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2014 (2) TMI 1433
Recovery of amount from the gratuity and pension of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961 - Guilty for misappropriation of funds - HELD THAT:- Rule 7 (vii) of the U.P. Government Servant (Conduct and Appeal) Rules, 1999 deals with the procedure for imposing major penalties and enjoins that where the charged Government Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant, who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report, whereas Rule 9 prescribes action on the enquiry report.
In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, [1960 (11) TMI 130 - SUPREME COURT], State of U.P. v. Shatrughan Lal and another [1998 (7) TMI 689 - SUPREME COURT] and State of Uttaranchal and others v. Kharak Singh, [008 (8) TMI 1026 - SUPREME COURT], the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed.
It is required to be examined that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit, the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded - No documentary evidence has been produced by the respondents to establish that it is the petitioner, who did not cross-examine the witnesses though he was afforded ample opportunity. In para 29 of the writ petition, it may be added that the petitioner requested for cross-examination of Shri Ram Surat Dubey and Shri B.N. Upadhaya, who, as indicated in para 7 of the counter-affidavit, that they have submitted report against the petitioner. Despite requests, the Enquiry Officer did not call them for cross-examination and submitted its report. Thus, the enquiry was conducted not only in the breach of the principles of natural justice but in violation of the Rules, referred.
The services of the petitioner are governed by U.P. Government Servant (Disciplinary and Appeal) Rules, 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired - Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence, during his service. However, this rule has certain exceptions which are germane for determination of the controversy in hand.
It may be added that there are specific provisions in Regulation 351-A, which are to be followed before initiating the disciplinary proceedings against a retired employee. The conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no valid approval of Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words, alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case.
The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order - Petition allowed.
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2014 (2) TMI 1432
Nude photography appeared in the Anandabazar Patrika, as well as in the Sports World - seeking censuring of obscene photographs - HELD THAT:-It is to be appreciated that the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 Indian Penal Code or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
It is found that no offence has been committed under Section 292 Indian Penal Code and then the question whether it falls in the first part of Section 79 Indian Penal Code has become academic. We are sorry to note that the learned Magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the Appellants. Learned Magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the Appellants to face the trial. The High Court, in our view, should have exercised powers under Section 482 Code of Criminal Procedure to secure the ends of justice.
The criminal proceedings initiated against the Appellants set aside - appeal allowed.
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2014 (2) TMI 1431
Entitlement for payment of full wages - Whether, in the absence of any specific provision in the Regulations, 1963 of the Corporation specifying put off duty as an interim measure pending departmental proceedings, the workman is entitled to payment of full wages or whether the said put off duty can be treated as suspension pending enquiry as in the case of the regular workman of the Corporation?
HELD THAT:- When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgment of the previous bench will have binding effect. On the other hand, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds.
The put off duty cannot be equated with suspension and in the absence of any statutory support from the Regulations, 1963, it shall be treated as absence of the workman induced by compulsive proscription on the part of the 2nd respondent Corporation, which, in fact, denied him an opportunity to work during the said period.
The petitioner - in the light of the submissions of the 2nd respondent Corporation that already 50% of the wages have been paid - shall be entitled to the remaining 50% of the wages for the put off duty period with effect from 03.05.2002 to 27.03.2003. Accordingly, the 2nd respondent Corporation is hereby directed to pay the said differential amount of 50% for the put off duty period, as early as possible, at any rate, not beyond two months' time from the date of receipt of a copy of this order.
Petition allowed.
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2014 (2) TMI 1430
Seeking grant of regular bail - allegation of bringing intoxicant tablets from outside and to sell them in the city - whether the tablets allegedly recovered from the petitioner and co-accused were prescription drugs or any intoxicating substance? - HELD THAT:- Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167 (2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act. Under Section 36-A of the Act, the period of detention may go on to a total of one year subject to satisfaction and compliance of the stringent conditions provided therein i.e. (i) upon a report of the Public Prosecutor; (ii) which in turn indicates the progress of the investigation; (iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days; and (iv) after notice to the accused.
