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Showing 1 to 20 of 1393 Records
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2020 (12) TMI 1397 - JAMMU AND KASHMIR HIGH COURT
Seeking grant of bail (successive bail application) - Smuggling - Herion (Chitta) - illicit trade of sale and purchase of narcotic substance - offences under Sections 8/21/22 NDPS Act - whether or not successive bail applications will lie before this Court? - HELD THAT:- The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.
There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C. - It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.
The quantity of contraband allegedly recovered from the accused does not fall within the parameters of 'commercial quantity' and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.
The respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. It is not the case of the respondents that any further recovery is to be effected from the petitioner. As per the status report filed by the respondents, the challan has already been filed before the trial Court. Thus, further incarceration of the petitioner in the instant case cannot be justified. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.
The petitioner is admitted to bail subject to the conditions imposed - petition allowed.
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2020 (12) TMI 1396 - GUJARAT HIGH COURT
Challenged the Order in original, Appeal and Revision - Confiscation of Aluminum Coated Gold Wires - Penalty - failed to prepare any seizure report at the time of the seizure of the goods - seeking Release and return back to the petitioner the impugned goods (Aluminum Coated Gold Wire) in terms of section 125(1) of Customs Act, 1962 - violation of Section 112(a) - Whether the omission or failure on the part of the concerned officer to draw a separate seizure memo along with the panchnama would render the seizure illegal and thereby vitiate all the subsequent proceedings right upto the confiscation of the goods seized - HELD THAT:- There is no justification for the acceptance of the contention that omission or failure to draw a separate seizure memo u/s 110 of the Act is sine qua non for taking action u/s 124 of the Act. These two sections are entirely independent to each other. There is no substance in the contention that if no separate seizure memo under Section 110 of the Act is prepared, the same will render the seizure of the goods by itself illegal and the authority u/s 124 of the Act will also have no jurisdiction thereafter to proceed with the confiscation proceedings or with the imposition of penalty. The words used in Section 112 and Section 124 respectively of the Act are “any goods” and “any person”. These words are of the widest import and they cannot be given a restricted meaning. There is nothing in these provisions to indicate that the goods in respect of which an order of confiscation or penalty can be passed u/s 111 and Section 112 respectively must be the goods seized under the provisions of Section 110 of the Act.
It would be too much for this Court to take the view that in the absence of a separate seizure memo the authorities could not have proceeded further or assumed jurisdiction for the purpose of confiscation of the goods. “To confiscate” would mean to adjudge goods or property to be forfeited to the public domain and to deprive the owner of the right of ownership of the same. It cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. Similarly, personal penalty can be imposed even when the goods have not been seized. Such a situation is contemplated by clause (b) of Section 112 of the Act.
At the cost of repetition, we state that it would be too much to say that the omission or failure to draw or prepare a separate seizure memo along with the panchnama would render all subsequent proceedings bad in law. Thus, we reject the first contention of Mr.Shastry as regards Section 110 of the Act.
Whether clause (a) or clause (b) of Section 112 would apply or both, failing which the proceedings would be liable to be quashed - In our opinion, there is nothing in Section 112 which requires that means rea must be proved before penalty can be levied under that provision. If on facts, it is found that the assessee had made a false representation, Section 112 is with regard to penalty for improper importation of goods. It is the blameworthy and suspicious conduct which is, indeed, the sine qua non for invoking the provision of Section 112 of the Act. Once a finding is recorded by the competent authority that the writ-applicant herein attempted smuggling of gold by concealing the same without payment of the Customs duty, coupled with the fact that the writ-applicant had handed over the Indian Customs Declaration Form (Disembarkation Slip) declaring that he was not carrying/ having any dutiable articles before the Customs Officer on duty, that would clearly attract the provisions of Section 112 of the Act and, in our opinion, no further finding is required that the assessee had also the mens rea.
