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Showing 1 to 20 of 1426 Records
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2015 (7) TMI 1435 - RAJASTHAN HIGH COURT
Validity of reassessment notice dated 31.5.1994 issued under Section 12 of the Rajasthan Sales Tax Act, 1954 - it is submitted that provisions of Section 12 are applicable in its spirit and the assessing authority is empowered for initiating reassessment proceedings for 'any reason' - HELD THAT:- The provisions of Section 12 of the Act though prescribe for reassessment in case of escaped assessment, or the assessee having been assessed at too low a rate in any year, the said provision cannot be applied in a case where the assessee has placed the entire material before the Assessing Authority and the Assessing Authority while passing the original assessment order had applied his mind and a particular notification, only on account of change of opinion, later on without there being any allegation of the petitioner not having disclosed material facts at the time of assessment, cannot empower the Assessing Officer to issue notice under Section 12 of the Act.
The fact that a purportedly wrong notification for calculating rate of tax has been applied by the Assessing Authority while the original assessment, for which there are no allegation about suppression of facts by the assessee, cannot be a ground for initiating the reassessment proceedings.
In the case of Tarajan Tea Co. (P) Ltd. [1999 (2) TMI 722 - SUPREME COURT], the Hon'ble Supreme Court on coming to the conclusion that there was no omission or failure on part of the assessee to make a return, held the reopening as unsustainable. The law laid down in various judgments as noticed herein-before, is clearly applicable to the facts and circumstances of the present case wherein as noticed herein-before, at the time of passing of the original assessment order, the petitioner had disclosed the relevant facts and was accordingly assessed, there is no allegation that the material facts were not disclosed and therefore, the issuance of notice under Section 12 of the Act cannot be sustained.
The writ petition filed by the petitioner is allowed.
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2015 (7) TMI 1434 - ITAT MUMBAI
Exemption u/s 11 - depreciation on fixed assets - Double deduction - HELD THAT:- We note that the assessee is engaged in carrying out charitable activities by making donation to the different organizations, which are carrying out charitable activities as defined in section 2(15) - Before finalization of assessment, the assessee filed the necessary details, as called for by the Assessing Officer which were examined by him.
Assessee filed copy of 12A certificate along with the certificate u/s 80G of the Act and also the certificate issued by Charity Commissioner. From the record of the assessee, it was found by the AO that the assessee has claimed depreciation through application within the meaning of section 11(1)(a) of the Act for availing exemption u/s 11 of the Act. The stand of the ld. DR as well as the conclusion drawn by the AO is that the assessee has claimed double deduction as the capital expenditure incurred on the assets has already been allowed as application of income. On appeal, before the CIT (Appeals), reliance was placed upon the decision from Hon’ble jurisdictional High Court in CIT vs Institute of Banking Personnel [2003 (7) TMI 52 - BOMBAY HIGH COURT] - AO was directed to allow claim of depreciation to the assessee. The Revenue is aggrieved and is in appeal before this Tribunal.
We note that the Hon’ble jurisdictional High Court in the aforementioned case is allowable as a application of income although the deduction was allowed, when the asset was purchase originally. The assessee before CIT (Appeals) explained that no capital expenditure was claimed by the assessee in its income and expenditure account in any of the earlier years. Respectfully following the decision from Hon’ble jurisdictional High Court, we affirm the stand of the ld. Commissioner of Income Tax (Appeals). Appeal of the Revenue is dismissed.
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2015 (7) TMI 1433 - ITAT PANAJI
Addition u/s 41 - Sales tax refund due to third parties which have also been paid to third parties but which has been treated as income in the hands of the Assessee - HELD THAT:- Admittedly, the Assessee has received Sales tax refund in respect of Texmaco Cement plant which had been taken over by the Assessee in 1995. The refund relates to Sales tax excessively paid by Texmaco for the years 1985-86 to 1992-93.
CIT(A) failed to appreciate that the Assessee has credited the account of Texmaco with the Sales tax refund as is evidenced in the paper book on 26.2.1998 i.e. during the relevant assessment year. Consequently, even assuming that the said amount is taken as income of the Assessee during the relevant assessment year, in view of the fact that the Assessee has transferred the amount to Texmaco, as it relates to Texmaco for a period which was before the date of taking over by the Assessee-company, the same would have to be netted off and there would be no income on this count in the hands of the Assessee.
