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2015 (9) TMI 1758 - PUNJAB AND HARYANA HIGH COURT
Levy of penalty u/s 56(c) of Punjab Value Added Tax, 2005 - seeking release of vehicle alongwith the goods - HELD THAT:- Annexure P-2 is the order dated 21.12.2009, whereby penalty imposed under Section 56 (c) of the Act was deposited by the petitioner No. 1 and the vehicle in question was released to petitioner No. 1. Thus, in the present case, when the vehicle belonging to petitioner No. 1 was stopped for checking, it was found that the driver could not produce any bill or receipt qua payment of tax. Proceedings under the Act were initiated and penalty imposed has already been deposited by the petitioner No. 1.
In these circumstances since in the proceeding under the Act, penalty has already been deposited by petitioner No. 1, owner of the vehicle in question, continuation of criminal proceedings against the petitioners would be nothing but to abuse of process of law.
Petition allowed.
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2015 (9) TMI 1757 - BOMBAY HIGH COURT
Condonation of delay in filing the complaint - present writ petition is filed on 27.8.2012 i.e. practically more tan 8 months of passing of the order by Hon'ble Justice Tahaliyani - HELD THAT:- It is true that Hon'ble Justice Tahaliyani had granted liberty to file the Writ Petition. However, "liberty to file" is a phraseology without a valid sanction of any statute or any specific precedent. It is the liberty granted to the petitioner to probe the possibility of seeking the relief by an alternative remedy. The said liberty does not give right to a litigant fresh/anew to agitate the same issue/order which has attained finality. The liberty may confer a right to the petitioner to file a petition, but it does not confer jurisdiction upon the Court to probe into the correctness or the validity of the order under challenge. Review of a judgment cannot be had on this liberty.
This Court is of the opinion that only because liberty is granted does not mean that the subsequent proceeding is maintainable in the eyes of law or that it calls upon the successor Court to hold subsequent petition maintainable or pass an order setting aside the order passed by the Court granting liberty. The successor Court is not bound to hold the proceeding maintainable.
This Court is of the opinion that the present Writ Petition is not maintainable and it deserves to be dismissed in limine.
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2015 (9) TMI 1756 - SUPREME COURT
Evacuee property or not - acquisition of land vested with the Central Government - Validity of acquisition proceedings under the Land Acquisition Act, 1894 - whether the land, after issuance of notification Under Section 12 of the DPCR Act, ceased to be evacuee property so as to be excluded from the purview of the notification issued Under Section 4 of the LA Act or not? - HELD THAT:- The acquisition of the land Under Section 12 of the DPCR Act brings the evacuee property into a common pool which is to be utilised in accordance with the provisions of the Act. Specifically, once the property is included in the common pool and vests in the Central Government, Under Section 16 of the DPCR Act, the Central Government may take such measures as it considers necessary or expedient for the custody, management and disposal of such property including transfer of the property out of the compensation pool to a displaced person. In the face of the clear provisions of the two enactments and the respective schemes contemplated thereunder, it is difficult to hold that the evacuee property continues to retain such status after issuance of the notification Under Section 12 of the DPCR Act.
Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of the Act. This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the Administration of Evacuee Property Act. No doubt, Under Section 10 of the Administration of Evacuee Property Act the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person. Apart from the fact that subsequent to the issue of the notification Under Section 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act, the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by Section 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act.
Thus, the subject land ceased to be evacuee property after publication of the notification of acquisition Under Section 12 of the DPCR Act. Consequently the exemption clause in the notification issued Under Section 4 exempting from its purview evacuee land will have no application to the present case.
If the subject land vested in the Central Government upon publication of the notification Under Section 12 of the DPCR Act and thereby ceased to be evacuee land, could such land vested in the Central Government be acquired under the provisions of the LA Act? - HELD THAT:- In Saraswati Devi [2013 (1) TMI 1058 - SUPREME COURT] on an exhaustive consideration of the issue with regard to the effect of delivery of provisional possession, which in the present case was handed over to the Respondents on approval of the highest bid, it was held that such provisional possession gives the auction purchaser possessory rights as distinguished from proprietary rights in the auctioned property. The above proposition culled out in a judgment of the Punjab High Court in Roshan Lal Goswami v. Gobind Raj [1963 (2) TMI 75 - PUNJAB HIGH COURT] was approved by this Court to further hold that such proprietary rights occasioned by the delivery of provisional possession creates an encumbrance on the property which can be the subject of acquisition under the LA Act. In the present case also the facts being identical, it is held that an encumbrance had been created in the subject property, which, as held in Saraswati Devi, could be acquired under the LA Act although the ownership in the land vested in the Central Government.
