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Showing 41 to 60 of 645 Records
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2007 (5) TMI 653 - SUPREME COURT
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... ... ..... rchaser and to make it more difficult for the appellants to protect their mark, which the record shows has acquired an enviable reputation in the market which is sought to be exploited by the respondent. 12. It is true that certain issues have been raised by Mr. Chandra which necessitate a consideration of the evidence such as the plea based on Godfrey Philips case (supra) but we are of the opinion that the case of prior user of the mark is a fact which needs no evidence in the present circumstances. 13. We accordingly set aside the order of the trial court dated 11th December 2003 and the order of the High Court dated 27th October 2005. However, as this order is confined only to the limited question of an ad-interim injunction, any observation made in this order would not bind the trial Judge in the proceedings in the suit. The application for ad-interim injunction is accordingly allowed in terms of prayer clause (ii) of the application. 14. The Civil Appeal is disposed of.
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2007 (5) TMI 652 - COMPANY LAW BOARD, NEW DELHI
Petition filled u/s 397 and 398 - Oppression and Mismanagement - manipulation of accounts - matrimonial discord between the two directors - Seeking winding up of the company and appointment of the liquidation office - R-1 company was incorporated by husband and wife as the only two directors - stocks and cash of the company always remained under exclusive control of the respondent No. 2 - R-2 namely Shri Sandeep Dutt (petitioner's husband against whom divorce proceedings are pending) - HELD THAT:- Considering the pleadings and the documents filed therewith as well as the arguments of the counsels of the parties, it cannot be denied that the matrimonial discord is the root cause of this petition. But at the same time it is a composite petition having allegations of oppression, mismanagement including siphoning off of funds and breach of fiduciary relationship prejudicial to the interest and health of the R-1 as well. It is true that it is not possible to separate the human aspect of disharmony in the personal relationship between the directors which has led to the deadlock and the ill health of an earlier profit making company. It is a fact that there is a deadlock. Cause is known - matrimonial discord. And may be even spite and negligence which cannot be ruled out. But the preliminary objections raised in the case cannot be sustained.
The case of oppression and mismanagement u/s 397 and 398 of the Act has been made out. Personal cruelty in the relationship has lead to compelling circumstances of the wife director to withdraw from her successfully established business to look for another job to fed for herself and her two children. It is not an easy and painless decision. Driving an almost indispensable director out of the company resulting in the deadlock is itself an act of oppression. For the purposes of Sections 397 and 398 of the Act, oppression may be an act of cruelty, severity, defaulting of will or excessive use of authority. It is unfortunate, but it is true that the personal relationship of the directors has affected the functioning of the R-1 company. It is humanly impossible to exclude and detach the personal relationship when personal life and business are mixed up and intricably linked.
The respondents preliminary objections as regards the misjoinder of the parties cannot be accepted in view of the fact that the appointment of R-2's mother as additional director/director is in violation of Section 252 of the Act and is illegal and in contravention of the provisions of the Act. An illegal act cannot generate legal rights.
However, during the arguments the counsel for the petitioner did not insist on relief qua R-2's mother, her main allegations being against R-1 and R-2. As regards the petitioner joining hand with another person in the competing business alleged to be an unethical business practice affecting the clients and the goodwill of the R-1, the allegation is merely a bald allegation, no case is made out, what else can a professional interior designer do other than that to earn a livelihood for herself and her two children is also not understood. The R-2 has failed to appreciate the constraints of her choice.
Thus, I find that the respondents have failed to meet the allegations on merits of the case under Sections 397 and 398 of the Act. The manipulation of accounts of the R-1, siphoning off of discount sale consideration and non-furnishing of the statements and annual returns to the ROC for several years are all acts of oppression and mismanagement in the conduct of the affairs of the company. Since there is a deadlock in the company, the petitioner has expressed her inability to be in the R-1's business in the circumstances of this case, parting ways may be good for the general health of the R-1.
It is also a settled proposition of law that the fiduciary capacity within which Directors have to act enjoins upon them a duty to act on behalf of the company with utmost care and skill and due diligence and in the interests of the company. They have a duty to make full and honest disclosure to shareholders regarding all important matters relating to the company. In the present case the fiduciary duties have been breached by both the parties - by the petitioner as well as by the respondents. Both the parties have indulged in acts in the conduct of the affairs of the company which have been prejudicial to the interests of the R-1.