The only reason and basis cited in the application seeking extension of time for completion of investigation is that the report of the Chemical Examiner as regards the sample of the intoxicating/narcotic tablets has not been received. Solely on such premise, the Additional Public Prosecutor, Incharge of the case, has recorded a satisfaction that the Investigating Agency has made an effort to obtain the report of the Chemical Examiner and as such, on account of non-receipt of the same, further extension of a period of 180 days for completion of investigation was prayed for.
There has been a noncompliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reason for seeking the detention of the accused beyond a period of 180 days. This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation as also the order passed thereon by the Special Court, Patiala granting extension of 60 days have been done in a routine and mechanical fashion. In this view of the matter, the petitioner is held entitled to the benefit of regular bail.
The petitioner is enlarged on bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Patiala - the petition is allowed.
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2014 (2) TMI 1429
Seeking a direction to the Commercial Taxes Department, Government of Jharkhand, to levy Value Added Tax on the actual sale price and not on any hypothetical or assumptive price - Opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- In the present case, this is not in dispute that the first notice was issued to the assessee on 18.2.2013 calling upon the petitioner to appear on 26.2.2013 and the impugned order has been passed on such first hearing date, that is, on 26.2.2013. An amount of Rs. 3,47,38,258.54 on account of tax and interest has been ordered to be paid by the petitioner. According to the petitioner, petitioner's representatives, namely Mukesh Kumar and Pawan Verma, appeared before the assessing authority, but without affording an opportunity to them, impugned order was passed. Per contra, according to the respondents, on 26.2.2013, neither the petitioner, nor the representatives appeared.
Without going into the rival statements of the parties, since the impugned order dated 26.2.2013 has visited the petitioner with serious civil consequences, the petitioner should have been afforded sufficient opportunity at least by giving one more hearing to put forth their case.
The impugned order has been passed in violation of the principles of natural justice, the matter is remitted back to the Assessing Officer for taking a decision afresh, after affording adequate opportunity of hearing to the petitioner-assessee - Petition allowed by way of remand.
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2014 (2) TMI 1428
Validity of Reopening of assessment - CIT(A) upholding the action of the ITO in declining the assessee’s claim that the impugned transactions of purchase and sale of agriculture land were in HUF capacity and that the same were therefore, not taxable in individual capacity - as argued assessee Sh. Surjit Singh having died before the filing of return against notice u/s 148, the ITO ought to have issued fresh notice impleading all the legal heirs of the deceased, sans which, the impugned order is bad in law - HELD THAT:- We are of the view that FAA has passed the impugned order without appreciating the evidence produced by the assessee during the course of appellate proceedings, which the assessee has raised in ground No.5 in all the appeals. We are of the considered view that the ld. first appellate authority ought to have appreciated the additional evidence filed by the assessee while deciding the issue in dispute, which is very much essential for adjudication of the case.
The issues involved in all the grounds of appeals are interconnected and some of them are legal issues, which are required to be decided on the basis of additional evidence furnished by the assessee and as per material available on record and after hearing the Ld. counsel for the assessee.
In the interest of justice, we are not commenting upon the merits of the case on all the issues involved in the present appeal, as mentioned in the aforesaid paragraph while reproducing the grounds of appeal raised by the assessee.
Keeping in view the above facts and circumstances of the case and in the interest of justice, we are of the view that the issues in dispute require fresh adjudication at the level of the first appellate authority.
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2014 (2) TMI 1427
Denial to interfere with the award of a contract for the supply of 486 Standard Gauge Cars Electrical Multiple Units meant for use in Phase-III of the Mass Rapid Transit System (MRTS) for Delhi and its extension corridors - process of evaluation of the bids received from eligible bidders culminating in the award of a contract in favour of Respondent No. 2-Hyundai Rotem Company.
Appellant sought a restraint order against the award of the contract before the High Court who in turn accepted an undertaking given by the counsel for the DMRC and HR that they will not act in pursuance of the letter of award pending disposal of the writ petition.
