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Showing 61 to 80 of 915 Records
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2010 (7) TMI 1172 - ITAT CUTTACK
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... ... ..... isement expenses incurred was for the purpose “advertisement expenses” as professional services rendered by the payees were in the nature of direct payment for professional services was not clarified before the Assessing Officer. The learned Counsel also had no objection if the matter was restored to the file of the AO for consideration afresh to determine whether the provisions of Section 194J were applicable in the case of the assessee on the basis of confirmation of the payments made to the copy writers and artistes. In this view of the matter, therefore, the order of the learned CIT(A) is set aside and the issue is restored to the file of the AO for consideration afresh in the light of the submissions now made before us for carrying out the verification whether the provisions of Section 194J are applicable in the light of the CBDT Circular relied upon by both parties before us. 14. In the light of foregoing, the appeal filed by the assessee is partly allowed.
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2010 (7) TMI 1171 - ITAT CHENNAI
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... ... ..... any to its subsidiary during the previous year relevant to AY2004-05, within the meaning of section 2(22)(e) of the Act. And on this ground alone the impugned addition of ₹ 4,16,12,082, made in AY 2004-05, becomes unsustainable. We hold accordingly. 8. We like to make it clear that we have not gone into the correctness or otherwise of the other reasons, given by the CIT(A) in his order, for deleting the above addition.” On perusal of the above noted conclusion, we find that each and every aspect of the matter has been considered and moreover, the ld. DR could not be able to point out any apparent mistake and as such, while considering the entirety of facts and circumstances, we do not find any valid ground to rectify the order. Therefore, we dismiss the application of the Department being devoid of any merits. 5. In the result, the miscellaneous application of the Department gets dismissed. The order is pronounced soon after the conclusion of hearing on 30.07.10.
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2010 (7) TMI 1170 - SUPREME COURT
Challenged the power of HC issuing writ of mandamus - return of title deeds - public sector Bank "State" under Article 12 - HELD THAT:- On facts we have found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when the Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner.
From the recent decision in Karnataka State Forest Industries Corporation v. Indian Rocks [2008 (10) TMI 719 - SUPREME COURT] It is clear that, (a) in the contract if there is a clause for arbitration, normally, writ court should not invoke its jurisdiction; (b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226; and (c) if the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, writ petition would be maintainable. Hence, Writ petition is maintainable even in contractual matters.
In the case on hand, it is not in dispute that the appellant- Bank, being a public sector Bank, discharging public functions is "State" under Article 12. In view of the settlement of the dues on the date of filing of the writ petition by arrangement made through another Nationalized Bank, namely, State Bank of India and the statement of accounts furnished by the appellant-Bank subsequent to the same i.e. on 14.05.2009 is 0.00 (nil) outstanding, we hold that the High Court was fully justified in issuing a writ of mandamus for return of its title deeds. Therefore, we are unable to accept the claim of the appellant-Bank and on the other hand, we are in entire agreement with the direction issued by the learned Single Judge affirmed by the Division Bench. Consequently, the appeal of the Bank is dismissed. The appellant-Bank is directed to return the title deeds deposited by the respondent-Company within a period of two weeks from today. With the above direction, the civil appeal is dismissed. No order as to costs.
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2010 (7) TMI 1169 - CESTAT CHENNAI
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... ... ..... not been accounted for in the clearances made from the factory. The next submission is that the demand is barred by limitation. This plea is also not found to be acceptable for the reason that in no case of clandestine removal can the plea of time bar be advanced. As regards the finding that excesses have not been taken into account while arriving at shortages, I find that this has also been dealt with by the authorities below. The plea for setting aside of the penalty is also not acceded to, for the reason that I am upholding the charge of clandestine removal. 4. In the light of the Tribunal’s decision in CCE, Chennai Vs. Composite Boards (P) Ltd. - 2009 (244) ELT 561 holding that mismatch in value of clearances as shown in the balance sheet and value of clearances shown in Central Excise returns itself is sufficient to make out a case of clandestine clearance, I set aside the impugned order and allow the appeal of the Revenue. (Dictated and pronounced in open court)
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2010 (7) TMI 1168 - KERALA HIGH COURT
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... ... ..... an amounts were retained as such with those companies i.e. until the amount is converted into equity, so far no interest was received or agreed to be paid by the loanee companies. Since there is no accrual or receipt of interest, Tribunal cancelled the assessment of interest income. We are in complete agreement with the finding of the Tribunal because the loans were later treated as advance made for investments in equity i.e. for purchase of shares and so long as department has no case that interest accrued to the assessee, there is no scope for assessment. In view of the finding of facts rendered by the Tribunal based on which they rejected the department's case, we see no reason to interfere with the Tribunal's order. In fact, the other questions raised by the department in their appeals are not seen considered by the Tribunal. Therefore, those questions do not arise from orders of the Tribunal. Consequently we dismiss all the three appeals filed by the department.