To do substantial justice between the parties, I hereby direct the R-2 to restore the sale consideration received in respect of the discounted sales and other amounts siphoned off from the R-1 company's accounts forthwith. Since there is a deadlock in the R-1, and since both the parties know the worth of the company, I hereby direct the parties to arrive at an amount to be paid to the petitioner for her going out of the company which would be acceptable to the petitioner. In case no such acceptable consideration is arrived and paid to the petitioner within a month of receipt of this order, I consider it appropriate to direct that both the parties to be present in the CLB Court Room along with their counsels on 23.8.2007 at 11.30 a.m. to bid for the shares and the party which bids the higher price for the shares, should purchase the shares of the other party at that price.
Hence, I dispose of the petition, keeping seisin over the matter till the finalization of the bidding, if required. All CA s stand disposed off. All interim orders stand vacated.
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2007 (5) TMI 651 - GUJARAT HIGH COURT
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... ... ..... he conduct of the business of the Company, he could not be held criminally liable. The liability arises from being in charge of and responsible for the conduct of the business of the Company at the time when the offence was committed and not on the basis of merely holding a designation of office in a Company. Therefore, in view of the principle laid down in S.M.S. Pharmaceuticals Ltd. Case (supra), I am of the opinion that this is a fit case where this Court could exercise powers under Section 482 of the Code of Criminal Procedure in favour of the applicant. 9.0 In the result, the application is allowed. The impugned complaints being numbered as Criminal Cases No. 4644/2000 & 4645/2000 before the Court of learned Judicial Magistrate, First Class, Jamnagar and the subsequent proceedings initiated thereto are quashed and set aside only qua the applicant. It is made clear that proceedings qua other accused persons shall proceed in accordance with law. Rule is made absolute.
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2007 (5) TMI 650 - CESTAT MUMBAI
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... ... ..... spute is no longer res integra as it stands settled by Tribunal’s order in the case of Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad - 2004 (169) E.L.T. 162, holding that in a situation where the appellants are unable to utilise credit on inputs, cash refund is permissible in law in terms of clause (c) of the proviso to Section 11B(2) of the Central Excise Act, 1944. The Hon’ble Karnataka High Court has taken the same view, as seen from the decision in the case of UOI v. Slovak India Trading Co. Pvt. Ltd. - 2006 (201) E.L.T. 559 (Kar.). Following the ratio of the above decisions, we hold that there is no warrant to interfere with the order passed by the Commissioner (Appeals) and accordingly uphold the same and reject the appeal. 3. Following the ratio of the Division Bench decision, I am of the view that the Order-in-Appeal is correct and legal and does not require any interference. 4. Appeal filed by the Revenue is rejected. (Dictated in Court)
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2007 (5) TMI 649 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... s reducing the petitioner from their shareholding of 12.94 to 9 sounds a meaningless rattle deserving no remedy or redressal under Sections 397 of the Act. Nor is there a case for any relief under Section 398 of the Act. The so-called instance of mismanagement by way of siphoning off of funds amounting to ₹ 10,000/- debited to the petitioners account with the alleged connivance of the Auditors tells more about the petitioners' conduct than that of the respondents. 16. In view of the foregoing, I find no reason to allow the petition. The allegations of oppression and mismanagement being unproved, the petitioners failing to meet the preliminary objections leave no option with me than to dismiss the petition. Hence, petition is hereby dismissed. However, the petitioners are at liberty to accept the respondent's offer of settlement/selling off or buy out the stake in the company. 17. No order as to cost. All interim orders stand vacated. All CAs stand disposed off.
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2007 (5) TMI 648 - SUPREME COURT
Smuggling - psychotropic substance - non-compliance with the mandatory provisions of Section 42(2) of the Act - Held that: - the High Court was right in coming to the conclusion that Section 42 of the Act was not attracted to the facts of this case. In the instant case on information received by PW-2 who communicated the same to PW-1, the witnesses went to the bus stand where the person carrying the drug was expected to arrive - The appellant was, therefore, not searched and arrested in exercise of power of arrest, search, and seizure under Section 42 of the Act.
Section 42 applies to a case where the officers concerned on information received, or having reason to believe from personal knowledge that any offence has been committed in relation to any drug or psychotropic substance etc. and which is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset, enter into and search any building, conveyance or place.