Whether, such goods are legally or illegally imported - fall within Section 11 of the Customs Act, 1962 - A conjoint reading Sections 2(33), 11 or 11A of the Act and other provisions in the Customs Act, 1962, and any other law, for the time being in force, would also make it clear that importation of goods, defined as illegal or prohibited or without complying with the conditions, or in violation of statutory provisions in the Customs Act, 1962 or any other law for the time being in force and in all cases, whether there is either total prohibition or restriction, in the light of the judgment of the Supreme Court in Om Prakash Bhatia's case [2003 (7) TMI 74 - SUPREME COURT] such goods should fall within the definition of Prohibited goods. When import is in contravention of statutory provisions, in terms of Sections 11 or 11A of the Customs Act, 1962 or any other law, for the time being in force and when such goods squarely fall within the definition 'illegal import', or the other provisions in the statute, dealing with prohibition/restriction, the same are to held as, "prohibited goods" and liable for confiscation.
If there is a fraudulent evasion of the restrictions imposed, under the Customs Act, 1962 or any other law for the time being in force, then import of gold, in contravention of the above, is prohibited. For prohibitions and restrictions, Customs Act, 1962, provides for machinery, by means of search, seizure, confiscation and penalties. Act also provides for detection, prevention and punishment for evasion of duty.
The expression, 'subject to prohibition in the Act and any other the law for the time being in force.' in Section 2(33) of the Customs Act, has wide cannotation and meaning, and it should be interpreted, in the context of the scheme of the Act, and not to be confined to a narrow meaning that gold is not an enumerated prohibited good to be imported into the country. If such narrow construction and meaning have to be given, then the object of the Customs Act, 1962, would be defeated.
The Provisions in the Customs Act, 1962, dealing with prohibition/restriction or any other law for the time in force, have to be read into Section 2(33) of the Act. Section 11A of the Act, as to what is 'illegal import', cannot be thrown to winds, while interpreting, 'what is prohibited goods', in terms of Section 2(33) of the Customs Act, 1962. To add, while interpreting Section 2(33) of the Customs Act, 1962, as to what is prohibition, imposed in other laws, for the time being in force, one cannot ignore, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, rules framed by way of delegated legislation, like the Baggage Rules, 1998, framed in exercise of the powers conferred under Section 79 of the Customs Act, 1962 or for the matter, Section 77 of the Customs Act, 1962, which mandates, the owner of the baggage for the purpose of clearing the goods, to make a declaration of the contents of the baggage to the proper office and also the customs Notification No.3/2012, dated 16.01.2012, that only passengers of Indian origin or a passenger in possession of a valid passport, issued under the Passport Act, 1967, who have stayed abroad for six months and above alone are eligible to import gold of foreign origin and clear the same on payment of customs duty, at the rate prescribed.
Thus, in the overall view of the matter, we are convinced that no case is made out by the writ-applicant for grant of any relief as prayed for in this writ-application.
In the result, this writ-application fails and is hereby rejected.
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2020 (12) TMI 1395 - CALCUTTA HIGH COURT
Wilful defaulter - appellants contend that although a demand for payment was made against the borrower company no demand was made against them - HELD THAT:- The right of a borrower on review is very fundamental and extensive. It is not the type of review on the narrow grounds conceived of by Order 47 Rule 1 of the Code of Civil Procedure. When the representation is required to be full on facts and law the consideration is also required to be detailed with reasons on each and every point raised. The question whether a copy of the order of the identification committee was served on the appellants or whether upon service the appellants did not make any representation before the review committee, not gone into. These are questions of fact, not discussed by the review committee. There is no scope to enter into this controversy at the appellate stage. The records as shown to us are silent on this point. The communication dated 4th January, 2017 only tell us that the review committee had declined to review the order of the decision of the identification committee.
When a relevant fact is not considered while exercising this discretion, the considerations are different and the appeal court has the jurisdiction to set aside or modify the interim order appealed against - It is true that this order of the NCLT was not in existence at the time the review was made by the said committee. It is in existence now. For doing complete justice to the case, it is important that this development is also considered by the review committee.
Fresh opportunity granted to the appellants to approach the review committee - application disposed off.
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2020 (12) TMI 1394 - SUPREME COURT
Seeking grant of anticipatory bail - illegal abduction - delay in lodging FIR - HELD THAT:- Number of submissions have been made by the learned counsel appearing on behalf of the appellant-accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, it is not proposed to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties.
