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Showing 41 to 60 of 1597 Records
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2022 (3) TMI 1557 - SC ORDER
Seeking adjournment on the ground of personal difficulty - HELD THAT:- In view of the letter circulated by the learned counsel for the respondent seeking adjournment on the ground of personal difficulty, list the matter after two weeks. Rejoinder filed by the petitioner is taken on record.
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2022 (3) TMI 1556 - SUPREME COURT
Implementation of One Rank One Pension [OROP] policy for ex-servicemen of defence forces - OROP is the payment of uniform pension to armed services personnel retiring in the same rank with the same length of service, irrespective of the date of retirement.
The Petitioners contend that the initial definition of OROP was altered by the first Respondent and, instead of an automatic revision of the rates of pension, the revision now would take place at periodic intervals. The Petitioners submit that the deviation from the principle of automatic revision of rates of pension, where any future enhancement to the rates of pension are automatically passed on to the past pensioners, is arbitrary and unconstitutional Under Articles 14 and 21 of the Constitution.
HELD THAT:- The principles governing pensions and cut-off dates can be summarised as follows:
(i) All pensioners who hold the same rank may not for all purposes form a homogenous class. For example, amongst Sepoys differences do exist in view of the MACP and ACP schemes. Certain Sepoys receive the pay of the higher ranked personnel;
(ii) The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date;
(iii) The judgment of the Constitution Bench in Nakara (supra) cannot be interpreted to read the one rank one pension Rule into it. It was only held that the same principle of computation of pensions must be applied uniformly to a homogenous class; and
(iv) It is not a legal mandate that pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalised with the rest of the personnel.
Applying the above principles to the facts of the case, there are no constitutional infirmity in the OROP principle as defined by the communication dated 7 November 2015 for the following reasons:
(i) The definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement. It is not the case of the Petitioners that the pension is reviewed 'automatically' to a class of the pensioners and 'periodically' to another class of the pensioners;
(ii) The cut-off date is used only for the purpose of determining the base salary for the calculation of pension. While for those who retired after 2014, the last drawn salary is used to calculate pension, for those who retired prior to 2013, the average salary drawn in 2013 is used. Since the uniform application of the last drawn salary for the purpose of calculating pension would put the prior retirees at a disadvantage, the Union Government has taken a policy decision to enhance the base salary for the calculation of pension. Undoubtedly, the Union Government had a range of policy choices including taking the minimum, the maximum or the mean or average. The Union government decided to adopt the average. Persons below the average were brought up to the average mark while those drawing above the average were protected. Such a decision lies within the ambit of policy choices;
(iii) While no legal or constitutional mandate of OROP can be read into the decisions in Nakara (supra) and SPS Vains (supra), varying pension payable to officers of the same rank retiring before and after 1 July 2014 either due to MACP or the different base salary used for the calculation of pension cannot be held arbitrary; and
(iv) Since the OROP definition is not arbitrary, it is not necessary for us to undertake the exercise of determining if the financial implications of the scheme is negligible or enormous.
In terms of the communication dated 7 November 2015, the benefit of OROP was to be effected from 1 July 2014. Para 3 (v) of the communication states that "in future, the pension would be re-fixed every five years". Such an exercise has remained to be carried out after the expiry of five years possibly because of the pendency of the present proceedings.
It is ordered that in terms of the communication dated 7 November 2015, a re-fixation exercise shall be carried out from 1 July 2019, upon the expiry of five years. Arrears payable to all eligible pensioners of the armed forces shall be computed and paid over accordingly within a period of three months.
Petition disposed off.
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2022 (3) TMI 1555 - KARNATAKA HIGH COURT
Dishonour of Cheque - legally recoverable debt or not - pre-matured cheques presented for realization were dishonoured - rebuttal of presumption - HELD THAT:- The Apex Court in SRIPATI SINGH [2021 (11) TMI 66 - SUPREME COURT] holds that the contention with regard to cheque being dishonoured and its justification or otherwise, would arise in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount. If the due date as per the terms of agreement for payment has not yet arrived, it does not become a matured event to initiate proceedings under the Act; same is the case at hand.
The law with regard to such interference in the proceedings under the Act is that, if documents of unimpeachable character are shown to the Court, the Court has to take that into consideration, as further proceedings should lead to a ground of harassment to the accused.