The High Court has not accepted the involvement in the conspiracy of Hiralal who in his confessional statement claimed to have handed over the contraband to appellant Peter John. If the confessional statement of Hiralal is discarded, there remains no evidence except his own confession to implicate the appellant Peter John - appellant Peter John is also entitled to the benefit of doubt.
Appeal allowed - decided in favor of appellant.
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2007 (5) TMI 647 - DELHI HIGH COURT
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... ... ..... ction of ₹ 3,58,563/- is concerned, the Tribunal held that the Assessee has taken the aforesaid amount as part of its income of earlier years and this amount which became irrecoverable, stood written off, the essentials of Section 36(1)(vii) stood satisfied and upheld the decision of the Commissioner of Income Tax (Appeal). We find no infirmity in the reasoning given by the Tribunal and as such no substantial question of law with regard to the deduction of ₹ 3,58,563/- is involved and appeal filed by the Revenue on this issue is dismissed. with regard to the issue of deleting the addition of ₹ 14,35,072/-, we are of the opinion that following substantial question of law arises for our consideration. "(1) Whether the Tribunal was justified in law in deleting the addition of ₹ 14,35,072/- made by the Assessing Officer under Section 68 of the Act on account of unexplained liability". Paper books be filed in accordance with the High Court Rules.
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2007 (5) TMI 646 - SUPREME COURT
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... ... ..... -sharer is presumed to be possession of the other co-sharers unless contrary is proved." 27. Pleadings, as is well known, must be construed in its entirety. We, therefore, are of the opinion that the findings of the learned Trial Judge as also the High Court, that the State was the owner of land, is not correct. The State has not furthermore been able to establish the character of the land as Nazul land and in any event has not been able to show that it had a right of reversion. 28. We, however, do not intend to express any opinion as to whether the State of Madhya Pradesh is otherwise entitled to receive any rent from the appellants or not. Such a question if raised may be determined in an appropriate proceedings. 29. For the reasons stated hereinabove, we set aside the impugned order of the High Court as well as of the learned Trial Judge and the suit of the plaintiff shall be decreed. The appeal is allowed with costs. Counsel’s fee assessed at ₹ 25,000/-.
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2007 (5) TMI 645 - SUPREME COURT
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... ... ..... f the University must be maintained as otherwise a chaos would be created. If distance education of such a nature is to be encouraged, the only course would be to suitably amend the provisions of the Act. 20. We are not oblivious that in certain situations the territorial jurisdiction in relation to a University may not be strictly enforced as was done in the case of Sushanta Tagore & Ors. v Union of India and Others (2005) 3 SCC 16 but in the said matter, this Court was concerned with a totally different situation. 21. We, thus, are of the opinion that in this case we need not go into the other submissions raised by Ms. Aggarwal. 22. The study centres of the appellants being situated in Nainital, is beyond the territorial jurisdiction of the respondent university. No writ of or in the nature of mandamus as has been prayed for in the writ petition can be issued. 23. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. No costs.
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2007 (5) TMI 644 - KARNATAKA HIGH COURT
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... ... ..... ns to be recorded in writing. However, the total period of pendency of the application with the Tribunal shall not exceed four months from the date of making such application. The aforesaid provision is in conformity with the main object of the Act i.e. speedy recovery of the debt. In the present case the Tribunal has failed to comply with the above provision. 21. Having given my anxious consideration to the arguments of the learned Counsel made at the bar, I am of the view that the Tribunal was not justified in allowing the application of the respondent directing redelivery of the possession of the property in question pending disposal of the appeal. In the result, writ petition succeeds and it is accordingly allowed. The order passed by the Tribunal dated 22.12.2006 (Annexure 'A') is hereby quashed. I direct the Tribunal to dispose of the main matter on its merits and in accordance with law within two months from the date of receipt of copy of this order. No costs.
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2007 (5) TMI 643 - SUPREME COURT
Challenged the Judgment and Order passed by the High Court - Oral Gift of the Property - acquired title by adverse possession - burden of proof - suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property filed - jurisdiction of the Civil Court - HELD THAT:- Respondent No. 3 was admittedly the owner of the property. As his ownership had not been disputed, the burden was on Respondent No. 1 to prove his title. It has, as noticed hereinbefore, claimed title : (i) by reason of an oral gift; and (ii) by adverse possession.