However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar [2011 (12) TMI 656 - SUPREME COURT] and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, it is opined that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings.
This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law. It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar, all of a sudden, now the informant – brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.
Looking to the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh – approvers only, it is opined that the appellant has made out a case for anticipatory bail.
The impugned judgment and order passed by the High Court, as well as, the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside - petition allowed.
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2020 (12) TMI 1393 - GUJARAT HIGH COURT
Seeking grant of regular bail - entitlement of benefit of parity - HELD THAT:- Taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail in connection with FIR being C.R. No. 11993005200314 of 2020 registered with Adesar Police Station, District Kutch-Gandhidham (East) on executing a personal bond of Rs. 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.
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2020 (12) TMI 1392 - GUJARAT HIGH COURT
Grant of regular bail - seeking benefit of parity - HELD THAT:- Perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail subject to the conditions imposed - application allowed.
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2020 (12) TMI 1391 - KARNATAKA HIGH COURT
Seeking direction to consider the representation dated 1.8.2019 by the petitioner’s husband - HELD THAT:- The writ petition is disposed of directing the second respondent, the Tahsildar, Kanakapura Taluk, Ramanagar District, to consider the representation of the petitioner’s husband and take suitable action in accordance with law within eight weeks from the date of receipt of a certified copy of this order.
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2020 (12) TMI 1390 - SUPREME COURT
Seeking the quashing of the allotment of the contract in favour of the Appellant - fulfilment of Condition No. 27 of the N.I.T. of holding work experience of at least 5 years or not - HELD THAT:- In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings.
Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court.
Also, the argument that the Appellant has submitted work experience certificates in the name of “Galaxy Agencies”, which is a separate entity from “Galaxy Transport Agency”, has not been argued either before the Single Judge or before the Division Bench. In this circumstance, we reject this point also.
The Division Bench’s judgment dated 16.10.2020 is therefore set aside and the learned Single Judge’s judgment dated 30.06.2020 is restored - Appeal disposed off.
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2020 (12) TMI 1389 - ITAT DELHI
Accrual of income - income accrued but not received has not been accounted for by the Assessee - assessee claimed royalty payment on accrual basis on the basis of the quantification as per the existing guidelines of the Office of the Directory General of Hydrocarbon (DGH) - system of accounting is being followed consistently - change of accounting policy which is also changed according to the CAG report which is mandatory for the Assessee Board to follow - HELD THAST:- It is pertinent to note that the assessee has followed the same method of accounting which is receipt basis for taking remittance on DGH as an income. The change in account in policy in reference to CAG’s observation/report was basically to strengthen the fund management of the Assessee Board. The assessee accounted for Rs. 4657 lacs as an income from the sale of data from DGH.
From the perusal of the records it can be seen that from accounting purposes it is taken as outstanding on 31st March, 2008 and a sum was realized in the next assessment year and has been accounted for as income. This fact was no where denied by the Revenue. Thus, the CIT(A) has totally ignored this aspect and simply on the basis of change of accounting policy which is also changed according to the CAG report which is mandatory for the Assessee Board to follow, confirmed the addition. The same is not justified as the accounting policy principles were thoroughly followed by the Assessee Board and the income was reported for A.Y. 2009-10 which is next assessment year. There is no revenue loss as well. Therefore, the Assessing Officer as well as the CIT(A) was not correct in making addition.
Addition of Royalty payable to State Government being prior period expense - CIT(A) has given a categorical finding that the royalty payable to Arunachal upto December 2008, the assessee has debited such expenses on the mercantile basis and since these liabilities of payment of royalties have been provided in the relevant year in pursuance of the DGH letters dated 23.03.2009 and 27.03.2009 having detailed working. Once the royalty expenses have been crystallized in the relevant Assessment Year, these are not the contingent liability when the genuineness of the same is not questioned by the Revenue authorities. Hence, there is no need to interfere the findings of the CIT(A).
Assessee is allowed and appeal of the revenue is dismissed.