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2010 (7) TMI 1167 - CESTAT CHENNAI
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... ... ..... the Revenue. 2. I have heard both sides I find that the issue now stands squarely settled against the assessees by the Larger Bench decision of the Tribunal reported in 2010 (253) ELT 440 in the case of Vandana Global Ltd. & Others. Following the ratio of the above decision, I set aside the impugned orders in so far it relates to setting aside of demands and interest. However, I agree with the ld. counsel for the respondents that this is not a case where penalty is warranted, in view of the conflict of decisions leading to the reference of the case to a Larger Bench. I therefore set aside the penalties. 3. The appeals of the Revenue are thus partly allowed as above. (Dictated and pronounced in open court)
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2010 (7) TMI 1166 - DELHI HIGH COURT
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... ... ..... ce on record and allow cross examination of defence witnesses by complainant. Step IV To hear arguments of both sides. Step V To pass order/judgment. 18. In all above Criminal Miscellaneous Petitions the petitioners have come to this Court raising one or the other defence. I consider that since summoning order in all these cases have been issued, it is now the obligation of these petitioners to take notice under section 251 of Cr. P.C., if not already taken, and enter their plea of defence before the concerned MM court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witness, they should do so before the Court of MM. These petitions are, therefore, hereby dismissed. 19. The petitioners shall appear before the Court of concerned MM and trial shall proceed as stated above. A copy of this judgment be sent to all District Judges for circulation among Officers of DJS and DHJS.
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2010 (7) TMI 1165 - ITAT AHMEDABAD
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... ... ..... aluers/surveyors and Chartered Consulting Engineers recognized by C.C.E, Nagpur and factory Inspector of Gujarat and Maharashtra. We find that these are new evidence and this was not confronted to Assessing Officer while asking remand report from Assessing Officer. Accordingly, we are of the views that this needs re-verification at the level of AO as argued by Ld. SR-DR. Ld. counsel for assessee fairly agreed that he has no objection in case the matter be set aside to the file of Assessing Officer for considering the fresh evidence and decide the issue. Accordingly, we set aside this issue to the file of Assessing Officer to consider the certificate of Chartered Consulting Engineers recognized by C.C.E, Nagpur and Factory Inspector of Gujarat and Maharashtra. This issue of the Revenue’s appeal is set aside to the file of Assessing Officer. 7. In the result, Revenue’s appeal is partly allowed for statistical purposes. Order pronounced on this day of 23rd July,2010
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2010 (7) TMI 1164 - ITAT CHENNAI
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... ... ..... fore, in our opinion, assessee’s claim for depreciation should not be restricted in the manner made by the Assessing Officer. Therefore, disallowance of ₹ 1,17,00,000/-, 13 lakhs, 23,51,576/- and ₹ 5,73,824/- on account of depreciation claim stands cancelled. Ground Nos. 5 to 19 of the assessee stand allowed. 5. As for the decision of Delhi Bench in Nestle India Ltd.’s case (supra) relied on by the Ld. DR, it was regarding a claim of depreciation on UPS attached to a computer and has no relevance whatsoever on facts here. 6. We, therefore, have no hesitation to quash the disallowance of depreciation made. Such disallowance stands deleted.” 8. Hence we have no hesitation to hold that the assessees concerned were eligible for depreciation on windmills including civil work and electrical fittings. The A.O. is directed to allow depreciation accordingly. 9. In the result, the appeals stand allowed. The order was pronounced in the Court on 09-07-2010.
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2010 (7) TMI 1163 - BOMBAY HIGH COURT
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... ... ..... omplainant is at Mumbai and the cheque was deposited in Mumbai and notice also was received at Mumbai, the Magistrate s Court would have jurisdiction to try the matter. So far as other two grounds raised by the learned counsel for the petitioner are concerned, the said grounds cannot be decided on the basis of the documents which are sought to be relied upon by the learned counsel for the petitioner. These two issues will have to be considered by the trial Court after evidence is led by the parties. 5 Hence, there is no merit in the submissions made by the learned counsel for the applicant. Criminal application is dismissed. 6 The petitioner is exempted from appearing in the trial Court. The plea of the petitioner be recorded through his Advocate and his statement under section 313 of the said Code be recorded through his Advocate provided the applicant gives an undertaking that he shall not dispute his identity and that he shall not raise any objection to the answers given.