HELD THAT:- The High Court has, in the case at hand, undertaken that exercise and concluded that there was neither any illegality nor any irregularity in the process of evaluation of the bids or the final allotment of the contract. That view has come to be assailed by the Appellant on what is essentially a short point raised by Mr. Lalit in support of the appeal. The contention is that while no malafide or extraneous considerations have prevailed to vitiate the decision of the DMRC allotting the contract in favour of HR, the process of evaluation of the bids offered by the eligible bidders should have in the facts and circumstances of the case included validation of the GEC values offered by HR to determine whether they were achievable having regard to the ground realities and the laws of physics relevant to the consumption of energy.
It is common ground that the price bid offered by the tenderers was not itself determinative. What was equally important was the GEC values comprising X and Y factors which the tenderers had to disclose in their technical bids. That the values offered had to be converted into Indian Rupees and loaded to the price bid of the tenderers is also beyond question. That each one of the bidders had offered their GEC values comprising X and Y factors separately was also beyond doubt. There is no error even in the conversion of such values in terms of Indian Rupees nor is there any dispute about the effect of such loading of values to the price bid of all the tenderers because of which loading the bid offered by HR eventually emerged as L-1 with Appellant-Siemens sliding to L-4 position - there are no real basis for the contention that the DMRC was supposed to go any further than it did in protecting its interest. In the absence of any specific stipulation or requirement for validation of the GEC values by the DMRC and its experts or by any outside agency such a requirement could not be implied into the tender process. Inasmuch as the DMRC found the bid offered by HR to be acceptable, keeping in view the GEC values offered by it, the former had committed no illegality in the evaluation of the bids or in making its choice of the contractor.
There are no manner of doubt that the terms of reference give a clear indication that the process initiated by the Government was a parallel process of the adjudication of the very same issue as fell for consideration before the High Court and at a later stage before this Court - Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.
In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field - the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.
This appeal fails and is, hereby, dismissed with costs of Rs. 5,00,000/- to be deposited within six weeks from today with the Supreme Court Advocates-on-Record Welfare Fund.
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2014 (2) TMI 1426
Review/recall of an order - Recovery proceedings for unrecovered loan - right of the intervenor was not considered - judgment of the Supreme Court in the case of DENA BANK VERSUS BHIKHABHAI PRABHUDAS PAREKH AND CO. AND OTHERS [2000 (4) TMI 36 - SUPREME COURT] is not applied properly - HELD THAT:- The applicant herein admittedly was an intervenor in M.A No. 1153/1999 and they were claiming their right to the property by virtue of the auction held in their favour at the instance of Sales Tax Department. An intervenor cannot claim any relief or decree for himself in the capacity of an intervenor in the appeal under Order 21 Rule 58 of C.P.C, that being the legal position.
It is clear that in M.A No. 1153/1999, the applicant as an intervenor could not claim any relief for himself, accordingly, even if this application is allowed and the appeal proceedings under Order 21 Rule 58 are restored the intervenor cannot get any benefit as he cannot claim any relief for himself. That being so no useful purpose would be served in considering the question of review at the instance of the applicant.
Application dismissed.
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2014 (2) TMI 1425
Seeking to restrain the Respondent from initiating any process of eviction/dispossession against the Petitioner from the said premises in possession and occupation of the Petitioner - also, seeking to restrain from going ahead with the process of calling for tenders vis-a-vis the said premises in possession and occupation of the Petitioner.
HELD THAT:- In the case of Pioneer Publicity Corporation vs. Delhi Transport Corporation & Anr., [2003 (2) TMI 403 - HIGH COURT OF DELHI], this Court speaking through Hon'ble Mr. Vikramajit Sen, J. on the objections raised by the respondents therein under Section 34 of the Specific Relief Act coming into play in these types of cases has held Keeping in view the provisions of Order XXXIX Rule 2 it is no longer possible to contend that the Court does not possess power to prohibit or prevent the breach of contract. If this is possible in the realm of private contracts, it is an obligation in the realm of public enterprises. Furthermore, the provisions of Specific Relief Act relied upon by Ms. Singh are not attracted for the simple reason that the contract itself prohibits the claim of grant of compensation.
