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2015 (3) TMI 1435 - PUNJAB AND HARYANA HIGH COURT
Seeking quashing of FIR - case of Revenue is that only because the petitioners have discharged their civil liability by making payment of tax, they cannot be absolved from criminal liability - HELD THAT:- After careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present case is squarely covered by the judgment of this Court in PRITPAL SINGH VERSUS STATE OF PUNJAB AND ANOTHER [2012 (3) TMI 576 - PUNJAB AND HARYANA HIGH COURT]. It is so said, because the similar controversy fell for consideration before this Court in Pritpal Singh's case and finally the matter was decided in favour of the petitioners therein, ordering quashing of FIR alongwith subsequent proceedings arising therefrom.
Accordingly, with a view to secure the ends of justice, present petition is allowed and FIR No. 227 dated 12.10.2012 under Section 420 IPC registered at Police Station Civil Lines Bathinda, alongwith subsequent proceedings arising therefrom, are ordered to be quashed, however, qua the petitioners only.
Petition allowed.
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2015 (3) TMI 1434 - GUJARAT HIGH COURT
Dismissal of revision application - Sale deed executed in March 2000 and the notice issued by respondent No. 3 in October 2003 - revision applications are not entertained and are rejected because the said applications have been filed after prescribed period of limitation expired (i.e. after 90 days) - HELD THAT:- A provision conferring statutory right and thereby providing a remedy against the order by adjudicating authority, either in form of appeal or revision application, should be construed to make the remedy effective and meaningful and cannot be interpreted and enforced in a manner which will curtail the scope of remedy and may virtually render it ornamental or truncated than what the legislature actually provided for.
When the person is not even aware that some decision is taken and order is passed and / or when the person is not aware about the actual decision i.e. contents of the order, he cannot effectively and meaningfully avail the remedy provided under the Act. Unless the person has the knowledge about the order the provisions / remedy will be meaningless. Therefore, the said provision i.e. Section 53 of the Act and more particularly the expression “from the date of the order” must be construed to make the provision and the remedy effective and meaningful and not in a manner which would restrict the period of said remedy's availability i.e. the period for which the remedy would be effectively available to the concerned and affected person.
An order to become effective and operational, the order and decision should be informed to the concerned person and he should be aware about the decision of the authority and also about the direction. As observed by Hon’ble Apex Court in State of Punjab vs Amar Singh Harika [1966 (1) TMI 79 - SUPREME COURT] an authority may pass and sign an order and such order may be retained on file without communicating and forwarding it to the concerned person. The knowledge that an order is passed as well as knowledge about the actual decision and effect of the decision are imperative for calculating and enforcing the limitation prescribed (for filing application under Section 53 of the Act) by the Act.
The petitioner dispatched the revision applications to the competent authority on 10.9.2014 which was received (according to the claim by the respondents) in the office of the respondents on 15.9.2014 and the petitioner deposited 25% of adjudicated amount on 6.9.2014. Thus, the amount required to be deposited in light of clause-B of sub-section (1) of Section 15 was deposited by the petitioners even before the memo of applications were received in the office of revisional authority - In this view of the matter the period of limitation i.e. period of 90 days should have been calculated w.e.f. 19.6.2014.
The revisional authority has committed error in considering the revision applications filed by the petitioners as bared by limitation prescribed under the Act inasmuch as calculating the period on from 1st terminus to 2nd terminus i.e. from 19.6.2014 to 15.9.2014 it becomes clear that the revision applications are undisputedly filed before expiry of 90th day and that therefore the revision applications filed by the petitioners could not have been treated as barred by period of limitation prescribed under the Act and consequently the applications could not have been dismissed.
The impugned orders deserve to be and are accordingly hereby set aside and the matters are remitted to the revisional authority for considering the revision applications on merits - Petition disposed off.