Thus, the judgment and order of the High Court under challenge in the present appeal is not sustainable in law and the same is set aside - appeal allowed.
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2015 (9) TMI 1755 - PUNJAB AND HARYANA HIGH COURT
Dishonour of Cheque - cheque in question had been issued qua a time barred debt or not - rebuttal of presumption - HELD THAT:- Complainant in support of his case, led his preliminary evidence and the petitioner has been summoned to face the trial by the Trial court. It is not the case of the petitioner that the cheque in question was not signed/issued by him. The fact that the cheque in question was issued by the petitioner leads to a presumption that there exists a legally enforceable debt or liability. However, the said presumption is rebuttable and the same can be rebutted by the petitioner by leading evidence. At this stage, without there being any evidence on record, it cannot be held that the cheque drawn by the petitioner was in respect of a debt or liability which was not legally enforceable.
The plea raised by the petitioner that the cheque in question was issued on account of a time barred debt can be gone into by the Trial Court after the parties lead their evidence with regard to their respective pleas. However, at this stage, it would not be just and expedient to quash the criminal proceedings at the very threshold by presuming that the cheque in question had been issued qua a time barred debt.
No ground for interference by this Court is made out - petition dismissed.
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2015 (9) TMI 1754 - PUNJAB AND HARYANA HIGH COURT
Dishonour of Cheque - time limitation - It is the contention of the counsel for the appellant- defendant that the suit of the respondent-plaintiff was barred by limitation - HELD THAT:- The assertion of the counsel for the appellant-defendant that the respondent-plaintiff has failed to establish that he was a Travel Agent and the money had exchanged hands, would not be of any consequence as there is no explanation on the part of the appellant-defendant with regard to the issuance of the cheque in question which has been duly proved. That apart, the denial of the signatures by the appellant-defendant on the cheque also cannot be accepted as the respondent-plaintiff has been able to prove on the basis of the evidence and in fact, admission that the cheque book and cheque leaf were of the account of the appellant-defendant. Since the appellant-defendant had denied his signatures, the onus was on him to prove that the cheque did not bear his signature but unfortunately, he did not produce any expert evidence in support of this assertion of his.
Further, the cheque has been returned by the bank not on the ground that the signature on the cheque is not of the appellant-defendant but because of insufficient funds. Signing and issuing cheque in favour of the respondent-plaintiff would amount to owing and acknowledging the liability by the appellant-defendant. All these go to prove beyond doubt that the appellant-defendant had acknowledged and accepted his debt.
No substantial question of law is involved in the present appeal which requires consideration of this Court - Appeal dismissed.
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2015 (9) TMI 1753 - ITAT INDORE
Correct head of income - gain on sale of shares - LTCG or Income from other sources - HELD THAT:- Looking to the facts and circumstances of the case, we find that the ld. CIT(A) has accepted that the long term capital gain on sale of shares of Hindustan Continentals limited as genuine long term capital gains as done through SEBI registered broker and De-mat account - dismiss the Departmental appeal on this ground.
Addition u/s 68 - assessee has made investment in the Lunkad group of companies providing entries of unsecured loan, share application money and investment in actual state of needy persons, who are beneficiaries and during the survey huge cash receipt and payments were found - HELD THAT:- We find that the CIT(A) in his order has deleted the addition on the ground that the I.T.A.T., Indore Bench has passed the order in the case of Narmada Extrusions Limited[2011 (12) TMI 702 - ITAT INDORE] and other family members of the Mittal Group and the assessee is also one of the beneficiaries of Mittal Group and in the appeal for assessment year 2003-04 and 2006-07, the Tribunal has decided the appeal and the Tribunal has analyzed all the documents. Thereafter, the matter was restored to the AO by the Tribunal and after that in set-aside proceedings, the ld. CIT(A) has accepted that these loans are genuine. Therefore, the ld. CIT(A) has deleted the addition on account of unsecured loans. In the result, the departmental appeal is dismissed.