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2020 (12) TMI 1388 - ORISSA HIGH COURT
Benefit of extension of superannuation age to 65 like the AYUSH doctors - HELD THAT:- Though the petitioner is functioning as Researcher under the Research Council/National Institute, but as requirement for upgrading the research skill, he treats patients in the OPD and IPD. In fact, he performs similar nature of duties like AYUSH doctor. Though his service condition is covered by different laws, but for all practical purposes, the petitioner is performing like a doctor. Though there is a clear-cut distinguishing features between the AYUSH doctor and that of the petitioner. The petitioner herein is also treating the patients like AYUSH doctors in OPDs and IPDs on regular basis.
The learned CAT, Cuttack Bench, Cuttack has failed to consider the petitioner’s duty and devotion in treating the OPD and IPD patients. Hence, the order dated 02.11.2020 passed by the learned CAT, Cuttack Bench, Cuttack is liable to be quashed and accordingly, it is quashed.
This Writ Petition is accordingly allowed and pending applications, if any, stand disposed of.
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2020 (12) TMI 1387 - BOMBAY HIGH COURT
Prayer for initiating contempt proceedings against respondent No. 1, who is Civil Judge, Junior Division and Judicial Magistrate First Class, Chiplun, District Ratnagiri - allegation of disregarding the binding precedents of the Superior Courts - HELD THAT:- The respondent No. 1 has already been summoned by this Court on the administrative side and has been properly counseled pursuant to the similar complaint of the petitioner. It appears that respondent No. 1 has been properly and suitably counseled on the administrative side of the High Court.
We hope and trust that in future respondent No. 1 will exercise his judicious mind while dealing with judicial work with greater care, caution and circumspection.
Contempt Petition stands disposed of.
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2020 (12) TMI 1386 - HIMACHAL PRADESH HIGH COURT
Cancellation of process of determining roster, undertaken by Sub Divisional Officers (Civil) in District Hamirpur, on the ground that said process was not in conformity with Rule 10 of Election Rules and provisions of the Act - HELD THAT:- Election Rule 10 prescribes the Deputy Commissioner as an authority who shall issue notice under Rule 10 (8) and who shall give wide publicity with respect to reservation made by him under Rule 10(11). Deputy Commissioner is Officer who is also District Election Officer (Municipalities) under Rule 32(1) of Himachal Pradesh Municipal Election Rules, 2015 and he has no authority to delegate his powers conferred upon him under Rule 10 of Election Rules. Therefore, he was not empowered to appoint or depute SDO (Civil) to undertake the process under Rule 10 of Election Rules. Therefore, his action authorizing SDO (Civil) to undertake process under Rule 10 was contrary to law.
In order to attract Section 18 of the Himachal Pradesh General Clauses Act, SDO (Civil), subordinate to Deputy Commissioner at the time of undertaking the process under Rule 10 of Election Rules, must be lawfully performing the duties of the office of Deputy Commissioner as District Election Officer (Municipalities). In present case while undertaking the process under Rule 10 of Election Rules, SDO (Civil) was not working as a subordinate lawfully performing the duties of office of Deputy Commissioner, nor he could be, as Deputy Commissioner acting as District Election Officer (Municipalities) was not empowered to delegate his powers as District Election Officer and appoint his subordinate to exercise his function.
It is settled position of law that power to do includes the power to undo. As provided under Section 20 of Himachal Pradesh General Clauses Act, power to make an order includes power to add to, amend, vary or rescind the said order. Therefore, Deputy Commissioner by passing impugned order dated 27.8.2020 has not exceeded his jurisdiction, rather has acted lawfully in order to rectify his mistake and to correct the wrong, as Act and Rules do not empower him to delegate his power to his subordinates and to authorize SDO (Civil) to undertake process under Rule 10 of Election Rules.
As the authority to undertake the process under rule 10 of Election Rules was illegal and contrary to law, therefore, process for reservation and rotation of seats undertaken by SDO (Civil) was also illegal, null and void and, therefore, cancellation thereof by Deputy Commissioner does not warrant any interference.
There is nothing on record to substantiate the plea of the petitioner that Deputy Commissioner has acted malafide or impugned action is violative of Article 14 of the Constitution of India. For discussion hereinabove, his action and decision cannot be said to be arbitrary or contrary to law, hence warrants no interference.
Petition dismissed.