Issue notice to the respondent, on filing of process fee and Regd. A.D. Covers within a week, returnable on 20th March, 2014.
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2014 (2) TMI 1424
Execution of decree obtained by the Respondent in Civil Suit - suit for recovery of amount on the property covered by an agreement for sale dated 3.11.2003 between the judgment debtor and decree holder - Petition was contested by the decree holder/Respondent stating that the applicant/objector had no legal right, title or interest and that the execution of the General Power of Attorney and its registration would not confer any ownership right in favour of the Appellant/objector.
As per K.S. Panicker Radhakrishnan, J.
HELD THAT:- The observations made by the Court are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions - the Power of Attorney executed on 12.5.2006 in favour of the Appellant by the wife of Prem Chand Verma is a genuine transaction executed years before the judgment of this Court. Facts will clearly indicate that the Agreement for Sale dated 3.11.2003 was created by none other than the husband of Nirmal Verma, who had executed the General Power of Attorney and possession was handed over to the Appellant. That being the fact situation, in my view, the Objection filed by the Appellant under Order 21 Rule 58 in execution has to be allowed. I, therefore, hold that the Executing Court can execute the decree in Civil Suit No. 407 of 2007, but without proceeding against the property referred to in registered Power of Attorney dated 12.5.2006 - Appeal allowed.
As per Vikramajit Sen, J
The Appellant has not taken any steps for setting aside the ex parte decree against late Shri Prem Chand Verma. This is only to be expected since the Appellant/Objector has no reason to evince or harbour any interest in the inter se dispute between the Decree Holder and the judgment Debtor. Indeed, if the Appellant had made any endeavour to assail or nullify the decree, it would be fair to conclude that she had been put up by the judgment Debtor in an endeavour to defeat the decree - On a conjoint reading of Order XXI Rule 58 Code of Civil Procedure and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice.
The Appellant/Objector who has approached the Court under Order XXI Rule 58 is more advantageously or favourably placed inasmuch as she is a third party so far as the decree is concerned, and her property is not the subject-matter of the decree. It is thus clear that the Courts below have in a hurried, if not prejudiced manner, rejected the Objections merely because of some sympathy towards the Decree Holder. The Objections deserved to be allowed without disturbing the decree, leaving all other remedies open to the Decree Holder/Respondent, including proceedings against the Estate of the judgment Debtor.
Appeal allowed.
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2014 (2) TMI 1423
Validity of Arbitral Award - ex-parte award - respondents had failed to appear in the arbitration proceedings - Section 16 of Arbitration & Conciliation Act, 1996 - HELD THAT:- The court below has distinguished this judgment on the ground that in the present case the respondents did not appear before the arbitrator resulting in an ex-parte Award and therefore the Supreme Court judgment in the case of Narayan Prasad Lohia [2002 (2) TMI 1242 - SUPREME COURT] is not applicable. There cannot be a more perverse reading of the ratio of the Supreme Court judgment by the court below in the case of Narayan Prasad Lohia inasmuch as whether the Award is ex-parte or contested. Section 16 of the Act comes into play as also the ratio laid down in para. 16 of the judgment i.e. it is not open to a person who does not contest the arbitration proceedings by remaining ex-parte to raise objections under Section 34 of the Act with respect to jurisdiction because by failing to raise objection as to jurisdiction before the arbitrator objection as to jurisdiction is deemed to be waived.
Trial court is completely unjustified in distinguishing the direct ratio of the judgment of the Supreme Court more so when the basis of distinguishing the ratio is on a wholly unacceptable basis because a person cannot take advantage of his own wrong in failing to appear before the arbitrator and not objecting to the jurisdiction and raising the objection for the first time in a petition under Section 34 challenging the existence of an arbitration agreement. In view of the above, appeal is allowed.
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2014 (2) TMI 1422
Principles of Natural Justice - Fundamental Rights under Part III of the Constitution of India - Whether any reasonable restriction or limitation or exception to this principle (of natural justice) is permissible in the interest of national security - HELD THAT:- It is now settled law that there are some special exceptions to the principles of natural justice though according to Sir William Wade [Administrative Law, 10th Edition, H.W.R. Wade & C.F. Forsyth, Pages-468-470], any restriction, limitation or exception on principles of natural justice is "only an arbitrary boundary".