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2015 (9) TMI 1752 - ITAT AHMEDABAD
Rectification of application u/s 154 - Set off the carried forward depreciation from earlier years - HELD THAT:- Assessee would be in a position to demonstrate before the AO in respect of the claim of depreciation. There is not dispute with regard to the fact. It has been held in case of CIT Vs. Virmani Industries Pvt. Ltd. [1995 (10) TMI 1 - SUPREME COURT] even if there is no activity being carried out by the assessee is a particular year, however, he would be entitled to set off the carried forward depreciation from earlier years.
Therefore, after considering the totality of the fact, we deem it proper to modify our order [2014 (6) TMI 1034 - ITAT AHMEDABAD] and restore the issue of claim of depreciation to the file of AO for decision afresh. We hereby modify our order accordingly.
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2015 (9) TMI 1751 - ITAT MUMBAI
Deduction u/s. 80P(2)(d) - interest on investments with the Co-operative bank - AO believed that interest income earned on the investments in any other Co-operative society is deductible but not from a Co-operative bank and the said income is also not allowable as deduction u/s. 80P(2)(a)(i) - HELD THAT:- CIT(A) correctly held since deduction u/s. 80P(2)(d) will be admissible only on the interest earned from Co-operative Societies irrespective of whether they are Co-operative banks or not, the AO is directed to verify the same and allow the deduction on interest earned from other Co-operative societies including Co-operative banks. The interest earned on investment with other banks will not be eligible for deduction u/s. 80P(2)(d). AO is directed accordingly. Appeal filed by the Revenue is dismissed.
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2015 (9) TMI 1750 - ITAT DELHI
Non-representation on the date of hearing - HELD THAT:- From the cumulative reading of the order sheets in the appeals it is seen that barring few occasions when the hearing was adjourned for want of time and twice on the request of the department the appeals have largely been adjourned on the request of the assessee. Accordingly in the afore-said peculiar facts and circumstances, it can be safely presumed that the assessee is not serious in pursuing the present appeals.The appeals of the assessee are dismissed in limine. Support is drawn from the order Multi Plan India (P) Ltd [1991 (5) TMI 120 - ITAT DELHI-D]and Estate of Late Tukojirao Holkar vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT]
Before parting it is appropriate to add that in case the assessee is able to show that there was a reasonable cause for non-representation on the date of hearing then the assessee if so advised would be at liberty to pray for a recall of this order and decisions on merits. The said order was pronounced on the date of hearing itself in the open Court. Appeals of the assessee are dismissed.
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2015 (9) TMI 1749 - SUPREME COURT
Criminal conspiracy in respect of the grant of 122 UAS licenses in the year 2008 against various unknown Government officials, persons and companies - second supplementary chargesheet should be tried by a Magistrate of the First Class or can be tried only by the learned Special Judge? - offences Under Section 120B read with Section 420 Indian Penal Code - HELD THAT:- It is clear that on a reading of the prayers in the said application, only a joint trial was asked for in pursuance of the judgment of this Court dated 1.7.2013. In fact, on a reading of the application and the arguments made before the learned Special Judge, the Petitioners' main argument was that this Court, in the order dated 1.7.2013, had in fact mandated a joint trial. This was correctly turned down by the learned Special Judge, regard being had to the fact that this Court, in paragraph 25 of the judgment dated 1.7.2013, only stated that a discretion was vested with the Special Judge which he may well exercise given the facts of the case.
The other contention of learned senior Counsel for the Petitioners before us has already been answered by this Court by upholding both the administrative order dated 15.3.2011 and the NCT notification dated 28.3.2011. This Court having held that the administrative order dated 15.3.2011 of the High court was valid, it is clear that even a Penal Code offence by itself-that is, such offence which is not to be tried with a Prevention of Corruption Act offence-would be within the Special Judge's jurisdiction inasmuch as the administrative order of the High Court gives power to the Special Court to decide all offences pertaining to the 2G Scam. In fact, once this order is upheld, the learned senior advocate's argument based on Section 4(3) of the Prevention of Corruption Act pales into insignificance - once the challenge to the administrative order dated 15.3.2011, is specifically rejected, the offences arising out of the second supplementary chargesheet, being offences under the Penal Code relatable to the 2G scam, can be tried separately only by the Special Judge.
