. The CIT(A) after considering the paper book filed by the assessee gave a specific finding that as per the agreement, the carpet area of the three flats 780 sq.ft. only. He further gave a finding that built up area and super built up area worked out separately by the assessee. On perusal of the details of sale of flats with agreement value, the built up area comes only 913 sq.ft. and super built up area comes to 1092 sq.ft. Therefore, the assessee fulfilled the conditions of the built up area as required by section 80IB(10) and allowed the claim of the assessee. The learned DR simply supported the order of the AO and nothing was brought on record to contradict the above findings given by the CIT(A). We, therefore, find no infirmity in the order of the CIT(A) and uphold the same, dismissing the ground raised by the revenue. 12.. In the result, appeal of the revenue is dismissed. Pronounced in the open court on 13/04/2012.
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2012 (4) TMI 713 - GUJARAT HIGH COURT
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... ... ..... viz. April and May 1991, pre-search period, for directing addition of ₹ 48,24,272/- as suppressed profit, merely on the basis of estimation. 2. Whether the Tribunal committed substantial error of law in holding that addition of ₹ 51,08,219/- being bogus purchases were rightly made by the assessee. 3. Whether the Tribunal committed substantial error of law in reversing the order of the CIT Appeals without any discussion of finding reached by the said authority and finding the same to be erroneous.
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2012 (4) TMI 712 - ITAT MUMBAI
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... ... ..... id that the case of the assessee would attract the provisions of sec. 271(1)( c). Accordingly, the additional income offered by the assessee is voluntary and based on the books of account and not because of any new material or facts came to the light during the search and seizure action. o p /o p 5.4 Therefore, in the facts and circumstances of the case, when the assessee has disclosed all the primary facts in the return of income filed u/s 139, then the additional income offered in the return filed u/s 153A because of some discrepancy and error would not amount to concealment of income or furnishing inaccurate particulars of income attracting levy of penalty u/s 271(1)( c) of the IT Act. o p /o p 6 In view of the above discussion, we are of the considered opinion that the levy of penalty is not warranted and accordingly, the same is deleted. o p /o p 7 In the result, appeals filed by the assessee are allowed. o p /o p Order pronounced on this 25th,day of April 2012 o p /o p
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2012 (4) TMI 711 - ITAT CHENNAI
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... ... ..... ssed by the Commissioner of Income-tax in respect of all items discussed by him and directed for reconsideration except the two issues on transport turnover and sales return claims, not pressed by the assessee in the course of hearing before the Tribunal. o p /o p 23. In the facts and circumstances of the case we set aside the direction of the Commissioner of Income-tax in the revision order in respect of all issues except the following two issues - o p /o p 1. Income from transportation of goods. o p /o p 2. Sales return in vehicle division. o p /o p 24. The directions issued by the Commissioner of Income-tax on the above two issues are upheld and the Assessing Officer is directed to act in accordance with law. In respect of the directions issued by the Commissioner of Income-tax on other issues, his order is vacated. o p /o p 25. In result, the appeal filed by the assessee is partly allowed. o p /o p Order pronounced on Tuesday, the 17th of April, 2012 at Chennai. o p /o p
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2012 (4) TMI 710 - CALCUTTA HIGH COURT
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... ... ..... les. However, it is a fact that the petitioner has paid the redemption fine for the seized gold bars and therefore such gold bars cannot be forfeited to the State even at the conclusion of trial. 9. Under such circumstances, I direct the Learned Magistrate to dispose of the criminal proceeding as expeditiously as possible without granting any unnecessary adjournments to either of the parties. 10. Upon conclusion of the proceeding, the learned Magistrate shall dispose of the seized gold bars which are exhibited in the instant case in accordance with law, bearing in mind the fact that the petitioner has already paid redemption fine in respect of the said seized gold bars and the same cannot stand forfeited to the State. 11. With the aforesaid direction, the instant revisional application being CRR 2287 of 2011 and CRAN 1460 of 2011 are disposed of. 12. Criminal Section is directed to supply certified copy of this order to the parties as quickly as possible.
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