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2015 (3) TMI 1433 - ALLAHABAD HIGH COURT
Revisional jurisdiction - Re-appreciation of evidence revisional authority, to arrive at a conclusion which was different from that of the appellate authority - whether the revisional authority in exercise of its suo moto powers under Rule 23 could have re-appreciated the evidence and taken a different view in contradiction to the view taken by the appellate authority in the given facts and circumstances? - HELD THAT:- The revisional authority disagreed with the appellate authority merely for the reason that the negligence on the part of the petitioner was not required to be established by an independent witness as the attack on the camp and consequently the constables running for their lives, was accepted by the delinquent employee in his statement. The revisional authority was in agreement with appellate authority that the petitioner as well as the constable Sanjai Kumar Rai, though posted as Guards, were assigned the work of cooking food on the direction and order of the Commander. The required number of constables were not posted at the camp nor were the followers. In the aforesaid admitted position, the revisional authority, took a different view, that despite non availability of the followers and the assignment of cooking work, the petitioner being a constable should have been alert while performing his duties even while he was cooking the food. Therefore, the revisional authority opined that at the time of attack the petitioner was negligent in performance of his duties. The revisional authority, finally concluded, that considering the overall facts and circumstances and the conduct of the constables posted at the camp, the petitioner being a constable and deputed for the protection of the camp was negligent in performance of duty because at the time of the attack the petitioner and the other constables had escaped, consequently, the naxalites were successful in destroying the Government property and looting the arms and armaments.
The impugned order would reflect that the revisional authority had drawn inference on the same material and facts, but the revisional authority had taken distinct and different view from that of the appellate authority. The scope of "appeal" and "revision", discussed herein above, would not permit the revisional authority to re-appreciate the evidences to come to a different conclusion, save and except, when the revisional authority records a categorical finding regarding the legality and propriety of such order under revision. The revisional authority had exceeded his jurisdiction by taking upon himself the role of a second authority of appeal which is not permissible under the Rules.
The allegation against the petitioner is primarily of a general nature of not defending the camp at the time of the naxal attack. The appellate authority had noted the background in which the petitioner alongwith other constables acted at the relevant time. The guard strength was inadequate, seven guards against eleven, of which two guards, including the petitioner, were assigned the work of a cook. The Commander was not available when approximately fifty naxals attacked the camp. In these circumstances the first reaction of the guards was to take shelter to save their lives. The appellate authority in these circumstances and on considering the material, evidence and statements of the guards was of the view that the petitioner was wrongly held guilty by the Disciplinary Authority.
The revisional authority failed to record as to how the charges of misconduct was not identical to that of Sanjai Kumar Rai or the petitioner was foisted with more serious charges. In this background the revisional authority exceeded his jurisdiction in interfering with penalty proposed by the appellate authority.
The impugned order is not sustainable - petition allowed.
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2015 (3) TMI 1432 - PATNA HIGH COURT
Money Laundering - Provisional attachment - illegal collection of public deposits with promise of return at high rates of interest, as well as money circulating activity without being enlisted as an NBFC in RBI and SEBI which was prohibited under the provisions of Prize Chits and Money Circulation Scheme (Banning) Act, 1978 - HELD THAT:- The elaborate statutory provisions of PMLA are well-equipped to deal with cases of the present nature and the adjudicating authority is amply imbued with powers under Section 8 of the PMLA to decide the validity of the provisional attachment. When the Petitioner's claims based in considerable proportion on issues of fact are capable of being decided by a competent statutory authority, there appears to me little reason for this Court to exercise its extraordinary constitutional writ jurisdiction at this stage.
While several show cause notices have been annexed as Annexure-36 series relating to the group companies and its officials, nothing has been brought on record to show that any such show notice was at all issued to the petitioner-company in violation of the interim order passed in its favour as aforesaid. Such statement by the Petitioner is thus misleading. In these circumstances, the challenge to the show cause notices dated 26.12.2014 issued to various other persons as contained in Annexure-36 series to the amendment petition at the instance of the Petitioner-Company is clearly completely misconceived.
This is not a fit case calling for interference in exercise of the discretionary and extraordinary powers of this Court in its writ jurisdiction - petition dismissed.
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2015 (3) TMI 1431 - SUPREME COURT
Plea of alibi - Murder - putting on ablaze by pouring kerosene - reliability of dying declaration - HELD THAT:- In the cross-examination he has categorically denied the suggestion that the injuries received by the deceased could have been sustained because of kerosene oil from the stove fell on her body due to the pinning of the stove and also by fall of a tin of kerosene oil on the floor. He has deposed without any equivocation that the burn injuries sustained by the deceased were not possible due to accidental burns - There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
Having stated about the medical evidence that has been brought on record and how such an evidence is to be valued, we think it apt to dwell upon the oral dying declaration which has been placed reliance upon by the trial Court as well as the High Court. As per the evidence of the brother, Satish, PW-1, he after reaching the place of occurrence found his sister ablaze and she had stated that her husband has poured kerosene on her and put her ablaze. There is material to show that the father, Shivcharan, PW-8, arrived after his son. The prosecution has explained about the delayed arrival of the father.