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2020 (12) TMI 1385 - APPELLATE TRIBUNAL UNDER SAFEMA, NEW DELHI
Money Laundering - attachment of properties through PAO - proceeds of crime - appellant is a bona fide third party or not - initiation of actions against mortgaged properties under SARFAESI Act, 2002 - the provisions of Prevention of Money Laundering Act, 2002 override the provisions of SARFAESI Act, 2002 or not - the jurisdiction of this Appellate Tribunal under Section 26(4) of the PMLA to modify or set aside the impugned order is curtailed by second proviso to Section 8(8) as alleged by the respondent, or not - material for the formation of “reason to believe” under Section 5(1) of PMLA, 2002 or not - applicability of Section 3 of the PML Act, 2002.
First submission of appellant is that the appellant is a bona fide third party and has acquired interest in the properties in question at a time anterior to commission of alleged schedule offences - HELD THAT:- Admittedly, neither the appellant nor any of its officials have been named in the FIR or ECIR but that does not mean that the property attached would be released in favour of the appellant, in view of the allegations of the respondent that the properties in question are involved in proceeds of crime. The appellant has not been named may be because of the fact that the appellant is not involved in commission of the crime. The appellant has filed certain documents on 27.11.2020 in support of his contention that due diligence was followed which includes (a) copy of legal verification report, (b) copy of CIBIL reports of the borrowers, (c) copy of valuation reports of secured assets and (d) copy of memorandum submitted to credit committee for approval of loan to borrowers - Even though, the appellant has shown some diligence before sanction of the loan but the attachment under consideration cannot be lifted as any release of attachment from the questioned properties in favour of the present appellant is tantamount to depriving the Consortium of Banks of their money and jeopardizing their interest - thus, even if the appellant is considered as a bona fide third party then also the order of attachment cannot be set aside or modified due to the fact that prima facie allegation is that the proceeds of crime have been travelled to acquire the properties in question. Therefore, this legal submission is not acceptable.
The second legal submission made by the appellant that it is a secured creditor being a bona fide third party had initiated actions against mortgaged properties under SARFAESI Act, 2002, and rules framed thereunder prior to the order of attachments under PMLA - HELD THAT:- While dealing with first legal submission, it is already held that the properties in question, prima facie appears to have been acquired out of the proceeds of crime and merely because the provisional attachment order was passed subsequent to the initiation of proceedings under SARFAESI Act that does not ipso facto create a right in favour of the appellant to claim priority of right over the properties in question particularly in the present facts and circumstances of the case where proceeds of crime has been used to acquire the properties in question - this legal submission is also not acceptable.
The third legal submission of the appellant is that the provisions of Prevention of Money Laundering Act, 2002 do not override the provisions of SARFAESI Act, 2002 - HELD THAT:- The learned counsel for the appellant, during the course of argument submitted that this Tribunal is bound by the judgment of the Hon’ble High Court having territorial jurisdiction in the event any conflict in the judgment of two High Courts on the same issue. In my view, there is no conflict in the judgment passed by the Division Bench of the Hon’ble High Court in PNB Housing Finance case [2020 (2) TMI 1685 - PUNJAB & HARYANA HIGH COURT] and the judgment of Hon’ble High Court of Delhi passed by Single Bench in Axis Bank case [2019 (4) TMI 250 - DELHI HIGH COURT] so the jurisdictional question raised by the appellant does not apply to the present facts and circumstances of the case.
The fourth legal issue raised by the learned counsel for the appellant that the jurisdiction of this Appellate Tribunal under Section 26(4) of the PMLA to modify or set aside the impugned order is not curtailed by second proviso to Section 8(8) as alleged by the respondent - HELD THAT:- This legal issue has arisen in view of the submissions made by the learned counsel for the respondent that the prosecution complaint has already been filed before the Special Court and cognizance has already been taken and in view of that the appellant should approach the Special Court to lay its claims for release of the properties. According to the learned counsel for the respondent, once the cognizance is taken, it amounts to beginning of criminal trial in the court - the submission made by the learned counsel for the respondent not agreed upon that this Tribunal has no jurisdiction to pass any order on the legality of attachment order passed by the respondent and confirmed by the Adjudicating Authority - the contention of the learned counsel for the respondent not agreed upon that this Tribunal has no jurisdiction to pass an order or on impugned order confirming/setting aside or modifying the attachment particularly when the charges are yet to be framed and the trial is yet to begin.
