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Showing 41 to 60 of 873 Records
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2010 (1) TMI 1269 - BOMBAY HIGH COURT
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... ... ..... ound in the explanation for causing delay in the adjudication process. The absence of relevant record due to lapse of more than 30-35 years is also a factual aspect which needs to be taken into account. In our view, the respondents cannot be allowed to reopen the proceedings. If allowed it would cause serious detriment and prejudice to the petitioners. The Department is not entitled to reopen old matters in this manner. As rightly observed in the earlier Judgment of this Court, if the Department's contention as to limitation were to be accepted, it would be mean that the department can commence adjudication proceedings 20 years, 25 years or 30 years after the original show-cause notice which cannot be permitted. In the peculiar facts and circumstances of this case, petition is being allowed. Needless to observe that our view is solely based on the facts of this case. 20. In the result, rule is made absolute in terms of prayer Clauses (a) and (b) with no order as to costs.
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2010 (1) TMI 1268 - ITAT MUMBAI
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... ... ..... TR 199. Copy of the same was also filed. Further reliance was placed on the decision of the Hon’ble Bombay High Court in the case of Geoffrey Manners & Co Ltd in 315 ITR 134(Bom). 8 After considering the submissions and perusing the relevant material on record, we do not find any infirmity in the findings of the ld CIT(A). The ld CIT(A) has ascertained the factual position of the case that telecasting was not enduring benefit. The ld CIT(A) has also ascertained that the telecasting of the ad-film was not made after June 2005. Therefore, it cannot be said that there was any enduring benefit in telecasting ad-film. 8.1 The decisions of the Tribunal considered by the ld CIT(A) are in favour of the assessee. The findings of the ld CIT(A) are also remained uncontroverted. In view of these facts and circumstances, we confirm the order of the ld CIT(A) on this issue also. 9 In the result, the appeals filed by the department are dismissed. Order pronounced on19.1.2010
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2010 (1) TMI 1267 - ITAT MUMBAI
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... ... ..... view of the same, ground of appeal No.1 is rejected. 6. As regards ground No.2, we find that the Tribunal has dealt with this issue at para 3.2 of its order cited supra, which is reproduced as under- “3.2 Coming to ground 2 it relates to disallowance of 1/3rd of advertisement expenditure on the ground that the benefit of expenditure also accrues to the producer of the films whose audio rights were purchased by the assessee. here also like in ground No.1, both the assessing officer as well as the first appellate authority agreed that in the earlier years similar issues have come up before the Tribunal and the issue is decided in favour of the assessee. In the light of the above we respectfully follow the decision of the Tribunal and dismiss this ground of the revenue.” Respectfully following the decision of the co-ordinate Bench this ground is also rejected. 7. In the result, revenue’s appeal is dismissed. Order pronounced on this 29th day of January, 2010.
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2010 (1) TMI 1266 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ation of any question having a relation to the rate of duty of excise or to the value of goods and purposes of assessment. Counsel for respondent No.1 has placed reliance on Commissioner of C.Ex., Chandigarh Vs. C ESTAC , New Delhi, reported 2007(209) E.L.T. 179 (P&H) in which it has been held that where valuation of goods for the purpose of leviable duty is concerned, jurisdiction of the High Court is specifically excluded under Section 35G of the Central Excise Act. Counsel for the appellant has not been able to dispute the aforementioned legal position. In view of the above, we held that the present appeal filed under Section 35G of the Act challenging the order passed by the Tribunal (Annexure A-2) with regard to the value of goods for the purpose of assessment does not lie before the High Court and the appellant, if so advised, may avail the remedy in terms of the Central Excise Act, 1944. The appeal filed by the Revenue is thus, dismissed as being not maintainable.
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2010 (1) TMI 1265 - BOMBAY HIGH COURT
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... ... ..... ellate Authority with which no interference is warranted for want of substantial question of law. The view taken is a reasonable and possible view. In the circumstances both the appeals are dismissed in limine. 2. The cross objections are also dismissed as not pressed by the learned Counsel appearing for the respondents.
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2010 (1) TMI 1264 - SC ORDER
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... ... ..... lam, JJ ORDER Appeal dismissed.
