|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1383 Records
-
2020 (10) TMI 1383 - DELHI HIGH COURT
Denial to supply some crucial documents as prayed/required in the application under Section 207 Cr.P.C. - proper recording of statement under section 161 Cr.P.C. or not - whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C.? - If yes, further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case?
HELD THAT:- Undisputedly, in the remand order of co-accused namely Prakash Jarwal and Amanatullah Khan, Learned Metropolitan Magistrate, Tis Hazari Courts, Delhi, has recorded the date of statement of V.K. Jain as 21.02.2018. However, in reply to above facts, it is stated that above date of 21.02.2018 is a typographical error, in fact both statements under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018. Moreover, the fact of recording of statement dated 21.02.2018 in order of learned MM dated 23.02.2018 is the submission made by the defence counsel, not by the prosecution.
It is pertinent to mention here that in para 28 of impugned order dated 24.07.2019, learned ASJ has recorded that on perusal of ‗Case Diary’ it shows that witness V.K. Jain was examined in Police Station on 21.02.2020 in depth and a report was prepared. The case diary further shows that after examination, V.K. Jain was relieved from the investigation after giving him necessary instructions. Learned Judge further observed that since it is a record of oral examination of V.K. Jain by the IO and is noted in the 'Case Diary', the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial.
This Court in Ashutosh Verma vs. CBI [2014 (12) TMI 1405 - DELHI HIGH COURT] has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused.
A conjoint reading of section 173(5), 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is bounden duty of the police officer to forward all the statements to the Magistrate, mentioned in sub-section (5) (b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the accused.
Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non-providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself.
There are merits in the present petition. Consequently, the impugned order is hereby set-aside - the present petition is allowed.
-
2020 (10) TMI 1382 - SUPREME COURT
Seeking directions for the anticipatory bail application of the Petitioners to be heard by the Patna High Court which is stated to be still pending - disclosure of false information by the Petitioner in his nomination papers submitted for General Nagar Palika elections, 2007 - HELD THAT:- The SEC in exercise of power as enunciated Under Section 18(2) of the Act declared the elections void. Action was directed to be taken against the Petitioners and in pursuance to the same, FIR was lodged against them Under Section 447 of the said Act read with Section 420/34, Indian Penal Code.
The submission of the learned Counsel for the Petitioners is that the Petitioners are willing to join the investigation and there is no need for custodial interrogation of the Petitioners - the contention of the learned Counsel for the Petitioners cannot be agreed upon in view of the conduct of the Petitioners and the greater the office held, the greater the responsibility of the person as in the case of the Petitioners. It cannot be said that the Petitioners held a high office, they are ipso facto entitled to anticipatory bail.
The prayer for anticipatory bail rejected - petition dismissed.
-
2020 (10) TMI 1381 - ITAT JAIPUR
Disallowance u/s 14A - expenditure incurred by the assessee in relation to tax exempt income - HELD THAT:- As relying on Joint Investments Pvt. Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] and Daga Global Chemicals Pvt. Ltd. [2015 (1) TMI 1204 - ITAT MUMBAI] window for disallowance is indicated in Section 14A of the Act and is only to the extent of disallowing expenditure incurred by the assessee in relation to tax exempt income. Therefore, this proportion or portion of the tax exempt income surely cannot swallow the entire amount as has happened in this case.
We are of the view that the disallowance made U/s 14A of the Act cannot exceed the exempt income, hence, we direct the A.O. to restrict the disallowance U/s 14A of the Act to the extent of exempt income earned by the assessee. With this direction, we partly allow this ground of appeal.
-
2020 (10) TMI 1380 - ITAT BANGALORE
Disallowance u/s 14A r.w.r. 8D - expenditure incurred on earning exempt income - As argued since the assessee has not incurred any expenditure to earn the exempt income and Addition to be restricted to the exempt income received for the relevant assessment years - HELD THAT:- In the light of the order of M/s.Century Real Estate Holdings Pvt. Ltd [2020 (6) TMI 780 - ITAT BANGALORE] we hold that the disallowance u/s 14A of the I.T.Act cannot exceed the exempt income earned during the relevant assessment years. Accordingly, we restrict the disallowance for assessment years 2010-2011 and 2013-2014 to the exempt income earned for the assessment years. Appeals filed by the assessee are partly allowed.