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2010 (7) TMI 1162 - GUJARAT HIGH COURT
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... ... ..... e addition in relation to interest expenditure. However, before the Tribunal, the Assessing Officer had pointed out that interest amounting to ₹ 42,87,359/- had not been paid to the Rajkot Nagrik Sahakari Bank and as such was not allowable under section 43B of the Act. The Tribunal, therefore, confirmed the addition to the extent of ₹ 42,87,359/- since the assessee had not paid the amount and deleted addition to the extent of ₹ 1,69,12,024/-. The conclusions arrived at by the Tribunal in relation to proposed question no.2 are merely by way of necessary corollary to the conclusion arrived at in relation to proposed question no.1 and as such do not give rise to a question of law as proposed or otherwise. 10. In the light of the aforesaid, it cannot be said that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference. In absence of any question of law, much less any substantial question of law, the appeal is dismissed.
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2010 (7) TMI 1161 - DELHI HIGH COURT
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... ... ..... he interim order dated 17th May, 2010 is hereby vacated so far as it relates to property No.H-32, Kailash Colony, New Delhi i.e. the suit property. 24. As regards the interference of Defendants in the business of Plaintiff No.1 being carried out at 5229, Shradhanand Marg, G.B. Road, Ajmeri Gate, Delhi, it is made clear that Defendants who have already started their separate business in a rented shop will not interfere in the business activities of Plaintiff No.1 in the said shop without prejudice to their rights in the business till final disposal of the case on merits. However, it is expected from Plaintiff No.1, being father, to ensure that if he along with his sons cannot carry on his business in the same premises, to make appropriate arrangements to rehabilitate the Defendants, being his sons, by providing necessary financial assistance, if need be. 25. Applications stands disposed of accordingly. CS(OS) No.967/2010 26. List on 6th September, 2010 before Joint Registrar.
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2010 (7) TMI 1160 - SUPREME COURT
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... ... ..... supra) to the facts of the present case. 38. Two other judgments cited by the learned counsel for the respondent rendered in the case of Hamda Ammal Vs. Avadiappa Pathar and 3 others reported in (1991) 1 SCC 715, and that of A. Jithendernath Vs. Jubilee Hills Coop. House Building Society and another reported in (2006) 10 SCC 96, are on Section 47 of the Registration Act to the effect that the title passes retrospectively with effect from the date of execution and not from the date of registration. These are accepted legal principles on which there can be no debate but they have no application to the facts of this case. 39. For the reasons discussed above the appeal is allowed. We are constrained to set aside the judgment of the High Court and restore that of the District Judge. No order as to costs. CIVIL APPEAL No.4432 OF 2003 40. For the reasons discussed above and in view of the order passed in Civil Appeal No. 7226 of 2002, this appeal is dismissed. No order as to costs.
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2010 (7) TMI 1159 - SUPREME COURT
Necessary party nor a proper party - lease of the airport - powers of AAI necessary for performance of the functions - appellant claims to have undertaken several developmental activities to make it a world class airport - Whether the appellant is a necessary or proper party to the suit for specific performance filed by the first respondent - According to the appellant, the Mumbai airport is surrounded by developed (constructed) areas with very limited opportunities to acquire any land and the site constraints limit the possibilities for development and therefore it was necessary to make optimum use of the existing land in the airport for the purpose of modernisation and upgradation; and therefore, the disputed land which was lying idle, was required for modernisation. It therefore filed an application seeking impleadment as an additional defendant in the pending suit filed by the first respondent against AAI, contending that its interest was likely to be directly affected if any relief is granted to the first respondent-plaintiff in the suit. The appellant alleged that the Information Memorandum proposing to privatise the management did not exclude the area which was the subject-matter of the suit; and that the suit plot could not however be leased to the appellant in view of the interim order in the pending suit of the first respondent.
HELD THAT:- The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code'), which provides for impleadment of proper or necessary parties.
A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. First respondent - plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title, in the property in dispute.
The appellant as lessee may certainly have the powers of AAI necessary for performance of the functions that have been assigned to them. What has been assigned is the function of operation, management and development agreement with reference to the area that been demised. Obviously the appellant as lessee of the Airport cannot step into the shoes of AAI for performance of any functions with reference to an area which has not been demised or leased to it.
Appellant contended that Mumbai airport being one of the premier airports in India with a very high and ever increasing passenger traffic, needs to modernise and develop every inch of the airport land; that the suit land was a part of the airport land and that for the pendency of first respondent's suit within an interim order, AAI would have included the suit land also in the lease in its favour - This does not in any way help the appellant to claim a right to be impleaded. If the interim order in the suit filed by the first respondent came in the way of granting the lease of the suit land, it is clear that the suit land was not leased to appellant. The fact that if AAI succeeded in the suit, the suit land may also be leased to the appellant is not sufficient to hold that the appellant has any right, interest or a semblance of right or interest in the suit property. When appellant is neither claiming any right or remedy against the first respondent and when first respondent is not claiming any right or remedy against the appellant, in a suit for specific performance by the first respondent against AAI, the appellant cannot be a party. The allegation that the land is crucial for a premier airport or in public interest, are not relevant to the issue. Appeal dismissed.