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2010 (1) TMI 1263 - SUPREME COURT
Deduction u/s 80IA - Whether twisting and texturising of partially oriented yarn ('POY') amounts to 'manufacture' in terms of Section 80IA? - HELD THAT:- As examined the process in the light of the opinion given by the expert, which has not been controverted, we find that POY is a semi-finished yarn not capable of being put in warp or weft, it can only be used for making a texturized yarn, which, in turn, can be used in the manufacture of fabric. In other words, POY cannot be used directly to manufacture fabric. According to the expert, crimps, bulkiness etc. are introduced by a process, called as thermo mechanical process, into POY which converts POY into a texturized yarn. If one examines this thermo mechanical process in detail, it becomes clear that texturising and twisting of yarn constitutes 'manufacture' in the context of conversion of POY into texturized yarn. See M/s. Oracle Software India Ltd. [2010 (1) TMI 9 - SUPREME COURT] as held term “manufacture” implies a change, but, every change is not a manufacture, despite the fact that every change in an article is the result of a treatment of labour and manipulation. If an operation/process renders a commodity or article fit for use for which it is otherwise not fit, the operation/process fall6 s within the meaning of the word “manufacture
Applying the above test to the facts of this case, it is clear that POY simplicitor is not fit for being used in the manufacture of a fabric. It becomes usable only after it undergoes the operation/process which is called as thermo mechanical process which converts POY into texturised yarn, which, in turn, is used for the manufacture of fabric.
Our judgment in the present case is to be confined to the facts of the present case. We are not saying that texturising or twisting per se in every matter amounts to manufacture. It is the thermo mechanical process embedded in twisting and texturising when applied to a partially oriented yarn which makes the process a manufacture. In the circumstances, the judgment in the Swastik Rayon Processors's case[2006 (11) TMI 31 - SUPREME COURT] will not apply. Decided in favour of assessee.
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2010 (1) TMI 1262 - ITAT HYDERABAD
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... ... ..... gold ornaments, to ₹ 4.64 lakhs as against ₹ 11.66 lakhs made by the Assessing Officer. In these facts of the case, we hold that the order of the CIT(A) is justified and no interference is called for. Accordingly, ground of appeal No.6 of the assessee for the assessment year 2004-05 is rejected. 11. Ground of appeal No.7 of the assessee for the assessment year 2004-05 reads as under- “The learned Commissioner of Income-tax(Appeals) erred in confirming the addition on account of alleged purchases from partners, in spite of all facts and circumstances placed before the learned Commissioner of Income-tax (Appeals) .” The learned counsel for the assessee has not pressed this ground of appeal. Accordingly, ground No.7 for the assessment year 2004-05 is rejected. 12. In the result, appeals for the assessment year 2002-03 and 2003-04 are allowed and the appeal for the assessment year 2004-05 is partly allowed. Order pronounced in the court on 01 January 2010
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2010 (1) TMI 1261 - SUPREME COURT
Interpretation of Statute - section 31(7) of Arbitration and Conciliation Act 1996 - power of the arbitral tribunal to award interest - award of interest on interest from the date of award - future interest from the date of award.
Whether section 31(7) of the Act authorizes and enables arbitral tribunals to award interest on interest from the date of award? - HELD THAT:- Interest may be payable in pursuance of a contract, or a provision in a statute, or the fiat of a court of tribunal. It is usually quantified in terms of a percentage of the ‘principal’ or the ‘investment’ or the ‘amount of liability’. Interest unless otherwise specified, refers to simple interest, that is interest paid on only the principal and not on any accrued interest - Compound interest can be awarded only if there is a specific contract, or authority under a Statute, for compounding of interest. There is no general discretion in courts or tribunals to award compound interest or interest upon interest - This Court in Renusagar Power Co. Ltd v. General Electric Co.[1993 (10) TMI 232 - SUPREME COURT] held that award of interest on interest was not opposed to the public policy of India, but could be awarded only if authorized by contract or statute.
The principles relating to award of interest, in general, are not different for courts and arbitral tribunals, except to the extent indicated in section 31(7) of the Act and CPC. A comparatively high rate of post-award interest is provided in section 31(7)(b) of the Act, not because 18% is the normal rate of interest to be awarded in arbitrations, but purely as a deterrent to award-debtors from avoiding payment or using delaying tactics. In fact a provision similar to section 31(7)(b) of the Act, if provided in section 34 of Code of Civil Procedure, will considerably reduce the travails of plaintiffs in executing their decrees in civil cases.