Thus the said amount cannot be treated as income of the Assessee insofar as the conditions prescribed u/s 41(1) are not applicable in the case of the said refund i.e. the Assessee has not claimed deduction of the said Sales tax and consequently, the refund of the same in the hands of the Assessee cannot be taxed by invoking the provisions of Sec. 41(1) - the amount having been transferred by the Assessee to Texmaco, the same is in no way even real income of the Assessee. In the circumstances, the addition as made by the AO and as confirmed by the ld. CIT(A) stands deleted. In the result, the appeal of the Assessee is allowed.
Levy of interest u/s 234D - HELD THAT:- Admittedly, in the present case the assessment year relates to 1998-99. The provisions of Sec. 234D was inserted w.e.f. 1.6.2003. The original assessment in the Assessee’s case was completed on 29.3.2001 i.e. before the introduction of Sec. 234D. Consequently, we are of the view that the decision of the Hon'ble Supreme Court in the case of Reliance Energy Ltd. [2013 (10) TMI 280 - SUPREME COURT] is squarely applicable and the ld. CIT(A) was right in deleting the levy of interest u/s 234D of the Act. Consequently, we find no reason to interfere with the finding of the ld. CIT(A) on this issue. In the result, the appeal of the Revenue is dismissed.
Disallowance u/s 14A - HELD THAT:- Admittedly, the Assessee has provided a calculation of the disallowance liable to be made u/s 14A before the ld. CIT(A) and the ld. CIT(A) has directed the AO to verify the computation made by the Assessee. We find that even the computation as made by the Assessee is erroneous. Consequently, the issue of Sec. 14A is restored to the file of the AO for re-adjudication. All the aspects in respect of the disallowance u/s 14A are left open. The Assessee shall be at liberty to raise all such defences against the disallowance u/s 14A which shall be adjudicated by the AO. Consequently, ground no. 1 of the Assessee’s appeal stands allowed for statistical purpose.
Nature of loss - loss on the sale of Fertilizer companies Government of India Special Bonds - action of the ld. CIT(A) directing the AO to allow real loss on the ground that the loss on sale of the bonds was a capital loss - HELD THAT:- Admittedly, these bonds are not shown as investments by the Assessee in its books of accounts. These are shown as current assets. These bonds have been received by the Assessee in the course of its business and consequently we are of the view that the finding of the ld. CIT(A) directing the AO to allow the real loss is on the right footing and does not call for any interference. In the result, the appeal of the Revenue stands dismissed.
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2015 (7) TMI 1432 - SUPREME COURT
Seeking cancellation of sale deed submitting that the deed in question was a sham document - committing of the murder of Brahmadeen by assaulting with lathi - High Court gave benefit of doubt to the accused and allowed their appeal acquitting them of all the charges levelled against them - HELD THAT:- It must be stated that PW4 Dr. K.N. Mehrotra, in his examination clearly stated that the injuries in question were possible because of crushing by a tractor. In the cross examination, all that was suggested was that such injuries could also be possible by a jeep or a truck - the observations seen in the post mortem indicate that on internal examination it was found that all bones of the skull were broken in pieces, membrane and brain were burst and that eye ball had come out. Further, all bones on the left side of the chest were broken, left lung was protruding out. Air pipe, trachea lerenex were also broken. The external examination and injuries indicated in the post mortem suggest crushing injuries - In the face of these facts, the assessment that the medical evidence belies that the deceased was repeatedly crushed under the wheels of the tractor, is completely incorrect. Further, the area where the incident occurred is such where a vehicle would not enter by mistake causing an accident but the attempt was definitely deliberate.
The complaint Ext.P1 shows that PW1 and the deceased had gone at a distance from the village for easing themselves. Narrative clearly shows that it was at that stage that the tractor was driven straight towards the deceased - the version coming from PW1 to be consistent, supported by all relevant circumstances and lodged with promptitude. Having found his presence to be natural and his version getting complete support on material particulars, the witness is completely trustworthy.
