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Showing 61 to 80 of 978 Records
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2009 (7) TMI 1334 - BOMBAY HIGH COURT
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... ... ..... learned Single Judge may also be possible. However, in our opinion, as the other interpretation is also possible and this was not a case where winding up petition can be admitted. In our opinion, when there is bonafide dispute on the interpretation of the terms or the words in the agreement, it would have been appropriate for the learned Single Judge not to entertain the company petition and leave the parties to their remedy under the Civil Law. In our opinion, remedy of filing winding up petition cannot be allowed to be used in a case where it is possible to take different view than the one propounded by the petitioner. In our opinion, the learned Single Judge, therefore, was not justified in entertaining the petition. 5. In the result, therefore, the appeal succeeds and is allowed. The order dated 12.2.2009 passed in Company Petition no.898 of 2008 is set aside. That Company petition is dismissed. Appeal is disposed of. Notice of Motion no.1436 of 2009 is also disposed of.
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2009 (7) TMI 1333 - SUPREME COURT
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... ... ..... n that the evidence led by the prosecution has established that the case of the accused falls strictly within the four corners of the Act before recording a conviction against an accused under TADA." 35. In the instant case the Designated Court has failed in its duty both in the matter of application of mind to the materials on record at the stage of framing of charge and also at the time of convicting the appellant. 36. This Court is, therefore, of the clear opinion that in the facts of the case no charge against the accused under the said Act could be framed, consequently he cannot be convicted under the provisions of the said Act. In any way in the instant case as discussed above, there is no evidence to connect the appellant with the alleged incident. Therefore, the judgment and order of conviction is totally unsustainable in law and is set aside. The appeal succeeds and the appellant be set at liberty forthwith if he is not wanted in connection with any other case.
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2009 (7) TMI 1332 - CALCUTTA HIGH COURT
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... ... ..... o interfere with the impugned order passed by the learned Appellate Forum. Accordingly, this Court does not find any merit in this application. This application, thus, stands rejected. Re CAN 2980 of 2009 This application has been filed by Dhir & Dhir Asset Reconstruction and Securitisation Company Ltd. which is not a party to the original proceeding. There is hardly any scope for entertaining any application from a stranger who is not a party in the original proceeding. That apart, the relief claimed in this application has no co-relation with the subject matter of dispute which is presently under consideration of this Court. As such, this Court refuses to entertain this application. This application, thus, stands rejected. This order, however, will not prevent the applicant to seek appropriate relief before appropriate forum in accordance with law. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.
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2009 (7) TMI 1331 - CESTAT, NEW DELHI
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... ... ..... y hearing may be granted. 2. After hearing both the parties, it appears that the Commissioner (Appeals) has remanded the matter twice to the original authority. The goods are lying with the Departments custody since 2013. 3. In view of the above, we direct the original authority to re-examine the matter as per the directions of the Commissioner (Appeals) within a period of four weeks from today. The learned counsel for the assessee will submit the copy of this order to the original authority within a period of one week. With these observations, the appeal as well as the application for early hearing stand disposed of.
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2009 (7) TMI 1330 - SUPREME COURT
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... ... ..... ed Magistrate by his order dated 4.2.2002. A writ petition preferred there against has been dismissed by the impugned judgment. Indisputably, the Courts in ordinary circumstances may exercise their jurisdiction in terms of Section 319 Cr.P.C. to summon any person as an additional accused. However, the proviso appended to Section 138 of the Act mandates that before a complaint petition thereunder becomes maintainable, the conditions precedents specified therein must be satisfied. It is not in dispute that no notice was served upon the appellant by the complainant-respondent No.1 in terms of proviso (b) appended to Section 138 of the Act and in that view of the matter, the complaint petition being not maintainable against him, the learned Magistrate must be held to have committed a jurisdictional error in passing the impugned order dated 4.2.2006. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly and the appeal is allowed.
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2009 (7) TMI 1329 - SUPREME COURT
Arbitration Proceedings - interest upto and from the date of award - Disputes arose between the parties by reason by rejection of claims of appellant and they were referred to Arbitration - whether the Arbitrator can award interest for pre-reference period and pendente lite, when the contract prohibits the employer from entertaining any claim for interest? - Aggrieved by the deletion of interest upto the date of award and reduction of interest from the date of award to 6% per annum, the appellant has filed this appeal.