A document if so unimpeachable is produced, the Court has to look into the same to avoid future harassment to the accused. Therefore, in the considered view of this Court, the cheques that were presented had not yet ripened to be presented as they were on a particular contingency to be presented or they were subject to conditions before presentation. Those conditions admittedly have not come about as on the date the cheques were presented. Therefore, the contingency has not even arrived at. Presenting the cheques and initiating proceedings for dishonor of cheques under the Act only results in harassment to the accused and esoteric satisfaction to the complainant.
Petition allowed.
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2022 (3) TMI 1554 - SC ORDER
Requirement to furnish bank guaranteed against the dues - HELD THAT:- Having gone through the impugned judgment and order passed by the High Court and more particularly when against the dues of Rs. 40,00,00,000/- (Rupees Forty Crores), the petitioner is directed to furnish the Bank Guarantee of approximately Rs. 12,00,00,000/- (Rupees Twelve Crores) in exercise of power under Order 21 Rule 40 (2) of the CPC, there are no reason to interfere with the impugned judgment and order passed by the High Court.
The Special Leave petition stands dismissed.
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2022 (3) TMI 1553 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor has defaulted on various payments due to the Applicant - bonafide intent for resolution or not - forum used as recovery mechanism - active participation in the resolution process of the Corporate Debtor in terms of the Prudential Framework before filing the CP and even thereafter - HELD THAT:- Whether an application under section 7 of the Code is filed with bona fide intention for the resolution of the Corporate Debtor or for recovery of debt can be determined by examining the facts of the case. In the present case, the Petitioner had actively participated in the resolution process of the Corporate Debtor in terms of the Prudential Framework, along with all other Lenders before filing the CP and even thereafter. This conduct of the Petitioner puts a question on the bona fides of the instant Petition. The conduct of the Petitioner made to believe that it has been trying to utilise this forum as a 'recovery mechanism'.
It is pertinent to take into consideration the financial position of the Respondent and the repercussions if the Respondent Company, a going concern, is admitted into CIRP more so when all other Lenders, who comprises the required majority percentage, in the event of constitution of the Committee of Creditors, seriously pursuing for the resolution of the Corporate Debtor under the Prudential Framework, with the active consent and participation of the Petitioner.
In the present case, the Respondent is willing and trying to repay the debts of all the Creditors and to show its bona fides when it was ready to sell its vending business, and when other Lenders accepted the said move, but the Petitioner refused to cooperate in that process. This action of the Petitioner clearly establishes that its intention was recovery of its debt but not the resolution of the Corporate Debtor. Therefore, though, a Creditor can choose its own forum, but in the peculiar facts of the present case, we are of the view that the Petitioner is trying to utilise the provisions of the I & B Code, 2016, for recovery of debt, which is impermissible.
Petition dismissed.
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2022 (3) TMI 1552 - MADRAS HIGH COURT
Money Laundering - diversion of proceeds of crime - predicate offence - application of Section 45 (1) of the PMLA, 2002 for considering the bail petition - whether the arrest of the petitioner under PMLA is uncalled? - HELD THAT:- In T. SUBRAMANIAN, S. RAJESWARI VERSUS THE ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, MADURAI [2021 (12) TMI 42 - MADRAS HIGH COURT], when a similar plea that initiating action under PMLA is premature, when there is no concluded proceedings in the predicate offence raised, this Court had the privilege of sharing Division Bench judgment considered in detail, the effect of the pending or nonpending of proceedings in predicate offence qua prosecution under PMLA and held that In such circumstances, the petitioners are expected to produce documents sought by the authorities and satisfy them that they are not involved in any act of moneylaundering. Instead, under false pretext that the properties are likely to be provisionally attached before filing of final report in the predicate offence, the writ petitions are filed.
The above logic squarely applies to the facts of the case in hand and this answers the first limb of the petitioners submission.
This Court has no second view on the Principle of Law on precedent, as put forth by the Learned Additional Solicitor General, Section 45(1) of PMLA as it stands today after amendment ought to be applied when bail petition is considered in case of offences involving “Proceeds of Crime” above Rs.1 crore. This section which impose additional condition for grant of bail apart from the condition contain in the Code of Criminal Procedure or any other law in force.