It is difficult to define in exact terms as to what is national security. However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc. - What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of State or not. It should be left to the Executive.
Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.
It has become unnecessary for this Court to go into more factual details and consideration of the appeal on merits - Appeal disposed off.
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2014 (2) TMI 1421
Excess deduction u/s 80IB/80IC - method of allocation consistently adopted by the Appellant and in re-allocating 50% of the following overheads of the non-eligible undertakings to the eligible undertakings of the Appellant, while computing the deduction u/s 80IB/80IC - HELD THAT:- As decided in assessee own case for AY 2006-07 [2014 (4) TMI 520 - ITAT MUMBAI] allocation of expenses made by the assessee between eligible business and non-eligible business for the purpose of computing deduction u/s 80IB/80IC of the Act was reasonable and there was no justifiable reason for the A.O. to disturb the same and make re-allocation on adhoc basis. We, therefore, delete the addition made by the A.O. by restricting the claim of the assessee for deduction u/s 80IB/80IC by reallocating the common indirect expenses and allow ground No. 1 & 2 of the assessee’s appeal.
TP Adjustment - treating the guarantee to a banker as an ‘international transaction’ within the meaning of Section 92B - HELD THAT:- The issue covered in the grounds are covered by the decision of the Coordinate Bench in its own case in [2014 (4) TMI 520 - ITAT MUMBAI] wherein take the rate of guarantee commission at 0.5% as ALP by respectfully following the decision of coordinate Bench of this Tribunal in the case of Nimbus Communications Ltd. [2013 (9) TMI 204 - ITAT MUMBAI]
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2014 (2) TMI 1420
Validity of all the proceedings before the Uttar Pradesh State Micro and Small Enterprises Facilitation Council - direction to the Council to decide the objection filed under Section 8 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 18 empowers the Council, upon receipt of a reference, to conduct a conciliation in terms of the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996. Where the conciliation is not successful and is terminated without a settlement between the parties, the Council is empowered to itself take up the dispute for arbitration or refer it to any institution or centre providing alternate dispute resolution services. Sub-section (4) of Section 18 begins with a non obstante clause which operates notwithstanding anything contained in any other law for the time being in force. Under sub-section (4), the Council or as the case may be, the centre providing alternative dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India - The Act thus provides for a statutory remedy of an arbitration in sub-section (4) to Section 18 notwithstanding anything to the contrary contained in any other law for the time being in force.
In the present case, the Council is seized of the reference on a claim petition filed by the second respondent - the relief of certiorari for quashing all the proceedings before the Council is manifestly misconceived. The proceedings had been entertained by the Council in pursuance of the provisions of the Act. Though there may be an arbitration agreement between the parties, the provisions of Section 18(4) specifically contain a non obstante clause empowering the Facilitation Council to act as an Arbitrator. Moreover, Section 24 of the Act states that Sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
There are no reason to interdict the proceedings before the Council at this stage. Once the conciliation is unsuccessful, the Council will necessarily have to act in pursuance of the provisions of Section 18. Hence, no case for interference is made out. The petition is, accordingly, dismissed.
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2014 (2) TMI 1419
Income accrued in India - fee for technical services - receipts for supply of design and engineering drawings - Income taxability in India v/s Japan - HELD THAT:- Tribunal, on fact, found that there has been no accrual of income in India and this accrual of income has taken place in Japan. As such, the Income Tax Act cannot be made applicable. We feel that the decision is legally correct and we do not find any element of law to be decided in this appeal.
The appeal is accordingly dismissed.
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2014 (2) TMI 1418
Classification of goods - sun-glasses - to be classifiable under Entry 125 of Schedule IV of Part A as 'Spectacles, parts & components thereof, contact lens and lens cleaner' taxable @ 4% or under the residuary clause under Schedule V @ 12.5%? - HELD THAT:- Issue notice on the prayer for interim relief, returnable on 02.05.2014.