There are no infirmity in the impugned judgment - petition dismissed.
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2015 (9) TMI 1748 - ITAT DELHI
Revision u/s 263 - credit that was received and credited in the earlier year, cannot be added during the current year - HELD THAT:- We are of the considered opinion, that the submissions of the Ld. Sr. D.R. were upheld, for the reason that the addition in question, is not made u/s 68 of the Act. Thus the year of receipt of credit and entry into the books of accounts is of no consequence. No other argument has been advanced before us on this issue. Thus this ground of the assessee is dismissed.
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2015 (9) TMI 1747 - ITAT MUMBAI
Reopening of assessment u/s 147 - Gain on sale of shares - Long term capital gains OR income from other sources - HELD THAT:- Since the returns of income filed by the assessees have been processed u/s 143(1) only and since the assessing officer has reopened the assessments on the basis of report received from the Investigation wing of the department, we are of the view that the AO had proper reasons with him for reopening of assessments. Accordingly, we uphold the order of Ld CIT(A) on this issue.
Gain on sale of shares - CIT(A) has held that the proof of delivery of shares are not sufficient to prove genuineness of sales, when the purchases were found to be not genuine. We are unable to understand the said reasoning given by the Ld CIT(A). If the tax authorities require any other evidence, apart from the evidences furnished by the assessees, they could have asked the assessees to furnish the same. Instead, they have proceeded to assess the long term capital as income under the head income from other sources. In our view, the said action of the tax authorities is not justified. There should not be any dispute that the delivery of shares could not have been done without purchasing them.
Reply given by M/s Interconnected Stock Exchange India cannot be considered to be the sole criteria to suspect the claim of purchase of shares. Barring this, no material is brought on record to suspect the claim of the assessees that they have earned long term capital gains. Accordingly, we are of the view that the Ld CIT(A) was not justified in confirming the additions made by the AO - we direct the AO to accept the claim of impugned Long term capital gain.
Appeals filed by the assessees are partly allowed.
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2015 (9) TMI 1746 - SUPREME COURT
Dishonour of Cheque - insufficient funds - existence of legally enforceable debt or not - acquittal of Respondents on the ground that the Appellant did not institute the case against the partnership firm i.e. M/s. Shah Enterprises - HELD THAT:- From a bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or part, of any debt or other liability.
The High Court has correctly come to the conclusion that the liabilities of M/s. Shah Agencies were never taken over by M/s. Shah Enterprises. Therefore, the reasoning given by the High Court is absolutely flawless and we find no ground to interfere with the concurrent findings of the Trial Court and the High Court.
Appeal dismissed.
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2015 (9) TMI 1745 - ITAT CUTTACK
Claim of earlier years losses to be brought forward for set off - denial of claim as assessee had not claimed in its return of income - HELD THAT:- Income tax legislation is welfare legislation. Even in case of any doubt, the benefit has to accrue to the assessee. The assessee or the taxpayers contribute to the development of our economy and the Act helps to guide them and not to penalize them. In the present case, it is a fact on record that the assessee has filed its return of income in due time and whatever relief and rectification that were claimed by the assessee was a bonafide one. There was a technical fault because of which, the legal claim of the assessee should not be denied. The legal claim still remains good. Therefore, in our view, the order of the ld CIT(A) directing the AO to modify the order u/s.154 and allow proper relief to the assessee stands good and proper. Hence, we reject Ground No.1 of appeal filed by the revenue.
Violation of Rule 46A of ITAT Rules - As noted that in the appeal against the order u/s.154 of the Act before the ld CIT(A), no additional evidence was produced by the assessee. At the outset, the Bench has asked the ld D.R to demonstrate the violation of provisions of Rule 46A of I.T.Rules which was mentioned in the ground of appeal. Nothing specific was pointed out by him. In such situation, it is not justifiable to allege that there was any infringement of Rule 46A of I.T.Rules. Therefore, in our view, there was no violation of Rule 46A of I.T.Rules, as agitated by the revenue in Ground No.2. Hence, we dismiss this ground.