The fifth legal submission made by the learned counsel for the appellant that there is no material for the formation of “reason to believe” under Section 5(1) of PMLA, 2002 - HELD THAT:- In the present case, neither party has filed the copy of the provisional attachment order or the copy of the O.C. But on perusal of para 3 to 26 of the impugned order, the details have been mentioned about how the proceeds of crime have been used to acquire the properties and para no. 27 to 29 of the impugned order are the conclusions arrived at by the complainant on reason to believe. Therefore, it appears that there is compliance with regards to the reason to believe - there is no merit in these legal submission of the appellant.
The last legal submission made by the appellant is that Section 3 of the PML Act, 2002 is not applicable in the present matter - HELD THAT:- The appellant is admittedly neither an accused in the FIR nor in the ECIR nor there is any material on record that the present appellant is arrayed as an accused in the prosecution complaint in which the properties involved herein are part of the prosecution complaint. The proceedings before this Tribunal is to examine the legality or infirmity in the impugned order passed by the Adjudicating Authority not of the persons who alleged to have committed the offence of money laundering. Therefore, it is felt that there is no necessity to record any finding on this legal issue.
There are no illegality or impropriety in the impugned order passed by the Adjudicating Authority and it is held that the appeal has no merit - appeal dismissed.
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2020 (12) TMI 1384 - KERALA HIGH COURT
Suit for damages alleging medical negligence filed by the young man - any injury was caused to the plaintiff or not - person negligent - quantum and the person liable to pay the compensation.
Whether the plaintiff pleaded the material facts to constitute negligence? - HELD THAT:- Order 6 rule 2 of the Code of Civil Procedure, 1908, states that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading, relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved. As observed by Courts, far too often, pleadings are to be interpreted not with formalistic rigour but with the full awareness of the legal literacy levels of the litigants and also the nature of the case - The purpose of pleadings is to intimate the opposite party about the nature of the case that is set up against him.
The pleadings in the plaint, in the instant case, constitute sufficient material pleading, to put the defendants in the knowledge of the case of the plaintiff. The point is answered accordingly.
Whether Ext. B1 is admissible in evidence? - HELD THAT:- There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it - The finding of the learned Sub Judge, that Ext. B1 is inadmissible in evidence, is correct and justified in the circumstances and therefore, warrants no interference.
Whether the defendants were negligent during the surgery resulting in injury to the plaintiff and whether the plaintiff is entitled to claim damages? - HELD THAT:- It may be of relevance to refer to Ext. B1(a) which is the photocopy of the consent given by the plaintiff for the surgery. Even though the said document has many of the flaws that could be attributed to Ext. B1, still, since the signature in Ext. B1(a) is admitted, the same is looked into for the limited purpose of identifying the possible mishaps which were in contemplation for which consent was given. In none of the possible outcomes referred to in Ext. B1(a), is there a complication referred to or mentioned, of the nature that occurred to the plaintiff. The disability now suffered by the plaintiff is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal complication that has occurred to the plaintiff. Thus by the application of the principle of res ipsa loquitor, the defendants alone could have answered or explained the allegation of negligence. In the nature of the evidence adduced, the defendants have failed to prove the absence of negligence. The findings of the learned Sub Judge regarding the negligence of the defendants was perfectly justified in the facts and circumstances of the case and calls for no interference in this appeal. Hence the point is held in favour of the plaintiff and against the defendants.
Whether the damages awarded by the Subordinate Judges Court, Thiruvananthapuram, require interference, If so to what extent? - HELD THAT:- The learned Counsel for the appellant had fairly submitted that the appellants are not challenging the quantum of damages awarded. Having stated so, in the absence of any challenge against the quantum of damages awarded, the judgment of the Principal Subordinate Judge's Court, Thiruvananthapuram affirmed.
Appeal dismissed.