In the instant case, PW-1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the Appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
When the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the accused to prove the plea of alibi is sketchy and in fact does not stand to reason. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such a quality that the Court would entertain a reasonable doubt. The burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude. In the instant case, nothing has been brought on record that it was a physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
Appeal dismissed.
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2015 (3) TMI 1430 - SUPREME COURT
Removal of Chairperson/elected office bearer, by a motion of no confidence - no specific provision on removal by no confidence in the Act, Rules or even Bye-laws of a Cooperative Society - HELD THAT:- In PRATAP CHANDRA MEHTA & RAMESHWAR NEEKHRA VERSUS STATE BAR COUNCIL OF M.P. & ORS. [2011 (8) TMI 1228 - SUPREME COURT] the concept of democratic principles governing the democratic institutions have been discussed. In a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The bedrock of democratic accountability rests on the confidence of the electorate. If the representative body does not have confidence in the office bearer whom they selected, democracy demands such officer to be removed in a democratic manner.
A cooperative society is registered on cooperative principles of democracy, equity, equality and solidarity. Democratic accountability, mutual trust, fairness, impartiality, unity or agreement of feeling among the delegates, cooperativeness, etc., are some of the cardinal dimensions of the cooperative principles. A body built on such principles cannot be led by a captain in whom the co-sailors have no confidence - If a person has been selected to an office through democratic process, and when that person looses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution/statues as democratic institutions.
The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws - In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.
Now that this Court has declared the law regarding the democratic set up of a cooperative society and that it is permissible to remove an elected office bearer through motion of no confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines - In case the motion of no confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no confidence shall be moved only in case there is a request from one-third of the elected members of the Board of Governors/Managing Committee of the cooperative society concerned. The motion of no confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting.
Appeal dismissed.
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2015 (3) TMI 1429 - DELHI HIGH COURT
Reduction of its preference share capital - Sections 100 to 105 of Companies Act, 1956 - HELD THAT:- Despite publication of notice, no objection has been received from any creditor or any member of the public. The petitioner company has filed the affidavit of Sh. Anil Saxena, Director of the petitioner company, on 17th March, 2015 submitting that neither the petitioner company nor its counsel have received any objection pursuant to citations published on 23rd January, 2015. Thus, there appears to be no legal impediment in allowing the present petition.
In view of the averments made in the petition and there being no objection from any creditor or any member of the public, the petition is hereby allowed. The resolution passed by the petitioner company in its Extra Ordinary General Meeting held on 22nd October, 2014 for reduction of its share capital is approved. The 'Form of Minutes' proposed to be registered under Section 103(1)(b), and annexed as Annexure –‘L’ to the petition, is also approved.
Petition allowed.
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2015 (3) TMI 1428 - MADRAS HIGH COURT
Suspension of petitioner set aside - whether the suspension of the Petitioner on the ground that he was involved in a Criminal case under the Prevention of Corruption Act can be set aside on the ground of prolonged suspension? - HELD THAT:- It cannot be gainsaid that an Employer has a right to take Disciplinary action against the Employee who is believed to have committed misconduct. An Employer, who has contemplated Disciplinary action against an Employee, may place him under suspension. After suspending an Employee, the matter rests there. As such, an Employee suffers and it results in unnecessary expenses to the Employer/State by way of payment of Subsistence Allowance in lieu of nothing.
Placing an Employee under suspension is the discretion of an Authority and where the directions is properly exercised for good and sufficient grounds, the order cannot be held bad in law merely because the reasons were not communicated.