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2015 (9) TMI 1744 - ITAT BANGALORE
TP Adjustment - non considering assessee’s contentions - Denial of natural justice - as argued TPO as well as the DRP have not considered the elaborate contentions raised by the assessee before them and therefore, there is violation of principles of natural justice - HELD THAT:- We find that even during the relevant assessment year, the assessee had made elaborate submissions and both the TPO as well as the DRP have failed to consider the said objections objectively - we deem it fit and proper to remit this issue to the file of the A.O./TPO for reconsideration of the issue in accordance with law. A.O./TPO is directed to give fair opportunity of hearing to the assessee and also consider judicial precedents on the issue including the orders of the Tribunal in assessee’s own case while determining the ALP. Appeal of the assessee is treated as allowed for statistical purposes.
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2015 (9) TMI 1743 - PUNJAB AND HARYANA HIGH COURT
Determination of the property tax - notification dated 11.10.2013 (Annexure P-3) fixing the rates of property tax - whether the notification dated 11.10.2013 fixing the rate of tax is in accordance with the provisions of Section 87(1)(a) of the Act?
HELD THAT:- The State legislature is competent to make the provisions of law as applicable retrospectively. In the present case, Section 21 of the amending Act, validates the notification issued on 30.9.2003 and 21.6.2012. Therefore, it is not a retrospective imposition of tax, but validating of the action taken earlier i.e. the notification dated 30.9.2003 and 21.6.2012. The notification dated 11.10.2013, has been issued in terms of Section 87(3) and Section 149(1) of the Act. The levy of tax and rates have been made applicable from the Financial Year 2010-11 but with a further option that the property owners have the option to pay the same as per the new or old policy, whichever is opted by them.
Therefore, it is open to the owners to opt for the rates, which were prevailing prior to the publication of the notification on 11.10.2013. It is not a retrospective taxation, but an option has been given to pay the tax as per the old policy or the new provisions. Thus, the Notification dated 11.10.2013 is not contrary to the provisions of the Statute.
Petition dismissed.
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2015 (9) TMI 1742 - DELHI HIGH COURT
Non-disclosure of capitalization of borrowing costs in the balance sheets - non-disclosure of details of capitalization of computer software in the Company's books of accounts for the year 31st March, 2010, 31st March, 2011, 31st March, 2012 - non-disclosure of each class of intangible assets, distinguishing between internally generated intangible assets and other intangible assets - alleged contravention of Sections 211(3A), (3B) and (3C) of the Act, read with AS-16 and AS-26 - Balance Sheets did not comply with AS-16 and AS-26 as framed by the Institute of Chartered Accountants - time limitation.
HELD THAT:- The quashing of a complaint is permissible where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The quashing of a complaint is permissible if there is an express legal bar engrafted in any of the provisions of the Cr.P.C. to the institution and continuance of the proceedings.
In the case of ZANDU PHARMACEUTICAL WORKS LTD. & ORS. VERSUS MD SHARAFUL HAQUE & ANR. [2004 (11) TMI 519 - SUPREME COURT], the Supreme Court held that there may not be any straight jacket formula for exercising power under Section 482 Cr.P.C. but the same has to be exercised sparingly and in rarest of rare cases.
The time period taken by the Regional Director to take the decision to direct the Registrar of Companies to launch prosecution cannot be excluded for the purpose of computing the period of limitation as both the Regional Director, i.e. the Central Government as well as the Registrar of Companies was competent to launch prosecution once they had knowledge of the commission of the offences as on 24th June, 2013, i.e. when the inspection reports were filed with either of them. Since for the offences under Section 211(7), 211(3A), (3B) and (3C) of the Act, no consent/sanction for prosecution from the Central Government is required. Section 470 (3) Cr.P.C cannot be relied upon by the respondents.