It is well settled that in such circumstances it is open to an appellate court to consider the matter afresh RAMESH BABULAL DOSHI VERSUS STATE OF GUJARAT [1996 (5) TMI 429 - SUPREME COURT]. Having undertaken such exercise, it is concluded that PW1 is a natural witness whose presence at the time and place of incident is established and is worthy of acceptance. However, mindful of the fact that in the original reporting he had attributed lalkara to respondent Basant Lal alone while the tractor was being driven by respondent Om Prakash, which meant that the other two accused, though sitting on the tractor were not attributed any overt act, benefit of doubt granted to the other two accused, namely, Lalji and Gyan Prakash. It could possibly be put that Brahmadeen, an old man of 90 years would normally be accompanied by someone for assistance but would be unaccompanied while easing out and therefore the time and place was so deliberately chosen, in which case culpability of every occupant of the tractor would be made out. However, in the absence of any material establishing that, Lalji and Gyan Prakash are entitled to benefit of doubt.
The acquittal of Basant Lal and Om Prakash is set aside - the order of conviction as recorded against them is restored by the trial court for the offences punishable under Section 302 read with 34 IPC - it is not deemed appropriate to restore the sentence of death - the appropriate sentence in the matter ought to be sentence for imprisonment for life, is proceeded to impose on said Basant Lal and Om Prakash.
Consequently, the appeals are partly allowed.
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2015 (7) TMI 1431 - BOMBAY HIGH COURT
Dismissal from the service - respondent was granted 50% backwages from the date of attaining superannuation - HELD THAT:- It is apparent that the Labour Court has erred in deciding the preliminary issues concerning the fairness of the enquiry and the findings of the enquiry officer along with all the issues while delivering the impugned judgment. The procedure laid down in law, which has been considered by this Court and followed in the case of MAHARASHTRA STATE ROAD TRANSPORT CORPORATION VERSUS SYED SAHEBLAL SYED NIJAM [2014 (5) TMI 1229 - BOMBAY HIGH COURT], has not been followed by the Labour Court. It could not have decided the preliminary issues along with all the rest of the issues in one stroke while delivering the impugned award. For this reason alone, the impugned award is rendered unsustainable.
No purpose would be served by remanding the reference proceedings to the Labour Court for a decision in the light of the ratio laid down by this Court in the case of MAHARASHTRA STATE CO-OPERATIVE COTTON GROWERS MARKETING FEDERATION LTD. AND ORS. VERSUS VASANT AMBADAS DESHPANDE [2014 (1) TMI 1935 - BOMBAY HIGH COURT], and the MSRTC, Beed case [2016 (12) TMI 1905 - SUPREME COURT], since the respondent has already superannuated. His PF accumulations totalling Rs. 1,17,621/- have already been paid to him on 24.12.2002. The 50% of the backwages as were granted by the Labour Court in the impugned award have not been paid. The petitioner submits that the respondent is not entitled for gratuity as the charge of mis-appropriation has been proved against him which involves moral turpitude.
The issue is as to whether the matter can be remitted back to the Labour Court for fresh a decision by following the procedure laid down in law. For the said purpose, the respondent who is about 70 years today, will have to prosecute his reference proceeding. Under fortuitous circumstances, the findings of the enquiry officer have been held to be perverse by the Labour Court, thereby setting aside the enquiry.
This petition allowed in part by depriving the respondent / employee of gratuity. However, he shall be entitled to the 50% backwages as have been granted by the Labour Court, which is an amount of Rs.1,13,276/- approximately as stated by the petitioner.
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2015 (7) TMI 1430 - ALLAHABAD HIGH COURT
Corruption and amassing of uncounted money - seeking reference to the Central Bureau of Investigation (CBI) to take up, enquire and register First Information Reports and investigate into the dealings of the ninth respondent - ninth respondent was prior to his suspension, Chief Engineer in New Okhla Industrial Development Authority NOIDA, Greater Noida Industrial Development Authority, Greater NOIDA and Yamuna Expressway Authority - HELD THAT:- In the present case, an important aspect of the matter which merits emphasis is that initially on 13 June 2012, an FIR was lodged in Case Crime No. 371 of 2012 under Sections 409, 420, 466, 467, 469, 471 and 120-B of the Penal Code and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the ninth respondent and one Ramendra, the then Project Engineer and two construction companies. The allegation in the FIR related to the disbursement of an amount of Rs. 954 crores of various departments of Noida in respect of which agreement bonds were executed within a span of eight days. There were various other allegations in regard to the carrying out of work even before the finalization of tenders resulting in a loss to NOIDA. The investigation was transferred by the State Government to the CBCID at the behest of a partner of a construction company which was one of the co-accused on 3 November 2012, following the receipt of a request on 22 October 2012.