HELD THAT:- Clause G-1.09 makes it clear that no interest or damages will be paid by Government, in regard to : (i) any money or balance which may be lying with the Government; (ii) any money which may become due owing to any dispute, difference or misunderstanding between the Engineer-in-charge on the one hand and the contractor on the other hand; (iii) any delay on the part of the Engineering Charge in making periodical or final payment; or (iv) any other respect whatsoever.
The clause is comprehensive and bars interest under any head in clear and categorical terms. In view of clause (a) of sub-section (7) of section 31 of the Act, it is clear that the Arbitrator could not have awarded interest upto the date of the award, as the agreement between the parties barred payment of interest. The bar against award of interest would operate not only during the preference period that is up to 13.3.1997 but also during the pendente lite period that is from 14.3.1997 to 31.7.2001.
The arbitrator awarded interest at the rate of 18% per annum on ₹ 24,18,586/-, 14% per annum on amount found due on finalisation the final bill and 12% per annum on the security deposit amount if any that has to be refunded. As noticed above, clause (b) of sub-section (7) of section 31 of the Act provides that if the award does not otherwise direct, the amount awarded shall carry interest as directed by the award and in the absence of any provision of 18% per annum. Any provision in the contract barring interest, will therefore operate only till the date of award and not thereafter.
The arbitrator has awarded interest at three different rates on three different amounts which are all less than 18% per annum. The said award of interest by the arbitrator is not contrary to section 31(7)(b) of the Act. Unless the award of interest is found to be unwarranted for reasons to be recorded, the court should not alter the rate of interest awarded by the Arbitrator. The High Court has not assigned any reasons for reducing the rate of interest to 6% per annum. Therefore, such reduction cannot be sustained.
We allow this appeal in part and modify the judgment of the High Court as follows :
(a) The Judgment of the High Court setting aside the award of interest upto the date of award is affirmed.
(b) The decision of the High Court reducing the rate of interest to 6% per annum from the date of award is set aside. The rate of interest on the amounts due and payable under the award, from the date of award till date of payment shall be in terms of the award of the Arbitrator.
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2009 (7) TMI 1328 - DELHI HIGH COURT
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... ... ..... ore us is that goods had been imported after taking due permission from the Reserve Bank of India. Consequently, we have grave doubts as to the applicability of Sections 8(3) and 8(4) of FERA, 1973. 10. It is a settled position of law that if sustainability of adjudicating order is itself in doubt then dispensation, on ground of undue hardship should be granted. Moreover, as M/s. Siddharth Polymers has been closed long ago and the appellant’s financial position is stated to be precarious, we are of the view that a case of undue financial hardship has also been made out. We are, accordingly, of the view that appellant has made out a strong prima facie case in its favour and consequently we grant waiver of pre-deposit as prayed for by the appellant. With the aforesaid observations, present appeal is allowed. Needless to say that our observations would not prejudice any of parties at the time of final disposal of the appellant’s appeal before the Appellate Tribunal.
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2009 (7) TMI 1327 - CESTAT, NEW DELHI
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... ... ..... position of penalty and demand for interest was being set aside. 6. The provisions of law regarding the liability to pay the interest on delayed payment of duty as also obligation to pay the penalty by the assessee as well as obligation of the authority to demand interest on delayed payment of duty and to impose penalty are very clear. Further, the same has been clearly explained by the Apex Court in Dharamendra Textile Processors (supra). Being so, the law laid-down by Larger Bench in Machino Montell (supra), apart from the fact that it has been set aside by the Honble Punjab & Haryana High Court, can not said to be a good law. 7. The provisions of law and the decision of the Apex Court in Dharamendra Textile Processors case being very clear on the issue involved in the matter, the impugned order cannot be sustained and is liable to set aside while restoring the order passed by the original authority. The appeal is accordingly allowed and disposed of in the above terms.
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2009 (7) TMI 1326 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... PA will lie against the judgment of the learned Single Judge with regard to validity of prevention detention. 9. In the affidavit filed on behalf of Additional Secretary to Home Department, Government of Gujrat dated 14.7.2009, it is stated that the appellant was avoiding service of the order of detention. 10. Mr.Thiara appearing for the Central Government, states that liberty should be left to the appropriate Government to pass a fresh order in case order of detention is to be quashed. 11. Having regard to the fact that the order of detention was passed five years ago and was for a period of one year and neither the order has been executed nor any satisfactory explanation given for not executing the same and also keeping in view the judgments relied upon by the appellant, we are of the view that the order of detention is liable to be quashed. 12. Accordingly, the impugned order is quashed with liberty to the concerned authorities to pass a fresh order if and when warranted.