It is true that the prosecution should not be allowed to become a persecution. However, when does the prosecution become persecution will certainly depend upon the facts and circumstances of a given case. It is the primordial duty of the Court concerned to dispose of a case concerning corruption by holding the trial on day to day basis as per Section 4(4) of the Prevention of Corruption Act, 1988. In fact, as per Section 4 of the Prevention of Corruption Act, a Special Judge appointed under the Act is to try offences specified in Section 3(1) of the Act. The word 'only' shows the exclusive jurisdiction of the Special Judge to try all offences specified in Section 3(1) of the Act.
In the decision of the Hon'ble Supreme Court in VICE CHANCELLOR JAMMU UNIVERSITY VERSUS DUSHIANT KUMAR RAMPAL [1977 (2) TMI 131 - SUPREME COURT], it is observed that: 'It is immaterial that evil effects flow from an Order of Suspension, as it causes real hardship and inconvenience to a civil servant due to stigma, attached to it. In fact, by placing an Employee under suspension without proper application of mind Government is a looser because it has to pay heavy amount by way of Subsistence Allowance and other payments without taking any service from the Employee.'
Vide the present Rules, namely, Tamil Nadu Civil Services (Discipline and Appeal) Rules, under Rule 17(e)(6), an Order of Suspension made or deemed to have been made under this rule may at any time be revoked by the Authority which made or is deemed to have made the Order or by any Authority to which that Authority is subordinate, thereby empowering the Competent Authority to take a decision as to the revocation of suspension at any time. The said rule framed in exercise of the powers conferred by the Proviso to Article 309 of the Constitution shall be exercised in the manner as contemplated. A reading of the said rule would unambiguously indicate that there cannot be any distinction between an Ordinary case and a Criminal case as to the involvement of the delinquent Employee.
The Constitution of India guarantees the right of public employment and the equality thereof guaranteed to every one under Article 16(1) shall be made available to every citizen, including the delinquent Employee. Such a right has to be enjoyed by the Government servant during the pleasure of the Governor of the State. Therefore, the Executive Order, taking away the rights conferred upon the citizens, without making necessary amendment to the Rules or bringing proper legislation, is bad in law and the review of the Order of Suspension by the authority without giving any distinction of the category of cases shall be made as a mandatory requirement by prescribing a period of review, otherwise, there will be a serious prejudice and continued apathy over the issue of keeping the Government servant for an unending period under suspension.
The Registry is directed to list these matters before the appropriate Bench for hearing in usual course.
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2015 (3) TMI 1427 - DELHI HIGH COURT
Seeking de-registration of aircrafts (the details qua which I shall provide hereafter), upon termination of the lease agreements - HELD THAT:- The existence of lien under Article 39(1)(a) of the Convention has nothing to do with the remedy which the petitioners seek to avail of under Article IX of the Protocol. Deregistration of the aircraft is not, hampered by the existence of liens, if any, under the Municipal Law of the Contracting State. The liens, as indicated above, under Article 39(1) (a) shall obtain if so provided under the Municipal Law. The extent of the lien shall also be governed by the Municipal Law and not by the Convention.
One cannot quibble with the proposition that a court cannot issue a writ of mandamus where, an authority, is not required to act in a particular manner by express provisions of law. This dicta finds reflection even in Paragraph 12 of that judgement rendered in the case of UP SRTC & Anr. Vs. Mohd. Ismail & Anr. [1991 (4) TMI 437 - SUPREME COURT] - The obligation, cast on DGCA under clause (iv), sub-rule (6) of Rule 30 of the Aircraft Rules requires it to de-register an aircraft if, the lease agreement qua the aircraft object is not in force. Notably, like under clause (iv), each of the circumstances set out in subrule (6) are independent of each other. It may be, in a given situation that, more than one circumstance is attracted.
A bare perusal of the unamended clauses of sub-rule (6) of Rule 30 would show that all that the DGCA is required to do is to ascertain whether circumstances exist, once it is found circumstances exist as contemplated in the relevant clause, and the DGCA is found wanting, a writ of mandamus could issue to compel performance. The fulfilment of ministerial act and, therefore, vesting of a minor discretion in that behalf, if it can be called one ought not to deter a court from not issuing a writ of mandamus.
The learned ASG was not able to inform as to whether or not, there are liens obtaining vis-a-vis the aircraft objects under the Municipal law; as contemplated under Article 39(1) of the Convention. The difficulty has been compounded by the fact that the DGCA, has not filed its return in the matter. Therefore, the DGCA will, take a decision in the matter qua liens, if any, obtaining. The decision in the matter will be taken by the DGCA within two (2) weeks from today.