The essence of the allegation is that the ninth respondent has been able to use his personal proximity in the corridors of power with successive governments in State by indulging in corruption, amassing wealth for conferring favours on himself, the members of his family and business associates. The ninth respondent has, it is alleged, been able to shield himself due to his proximity with the corridors of power both in the previous government and the present government in the State of Uttar Pradesh.
There are several reasons why the submission of the State, that based on the constitution of a Commission of Inquiry further action be deferred or held in abeyance, cannot be accepted. Firstly, the terms of reference of the Commission of Inquiry are evidently confined to the ninth respondent and ninth respondent alone. The Commission of Inquiry would have no jurisdiction to enquire into wider allegations of the misuse of power or to investigate into the interrelationship of the ninth respondent with other persons in respect of whom there is no reference to the Commission. Secondly, the report of the Commission may or may not be accepted or acted upon by the State Government. A non-binding report of a Commission of Inquiry is no substitute for a proper, fair and objective investigation into alleged criminal offences - There is a serious case to be probed on whether as alleged the activities of the ninth respondent have benefactors in high places in the State who have been associated through their close relatives and associates with the business dealings of the ninth respondent and his family. In our view, having due regard to the admittedly complex nature of the case, the wide ramifications involving corruption by persons in public offices and the gravity of the allegations required to be probed, a fit and proper case has been made out for investigation by the CBI.
The Central Bureau of Investigation shall conduct an investigation into all allegations of corruption and amassing of uncounted money by the ninth respondent and in regard to all transactions, persons and entities connected thereto - Petition disposed off.
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2015 (7) TMI 1429 - ALLAHABAD HIGH COURT
Seeking grant of bail - transaction of purchase of certain medicines at exorbitant prices - HELD THAT:- The investigation demonstrates the involvement of the applicant who is the proprietor of M/s Daffodills Pharmaceuticals and M/s. Eastern Drugs & Sanitary Products. The aforesaid allegations in the charge sheet are supported by evidence that has been filed along with the charge sheet itself and has also been explained by the learned counsel for the C.B.I.
Similar grounds had been taken by one Devendra Mohan in a 482 application filed before this Court and the same was considered in detail along with other co-accused of the NRHM scam. The said application was dismissed by a detailed judgment of a learned Single Judge of this Court reported in DEVENDRA MOHAN VERSUS C.B.I. /EOU-IV/NEW DELHI [2013 (2) TMI 929 - ALLAHABAD HIGH COURT]. On the arguments that have been advanced by Sri Samit Gopal, the reasons given in the aforesaid judgment clearly apply. The entire gamut of facts and the fact of misappropriating government funds resulting in the NRHM scam is clearly extended therein and therefore there is no occasion or any reason to quash the proceedings or the charge sheet against the applicant.
Thus, no case is made out for quashing of the proceedings or the charge sheet - application dismissed.
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2015 (7) TMI 1428 - CESTAT BANGALORE
Levy of Service Tax - Tour Operator services - conducting outbound tours for performing Haj to Mecca and Medina - HELD THAT:- Both sides agree that the issue has been covered by the earlier decision of the Tribunal in the case of M/S COX & KINGS INDIA LTD., M/S TRAVEL CORPORATION OF INDIA LTD. AND M/S SWAGATAM TOURS PVT. LIMITED VERSUS CST, NEW DELHI [2013 (12) TMI 1024 - CESTAT NEW DELHI] which stands followed in the subsequent decision - One such reference can be made to Tribunal’s decision in the case of ATLAS TOURS & TRAVELS PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2015 (2) TMI 476 - CESTAT MUMBAI] where it was held that activity of outbound tours abroad is not taxable.