The High Court although noticed the lease came to an end in the year 1975 and if from the said date or at least from the date of purported oral gift allegedly made in its favour by Respondent No.1. Any change in the nature of its position occurred, it was expected of it to accept the same by its conduct. Why it would pay rent to Respondent No. 3 till October 1976 has not been explained.
It is now well-settled that time creates title. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.
It may be true that Respondent No. 1 had constructed some buildings; but it did so at its own risk. If it though that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn.
It may be true that Respondent No. 3 herein should have examined himself and the learned Trial Judge committed a serious error in drawing an adverse inference in that behalf as against Respondent No. 1. It was, however, so done keeping in view the fact that Respondent No. 3 was evidently not interested in the property in view of the fact that it had suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is accepted that the appellant is claiming is claiming only by reason of an award, he has transferred the property in his favour. He received a valuable consideration in terms of the award. We are not concerned with the validity thereof.
Non-examination of Respondent No. 3 indisputably would give rise to a presumption, as has been held by this Court in Sardar Gurbaksh Singh v. Gurdial Singh [1927 (7) TMI 8 - PRIVY COUNCIL], Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh[1930 (3) TMI 18 - BOMBAY HIGH COURT], and The Ramanathapuram Market Committee, Virudhunagar v. East India Corpn. Ltd., Madurai[1975 (1) TMI 96 - MADRAS HIGH COURT] and Vidhyadhar v. Manikrao and Anr. [1999 (3) TMI 655 - SUPREME COURT], but by reason of presumption alone, the burden is not discharged. A title is not created.
A claim of title by prescription by Respondent No. 1 again is not tenable. It based its claim on a title. It had, therefore, prima facie, no animus possidendi.
In this case, the respondents have raised a plea of title in itself, the question in regard to the jurisdiction of the Civil Court has not been raised, presumably in view of the fact, that ultimately the civil court was bound to determine the question whether the defendant/respondent No. 3 made an oral gift or not being a complicated question, could not have gone into in a suit under the Rent Control Act. In any event, such a question having not been raised, we are of the opinion that the same should not be permitted to be raised before us for the first time.
Thus, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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2007 (5) TMI 642 - SUPREME COURT
Mining leases from the State Government - arbitration agreement between the parties - Application u/s 9 of the Arbitration and Conciliation Act, 1996 ("the Act") - agreement specifically enforced in the light of Sections 10 and 42 of the Specific Relief Act - Powers u/s 9 of the Act independent of any restrictions placed by the Specific Relief Act ? - HELD THAT:- It is seen that the mining lessee had entered into an agreement with the appellant-company for the purpose of raising the iron ore from the area covered by the mining lease. The term of the original agreement expired and this was followed by two extensions for three years each. Thereafter, the respondent firm had refused to extend the agreement and claims that it wants to do the mining itself.
Prima facie, it is not possible to say that the High Court was wrong in thinking that it may be a case where an injunction could not be granted in view of the provisions of the Specific Relief Act. Here again, we do not think that we should pronounce on that question since that again will be a question for the arbitrator to pronounce upon.
Suffice it to say that the position is not clear enough for us to assume for the purpose of this interlocutory proceeding that the appellant is entitled to specifically enforce the agreement dated 14.3.1991 read in the light of the Power of Attorney dated 25.3.1991. Of course, this aspect will be again subject to the contention raised by the appellant-company that the agreement created in his favour was co-terminus with the mining lease itself. But, as we have stated, these are the aspects to be considered by the Arbitral Tribunal. We refrain from pronouncing on them at this stage.
Prima facie, it appears that the general rules that governed the court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application u/s 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that court would apply. The Act does not prima facie purport to keep out the provisions of the Specific Relief Act from consideration.
No doubt, a view that exercise of power u/s 9 of the Act is not controlled by the Specific Relief Act has been taken by the Madhya Pradesh High Court. The power u/s 9 of the Act is not controlled by Order XVIII Rule 5 of the Code of Civil Procedure is a view taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case.
Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on well recognized principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver.
In the result, we decline to interfere with the order of the High Court and dismiss this appeal. While doing so, we revoke the nomination made by the parties of two arbitrators. We appoint Mr. Justice Y.K. Sabharwal, former Chief Justice of India as the sole arbitrator to decide the dispute between the parties. The parties are directed to suffer their respective costs.