Thus, DGCA will, forthwith, de-register the aircraft objects - petition disposed off.
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2015 (3) TMI 1426 - SUPREME COURT
Bribe - possession of assets disproportionate to the known sources of income - High Court took the view that Rules 14, 17 and 19 of the M.P. Civil Services (Conduct) Rules, 1965 prohibit the public servant from accepting gifts or loan except in the manner prescribed therein - HELD THAT:- The expression “known sources of income” in Section 13(1) (e) of the Act has two elements, first the income must be received from a lawful source and secondly the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah [2008 (10) TMI 728 - SUPREME COURT], while dealing with said expression, it was observed that For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (1) his property, or (b) his investment.
In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the Income Tax Returns filed by the appellant. In similar circumstances, the acquisitions being reflected in Income Tax Returns weighed with this court in granting relief to the public servant.
In D.S.P Chennai Vs. K. Ibasagarain [2005 (12) TMI 50 - SUPREME COURT], the fact that the money was treated in the hands of the wife of the public servant and that she was assessed by the Income Tax Department was taken note of while accepting the explanation given by the public servant.
There is no violation of Section 13(1)(e) read with Section 13(2) of the Act. The judgment and order in appeal is set aside and the appellant is acquitted of the charges levelled against him - Appeal allowed.
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2015 (3) TMI 1425 - ANDHRA PRADESH HIGH COURT
Maintainability/scope of arbitration proceedings - whether the dispute for recovery of possession and mesne profits is beyond the scope of arbitration clause or not - non-filing of original agreement or duly certified copy of the agreement, which consists of arbitration clause u/s Section 8(2) of the Act - ambiguity in the language used in the arbitration clause in the agreement or not.
Whether the arbitration clause covered reference of the dispute relating to delivery of possession and mesne profits, if not, is the impugned order be sustained?
HELD THAT:- The clause referred to in the earlier paras referring to arbitrator is unambiguous and the intention of the parties need not be looked into, since, intention would not prevail when the language used in the condition is unambiguous. Therefore, on strict construction of the condition relating to reference to arbitration, the trial Court rightly declined to grant the relief to the petitioner.
The case on hand would not cover any of the circumstances to exercise discretion to grant relief. That apart there are no illegal exercise or failure to exercise the power conferred on the trial Court in negating the relief. Hence, it is not a fit case for interference of this Court.
When the agreement is not in writing and it is only an understanding, the alleged condition of agreement for reference would not fall within the ambit of Section 7 of the Act. In any view of the matter, it is for the revision petitioner to file, if there is an understanding in writing duly signed by both parties along with the petition. However, it is wholly unnecessary to decide about maintainability of the petition in view of bar to entertain petition under Section 8(2) of the Act, as the petitioner himself admitted about the understanding and that apart it is already concluded that this Court cannot exercise its discretionary power under Section 227 of the Constitution of India to interfere in the order in question.
There are no ground or legal infirmity which calls for interference of this Court, devoid of merits and deserves to be dismissed - petition dismissed.
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2015 (3) TMI 1424 - KERALA HIGH COURT
Dishonor of Cheque - seeking stay on proceedings - whether proceedings under section 138 of the Negotiable Instruments Act has to be stayed under section 446 of the Companies Act, 1956, which is replaced by sections 279 and 280 of the Companies Act, 2013?
HELD THAT:- This question has been considered by the Division Bench of this court in Jose Antony Kakkad v. Official Liquidator, High Court of Kerala [2000 (1) TMI 866 - HIGH COURT OF KERALA] and observed that, the proceedings under section 138 of the Negotiable Instruments Act cannot be stayed invoking the power under section 446 of the Companies Act, 1956.
As regards the second accused is concerned, if the petitioner can convince the court below that, he is unable to move on account of his illness and he is unable to understand things, then court below is directed to consider that application and consider the question of jurisdiction, if it is raised in view of Dashrath Rupsingh Rathod v. State of Maharashtra [2014 (8) TMI 417 - SUPREME COURT] in his absence and he may be permitted to appear through counsel and pass appropriate order on that aspect in accordance with law.