Appeal allowed.
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2015 (7) TMI 1427 - CESTAT BANGALORE
Refund of accumulated and unutilized credit denied - denial on the ground that undertaking market survey for foreign entity does not amount to export of service - absence of certain facts from the concerned invoices - nexus of the service with their output service as also effect of invoices raised by the service provider paying in foreign currency.
HELD THAT:- The Tribunal in TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE] in the appellant’s own case involving identical refund dispute pertaining to the earlier quarter where the matter was remanded for fresh adjudication in the light of the interim order passed by the Tribunal.
Matter remanded to the original adjudicating authority for fresh decision in the light of the above order - appeal disposed off.
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2015 (7) TMI 1426 - MADRAS HIGH COURT
Capital goods - other goods (input, packing materials) - respondent has not followed the settled law and the interpretation for said goods made by the respondent being totally arbitrary has to be decided by the appellate authority - HELD THAT:- The respondent having miserably failed to follow the above said two legal positions, had also decided the two other issues with regard to issue relating to capital goods and other goods – input, packing materials.
No doubt, the learned counsel appearing for the petitioner was right is saying that the first two issues relating to the cancellation of the registration certificate with retrospective effect, which is covered in a reported decision in JINSASAN DISTRIBUTORS VERSUS THE COMMERCIAL TAX OFFICER (CT) [2013 (4) TMI 615 - MADRAS HIGH COURT] and one another issue relating to selling dealers not filed their manual returns and not paid taxes in their assessment circle and for the fault on the part of the dealers, the petitioner mulcted with tax along with penalty has to be covered in the decision SRI VINAYAGA AGENCIES VERSUS THE ASSISTANT COMMISSIONER (CT) [2013 (4) TMI 215 - MADRAS HIGH COURT]. But the issue relating to capital goods and other goods – input, packing materials, have to be gone into by the appellate authority. Therefore, this Court is not inclined to entertain these Writ Petitions.
The Writ Petitions are dismissed.
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2015 (7) TMI 1425 - ITAT DELHI
Disallowance of loss incurred on sale of shares - AO opined that there was no reasonable basis to justify the sale of shares worth Rs. 3 crore for a sum of Rs.75,000/- only and, further, the transaction was not with an independent party at fair market value - CIT-A deleted the addition - HELD THAT:- AO was fully justified in rejecting the genuineness of the transaction of purchase and sale of shares on the test of human probability. The entire story concocted by the assessee and its group concerns is aimed at defrauding the Revenue with ulterior motive. Such a course of action adopted by the assessee, which is nothing more than a camouflage, cannot be accepted.
Our conclusion is fortified by the very fact that when the AO examined the entire position in detail and found out the irregularities as discussed above, the assessee came out with a proposal before the AO that he could assess the loss at Nil attributing any reason, but, not by way of disallowance attracting penalty u/s 271(1)(c) - The same submission was reiterated before the CIT(A) as well which has been incorporated. Despite all these goings-on, CIT(A) chose to delete the addition, was not justified - we overturn the impugned order and restore the action of the AO on this issue.
Disallowance of loss claimed to have been incurred by the assessee on sale of shares - As it is again a non-genuine transaction entered into with the object of depriving the Revenue of legitimate tax due to the exchequer. It is totally unacceptable that a person who has sold shares for Rs.8 crore will sit quietly for more than 2 ½ years and will get payment only when his buyer, in turn, sells such shares. Considering these off market transactions of purchase and sale of the shares of M/s Solaris, relation between the buyer assessee seller and companies whose shares were transacted, all being group concerns, and the further fact that the seller did not claim payment from the assessee for more than 2 ½ years, coupled with the other related facts lead me to an irresistible conclusion that the transactions in the shares of M/s Solaris Holdings Ltd., were not genuine. The reasons noted above while discussing the long term capital loss from the shares of M/s Pioneer Ltd., apply with full force to this transaction as well. CIT(A) was not justified in deleting the addition - therefore, restore the view taken by the AO.
Appeal filed by the Revenue is allowed.