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2010 (7) TMI 1158 - ANDHRA PRADESH HIGH COURT
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... ... ..... Section 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the Revision Petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration. 13. Accordingly, the docket order, dated 03-02-2010 in I.A. No. 383 of 2009 in O.S. No. 103 of 2009 on the file of the Principal Junior Civil Judge's Court, Siddipet, is set aside and the trial Court shall determine on merits, in accordance with law, the objections of the Revision Petitioner/plaintiff against the marking and admissibility of the document on the grounds of insufficiency of stamp and want of registration before marking the document during the interlocutory enquiry. 14. The Civil Revision Petition is allowed accordingly. No order as to costs.
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2010 (7) TMI 1157 - ITAT, MUMBAI
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... ... ..... ch defines revenue recognition in respect of services rendered, the revenue is recognised when substantially all of the acts have been completed. Since in the instant case although the amount of ₹ 3,38,250 has been received on 31st March, 2004, but the fact remains that the ship has started sailing only 1st April, 2004. Since the assessee has already offered the amount of ₹ 3,38,250 as its receipt in the accounting period 1.4.2004 to 31.3.2005, therefore, the addition of the same to the total receipt for the impugned assessment year under the peculiar facts and circumstances of the case, in our opinion, will amount to double addition which is not justified. In this view of the matter, we set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition of ₹ 3,38,250. The ground raised by the assessee is accordingly allowed. 9. In the result, the appeal filed by the assessee is allowed. Pronounced in the open court on 16th July, 2010.
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2010 (7) TMI 1156 - BOMBAY HIGH COURT
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... ... ..... ed today i.e. 14.7.2010. Same are taken on record and marked “X” for identification. There shall be an order in terms of the Minutes of Order. 2. Arbitration Petition is disposed of accordingly. Refund of Court fees granted as per rules.
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2010 (7) TMI 1155 - SUPREME COURT
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... ... ..... appellants that the opportunity of hearing was required to be given to the appellants before issuance of Notification dated April 15, 2000 has no merit for more than one reason. For one, this contention is founded on the premise that the order of the Hearing Authority dated October 11, 1999 is the order of the State Government. Secondly, what Section 21 of the General Clauses Act requires is that the authority empowered to issue notification must exercise its power to rescind such notification in the like manner. We have already noticed in the preceding discussion that the Notification dated April 15, 2000 has been made in the same manner as the earlier Notification dated April 16, 1999. Conclusion 44. For the reasons given above, we hold that the Notification dated April 15, 2000 is valid and does not suffer from any legal flaw and, accordingly, dismiss these appeals with no order as to costs. Interlocutory applications for impleadment stand disposed of, as indicated above.
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2010 (7) TMI 1154 - SUPREME COURT
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... ... ..... djudication of the rights of the parties. 11. During the course of arguments this was also brought to our notice that most of the respondents in the present appeal have already retired from service and there exist no justification for affecting any recoveries from their salaries as they have already worked and received their salaries as granted by the Union of India itself. 12. For the reasons afore stated, we find no legal infirmity in the judgments of the Tribunal and the High Court. While dismissing this appeal we make it clear that this judgment will not affect the right of Union of India to pass an appropriate order in relation to the pay scales applicable to any class of its employees including the respondents afresh and in accordance with law. We do hope that if such an order is passed it will be upon proper application of mind and after taking into consideration appropriate material and/or data. 13. The appeal is dismissed leaving the parties to bear their own costs.
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2010 (7) TMI 1153 - MADRAS HIGH COURT
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... ... ..... roduced any income for the secured creditor for more than 180 days and also there was default on the part of the borrower as provided under Section 13(2). In the given case, non- payment of dues availed is on credit facilities. In such situation, the petitioners shall fall within the definition of 'borrower' as defined under Section 2(f) of the Act and the credit facilities shall be considered to be overdues beyond the maximum period fixed in the R.B.I. guidelines. 19. From the above statements, it cannot be said that the action of the bank is either arbitrary or unreasonable in declaring the assets of the petitioners as non-performing assets. In view of the available materials placed before this Court, it would not be proper to interfere with such discretion. 20. For the above reason, we find no merit to interfere with the impugned notice dated 04.01.2010. Accordingly, both the writ petitions are dismissed. No costs. Consequently, connected M.Ps. are also dismissed.
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