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2009 (7) TMI 1325 - BOMBAY HIGH COURT
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... ... ..... y relevant or partly irrelevant evidence and is otherwise perverse and arbitrary.” 2. To be heard along with Customs Appeal No. 54 of 2009 which was admitted on 7th July, 2009. Appellants to serve the respondents within eight weeks from today, failing which appeal to stand dismissed for non-prosecution.
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2009 (7) TMI 1324 - SUPREME COURT
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... ... ..... icial Magistrate First Class in an arbitrary manner and with oblique motives, the learned Sessions Court was justified in setting aside the order granting bail to the appellant. To say the least, the order passed by the learned Magistrate was the result of arbitrary exercise of discretion vested in him. Further the learned Magistrate had taken into consideration totally irrelevant documents which were never referred to in the complaint at all. By taking into consideration those documents the learned Magistrate exhibited his anxiety to release the appellant anyhow on bail. On the facts and in the circumstances of the case, this Court is of the opinion that the High Court did not commit any error in confirming the order of the Sessions Judge cancelling the bail which was arbitrarily granted to the appellant by the learned Judicial Magistrate First Class and, therefore, the instant appeal is liable to be dismissed. 3. For the foregoing reasons the appeal fails and is dismissed.
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2009 (7) TMI 1323 - ITAT AHMEDABAD
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... ... ..... an explanation about the source of such expenditure as is apparent from the Assessing Officer, the Assessing Officer has not discharged the onus as is expected from him and laid down under section 69C. Under these circumstances we did not have any other alternate except to delete the addition. Thus, ground No. 2 is allowed. 9 Both the parties agreed that the facts and issues involved in the case of Shri Ramjibhai Ganeshbhai Vithani in ITA No.1341/Ahd/2009 are similar and therefore, it was the common contention of both the parties that similar view may be taken in this case also. Therefore, since the facts and issues involved in the case of Shri Ramjibhai Ganeshbhai Vithani ITA No.1341/Ahd/2009 are similar to those as in the case of Kiritsinh Vakhatsinh Gohil (HUF), for the reasons stated above, Ground Nos.1 and 2 in ITA No.1341/Ahd/2009 are allowed. 10 In the result, both the appeals filed by the assessee are allowed. This order is pronounced in open court on dt. 24-07-2009.
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2009 (7) TMI 1322 - DELHI HIGH COURT
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... ... ..... ant by the judgment of this Court in the case of The Commissioner of Income Tax-V v. Oracle Software India Ltd., 293 ITR 353. Therefore, there is no merit in this appeal, which is accordingly dismissed.
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2009 (7) TMI 1321 - SC ORDER
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (7) TMI 1320 - MADRAS HIGH COURT
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... ... ..... policy decision, which was taken by the Government in public interest, could not be interfered with by way of judicial review. 30. As far as the contention of the learned Senior Counsel for the respondents that the petitioner should have invoked the arbitration under clause 15 of the Licence Agreement is concerned, it is to be mentioned that the petitioner is only aggrieved by the decision of the Government of India to debar him from the bid for 8th berth and the Government of India is not a party to the Licence Agreement. Therefore, the arbitration clause can be invoked only between the parties to the Licence Agreement viz., the petitioner and the second respondent, but not the petitioner and the Government of India. 31. In view of my elaborate discussions in the foregoing paragraphs and following the ratio laid down by the Apex Court in the judgments referred to above, this Writ Petition is dismissed. No costs. Consequently, the connected M.P.Nos.1 to 3 of 2009 are closed.