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2015 (7) TMI 1424 - ITAT INDORE
Non-prosecution of appeal by Assessee - HELD THAT:- As assessee is not interested in pursuing her appeal. It was the duty of the assessee to make necessary arrangements for effective representation on the appointed date. Mere filing of appeal is not enough rather it requires effective prosecution also. In view of these facts, we are of the view that the appeal of the assessee is liable for dismissal. Appeal filed by the assessee is dismissed for non-prosecution.
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2015 (7) TMI 1423 - ITAT LUCKNOW
Penalty levied u/s 271C - order passed u/s 201(1A) charging interest on the delayed payment of tax - HELD THAT:- No order was passed under section 201(1) of the Act holding the assessee to be in default. The Assessing Officer has passed an order under section 201(1A) of the Act charging interest on the delayed payment of tax. We have also carefully perused the relevant provisions of section 271C of the Act and we find that the penalty under section 271C of the Act can only be levied where the assessee fails to deduct the whole or any part of the tax as required by or under the provisions of Chapter XVII-B or pay the whole or any part of the tax as required by or under (i) sub-section (2) of section 115-O; or (ii) the second proviso to section 194B.
Hon'ble Apex Court in the case of Coca Cola Beverage P. Ltd. [2007 (8) TMI 12 - SUPREME COURT] and Jagran Prakashan Ltd [2012 (5) TMI 488 - ALLAHABAD HIGH COURT] and also various orders of the Tribunal, in which it has been held that wherein TDS was paid by the assessee or required tax was paid by the deductee, the assessee should not held to be in default. Only interest on delayed payment under section 201(1A) of the Act can be charged. In the light of these decisions where the assessee has made payment of TDS though late, he cannot be held to be in default and there is no question of levy of penalty under section 271C - Decided against revenue.
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2015 (7) TMI 1422 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - Disallowance of broken period interest - Whether Tribunal was right in holding that the reopening of assessment was not proper ? - HELD THAT:- There is a specific finding of the Tribunal that re-openings were done after the end of four years from the assessment years in question and, therefore, the first proviso to Section 147 will squarely apply and it is required for the Revenue to show that there was failure on the part of the assessee to disclose fully and truly material facts necessary for the assessment. Therefore, in those appeals the Tribunal was in favour of the assessee.
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2015 (7) TMI 1421 - DELHI HIGH COURT
Ffixation of ceiling price under the provisions of the Drugs (Prices Control) Order, 2013 - male contraceptives (condoms) - the fixation of price is in conformity with the powers vested under the Essential Commodities Act, 1955 read with the Drugs and Cosmetics Act, 1940 or not - HELD THAT:- A product would not cease to be a medicine merely on the ground that its dosage and strength have not been specified. However, it is not clear as to how Paragraph 4 of DPCO-2013 can be made applicable to those formulations for which the dosage and strength have not been specified.
A perusal of Paragraph 4 of DPCO-2013 shows that the same provides for fixation of ceiling price of only a scheduled formulation of specified strength and dosage as specified under the First Schedule. Para 2(1)(d) defines “ceiling price‟ as a price fixed by the Government for “scheduled formulations‟ in accordance with the provisions of DPCO-2013 - It is evident from the First Schedule that it contains the formulations of which strength and dosage have been specified as well as the formulations of which strength and dosage have not been specified. Para 2(1)(zb) defines scheduled formulations as formulation included in the First Schedule whether referred to by generic versions or brand name. Thus, it is clear that all formulations that are included in the First Schedule, irrespective of specification of strength and dosages, are “scheduled formulations‟. In other words, scheduled formulations include non-scheduled formulations.
On a combined reading of Para 4, Para 2(1)(d) and Para 2(1)(zb), it appears that the specification of dosage and strength in the First Schedule has a specific bearing with regard to fixation of ceiling price under DPCO-2013. The words in the definition of “ceiling price‟ under Para 2(1)(d) i.e. “in accordance with the provisions of this order‟ make the intention of the Legislature abundantly clear and that the same shall be given due weight while implementing the provisions of DPCO-2013 - It is pertinent to note that DPCO-2013 contains a different method of regulation so far as “non-scheduled formulations‟ are concerned. Para 20 of DPCO-2013 provides for monitoring the “maximum retail prices‟ of the non-scheduled formulation and Para 25 mandates display of prices of non-scheduled formulation and price list thereof.