The Act does away with the distinction and differentiation among the four interest bearing periods, that is, pre-reference period, pendente lite period, post-award period and post-decree period. Though a dividing line has been maintained between pre-award and post-award periods, the interest bearing period can now be a single continuous period the outer limits being the date on which the cause of action arose and the date of payment, subject however to the discretion of the arbitral tribunal to restrict the interest to such period as it deems fit.
Clause (b) of Section 31(7) is intended to ensure prompt payment by the award-debtor once the award is made. The said clause provides that the “sum directed to be paid by an arbitral award” shall carry interest at the rate of 18% per annum from the date of award to the date of payment if the award does not provide otherwise in regard to the interest from the date of the award. This makes it clear that if the award grants interest at a specified rate up to the date of payment, or specifies the rate of interest payable from the date of award till date of payment, or if the award specifically refused interest, clause (b) of Section 31 will not come into play. But if the award is silent in regard to the interest from the date of award, or does not specify the rate of interest from the date of award, then the party in whose favour an award for money has been made, will be entitled to interest at 18% per annum from the date of award. He may claim the said amount in execution even though there is no reference to any post award interest in the award. Even if the pre-award interest is at much lower rate, if the award is silent in regard to post- award interest, the claimant will be entitled to post- award interest at the higher rate of 18% per annum. The higher rate of interest is provided in clause (b) with the deliberate intent of discouraging award-debtors from adopting dilatory tactics and to persuade them to comply with the award.
Whether the Arbitral Award granted future interest from the date of award, only on the principal amount found due to the respondent (that is ₹ 14,94,000/-) or on the aggregate of the principal and interest upto the date of award (Rs.31,98,879/-) - HELD THAT:- The Arbitrator allowed interest at the rate 12% per annum on the total amount of the award, that is ₹ 14,94,000/-, with effect from 19.12.1990 up to the date of the Award. He further directed that in case the “total amount of the award together with this interest” is not paid within 30 days from the date of making the award, future interest shall be paid at the rate 18% per annum on the entire Award from the date of Award upto the actual date of payment - Therefore, what was awarded by the Arbitrator was future interest at the rate of 18% per annum on the amounts awarded on various claims (that is Claim No.1 to 7) in all aggregating to ₹ 14,94,000/- and not upon the interest awarded thereon upto to date of the award. It should be noted that the difference in the interest awarded for the pre-award period and post-award period, is only with reference to the rate of interest and not the quantum of principal (that bears interest).
We allow this appeal, set aside the judgment of the Executing Court dated 5.9.2007 and the order of the High Court 9.9.2008 and hold that the respondent was entitled only to simple interest on the principal amount as per original calculation shown in the Execution Petition.
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2010 (1) TMI 1260 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Whether the share subscription and shareholders agreement executed by and between Subhkam Holding Private Ltd. (now taken over by the appellant), MSK Projects (India) Ltd. (target company) and its promoters in Schedule I to the agreement gives to the appellant ‘control’ over the target company - The case of the appellant is that by virtue of the agreement it did not acquire control over the target company and, therefore, Regulation 12 of the takeover code did not get triggered and that it rightly made the open offer only under Regulation 10. The Board, on the other hand, refers to the various clauses of the agreement and insists that the appellant acquired control over the target company and that it should mention Regulation 12 also in the letter of offer so that proper disclosures are made to the shareholders to enable them to take an informed decision. ‘Control’ carries with it certain responsibilities and obligations which the appellant does not want to be burdened with
Provisions of clause 9 do impose fetters on the target company for purposes of good governance and it is conventional for financial investors to protect their investment and, indeed, the target company itself from the whims and fancies of the promoters who manage the target company. Such fetters fall far short of the existence of “control” over the target company. It must be remembered that every fetter of any nature in the hands of any person over a listed company cannot result in “control” of that person over that company. We also cannot lose sight of the fact that in the instant case even if the entire open offer is accepted and 20 per cent shares are tendered, the appellant would be far short of a simple majority that is necessary for getting an ordinary resolution passed. In these circumstances, we cannot hold that the appellant has gained control over the target company.