Admittedly, Section 211 of the Act is punishable with six months imprisonment and fine. Under Section 468 Cr.P.C - no Court shall take cognizance of an offence punishable with imprisonment for a term not exceeding one year from the date of offence or the date of knowledge of the offence. Admittedly, the Inspector submitted his inspection report on 24th June, 2013 and the said complaint was only filed on 18th September, 2014, after the expiry of a year from the date of knowledge of the offence as provided under Section 468 (2) (b) Cr.P.C. - The offences in the present case are not continuing in nature, limitation commenced as per Section 469 (1) (b) Cr.P.C. when actionable knowledge was gained by the competent authority i.e. when the Registrar of Companies had knowledge of the commission of the alleged offences, i.e. 24th June, 2013 when the Registrar of Companies received the report of the Inspector and ran out on 23rd June, 2014 and thus the complaint, which was admittedly filed on 18th September, 2014 was hopelessly barred by limitation.
The complaint is based on the inspection report of the officer. Consequently, in the present case there is no issue of fact at all with regard to the date of knowledge of offence to the Registrar of Companies. The complaint is, therefore, time barred - the impugned summoning orders and other proceedings emanating from the said orders against the petitioners are accordingly quashed - petition allowed.
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2015 (9) TMI 1741 - ITAT AHMEDABAD
Dismissal of appeal on non appearance - HELD THAT:- Notice of hearing was sent to the assessee by registered post with acknowledgement due on 12/8/2015 fixing the case for hearing on 21/09/2015. Notice was served on the assessee on 14/8/2015 as evidenced by the acknowledgement card of the post office placed on record. When the case was called for hearing none appeared on behalf of the assessee and neither any adjournment petition was filed. This shows that the assessee is not serious in pursuing with this appeal, and therefore, by following the decision of the Hon’ble Delhi High Court in CIT Vs. Multiplan India Pvt. ltd. 1991 (5) TMI 120 - ITAT DELHI-D] we dismiss this appeal of the assessee in limine.
The assessee may, if so advised, file an application before this Tribunal for restoration of its appeal and hearing on merits by showing reasonable cause for not appearing before the Tribunal on the date of hearing. Appeal of the assessee is dismissed in limine.
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2015 (9) TMI 1740 - TELANGANA HIGH COURT
Criminal prosecution u/s 276C - Wilful attempt to evade tax, etc. - As alleged that though the assessee was having sufficient resources to make payment of demand, the assessee has not paid and attempted to evade payment of tax - HELD THAT:- Continuing the criminal prosecution of the petitioner/assessee will be subjecting the assessee to needless harassment in view of the facts and circumstances noted hereunder - In the instant case, the complaint is that an additional demand was raised on 27-01-2006. It is admitted that the assessee has paid the same on 17-11-2006 and due to oversight, he again paid the said amount on 25-06-2007. Proof thereof is produced. It is not disputed.
In that view of the matter, all further proceedings are liable to be quashed.
In the result, the Criminal Petition is allowed quashing all further proceedings on the file of the Special Judge for Economic Offences at Hyderabad against the petitioner/accused.
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2015 (9) TMI 1739 - MADRAS HIGH COURT
Rejection of plaint for want of territorial jurisdiction - infringement of trademarks - principal place of business and place of suit shoulb necessarily be same? - whether the Suit for infringement and passing off filed by the plaintiff is maintainable before this Court in the light of Section 134 of the Trade Marks Act? - HELD THAT:- With regard to the expression notwithstanding anything contained in the Code of Civil Procedure contained in Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act, it was pointed out that the same does not oust the applicability of the provisions of Section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc; as the case may be, that Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose. It was further pointed out that Section 20(a) and Section 20(b) usually provides the venue where the defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to institute a suit where the cause of action wholly or in part, arises. Further, the Explanation to Section 20 C.P.C., has been added to the effect that Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has subordinate office at such place. Thus, 'corporation' can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place.
The provisions of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act have to be interpreted in a purposive manner and that a Suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain and he need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises, however, if the plaintiff is residing or carrying on business at a place where cause of action, wholly or in part, has arisen, he has to file a suit at that place.
The interpretation given by the learned Single Judge in the impugned judgment holding that under Section 134 of the Trade Marks Act, no suit for infringement of registered trade mark could be filed if the plaintiff does not carry on business within the jurisdiction of that Court, is held to be incorrect.
The impugned order is set aside and the suit is restored to the file of this Court and the defendant is directed to file their written statement within a period of three weeks from the date of receipt of a copy of this order - Appeal allowed.
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