As regards the third accused is concerned, if she surrenders before the court below and moves for bail, then court below is directed to recall the warrant and after granting bail, permit her also to represent through counsel and consider the question of maintainability in view of Dashrath Rupsingh Rathod v. State of Maharashtra [2014 (8) TMI 417 - SUPREME COURT] decision of the hon'ble Supreme Court.
Petition dismissed.
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2015 (3) TMI 1423 - SUPREME COURT
Entitlement to get the suit property converted from leasehold to freehold - suit for specific performance - HELD THAT:- In the suit for specific performance filed by respondent-Gaurav Kukreja and his father-Lekh Raj Kukreja, DDA was not made a party to the suit despite the fact that it was within their knowledge that the property is a leasehold property under the control of DDA and cannot be disposed of without obtaining a prior permission from the DDA. In terms of Section 15(a) of the Specific Performance Act 1963, the suit for specific performance can be filed by “any party” to the contract - In the instant case, suit for specific performance was filed by the respondent and his father who admittedly were not the parties to the agreement to sell.
The suit for specific performance is a collusive suit, where the respondent and his father used the process of the court to get rid of the stamp duty, registration charges and unearned increase payable to DDA.
Main contention of the respondent is that he is a decree holder for specific performance and even going by the ratio of Suraj Lamp & Industries (P) Ltd.’s case [2009 (5) TMI 1012 - SUPREME COURT], the respondent is at a higher footing than a holder of Power of Attorney and therefore the respondent is entitled to have conversion of the land. As pointed out earlier, the suit for specific performance, in our view, is a collusive one and therefore cannot confer any right upon the respondent to claim conversion.
On the date of filing of the writ petition, the respondent was neither a holder of a power of attorney nor had any subsisting right in the suit property and while so, the High Court was not right in holding that the respondent is entitled to apply for conversion of the property. Dehors the scheme of conversion, the respondent is not entitled to apply for conversion of the property. The respondent does not fall within the ambit of Clause 13 of the Conversion Scheme and therefore the impugned order of the High Court cannot be sustained and is liable to be set aside.
Appeal allowed.
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2015 (3) TMI 1422 - ITAT MUMBAI
Rectification of mistake u/s 154 - Addition u/s 68 - HELD THAT:- Section 68 stipulates that any unexplained sum found credited in the books of the assessee for any previous year, then the same may be taxed as income of the assessee for that previous year. Section 68 can only be invoked if the loan has been taken or the sums have been credited in the books in the relevant previous year for which assessment is being made and not the loans taken in the earlier years.
From the income tax records, it is evident that this loan is coming forward from last several years and is reflected in the balance sheet of the assessee filed for the earlier years along with the return of income. All these records are available with the assessing officer. The mistake apparent from record does not mean the assessment order itself but the records which are available with the assessing officer.
Though the assessee could not furnish the confirmation of the loan and other evidences but such a loan could not have been added in the A.Y. 2005-06 as the same was taken in the earlier years and is being carried forward. In this year it is appearing balance of the current year. Legally such an addition could not sustained in this year and therefore addition made by AO u/s 68 is a legal mistake, which can be rectified within the ambit and provisions of section 154. The grounds raised by the assessee is treated as allowed.
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2015 (3) TMI 1421 - BOMBAY HIGH COURT
Substantial question of law - disallowance of interest as proposed by AO u/s 36(1)(iii) - as stated all the questions of law have not been answered by any judgment of this Court - HELD THAT:- We have perused the questions of law in Income Tax Appeal [2015 (12) TMI 1881 - BOMBAY HIGH COURT] In the case of same assessee, on similar question Nos.1 & 2, the Tribunal found that loans and advances given by the assessee company to its subsidiary company was raised for the assessment year 1989- 90 and it was decided in favour of the assessee. In the present case, we are concerned with the assessment years 1998-99 to 2002-03. The Tribunal has consistently applied the ratio of its decision rendered for assessment years 1989-90 and assessment year 1997-98 [2013 (2) TMI 601 - ITAT MUMBAI]. We do not find that there is any change in the factual position. The revenue may have preferred an appeal in this Court against the Tribunal's order for those assessment years, but no record of any appeal having been admitted on the questions of law proposed in the present appeal has been produced before us.