-
2020 (10) TMI 1379 - SUPREME COURT
Right to residence in shared household being the matrimonial home - Interpretation and working of the Protection of Women from Domestic Violence Act, 2005 - decreeing the suit filed by the Plaintiff for mandatory and permanent injunction - Order XI Rule 13 Code of Civil Procedure.
Whether definition of shared household Under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? - Whether judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law? - HELD THAT:- There being specific pleading on behalf of the Respondent that the house, which is in the name of the Appellant is the matrimonial home of the Respondent where she was residing in first floor since her marriage. The fact that Respondent is residing in first floor of the premises is not matter of dispute. Even if the house is in the name of the Appellant and that even if we accept the case of the Appellant that Appellant's son Raveen has no share in the house belonging to Appellant, with whom the Respondent was living in the domestic relationship, whether the Respondent is entitled to reside in the premises in question as shared household is the question to be answered. In the impugned judgment, Delhi High Court has refrained from deciding the point as to whether suit property is a shared household on the ground that the application filed Under Section 12 of Act, 2005 by the Respondent is pending. In the suit filed by the Appellant where Respondent has pleaded and claimed that it is shared household and she has right to live and it was on that ground she was resisting the suit for mandatory injunction, the question that whether the suit property is a shared household or not becomes relevant and necessary and the said issue cannot be skipped on the ground that application under D.V. Act is pending.
The right to residence Under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application Under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.
The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share - The judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.
Whether the High Court has rightly come to the conclusion that suit filed by the Appellant could not have been decreed Under Order XII Rule 6 Code of Civil Procedure? - Whether, when the Defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the Plaintiff without deciding such claim of Defendant which was permissible to be decided as per Section 26 of the Act, 2005? - HELD THAT:- What is required to be considered is what constitutes the admission warranting the judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. This Court had occasion to consider above in decisions, Himani Alloys Limited v. Tata Steel Limited, [2011 (7) TMI 1344 - SUPREME COURT] and S.M. Asif v. Virender Kumar Bajaj, [2015 (8) TMI 1563 - SUPREME COURT].
In Himani Alloys Limited, this Court had an occasion to consider the scope and ambit of judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. It is observed and held in paragraph 11 that being an enabling provision, it is neither mandatory nor preemptory but discretionary for the Court to pass judgment on admission in exercise of powers Under Order XII Rule 6 Code of Civil Procedure. It is observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant by way of an appeal on merits.
A similar view was expressed by this Court in the case of S.M. Asif. It is observed and held in paragraph 8 that expression "may" in Order XII Rule 6 Code of Civil Procedure suggests that it is discretionary and cannot be claimed as of right. It is further observed that where Defendants raised objections which go to root of the case, it would not be appropriate to exercise discretion Under Order XII Rule 6 Code of Civil Procedure.
The power Under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment Under Order XII Rule 6 on the admission of the Defendant as contained in her application filed Under Section 12 of the D.V. Act. Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment Under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given Under Order XII Rule 6 is unsustainable.
Whether the Plaintiff in the suit giving rise to this appeal can be said to be the Respondent as per definition of Section 2(q) of Act, 2005? - HELD THAT:- One of the conditions to treat a person as a Respondent is that "against whom the aggrieved person has sought any relief under the Act". The Defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the Respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim order in the application filed by the Defendant Under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the Respondent is committing or has committed an act of domestic violence". For granting any relief by the Civil Court Under Section 19 it has to be proved that the Respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "Respondent" for purposes of Section 2(q) it has to be proved that person arrayed as Respondent has committed an act of domestic violence on the aggrieved person.
For the purposes of determination of right of Defendant Under Sections 17 and 19 read with Section 26 in the suit in question the Plaintiff can be treated as "Respondent", but for the grant of any relief to the Defendant or for successful resisting the suit of the Plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the Defendant, only then the relief can be granted by the Civil Court to the Defendant.
What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005? - HELD THAT:- The expression "save in accordance with the procedure established by law", in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in Sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the Respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household - The High Court in the impugned judgment has also expressed opinion that suit filed by the Plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.