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2020 (12) TMI 1383 - SC ORDER
Offence under SEBI - imposition of disgorgement - appellants are prohibited from dealing in equity derivatives in F&O segment of Stock Exchanges - Appellant no. 1 shall disgorge an amount of Rs 447.27 Crs alongwith interest @12% p.a. w.e.f. 29.11.2017 onwards till the date of payment - HELD THAT:- Securities Appellate Tribunal has recoded a split verdict, with a dissent by its Chairperson. Having regard to the issues raised, we admit the appeal against the order of the Securities Appellate Tribunal dated 5 November 2020.
Insofar as the interim relief is concerned, the appellants have complied with the order for debarment from dealing in equity derivatives for one year, imposed by the Whole Time Member of SEBI. The appellants have been directed to make payment of the disgorged amount of Rs 447.27 crores along with simple interest at the rate of 12% per annum with effect from 29 November 2007 till payment.
As and by way of interim relief, we order and direct that the appellants shall, within a period of four weeks from today, deposit an amount of Rs 250 crores in the Investors’ Protection Fund in compliance with the order of the Whole Time Member, subject to the final result of the appeal. There shall be a stay on the recovery of the balance, inclusive of interest, pending the appeal.
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2020 (12) TMI 1382 - ITAT JODHPUR
Categorization of income Surrendered during survey - Excess cash surrendered at the time of survey outside the business income - Addition u/s 115BBE - assessee argued that cash discrepancies are business receipts - HELD THAT:- Upon due consideration, we find that the surrender was made by the assessee during survey proceedings at business premises. During the survey action, discrepancies in stock as well as cash were found by the authorities and to make up the same the assessee made a surrender of the same and duly declared the same in his return of income.
It is to be noted that the cash discrepancies were found at the business premises. The assessee does not have any other source of income.
Therefore, the cash discrepancies would be nothing but the business receipts for the assessee. It could not be said that the said income arose from undisclosed sources since the source of the same was to be accepted as business receipts and nothing else. CIT(A), in our considered opinion, was not correct in upholding the action of Ld. AO in taxing the same as per Section 115BBE. We hold that the said receipts would constitute business income to be taxed as per slab rates. Assessee appeal allowed.
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2020 (12) TMI 1381 - ITAT CHENNAI
Revision u/s 263 - Period of limitation - whether order passed u/s.263 is barred by limitation u/s.153(5)? - HELD THAT:- As per Sub-section (3) of Section 153 of the Act, an order of fresh assessment in pursuance of an order u/s.263 of the Act, setting aside or cancelling an assessment, may be made at any time before the expiry of nine months from the end of the financial year in which the order u/s.263 of the Act is passed by the Commissioner.
Therefore, the order giving effect to that order passed by the AO dated 26.02.2016 is clearly beyond the time limit allowed u/s.153(3) of the Act and hence the ld.AR’s plea is sustained. The order of the AO dated 26.02.2016 is quashed. Assessee appeal allowed.
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2020 (12) TMI 1380 - SUPREME COURT
Error in entertaining the application Under Section 482 Code of Criminal Procedure - locus standi to file a petition Under Section 482 Code of Criminal Procedure.
It is submitted that the High Court without issuing any notice to the Appellant who was an Accused in the trial and was impleaded as Respondent No. 2 in 482 Code of Criminal Procedure application passed the order.
HELD THAT:- It is well settled that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the Accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well Under Section 482 Code of Criminal Procedure or in any other proceeding can always direct trial court to expedite the criminal trial and issue such order as may be necessary. But the present is a case where proceeding initiated by Respondent No. 2 does not appear to be a bona fide proceeding. Respondent No. 2 is in no way connected with initiation of criminal proceeding against the Appellant.
The present is not a case where prosecution or even the employer of the Accused have filed an application either before the trial court or in any other court seeking direction as prayed by Respondent No. 2 in his application Under Section 482 Code of Criminal Procedure.