As we admit these appeals on the following substantial question of law:-
“ Whether on the facts and in the circumstances of the case and in Iaw, the ITAT was correct in allowing deduction under section 80HHC with regard to meals supplied to foreign air lines ? ”
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2015 (3) TMI 1420 - ITAT AMRITSAR
Disallowance u/s 54F - Partial addition on the alleged ground that the appellant has invested the part of the capital gain towards the construction of residential house of which the land is owned by her spouse - HELD THAT:- As purpose of section 54F is that new residential house need not be purchased by the assessee in her own name. In the present case, the assessee has constructed a house on a plot owned by her husband and therefore, entire investment having come out of sale proceeds of the plot sold by the assessee and not from anywhere else. The assessee’s case is covered by the decision in the case of CIT vs. Kamal Wahal [2013 (1) TMI 401 - DELHI HIGH COURT] and CIT vs. Ravinder Kumar Arora [2011 (9) TMI 343 - DELHI HIGH COURT] which has been dealt in the case of CIT vs. Kamal Wahal (supra) and decision of the Hon’ble Punjab & Haryana High Court, in the case of CIT vs.Gurnam Singh [2008 (4) TMI 28 - PUNJAB AND HARYANA HIGH COURT]
In view of the above discussion, the ld. CIT(A) is not justified in not allowing the claim of the assessee. Accordingly, the order of the ld. CIT(A) is reversed and the AO is directed to allow the claim of the assessee. Thus, the sole ground taken by the assessee is allowed.
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2015 (3) TMI 1419 - ITAT MUMBAI
Exemption u/s. 11 - charitable activity u/s 2(15) - Whether CIT(A) erred in directing the AO to allow benefit of exemption u/s. 11 to the assessee when the activities of assessee are akin to those of a mutual association and do not fall within the definition of “charitable purpose” as per section 2(15)? - HELD THAT:- As held that the assessee is a charitable institution and duly recognized u/s. 12A therefore, the income has to be computed in accordance with the provisions of Sec. 11 of the Act. Respectfully following the earlier years order [2014 (11) TMI 379 - ITAT MUMBAI] we direct the AO to compute the total income of the assessee in terms of Sec. 11 to 13 of the Act. This ground of the Revenue is dismissed.
Set off and carry forward of deficit of earlier years - We find that this issue was considered by the Hon’ble Bombay High Court in the case of Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] held that Income derived from the trust property has also got to be computed on commercial principles and if commercial principles are applied then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year in which adjustment has been made having regard to the benevolent provisions contained in Se. 11 of the Act and that such adjustment will have to be excluded from the income of the Trust u/s. 11(1)(a) of the Act. Our view is also supported by the judgement of the Gujarat High Court in the case of CIT Vs Shri Plot Swetamber Murti Pujak Jain Mandal [1993 (11) TMI 17 - GUJARAT HIGH COURT]
Revenue appeal dismissed.
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2015 (3) TMI 1418 - ITAT CHENNAI
Nature of expenses - Service charges/ Technical advisory and management fee - services availed from M/s. United Breweries Ltd. etc are technical knowhow etc in its nature, where the benefits are enduring in nature and hence constitutes capital expenditure - AO treated these expenses as capital expenditure and disallowed from the revenue expenditure and allowed depreciation @ 25% as applicable to intangible assets - HELD THAT:- The Tribunal has considered the issue in appeal [2013 (2) TMI 716 - ITAT CHENNAI] for the assessment year 2008-09 and decided the issue in favour of the assessee.
Depreciation on intangible assets - HELD THAT:- The present assessment years under consideration i.e. assessment years 2003-04 and 2010-11since the facts are identical and the issue is recurring one, the ld. CIT(A), by following the above decisions of the Tribunal allowed the depreciation claim of the assessee for the assessment years 2003-04 and 2010-11. CIT(A), while deciding the issue has considered the entire issue of depreciation and also extracted the order of the ld. CIT(A) for the assessment year 2008-09 [2013 (2) TMI 716 - ITAT CHENNAI]
Allowability of sales promotion expenses - HELD THAT:- CIT(A) after considering the entire facts of the case, came to the conclusion that there is possibility of unreasonableness and excessive claim and disallowed 7.5% of total sales promotional expenses of Rs. 14,03,35,927/- and allowed only Rs. 12,39,29,825/- [ Rs. 13,44,55,019 – Rs. 1,05,25,194]. We find that the order passed by the CIT(A) is just fair and reasonable by considering all relevant materials and we find no infirmity in the order passed by the ld. CIT(A). Accordingly, the ground raised by the Revenue is dismissed.