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2007 (5) TMI 641 - PUNJAB & HARYANA HIGH COURT
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... ... ..... y audited by a CA, but does not produce complete books for verification before the AO? ii) The Income Tax Act clearly provides for applicability of deeming provisions of section 44AD in case of contractor with a total turnover not exceeding ₹ 40 Lakhs can the ITAT travel beyond the provisions of I.T. Act and make the provisions applicable even to those cases which are not covered in the statutory limit of ₹ 40 Lakh, as specifically provided for in the Act? It remains undisputed that I.T.R. No. 167 of 2007, in respect of assessment year 2001-2002, in the case of the same assessee, came up for consideration on 7.5.2007, on the same questions of fact and law. The appeal was dismissed. We adopt the same reasoning to dismiss these appeals as has been adopted in the order dated 7.5.2007, rendered in I.T.A. No. 167 of 2007 (The Commissioner of Income Tax III, Ludhiana v. M/s Shivam Construction Co.). A photocopy of this order be placed in the file of the connected case.
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2007 (5) TMI 640 - DELHI HIGH COURT
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... ... ..... interest received thereon from the banks cannot be said to be outside the doctrine of mutuality. 6. Learned counsel for the Assessee has relied upon Director of Income Tax v. All India Oriental Bank of Commerce Welfare Society, 2003 130 TAXMAN 575 (Delhi), in which this Court has relied upon in Chelmsford Club v. CIT 2000 243 ITR 89(SC). It was held, following the decision of the Supreme Court, that where a number of persons combine to contribute to a common fund and have no dealings or relations with any other body, then any surplus generated cannot, in any sense be regarded as profits chargeable of tax. On this basis, the doctrine of mutuality was applied to the facts of that case. We see no distinction in the decision rendered by this Court in All India Oriental Bank of Commerce Welfare Society and the present case. 7. Under the circumstances, we answer the question of law in the affirmative, in favour of the Assessee and against the Revenue. 8. The appeal is disposed of.
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2007 (5) TMI 639 - RAJASTHAN HIGH COURT
Judicial review - Validity of Pre-emptive purchase passed by the appropriate authority - challenged by the prospective buyers - determination of fair market value of the Property - applicability of section 269UD(1) where the market value is more than purchase value of the property - scope of interference under Art. 226 - HELD THAT:- We must at the outset begin with noticing the scope of interference under Art. 226 of the Constitution of India which by now stand well defined following catena of judgments by Hon'ble Supreme Court. While examining the validity of pre-emptive purchase order of the property under Chapter XX-C of the Act, this Court in exercise of its powers of judicial review can interfere only if it finds that (i) relevant material has been ignored or (ii) irrelevant or erroneous material has been considered or (iii) it has been passed in utter violation of principles of natural justice or (iv) there has been infraction of any statutory provision in the process of decision making or (v) decision is such which no reasonable person could on available material arrive at.
Functions of the Appropriate Authority being akin to that of a quasi judicial body, therefore, its order are subject to judicial review within the scope available for writ of certiorari. At the same time, however, this power of judicial review would not extend to the status of the appellate powers and for that matter, revisional powers where the scope of interference is much wider. It is within this available scope of interference that the learned single Judge examined the validity of the impugned pre-emptive purchase order and upheld the same and we have to now in this appeal examine the correctness of the judgment passed by learned single Judge which exercise in effect would also extend to examining validity of the impugned pre-emptive purchase order on the grounds that have been raised before us.
Market rates of totally different type of land - On examination of the impugned order of pre-emptive purchase, we find that the Appropriate Authority in its order has categorically noted this argument with reference to r. 11 of the Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 and noted that the said Rule provides that the saleable area would be about 66 per cent and this may be more if the plot size is smaller but assuming that only 66 per cent would have available area for sale, yet out of 7,943 sq. mtrs. an area equal to 5,242.38 sq. mtrs. would have been available for sale. Appropriate Authority therefore by this alternative mode worked out the rate of the land on the basis of comparable sale instance i.e. 5,242.38 sq. mtrs. by adjustment of time gap of +12 per cent which then would come to ₹ 1,994.72 per sq. mtr. It was noted that this was so because the deduction of 34 per cent land contemplates absence of larger size as well as less development. On this basis the land value will be ₹ 1,995 x 5,242.38 = 1,04,58,548. Value of the constructed godowns of ₹ 42 lacs being added thereto, total value of the said property would come to ₹ 1,46,58,548 as against declared apparent consideration of ₹ 99,84,500.