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2014 (2) TMI 1417
Jurisdiction - power of Addl. Secretary to Government - it is contended that the impugned corrigendum was issued by Addl. Secretary to Government who has no authority to change the decision of the High Power Committee - HELD THAT:- After receiving application to accord permission the Prescribed Authority as stipulated in Sub-section 5 of Orissa Education Act may make such enquiry and make a report with recommendation which has been given in the present case as reveals from the counter affidavit - Sub-section 6 of the Act stipulates that if the Committee is satisfied that the educational need of local area justify the establishment of an educational institution that the place where the educational institution is proposed to be established is likely to best serve the educational needs of the area the permission may be granted. The statute does not provide the Committee to make further enquiry or to collect any further data regarding educational needs of the locality except the report furnished by the Prescribed Authority as stipulated in Sub-section 5. In case the Committee takes a different view then it must specify the reason for taking a different view instead of expressing only allowed or rejected.
The corrigendum issued by one of the member i.e. Addl. Secretary to Government of Odisha, Department of Higher Education on 1.6.2013. Accordingly, Rule-5 of the Act has been violated. As per statute no other authority has jurisdiction to change the decision of the High Power Committee.
There is no other document also before the High Power Committee that there was no local need to open such institution rather the inspection report states that the institution situated in a rural area and poor local people will be benefited immensely in case the permission is granted to open the institution. The poor villagers are not able to provide financial help to their children to prosecute science studies in a costly town like Bhubaneswar. Considering all those aspects, the High Power Committee has accorded permission to the petitioner's institution which has been subsequently withdrawn by way of issuing the corrigendum by the Additional Secretary to Government who has no jurisdiction to issue such corrigendum. Statute does not confer jurisdiction on the Additional Secretary to issue such a corrigendum by modifying and altering the decision taken by the High Power Committee.
The impugned order dated 1.6.2013 so far as petitioner's institution is concerned issued by Addl. Secretary to Government of Odisha, Department of Higher Education vide Annexure-5 to the writ petition is quashed - Petition allowed.
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2014 (2) TMI 1416
Modavt credit - duty paid on the capital goods used for the manufacture of final product viz. Sliver falling under heading 52.02 of the schedule to the Central Excise Tariff Act, 1985 - same was specifically excluded from the purview of capital goods under erstwhile Rule 57Q of Central Excise Rules, 1944, prior to 21-10-1994 - HELD THAT:- The question has been answered against the Revenue in COMMISSIONER VERSUS THURAN SPINNING MILLS [2013 (12) TMI 1608 - MADRAS HIGH COURT], following the decision of this Court in the case of COMMISSIONER OF C. EX., SALEM VERSUS SINGARAVELAR SPINNING MILLS (P) LTD. [2009 (2) TMI 195 - HIGH COURT OF MADRAS].
The question is answered against the Revenue - appeal dismissed.
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2014 (2) TMI 1415
Capital gain computation - reference to Valuation Cell under S.50C, S.55A and S.142A - HELD THAT:- Under S.50C in determining the sale value of consideration according to stamp value, if the assessee objects to the valuation, then reference under S.50C can be made to Valuation Officer. This situation does not arise in this case. U/s 55A, with a view to ascertain the fair market value of a capital asset, AO can refer the valuation to Valuation Officer, but the fair market value under this Chapter is adopted for the purpose of cost of acquisition of an asset, while computing the capital gains and not for sale consideration. If S.55A could be invoked to arrive at the sale consideration, then there is no necessity to introduce provisions of S.50C which enables the AO to adopt the SRO value, where the sale consideration is not in accordance with the SRO value.
While computing the capital gains, substitution of sale consideration with fair market value can only be done under S.50C. There is no other provision in the Act to do so. Even the reference u/s 142A of the Act for determining the value of any investment can only be done with reference to S.69, S.69B, S.69A or for the purpose of fair market value of any property under S.56(2). In the given facts of the case, these provisions are not applicable, nor can be invoked by the AO.