In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo Under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "Respondent", i.e., one who is Respondent within the meaning of Section 2(q) of Act, 2005.
Whether the husband of aggrieved party (Defendant) is necessary party in the suit filed by the Plaintiff against the Defendant? - HELD THAT:- When the matter is remanded back to the Trial Court, Trial Court's discretion ought not to have been fettered by issuing such a general direction as noted above. The general direction issued in paragraph 56(i) is capable of being misinterpreted. Whether the husband of an aggrieved person in a particular case needs to be added as Plaintiff or Defendant in the suit is a matter, which need to be considered by the Court taking into consideration all aspects of the matter - direction in paragraph 56(i) be not treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is the Trial Court which is to exercise the jurisdiction Under Order I Rule 10. The direction in paragraph 56(i) are, thus, need to be read in the manner as indicated above.
In the present case, although husband of the Defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party.
What is the effect of orders passed Under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? - HELD THAT:- On conjoint reading of Sections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings Under Section 125 of the Code of Criminal Procedure for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum - The order passed under D.V. Act whether interim or final shall be relevant and have to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight.
Thus, following conclusions have been arrived:
(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act Under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief Under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the Appellant as well as by the Defendant claiming a right Under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.
The High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication - appeal dismissed.
-
2020 (10) TMI 1378 - SUPREME COURT
Plea of juvenility - juvenile as per the Juvenile Justice Act, 1986 or not - HELD THAT:- This Court at this stage can decide and determine the question of juvenility of Satya Deo, notwithstanding the fact that Satya Deo was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced. As Satya Deo was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.
Whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide Sub-section (1) to Section 111 repeals the 2000 Act, albeit Sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act. Section 69 'Repeal and saving clause' of the 2000 Act is identical as Sub-section (1) thereof had repealed the 1986 Act and Sub-section (2) provides that notwithstanding such repeal anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of the 2000 Act.
In light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an Accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.
While upholding the conviction of Satya Deo, the sentence of life imprisonment set aside - matter remanded to the jurisdiction of the Board for passing appropriate order/directions Under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.
The appeal filed by the Satya Deo is partly allowed.
-
2020 (10) TMI 1377 - SC ORDER
Seeking grant of bail - concealment of contraband material (Charas) weighing 3285 grams - HELD THAT:- It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.
Considering the facts and circumstances on record, the appellant is entitled to the benefit under Section 439 of the Code - Appeal allowed.
-
2020 (10) TMI 1376 - SUPREME COURT
Murder - disciplinary enquiry - Proof of misconduct in disciplinary proceedings - acquittal of accused - HELD THAT:- In the present case, the Respondent was acquitted of the charge of murder - The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the Rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the Respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove.
But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.
The direction of the Division Bench for reinstatement is set aside. In exercise of the jurisdiction Under Article 142 of the Constitution, it is directed that the cessation from service will notionally take place on the Respondent completing minimum qualifying service. The direction of the High Court that the Respondent shall not be entitled to back wages is upheld. The retiral dues of the Respondent shall be computed and released on this basis within a period of three months - Appeal allowed.
-
2020 (10) TMI 1375 - GUJARAT HIGH COURT
Grant of Regular bail - conspiracy - murder - HELD THAT:- It appears that though the name of the applicant is shown in the FIR for the alleged offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offence punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act, for the incident which took place on 9th May 2020, on perusal of the charge-sheet papers, it appears that the complainant in the subsequent statement dated 3rd June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details.
Perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail in connection with FIR being I-C.R. No. 11993005200314 of 2020 dated 9th May 2020 registered with Adesar Police Station, Bhachau, District Kutch on executing a personal bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - bail application allowed.
-
2020 (10) TMI 1374 - ITAT AHMEDABAD
Rectification of mistake - MA is directed at the instance of Revenue pointing out apparent error in the order of the Tribunal [2024 (2) TMI 428 - ITAT AHMEDABAD]- assessment framed u/s 147 relying on belief of CBI - as pleaded in the MA that case of the Revenue falls within the exception clause (e) of para-10 of the CBDT Circular i.e. proceedings in this case was taken up on the basis of external information i.e. CBI - HELD THAT:- As assessee did not dispute about this, and submitted that appeal of the assessee for this assessment year is pending in the Tribunal for adjudication. This appeal was listed last on 15.9.2021, but Bench did not function, hence this is pending. He do not raise objection for recall of this order of the Tribunal for adjudication on merit.