We do not find any error in the approach taken by the Appropriate Authority because deduction of 34 per cent of the land for making the provision of civic amenities like roads, parks, open spaces, electricity, water, sewerage, drainage, would essentially exclude the element of the land area being a large size agricultural chunk of land, which is the alternative argument made by the respondents and this would then also exclude the element of the land being less developed/underdeveloped. In other words, making use of 1/3rd land would in fact make the remaining 2/3rd land developed and with the sub-division of lands into plots of smaller sizes, it would no longer remain a large size undeveloped agricultural land. In fact, making provision of all these civic amenities and facilities by using 1/3rd of the land would considerably enhance its saleability and appreciate the value of the remaining 2/3rd of the land.
On this count, we do not find that the impugned order passed by the learned Appropriate Authority suffers from any legality so as to warrant interference by this Court in exercise of its power of judicial review.
Various encumbrances that were attached to the property - The Valuation Officer in an application submitted to the Appropriate Authority on 18th May, 1994 has categorically stated that in spite of the fact that he invited attention of the transferor to para 4 of the agreement whereby the transferor had to get the open land partitioned by metes and bounds with a specific demarcation, she failed to get the demarcation done till date and thereafter when he went to the site on 22nd June, 1994 the transferee produced copy of the status quo order passed by this Court. In fact, the vendor in her appeal before us is claiming mesne profit from the prospective buyers asserting that they have been during all these years earning huge profits by renting out offices as also open land area for social functions like marriage and party etc. Apart from the fact that the argument about the encumbrances being attached to the property was not raised before the Appropriate Authority, facts narrated above clearly show that despite possession of the godowns and office premises etc. having been handed over to the transferee, both the transferee and the transferor adopted a non-co-operative attitude in getting the common land partitioned by metes and bounds, notwithstanding the specific stipulation to that effect in the agreement to sale that though symbolic possession of the 1/4th share has been handed over by the vendor to the prospective buyer on the date of agreement and the vendor shall get the open land partitioned by metes and bounds by specific demarcation within the period of two months from the date of agreement. The vendor thus deliberately avoided to perform her part of the obligation in the agreement. Neither of the parties can therefore be allowed to take advantage of such a situation. We therefore do not find any merit in this argument either.
Principles of natural justice failed to furnish the material documents - Both the factors of encumbrances and built up structures having thus been noticed and deliberated upon coupled with the fact that the material relating to comparable sale instance having been supplied to the prospective buyer and also in view of the fact the appellants did not take any such plea in replies to the show cause notices, mere non-supply of the report of the Valuation Officer did not in any way violate the provisions of s. 269UD (1A) and for that matter the principles of natural justice. It is well settled that principles of natural justice cannot be put in a straitjacket formula and whether or not the requirements of such principles have been satisfied, would have to be decided on the facts of a given case. And in this case, in our opinion, facts show that they were complied with.
In the present case however the fact situation is entirely different. When the prospective buyers filed the writ petition, this Court vide order dt. 19th April, 1994 while directing the parties to maintain status quo further directed that "the period during which the stay order remains in operation shall be excluded for making the payment by the respondent to the seller". This order was later modified on 27th May, 1994 upon the counsel or the vendor making an argument that if the period of interim stay order is extended, she is likely to suffer loss in terms of interest on the amount which was payable to her and she should not be made to suffer because of this interim order. The learned single Judge therefore while extending the stay order clarified that in case action of the Appropriate Authority is found untenable in law, the vendor shall be entitled to reimbursement of the loss occasioned to her.
In order to meet this contingency, the official respondents immediately invested the amount of apparent sale consideration in the sum of ₹ 99,88,500 in the fixed deposit which we are informed was extended from time to time and is valid till date and the maturity value of such FDR as on 16th May, 2006 was stated to be of ₹ 2,67,81,932. We are however not inclined to entertain the other prayers of appellant Mithilesh Kumari because she having not challenged the pre-emptive purchase order and twice submitted no objection to the IT Department for the compulsory acquisition of the said property acquiesced in those proceedings and is now estopped from challenging the said order.