Possibility of excess claim to the extent of 7.5% in sales promotion expenses claimed by the assessee - HELD THAT:- During the hearing of the appeal assessee has not able to controvert the findings of the ld. CIT(A) towards the disallowance except stating that the entire claim of the assessee ought to have been allowed by the ld. CIT(A). We find that, after examining all the details filed by the assessee, CIT(A) came to a reasonable conclusion that the claim of the assessee is excessive to the extent of 7.5%. We find no reason to interfere with the order passed by the ld. CIT(A) and accordingly, the ground raised by the assessee is dismissed.
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2015 (3) TMI 1417 - SUPREME COURT
Murder - allegation is that the deceased was proceeding in his car, the assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased - Section 319 of the Code of Criminal Procedure - whether on the facts mentioned earlier the Sessions Court is obliged to summon PW64 as an additional accused exercising the power Under Section 319 of the Code of Criminal Procedure? - HELD THAT:- The Section authorizes the Court making any inquiry into or conducting the trial of an offence to "proceed" against any person (other than the accused facing trial) subject to two conditions (i) that from the "evidence" it appears to the Court that such a person "has committed any offence", and (2) that such a person "could be tried together with the accused."
When could a person appearing to have committed an offence "be tried together with the accused" already facing trial? - HELD THAT:- As rightly noticed by the High Court, the only clause if at all relevant for the purpose of the present case is Section 223(d) which stipulates that persons accused of different offences committed in the course of the same transaction could be charged and tried together - It is admitted on all hands that except the evidence of PW64 and his statement Under Section 164 Code of Criminal Procedure there is no other evidence on record of the Sessions Court to indicate that PW64 has committed any offence. Both the evidence and the statement Under Section 164 Code of Criminal Procedure of PW64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW64 was a party at least at the initial stage. According to PW64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would legally absolve him of guilt are questions with which we are not concerned for the purpose of this case.
Therefore, if law permits the use of the content of either the evidence given at trial or the statement made Under Section 164 Code of Criminal Procedure by PW64, he could be tried for an offence punishable Under Section 120B Indian Penal Code. Because, on his own admission, PW64 agreed to kill Vijayan for a price and accepted money from A2 towards the part payment of such price and also drafted A3 into the conspiracy.
Before this Court, the main argument was that "Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since Section 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the Appellants. The breach of the last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court". - In substance, this Court held that once the prosecution chose to examine Ethyl Wong as a witness she was bound to answer every question put to her. In the process, if the answers given by Ethyl Wong are self-incriminatory apart from being evidence of the guilt of the others she could not be prosecuted on the basis of her deposition in view of the proviso to Section 132 of the Evidence Act - This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined Under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself.
Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee Under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss, the policy Under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso grants immunity to such a witness by declaring that "no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding".
The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.
The High Court rightly refused to summon PW64 as an accused to be tried alongwith the Appellant and others - Appeal disposed off.
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2015 (3) TMI 1416 - DELHI HIGH COURT
Theft of electricity - institution of prosecution - whether the owner of the factory was the petitioner where the electricity theft was detected? - allegation is that petitioner was possessor and occupier of the premises in question - HELD THAT:- This Court has gone through the provision of Section 391 Cr.P.C. which provides that while dealing with appeal, if the Appellate Court thinks additional evidence is necessary, it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate.
The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391 Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C.
In the present case, it is apparent from the record that FIR was registered on 30.03.2000; charge sheet was filed on 12.07.2000; judgment of conviction was passed on 12.08.2004; order on sentence was passed on 26.08.2004; criminal appeal filed by the petitioner was dismissed on 16.12.2006 and now we are in the year 2015. The learned Additional Sessions Judge released the petitioner on probation for a period of three years, which period is already complete.
The compensation amount of Rs.4,00,000/- is reduced to Rs.2,00,000/-, subject to adjustment of amount already deposited. In case of non-payment of remaining compensation amount by the petitioner, same would be recovered as fine - revision petition is disposed off.
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