On due consideration of the above facts, this MA is allowed and the appeal of the Revenue is restored to original number. Registry is directed to list this appeal for hearing along with cross appeal.
-
2020 (10) TMI 1373 - MADHYA PRADESH HIGH COURT
Cancellation of sale and forfeiture of amount deposited - failure to comply the terms and conditions of auction sale - petitioner alleges high handedness of the respondent Bank in cancelling the sale and forfeiture of the amount deposited - HELD THAT:- From the material on record it is established that it is the petitioner who having not deposited the 75% of the auction sale within stipulated time, has to blame herself. The circular of the Reserve Bank of India relied by the petitioner in paragraph 6.7 of the petition is of no assistance to the petitioner, as it is applicable to the borrowers. Even the impugned cancellation communication reveals that the petitioner was given the reminders and Covid 19 extension which is not denied by the petitioner.
There are no illegality in the impugned communication as would warrant any indulgence - petition dismissed.
-
2020 (10) TMI 1372 - SC ORDER
Approval of Resolution Plan - Prior permission of the CCI was not obtained under Proviso to Section 31(4) of I&B Code - It was held by NCLAT that the Adjudicating Authority was conscious of CCI approval and hence, ignoring the fact that CCI approval has been obtained post CoC approval of the Resolution Plan is in order.
HELD THAT:- There are no reason to interfere with the impugned order since no substantial question of law is involved in the appeal.
The Civil Appeal is accordingly dismissed.
-
2020 (10) TMI 1371 - KERALA HIGH COURT
Invocation of bank guarantee that had been furnished by the petitioner as security deposit - requirement to fulfill certain preconditions before invoking the arbitration - HELD THAT:- There is a clear indication therein that the terms of the Concessionaire Agreement are to be accorded priority over all other agreements and documents that formed part of the Concessionaire Agreement. The recital 'F' of the Concessionaire Agreement, no doubt, indicates that the RFQ, RFP and LOIA would all form integral parts of the Concessionaire Agreement. The point to be noted, however, is that in the event of ambiguities and discrepancies arising between clauses in the Concessionaire Agreement and clauses in the RFP, as in this case, it is the clause in the Concessionaire Agreement that has to prevail. No doubt, it is only in the event of a 'conflict' that the relevant clause in the Concessionaire Agreement would prevail over the corresponding clause in the RFP. On an overall perusal of the clauses in the RFP as also in the Concessionaire Agreement, I find that the clauses in the Concessionaire Agreement which deal with the same subject matter as the corresponding clause in the RFP were intended to override the latter clauses in the RFP.
The contention of the learned senior counsel for the respondent cannot be accepted that it is only in the event of a challenge to clause 5.15 of the RFP on the ground that it is violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India, that this Court can hold the said clause, in the RFP, as illegal. After the amendment of the 1996 Act in 2015, the law must be taken to be that any clause in an agreement, that requires one of the contracting parties to make a deposit of amount as a precondition for invoking the arbitration, has to be seen as rendering the entire clause arbitrary, being not only excessive or disproportionate but leading to a wholly unjust situation in arbitration proceedings, that are ordinarily to be encouraged on account of the high pendency of cases in courts and the ever-increasing cost of litigation - it is opined that even if the clause in the RFP is to be treated as supplementing Article 22 of the Concessionaire Agreement, the offending conditions in the RFP would have to be ignored in view of the declaration of law by the Supreme Court.
Article 22 of the Concessionaire Agreement constitutes the arbitration agreement between the parties, discretion required under Section 11 of the 1996 Act, and appointment of a sole arbitrator is made - Justice (Retd.) Sri. T.R. Ramachandran Nair, a former Judge of this Court is nominated as the sole arbitrator to arbitrate on the disputes that have arisen between the parties herein.
This Arbitration Request is allowed.