Thus, in our view the present matter does not fall in any of those five categories which we had set out at the beginning of our discussion, and therefore, in our considered opinion, the learned single Judge did not commit any error of law in not interfering with the pre-emptive purchase order passed by the Appropriate Authority.
We therefore do not find any merit in the appeal filed by the prospective buyers and the same is therefore dismissed but the appeal filed by the vendor is partly allowed with the direction that upon Department taking over possession of the subject property, prospective buyers would be entitled to refund of the amount paid to the vendor together with interest @ 6 per cent per annum, out of the maturity amount of the aforementioned FDR and remaining amount shall be paid to the vendor. In the facts of the case, however, we leave the parties to bear their own costs.
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2007 (5) TMI 638 - SUPREME COURT
Imposition of fiscal penalty for non fulfillment of export obligation under the licence as well as for mis-utilization of the goods - Held that: - there was infractions of the conditions imposed under the licence - However, quantum of penalty reduced.
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2007 (5) TMI 637 - DELHI HIGH COURT
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... ... ..... o correct. 17. In the present case, there is no specific finding by the Assessing Officer that the claim or deduction of interest has been made of such sums which claims have been found to be false. It is also not clear from the record as to how the Assessing Officer has arrived at the figure of ₹ 50 lakhs with regard to the interest in this case. Thus, the Tribunal has rightly held that the sum added of ₹ 50 lakhs is beyond the scope of Chapter XIV-B of the Act and, therefore, it rightly deleted the same. 18. The above being the position, no fault can be found with the view taken by the Tribunal. Thus, the order of the Tribunal does not give rise to a question of law, much less a substantial question of law, to fall within the limited purview of section 260A of the Act, which is confined to entertaining only such appeals against the order which involves a substantial question of law. 19. Accordingly, the present appeal filed by the revenue is, hereby, dismissed.
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2007 (5) TMI 636 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... profit of 10 percent on receipts of the assessee has been held to be reasonable in the instant case as against the net rate of profit of 12 percent claimed by the revenue as no special circumstances have been high lighted by the revenue for application of higher rate of profit for the assessment year in question. The assessee has also been held entitled to deductions on account of salary and interest to the partners subject to the limits provided by clause (b) of Section 40 of the Act. o p /o p The claim of the assessee for deduction on account of depreciation has been declined. o p /o p After hearing the learned counsel for the revenue we are of the considered view that the discretion exercised by the Tribunal is based on relevant considerations and does not suffer from any legal infirmity warranting interference of this Court. No substantial question of law would arise for our determination. The appeal is wholly mis-conceived and the same is accordingly dismissed. o p /o p
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2007 (5) TMI 635 - CESTAT CHENNAI
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... ... ..... upplied free of charge. If the two provisions of the AMC are read together, it would appear that replacements of unspecified components/parts of elevators under the AMC are free of charge. Learned Commissioner in the impugned order has banked on this aspect. At the same time, one cannot ignore the fact that the components/parts supplied by the assessee under clause 6.6 of the AMC were Sales-tax paid as evidenced by relevant invoices and assessment orders. In this context, the basic principle stated by learned counsel would invariably arise for consideration. One should not lose sight of this principle while interpreting Notification No. 12/2003-ST ibid. 3. On the whole, the issue arising in this case is extremely arguable. In this view of the matter, we are inclined to grant waiver of pre-deposit and stay of recovery in respect of the small amount of Service Tax demanded by the Commissioner. Accordingly, there will be waiver of pre-deposit and Stay of recovery as prayed for.
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2007 (5) TMI 634 - CESTAT BANGALORE
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... ... ..... He submits that the appellants have strong case on merits. 2. The learned JDR re-iterated the findings of the Commissioner in the impugned order. 3. The Commissioner referred to a portion of 37 services in terms of the Board’s Circular. The major service done by the appellant is ‘Management of Immovable Properties’. The appellants have been filing return regularly. The Revenue initiated proceedings for recovery of service tax under the category of ‘Security Agency’. The ‘security agency service’ is a part of services done by them under ‘Property Management Services’. In terms of the Board’s Circular, such bifurcation cannot be done. Therefore prima facie the appellants have strong case on merit. The stay application is allowed by granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. The appeal to come up for hearing in its turn. (Pronounced and dictated in the open Court)
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