The question that arises for consideration is whether ceiling price can be fixed by the NPPA for all the formulations/medicines included in the First Schedule to DPCO-2013 ignoring the legislative intention that the said power be not extended to some of the formulations. Considering an identical issue, the Supreme Court in SECRETARY, MINISTRY OF CHEMICALS AND FERTILIZERS, GOVT. OF INDIA VERSUS M/S. CIPLA LTD. AND OTHERS [2003 (8) TMI 541 - SUPREME COURT] held that the contents of the policy documents cannot be read and interpreted as statutory provisions and that too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. It was also added that the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself as a policy maker and that the delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.
The NPPA exceeded the powers conferred by Paras 4, 6 & 14 of DPCO-2013 while fixing the ceiling price for condoms. The language of Para 4 is unambiguous and makes clear the legislative intent that the ceiling price can be fixed only for scheduled formulations of specified strengths and dosages as specified under the First Schedule. Therefore, according to us, the provisions of Para 4 cannot be made applicable to “condoms‟ the dosage and strength of which have admittedly not been specified under the First Schedule.
Since the impugned action of fixation of ceiling price is held to be bad on the ground that the NPPA exceeded the powers conferred by Para 4, 6 and 14 of DPCO-2013 and the policy decision under NPPP-2012 has not been interfered in any manner, it is also not necessary to refer to the various decisions cited by the learned counsel for both the parties with regard to the scope of judicial review vis-à-vis policy decision.
The Orders of NPPA dated 05.11.2013 and 10.07.2014 are illegal and unsustainable - Petition disposed off.
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2015 (7) TMI 1420 - SUPREME COURT
Commission of organised crime - threat of violence, intimidation, coercion or other unlawful means with the objective of gaining pecuniary or other advantages - acquittal of the accused - HELD THAT:- The he High Court held that once the Respondents had been acquitted for the offence punishable under the Indian Penal Code and Arms Act in Crimes No. 37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable Under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all that remained incriminating was the filing of charge sheets against the Respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of the MCOCA. The filing of charge sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable Under Section 3 of the MCOCA. That is because the involvement of Respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA - Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence Under Section 3 of the Act.
In the case at hand, the offences which the Respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the Respondents in Crimes No. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the Respondents were acquitted of the charge under the Arms Act even in Crimes Case No. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the Respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court.
Appeal dismissed.
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2015 (7) TMI 1419 - ANDHRA PRADESH HIGH COURT
Handwriting and age of ink used in the cheque - document referred to handwriting expert regarding the writings and age of the ink found in the said two cheques - HELD THAT:- Supporting the defence of the accused that he did not give the cheques much less he did not fill the part of the columns of the cheques and those were filled by somebody and different writings to the original writings and ink also different and he sought for sending the same - Thus, the learned Magistrate committed error in not considering the request equally in confirming the order of dismissal by the learned Sessions Judge. The application is therefore deserves to allow.
This Criminal Petition is allowed.
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2015 (7) TMI 1418 - PUNJAB AND HARYANA HIGH COURT
Suits for prosecution in summary fashion under order 37 applications for leave to sue - non-speaking order merely adverting to the plea raised on behalf of the plaintiff that the leave to defend might be granted subject to furnishing bank guarantees - violation of principles of natural justice - HELD THAT:- While holding that there is anything really substantial at all or there is any defense as with reference to some debit notes which the plaintiff has issued to the defendant, even this amount is denied by the plaintiff as still due and according to the plaintiff a right to enforcement claimed by the defendant in a separate suit was lost. The defendant denies that the suit represented liability of the debit note now. The moneys claimed are fairly large and the defendant company is in a bad way by, the defendants own showing. The principal asset which was the running unit has been lost which has not even discharged in full the liability to a public sector financial company. The money lost in a transaction in business causes a serious dent in the resources of not only the company which has lost its business and unable to reap, it causes serious hardship as much to the creditor who would depend on the regeneration of the amount lent by return of capital with interest.