HELD THAT:- Having gone through the agreement carefully with the help of the learned counsel for the parties, we are clearly of the view that none of the clauses therein taken individually or collectively demonstrates control in the hands of the appellant. In this view of the matter, Regulation 12 does not get triggered and the Board was not justified in making the appellant incorporate this regulation in the letter of offer. The question posed in the opening part of our order is , thus, answered in the negative.
In the result, the appeal is allowed and the impugned direction contained in the letter dated December 15, 2008 set aside with no order as to costs.
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2010 (1) TMI 1259 - MADRAS HIGH COURT
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... ... ..... category under Section 8(1). In the present case, since there is a statutory bar against the counsel disclosing such an information, which will result in civil consequences for the counsel, Section 8(2) cannot be read in isolation so as to jettison the obligation on an Advocate from disclosing the information, which are privileged and barred by Statutes. 25.In the light of the above discussions, the petitioner is entitled to succeed. The impugned summons issued by the first respondent is liable to be set aside. It is needless to inform the Commission that before ordering any such notice, it is their duty to consider whether disclosure of such information is barred under any law and whether a public authority was statutorily precluded from giving such information to any person. 26.In the result, the writ petition will stand allowed. The impugned summons is hereby set aside. However, the parties are allowed to bear their own costs. Consequently, connected MP will stand closed.
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2010 (1) TMI 1258 - SC ORDER
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... ... ..... , JJ. ORDER Appeal dismissed.
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2010 (1) TMI 1257 - DELHI HIGH COURT
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... ... ..... f delivery of possession part performance and which by law was required to be registered. It has admittedly not been registered. The relationship of the landlord and tenant thus cannot be said to have come to an end. 23. I am pained that notwithstanding there being no ambiguity in law, the suit for ejectment filed by the respondents/plaintiffs has remained stayed for the last over two years for the reason of the petitioner having preferred this petition. No amount of costs can compensate the respondents/plaintiffs for the same. In the circumstances rather than imposing any costs on the petitioner while dismissing the petition and vacating the order staying the proceedings in the ejectment suit, I direct the learned Additional District Judge before whom the suit for ejectment is pending to dispose of the same before 15th April, 2010. Needless to add that any observation made herein shall not prejudice the petitioner/defendant in the suit for specific performance filed by him.
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2010 (1) TMI 1256 - SUPREME COURT
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... ... ..... wrong entry and the respondents failed to join the appellants in getting it corrected. In our view, the High Court was not justified in holding that mere existence of a wrong entry in the revenue records does not, in law, give rise to a cause of action within the meaning of Article 58 of the Act. No other point was urged before us by the learned Counsel for the parties. 11. In view of our discussions made herein above, the impugned judgment of the High Court on the question that the suit was barred by limitation cannot be sustained. Therefore, the judgment of the High Court is set aside and the matter may be remitted back to the High Court for decision on merits. The High Court is requested to dispose of the second appeal at an early date preferably within six months from the date of supply of a copy of this order to it. 12. Accordingly, the impugned order of the High Court is set aside. The appeal is allowed to the extent indicated above. There will be no order as to costs.
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2010 (1) TMI 1255 - KERALA HIGH COURT
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... ... ..... d in the context is the purposive approach which only furthers the objects sought to be achieved by the RTI Act. The plea of the appellants to the contrary, therefore, fails. 28.The long preamble to the RTI Act along with its not so long title, only furthers the conclusions arrived above and in the context, the only guidance available from the preamble to the RTI Act is that the instrumentalities who became accountable are all those through whom the substantial funds under the control of the appropriate Government flow out with the sole expectation that it would be utilised for the common good and never otherwise. 29.We are also in respectful agreement with the views of the High Court of Punjab & Haryana and of the High Court of Allahabad in the decisions referred to, in paragraph 9 above. 30.For the aforesaid reasons, we find no reason to interfere with the findings in the impugned judgment. In the result, these writ appeals fail and are accordingly dismissed. No costs.