-
2020 (10) TMI 1370 - ITAT INDORE
Addition u/s 68 - unexplained cash credit for the loans taken - HELD THAT:- Both the lender companies i.e. Aereo Deal Com Pvt. Ltd and M/s Chamak Traxim Pvt. Ltd are genuine companies carrying out regular business of finance in their capacity as Non Banking Finance Companies registered with Reserve Bank of India and having sufficient liquidity to give loan to various borrowers. Ld. CIT(A) has also mentioned the fact that Mr. Deepak Kalani who controls the financials of M/s ADPL and M/s CTPL is having long time friendship with the Directors of Agrawal Group of Companies and in the past also he has given loan to other group concerns of Agrawal Group on interest.
We further find that the issue of unexplained cash credit u/s 68 of the Act from the very same lender companies namely M/s Aereo Deal Com Pvt. Ltd and M/s Chamak Traxim Pvt. Ltd which were received by another group concern of the assessee namely M/s Agrawal Coal Corporation Pvt. Ltd and Admanum Finance Ltd came for adjudication before the Tribunal wherein the appeal was filed by the revenue challenging the finding of Ld. CIT(A) deciding in favour of the assessee. The Co-ordinate Bench has dealt this issue in Agrawal Coal Corporation Pvt. Ltd [2011 (10) TMI 496 - ITAT INDORE] and has confirmed the finding of Ld. CIT(A) thereby confirming the identity of the lenders , genuineness of transactions and accepting the creditworthiness of the lender companies namely M/s ADPL & M/s CTPL and holding that the Ld. A.O was not justified in making the addition u/s 68.
Thus assessee has duly proved the identity of the cash creditors, genuineness of the transaction and proved creditworthiness of the lender companies which thus do not call for any addition u/s 68 of the Act and the interest paid on such loans should be allowed.
Disallowance u/s 14A r.w.r. 8D - CIT(A) held that disallowance of interest was not called for since at the end of the year it earned net interest income and secondly the assessee had sufficient own capital and from reserves to cover up the investments made - HELD THAT:- As far as interest disallowance is concerned we observe that during the year assessee has earned interest income which is higher than the interest paid during the year.
The judgment of Hon’ble Bombay High Court in the case of CIT V/s Reliance Utilities & Power Ltd [2009 (1) TMI 4 - BOMBAY HIGH COURT] is also squarely applicable in the case of assessee as the assessee has sufficient share capital and free reserves at Rs. 1584.75 lakhs and Rs. 1682 lakhs as on 31.3.2013 and 31.3.2014 respectively to cover up the investments of Rs. 1101.46 lakhs. This itself proves that borrowed funds have not been utilised for making these investments and nothing contrary has been brought to our notice by the revenue authorities. Therefore we confirm the finding of Ld. CIT(A) to the extent of that no interest disallowance was called for u/s 14A of the Act in the case of the assessee and thus the interest disallowance has been rightly deleted.
Remaining portion as computed by the Ld. A.O applying 0.5% on the average investment the word average investment referred in Rule 8D of I.T rules certainly does not include the investments made for earning taxable interest income but for sure includes the investment fetching tax free interest and those made in equity shares, which can be listed or unlisted.
The contention of the assessee and finding of Ld. CIT(A) that investment in unlisted companies should not consider for computing the disallowance under third limb of rule 8D is devoid of any merit. There is no bar under the law for the unlisted companies to declare dividend. In other words dividend income can be generated from both the listed as well as unlisted companies. So for calculating the disallowance under third limb of Rule 8D of I.T. Rules we first need to subtract the investment in debentures of Rs. 5 crores from the total average investments of Rs. 11.01 crores.
The resultant average investment will be Rs. 6.01 crores and 0.5% of this average investment works out to Rs. 3,00,731/-. However the disallowance so calculated at Rs. 3,00,731/- should not exceed the dividend income earned by the assessee during the year at Rs. 2,70,120/-.
Our this view of not making disallowance u/s 14A of the Act exceeding the total exempt income earned during the year is on the basis of the judgment of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] wherein as confirmed the finding of Tribunal that in the absence of any exempt income disallowance u/s 14A of the Act is not warranted. In view of the above judgment we sustain the disallowance u/s 14A of the Act at Rs. 2,71,120/-. Thus Ground No. 1 of assessee’s appeal in case of Admanum Finance Ltd is partly allowed.