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2009 (7) TMI 1319 - ITAT MUMBAI
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... ... ..... s suppressed his income to reduce its tax liability. The Assessing Officer has rightly invoked both the limbs of section 271(1)(c) of the Act. The ld. CIT(A) rightly considered the issue and held that the assessee entered into an agreement with a view to evade the income on account of purchase and sale of film distribution rights. The agreement entered between the assessee and the said Pinnacle Entertainment Pvt. Ltd. was with an ulterim motive with an intention to defraud revenue, it can never be called as a genuine commercial arrangement and upheld the order passed by the CIT(A). Insofar as donation is concerned, the assessee failed to produce any evidence either before the Assessing Officer or before CIT(A) or before the Tribunal. Therefore, it cannot be said that the transaction is genuine. 24. We find no infirmity in the order passed by the CIT(A). We, therefore, uphold the order of the CIT(A) on this ground. 25. In the result, appeal filed by the assessee is dismissed.
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2009 (7) TMI 1318 - SUPREME COURT
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... ... ..... r took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to. 23. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise. 24. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2009 (7) TMI 1317 - SUPREME COURT
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... ... ..... not entitled to any relief on the ground of latches or delay on their part. We may, however, observe that this Court in Arvinder Singh Bains (supra) did not issue any direction and/or any specific indication that the said decision would be confined to the petitioners therein only. 35. We were, however, informed at the bar that 12 vacancies existed. Only in that view of the matter directions were issued to consider the cases of the respondents for promotion to the cadre of I.A.S. against any of those vacancies if they are found ultimately eligible therefor. It is only with that in view, we had in exercise of our jurisdiction under Article 142 of the Constitution of India directed the Union of India to make requisition therefor. We may furthermore observe that we have not gone into some other questions which have been raised at the bar as no observation made therein may prejudice one of the parties hereto. 36. The above are the reasons in support of our order dated 22.10.2008.
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2009 (7) TMI 1316 - SC ORDER
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... ... ..... dismissed. However, the question of law raised in this petition is left open to be decided at an appropriate stage.
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2009 (7) TMI 1315 - SUPREME COURT
Direction of eviction from the suit premises u/s 14(1)(a) r/w Section 14(2) of the Delhi Rent Control Act, 1958 - respondent is a tenant in respect of the suit premises - tenant once availed the benefit u/s 14(2) - whether the tenant/respondent had defaulted in payment of rent inasmuch as he had not deposited the rent with the Rent Controller for the aforesaid period after the refusal by the landlord/appellants in the manner required by law - Whether this is a case of second default and the respondent having once availed the benefit under Section 14(2) of the Act is not entitled to such benefit in case if it is held to be a second default? - High Court had observed that it was not the case of a second default and therefore reversed the order of the Rent Control Tribunal and directed that no order of eviction could be passed as this was not a case of second default.
HELD THAT:- Section 14(1)(a) is a ground for eviction of a tenant for default in payment of rent. In spite of that, protection has been given u/s 15 of the Act to the tenant to avail of the protection given by the Legislature by depositing rent in the manner indicated in Section 15 of the Act. However, proviso to Section 14(2) of the Act takes away the right of a tenant of the benefit of Sub-Section (2) of Section 14 if the tenant having obtained such benefit once in respect of any premises and makes a further default in payment of rent of those premises for three consecutive months. Therefore, it has been made clear that when the tenant makes a second default, no protection can be given to the tenant from eviction.
Applying the principles laid down in Atmaram's case [2005 (8) TMI 746 - SUPREME COURT],and the decision in E. Palanisamy [2002 (10) TMI 794 - SUPREME COURT] and in view of our discussions made herein earlier and considering the object of the Act and the intention of the Legislature, we are in respectful agreement with the observations made by this Court in the aforesaid two decisions.
Since we have already come to the conclusion that since the tenant/respondent has failed to deposit rent in compliance with Section 27 of the Act because in the present case, admittedly, landlord/appellants had not accepted any rent tendered by the tenant/respondent within the time referred to in Section 26, it was the duty of the tenant to deposit such rent before the Rent Controller as prescribed in Section 27 of the Act. Admittedly, this step was not taken by the respondent which is mandatory in nature and, therefore, we must hold that the tenant/respondent had committed a second default in payment of rent and is, therefore, liable to be evicted from the suit premises.
The word "may" in the context of the Act, shall be construed as "shall" and therefore, the tenant shall deposit the rent after refusal by the landlord and, accordingly, having not done so, he is liable to be evicted.
Accordingly, the appeal is allowed. the impugned order of the High Court is set aside and since the tenant/respondent having committed second default for which he is not entitled to be protected under the Act, the order of eviction passed by the Rent Controller must be restored.
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