Locus of a third party to challenge the criminal proceedings or to seek relief in respect of criminal proceedings of Accused - HELD THAT:- The issue had been dealt with by this Court in THE JANATA DAL AND OTHERS ETC. VERSUS HS. CHOWDHARY AND OTHERS ETC. [1991 (8) TMI 290 - SUPREME COURT]. In the above case the CBI had registered FIR under the Indian Penal Code as well as under the Prevention of Corruption Act, 1947 against 14 Accused. On an application filed by the CBI the learned trial Judge allowing the application to the extent that a request to conduct necessary investigation and to collect necessary evidence which can be collected in Switzerland holding that the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through filing of the requisite/proper undertaking required by the Swiss law and assurance for reciprocity.
Respondent No. 2 has no locus in the present case to file application Under Section 482 Code of Criminal Procedure asking the Court to expedite the hearing in criminal trial.
The application filed by Respondent No. 2 Under Section 482 Code of Criminal Procedure is dismissed - appeal allowed.
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2020 (12) TMI 1379 - SUPREME COURT
Rejection of application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 - to liberate muslim women from practice of talaq-e-biddat - HELD THAT:- Under Section 3, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal. Under Section 4, a Muslim husband who pronounces talaq upon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in SHAYARA BANO VERSUS AAFREEN REHMAN, GULSHAN PARVEEN, ISHRAT JAHAN, ATIYA SABRI VERSUS UNION OF INDIA AND OTHERS & IN RE: MUSLIM WOMEN’S QUEST FOR EQUALITY VERSUS JAMIAT ULMA-I-HIND [2017 (9) TMI 1302 - SUPREME COURT], and to „liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.
Even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in PRATHVI RAJ CHAUHAN VERSUS UNION OF INDIA (UOI) AND ORS. [2020 (2) TMI 1705 - SUPREME COURT] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
On a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman - primary allegation which is pressed in aid to deny anticipatory bail is the pronouncement of triple talaq by the spouse of the second respondent. In the preceding paragraphs we have observed that an offence under the Act is by the Muslim man who has pronounced talaq upon his spouse, and not the appellant, who is the mother-in-law of the second respondent.
It is directed that in the event of the arrest of the appellant, she shall be released on bail by the competent court, subject to her filing a personal bond of Rs 25,000. The appellant shall cooperate in the course of the investigation by the Investigating Officer.
Appeal allowed.
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2020 (12) TMI 1378 - ITAT DELHI
Validity of Reopening of assessment u/s 147 - Addition u/s 68 - reasons to believe - Allegation of non independent application of mind and unwarranted and in a mechanical manner and is not sustainable in the eyes of law - HELD THAT:- We find that initiation of assessment are on Wrong and non-existing facts, because it mentions that “M/s. Binary Semantics Ltd.” is shown to have received following entries”. Thereafter 07 entries have been given for which re-asstt. proceedings have been initiated. The initiation has been done for Rs. 2,47,50,000/- from 07 parties against correctly received only Rs. 1,10,00,000/- from 03 parties.
In the reasons, M/s. Binary Semantics Ltd. has been shown as beneficiary. Assessee has got no connection with this company. Hence, it is a wrong reason/wrong basis of initiation. Further, Chart of Co’s from whom amount has been received has been given in reasons that first 04 parties (1,37,50,000/-) are wrongly mentioned. No amount has been received from them.
In this case initiation of reopening proceedings is mechanical and Non-application of Mind and Borrowed satisfaction because the initiation is on the basis of report of Inv. wing only; No prime facie enquiry done by A.O. before initiating proceedings; Hence, it is a case of initiation on wrong facts and on borrowed satisfaction without application of mind which makes the proceedings un-sustainable. Our view is fortified by the decision of Sarthak Securities Co. (P) Ltd. [2010 (10) TMI 92 - DELHI HIGH COURT] wherein it has been held that no independent application of mind by the AO by acting under information from Inv. Wing. – Notice u/s. 147 to be quashed.
Limitation Period - As we have perused the documentary evidences filed by the assessee especially the notice u/s. 148 of the Act prepared by the AO and sent to post office and delivered to the assessee as stated by the Ld. Counsel for the assessee. As in the case of Kanubahi M. Patel (HUF) vs. Hiren Bhattr [2010 (7) TMI 704 - GUJARAT HIGH COURT] the assessment is barred by limitation and hence, null and void.
Thus reopening of assessment orders quashed - Decided in favour of assessee.
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