-
2020 (10) TMI 1369 - ITAT DELHI
TP adjustment - MAM - why CUP method cannot be applied as the most appropriate method? - HELD THAT:- Since the facts of the instant case are identical to the facts for the A.Y. 2011- 12 and AY 2013-14, therefore, respectfully following the decision of the Tribunal in assessee's own case and in absence of any distinguishable features brought to our notice, we are of the opinion that CUP is the most appropriate method in the instant case which has been applied by the assessee for benchmarking the transactions for provision of consultancy services rendered. We hold and direct accordingly. Since this issue is decided in favour of the assessee.
Non-grant of mat credit under section 115JAA and short grant of tax deducted at source - As we deem it proper to restore this issue to the file of the AO with a direction to verify the record and give proper credit in respect of the same. Needless to say, AO shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. Grounds raised by the assessee are allowed for statistical purposes.
-
2020 (10) TMI 1368 - MADRAS HIGH COURT
Suit for declaration of title of the plaintiff and the second defendant to the suit property - seeking exemption to adduce evidence - HELD THAT:- The revision petitioner cannot seek exemption to adduce evidence due to his choice to examine his son. If exemption to appear and adduce evidence is granted to the defendant, it would imply that the plaintiff may not be in a position to invoke Section 114 illustration (g) of the Indian Evidence Act, best evidence could be shut.
In a litigious battle, if a party fails to produce best evidence, when he is in a position to tender it, other side is entitled to seek the court an adverse inference. The court cannot forfeit its power to draw adverse inference by its own orders.
This petition is partly allowed and only that portion of the impugned order in I.A. No. 3 of 2020 in O.S. No. 72 of 2013 on the file of the Additional District Munsif Court, Valliyur, which exempts the first defendant from tendering evidence is set aside.
-
2020 (10) TMI 1367 - SUPREME COURT
Transfer petition - seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand - HELD THAT:- The transfer power Under Section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.
While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the Petitioner in my assessment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can't also be overlooked that the Petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore, it is difficult to accept that justice for the Petitioner can only be ensured by transfer of three cases mentioned in these petitions.
When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this Court finds it difficult to accept that the cases are on account of journalistic activities of the Petitioner. In fact the credibility of the journalistic activity of the Petitioner is itself questioned, by a member of his sting operation team, in the third case. In such circumstances, the prosecution in the concerned three cases can't prima facie be said to be on account of malicious prosecution.
These Transfer Petitions are dismissed.
-
2020 (10) TMI 1366 - SUPREME COURT
Pronunciation of final orders without a reasoned judgment - Deprivation from seeking further judicial redressal in the next tier of judicial scrutiny - HELD THAT:- A Constitution Bench of this Court as far back as in the year 1983 in the STATE OF PUNJAB VERSUS JAGDEV SINGH TALWANDI [1983 (12) TMI 332 - SUPREME COURT] drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment where it was held that If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per ANIL RAI VERSUS STATE OF BIHAR [2001 (8) TMI 1330 - SUPREME COURT] - The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.
The appeal is allowed.
-
2020 (10) TMI 1365 - SC ORDER
Grant of validity certificate in favour of the Petitioners, resultantly invalidating the tribe claim of the Petitioners - HELD THAT:- The Registrar of the Aurangabad Bench are called upon to verify the aforesaid fact and communicate to this Court forthwith as to why the order has not been uploaded. The Supreme Court Registry to send the message immediately and obtain the necessary copy of the order, if available.
List on 13th October, 2020.
-
2020 (10) TMI 1364 - ITAT BANGALORE
Exemption u/s 11 - whether proviso to section 2 (15) is not applicable in the present case? - HELD THAT:- As decided in own case [2020 (11) TMI 483 - KARNATAKA HIGH COURT] the proviso to section 2 (15) is not applicable in case of this assessee.
Depreciation claim - Second issue is also squarely covered in favour of the assessee by the tribunal order in assessee’s own case in which, the tribunal has followed a judgment of Hon’ble Supreme Court rendered in the case of CIT vs. Rajasthan and Gujarat Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] Hence, we decline to interfere in the order of CIT (A).
Appeal of the revenue is dismissed.
........
|