What Revenue is contesting can be appropriate if the reference was made in the hands of the builder, who may claim the cost of acquisition to ascertain the investment in the building, but in the assessee’s case, who adopted the actual cost of construction for arriving at the sale consideration, these provisions do not apply. This is what the learned CIT(A) has decided. Therefore, we do not see any reason in the ground raised by the Revenue. Accordingly, the grounds are rejected, and the Revenue’s appeal stands dismissed.
Deduction u/s 54 - proportionate capital gains on each house - HELD THAT:- While calculating the exemption on each of the flats eligible for each of the houses, the AO is directed to take into consideration, the capital gains arising on each of the house. As seen from the development agreement, the assessee is having a house having land of 940 sq. yards; another two houses in joint ownership with wife(items No.(ii) and (iii) on page 2 of the Development Agreement) of 222 sq. yards each; and a fourth house having land of 78 sq. yards, being item no (iv) in the Development Agreement. Since the proportion of capital gains vary according to the land included in the total land surrendered to the developer, AO is directed to work out the proportionate capital gains on each house, according to the land involved in that house and allow exemption under each of the houses under S.54. This aspect of working out of capital gains in respect of each of the houses has to be done by the AO, even though the assessee is entitled for exemption in respect of four houses, as part of the development agreement. Therefore, the computation aspect of exemption u/s 54 is restored to the file of the AO.
Action of AO in including the value of three-bed room accommodation for a period of 24 months - HELD THAT:- As the learned counsel submitted that rent being compensation cannot be brought to tax. This contention, however, cannot be accepted, as bearing cost of rent for dispossessing the house used for residence is part of the same agreement, so it requires to be considered while arriving at the sale consideration of the land given for development agreement. Therefore, the action of considering/adopting the value of providing three bedroom accommodation as part of the agreement, in computing the capital gains is accepted. However, the valuation of the rent requires examination. AO is directed to obtain the actual rent payment by the builder and adopt the same value while computing the capital gains. The assessee shall provide the details of actual rent borne by the builder for this purpose. With these directions, this ground is considered as allowed.
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2014 (2) TMI 1414
Dishonor of Cheque - insufficient of funds - dishonest or fraudulent intention on the part of the petitioner at the time of taking the loan or not - civil dispute or criminal offence - offence under Section 420 IPC - HELD THAT:- The principles that have emerged are that in order to sustain a plea of offence under section 420 IPC, the complaint has to show that the accused had dishonest or fraudulent intention at the time the complainant had parted with the property or that the accused by making a representation at or before the time the complainant had parted with property, deceived the complainant and thereby induced the complainant to deliver property and that the accused knew such representation to be false - When allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of culpable intention at the time of making initial promise, no offence under section 420 IPC can be said to be made out.
It appears from the complaint petition that the petitioner and the complainant had shared a friendly relationship for a long time. The petitioner was in need of Rs. 8 lakhs and he requested the complainant to give him a loan for the said amount. Because of the friendship and bona fide need, the complainant advanced the loan to the petitioner on the understanding that loan will be repaid on or before 12.3.2010 and in token of the assurance and promise, the petitioner also issued one cheque for Rs. 8 lakhs. The complainant had deposited the cheque after 12.3.2010 and the same came to be dishonoured for insufficiency of fund - It appears that the petitioner did not harbour any apprehension that the complainant will not pay the amount and that also perhaps explains why he had not initiated proceeding under Negotiable Instruments Act, 1881 and why he had agreed for re-payment of the loan amount on instalment of Rs. 50,000/- per month. As such, no averment or allegation in the complaint was made that there was any fraudulent or dishonest intention on the part of the petitioner at the time of taking of the loan.
From the averments made in the complaint petition and the initial deposition of the complainant, where the complainant only says that accused did not repay the loan as per promise made despite his many requests and as the accused finally refused to re-pay the loan, he had filed the complaint, it appears to me that the dispute between the parties is purely of civil nature arising out of breach of contract. Subsequent refusal to pay the balance amount does not satisfy the ingredients of cheating inasmuch as dishonest intention at the time of initial transaction is lacking. An offence of cheating would be constituted when the accused had fraudulent or dishonest intention at the time of making promise or representation.
Petition allowed.
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