In this case, if the first defendant must have leave to defend that defense shall be possible only if the defendant furnishes security to the tune of 90% of the amount claimed in all the suits and the additional amount of Rs. 25 lacs towards cost and expenses for all suits and splitting it proportionately to the claims made in the previous suits. The security can be either by means of bank guarantee comprehensively for all the 8 suits or by means of immovable property. The property that is offered by the company shall be duly decided by the Court for its worth before its acceptance and if it is satisfied the Court assessment of the value for which the security is ordered the Court may allow for the defense to be given and take up the matter for trial. If the defendant company is unable to furnish security or offer guarantee in the manner directed the defense shall be struck off and the Court will proceed to consider the case for defendant Nos. 2 and 3 and dispose it in accordance with law.
The security that is directed shall be furnished shall be deposited within two weeks from the date of the passing of the order - Application disposed off.
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2015 (7) TMI 1417 - GUJARAT HIGH COURT
Import of used tyres - hazardous waste - confiscation - HELD THAT:- Reliance placed in the case of COMMISSIONER OF CUSTOMS (IMPORTS), CHENNAI VERSUS VS. GOVINDAN [2013 (2) TMI 638 - MADRAS HIGH COURT] where it was held that as per the United Nations Environmental Programme vis-à-vis Basel Convention regarding Pneumatic tyres, the lifetime of an original tyre casing must not exceed seven years.
Having perused the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and more particularly definition of clause ‘hazardous waste’ and provisions of Rules, 12, 13, 16 and 23 of the said Rules along with Part B of Schedule III of the said Rules, it is held that the responsible authority / officer of Respondent No.2, Ministry of Environment and Forests, through Joint Director, HSM Division, 2nd Floor, Jal Block, Indira Paryavaran Bhavan, Jor Bagh Road, Aliganj, New Delhi-110003 shall visit the place where the goods in dispute i.e. waste pneumatic tyres are lying. Such Officer should be an expert who possesses the expertise to give the opinion about the quality of the pneumatic tyres.
Such Officer shall give a detailed report with regard waste pneumatic tyres and shall specifically opine whether aforesaid pneumatic tyres are reusuable, retreadable, etc. as provided at entry No.B3140 of Part B of Schedule III to the Hazardous Waste (Management, Handling and Disposal) Rules, 2008.
Petition disposed off.
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2015 (7) TMI 1416 - KERALA HIGH COURT
Registration of First Information Reports and investigation under the Prevention of Corruption Act, 1988 - Constitutional validity of Sections 2(v) and 2(c)(viii) of the Prevention of Corruption Act - HELD THAT:- Law making is a sovereign power and a State function. It denotes "power" vested with the State to regulate men under juridical laws. Wesley N. Hohfeld a renowned author of "Fundamental Legal Conceptions as Applied in Judicial Reasoning" classifies that jural correlative of 'power' is 'liability'. Thus, someone who holds the power can control, reduce and expand the entitlement of the men upon whom the power is imposed. The men bears 'liability' and exposed to exercise of such power. In a Constitutionally governed State, ordinarily, this power to make law, derives from the Constitution - The public duty thus, is a public function or a legal obligation discharged by a public servant under the command of public right. These public rights necessarily, presuppose existence of positive law of the State or valid Governmental directions. The "public right" or "legal obligation" cannot exist in vacuum, the "right" or "legal obligation" must be relatable to law or an authorised function by the Government. Thus, public duty discharged by a public servant is based on the positive law of the State or valid executive directions.
The public duty under the PC Act refers to discharge of duty in relation to State, public or community at larger interest. Thus, a public servant must be under the positive command under the law to discharge such a duty. If a body or Corporation exercises a State function, without obligation under the existing laws, it is only an exercise of State function and cannot be treated as a discharge of public duty.
The public duty in the context of criminal complaint would arise only when the construction of stadium is accomplished. The event complained, is only one step in the construction of stadium. Purchase of land cannot be considered as discharge of a public function. The functional approach in determining public duty; is to determine the action on account of the impact of public element and if it has control over the public at large.
The complaint is not maintainable and the entire proceedings resulting from the impugned orders have to be quashed. Accordingly, the same are quashed and the writ petitions are allowed.
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