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2010 (1) TMI 1254 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
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... ... ..... ed by the Board both against the appellant and its client and they were both found guilty of synchronizing the trades and for executing circular and reverse trades. The adjudicating officer imposed a monetary penalty on both. The client Chaitanya Raote came up in Appeal no. 263 of 2009 and we upheld the order of the adjudicating officer and the findings recorded by him to the effect that the appellant therein through his broker (the appellant herein) were in league with each other while executing circular and reverse trades. The present appeal has been filed by the broker who executed the trades. Since these very trades have already been found to be manipulative and circular in nature, the impugned order has to be upheld. In this view of the matter, no fault can be found with the impugned order passed by the adjudicating officer imposing a monetary penalty of ₹ 4 lacs on the appellant. In the result, the appeal fails and the same is dismissed with no order as to costs.
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2010 (1) TMI 1253 - BOMBAY HIGH COURT
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... ... ..... Workers' Union AIR 1959 SC 1342. Shri. Dwarkadas may be justified in expressing his doubts on the correctness of the said observations of the learned Trial Judge. It appears that the learned Trial Judge intended to suggest that the scheme of the Act does not bar filing of such an application before the Board. Be that as it may, we refrain from expressing any opinion on the issue whether an application for interim relief can be filed and entertained by the Copyright Board. 21. For the reasons set out herein above, this Appeal must fail and the same is hereby dismissed. We confirm the impugned order passed by the learned trial court to the extent it holds that it does not have jurisdiction to try the suit and the suit is dismissed for want of jurisdiction. 22. This order does not prevent the Plaintiff from applying to the Board for expeditious decision on its application pending for compulsory license under Section 31(1)(b) of the Act. 23. Parties to bear their own costs.
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2010 (1) TMI 1252 - DELHI HIGH COURT
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... ... ..... to be decided by the arbitrator himself and the same cannot be adjudicated by the Courts anymore. If that be so then all the pleas which are sought to be raised by the respondent no.5 in the present reply can be raised by them before the learned Arbitrator. Therefore, I do not find that there is any merit in the contentions which are averred in the reply of the respondent no.5 which will in any manner prevent this Court from appointing an arbitrator for adjudication of the dispute. o p /o p 16. For the reasons mentioned above, the objections which have been filed by the respondent no.5 are dismissed. The matter is referred to the sole arbitration of Hon’ble Ms.Justice Usha Mehra, a former Judge of this Court for adjudication between the parties. The learned Arbitrator shall fix her own fees. o p /o p 17. Copy of this order be sent to the learned Arbitrator and be given dasti to the learned counsel for the parties. o p /o p 18. Petition is accordingly allowed. o p /o p
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2010 (1) TMI 1251 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... ation of FUTP Regulations. There is no gainsaying the fact that the violation of FUTP Regulations is, indeed, a very serious violation and definitely more serious than the mere failure to make declarations under the IT Regulations. After hearing the learned Counsel for the parties on this aspect and having regard to the facts and circumstances of these cases, we are satisfied that the ends of justice would be adequately met if the monetary penalty on the Appellants in Appeals No. 44 and 45 of 2009 is reduced to ₹ 3 lacs each. We order accordingly. The impugned orders in these two appeals will stand modified accordingly. In the result, Appeals No. 43, 265, 267 and 279 of 2009 are allowed and the impugned orders set aside. Appeals No. 44 and 45 are partly allowed and the impugned orders stand modified as stated above. Parties will bear their own costs in all the appeals. The Appellants in Appeals No. 44 and 45 of 2009 are allowed six weeks time to pay the penalty amount.
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2010 (1) TMI 1250 - SUPREME COURT
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... ... ..... proved, cannot be construed as an agreement in writing between the parties to the dispute agreeing to refer their disputes to arbitration. 15. We are therefore of the view that there is no arbitration agreement between the parties and the learned Designate committed a serious error in allowing the application under sections 11 and 15(2) of the Act and holding that there is an arbitration agreement between the parties to the dispute and appointing an arbitrator. 16. What has been considered and decided above is only the question whether there is an arbitration agreement or not. We have not examined or recorded any finding as to the existence or validity of the Will dated 21.10.2003 or the declaration dated 15.10.2005 said to have been made by Mr. Durganarayan Sharma, propounded by the respondents and denied by the appellant. 17. In view of the foregoing, this appeal is allowed and the impugned order of the Designate of the Chief Justice appointing an Arbitrator is set aside.
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