During the investigation, the respondent/complainant has asked the petitioner to furnish bank account statements of the offshore Companies involved in this transaction, original invoices raised by the Indonesian Coal Miners to his Dubai based entities, Books of Accounts of his foreign entities located in Mauritius and British Virgin Islands (BVI). The petitioner reluctant to part away those crucial documents and had given evasive reply. Having refused and reluctant to handover these documents which are essential to ascertain whether the money laundered the manner in which the investigation so far reveals, mere physical presence at Respondent Office will not tantamount to cooperation to investigation - It is the discretion and prerogative of the investigating agency, to choose the mode and they need no advice neither from the Court nor from the accused. To collect those documents, the confinement of the petitioner in prison is inevitable, else he may secret away the documents, taking advantage of his liberty.
This petitioner who is a Non-Resident Indian widely connected with other parts of the World and not inclined to cooperative with the investigation in its true sense is not entitled for bail. The ramification of the alleged crime runs to several hundred crores. Several persons in and out side India are connected in the crime. The documents connected with the Shell Companies floated by him in other countries are to be collected - Petition dismissed.
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2022 (3) TMI 1551 - SC ORDER
Seeking grant of Interim Bail - seizure of contraband item - non-compliance of Section 52-A of the NDPS Act - HELD THAT:- There are no reason to interfere with the impugned order. The Special Leave Petition is, accordingly, dismissed.
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2022 (3) TMI 1550 - SUPREME COURT
Wilful disobedience - it was the specific case on behalf of the respondents that the order dated 28.10.2021 is a mandatory direction and therefore it was prayed to recall the order dated 28.10.2021 - Mandatory direction or not - HELD THAT:- In the order dated 28.10.2021, there is a specific direction issued by this Court directing the respondents herein – original petitioners in special leave petition to comply with and deposit the amount to be deposited as per the order passed by the High Court positively and within the time granted by this Court (eight weeks) as mentioned in the order dated 17.09.2021. Moreover, it was specifically observed by this Court that non-compliance of the said order shall be treated very seriously and non-deposit of the amount as directed by the High Court shall be treated as non-compliance of the order of this Court and also having a serious consequence.
The stand taken by the respondents now that they are not in a position to deposit the amount and/or comply with the order passed by the High Court and this Court because of the financial difficulties and therefore there is no wilful disobedience by the respondents in not complying with the order passed by the High Court dated 08.08.2019 and the order passed by this Court dated 28.10.2021 in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 lacks bonafides and the same is not at all acceptable.
The respondents have willfully disobeyed the order passed by the High Court and have willfully disobeyed the order dated 28.10.2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 and thereby the respondents are guilty of civil contempt and have rendered themselves liable for suitable punishment under the provisions of Contempt of Courts Act.
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2022 (3) TMI 1549 - CALCUTTA HIGH COURT
Delayed deposit of employees’ contribution towards PF/ESI - Addition u/s 36(1)(va) r.w.s. 2(24)(x) - HELD THAT:- We find the tax liability in so far as the disallowance of payment of Provident Fund and ESI is far below the threshold limit in both the assessment years which would prevent the appellant/Department from pursuing this appeal. However, taking note of the fact that similar substantial question of law has already been admitted in other cases, we leave this question of law open to be decided in an appropriate case.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As Identical issue arose in the assessee’s own case for the assessment year 2008-09 [2013 (9) TMI 156 - ITAT KOLKATA] which was decided in favour of the assessee by the CIT(A) and confirmed by the tribunal and HC - thus applying the decision of this Court, the said issue was decided against the revenue and in favour of the assessee, we find no ground to take a different view in the matter.
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2022 (3) TMI 1548 - GUJARAT HIGH COURT
Order of Acquittal - abusing the complainant by uttering obscene words in public relating to the mother and Sister of the complainant and also to his wife and minor son - presumption of innocence - acquittal of accused - offence punishable under sections 504, 506(2) and 114 of Indian Penal Code and under sections 3(1)(10) of the Scheduled Tribes (Prevention of Atrocities Act), 1989 - HELD THAT:- It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
On re-appreciation of evidence, it is clear that the there was quarrel of the minor son with Dhanji and at the time of quarrel no witness was present as per the case of the complainant, when the complainant' wife Sonalben had gone to scold, the accused insulted against her caste. However, the wife of the complainant has not lodged any complaint. The complaint is filed on the next day. There is no reasonable explanation for lodging the complaint belatedly. The delay is not explained in the complaint or in the evidence, prima facie it appears that the complaint itself is suspicious. Further though the incident had happened in the public state, other independent witness is not examined. In absence of corroboration to the witnesses, the complainant's complaint is doubtful.
The prosecution has failed to prove the case beyond reasonable doubt and trial court has not committed any error or illegality in acquitting the accused.
The Criminal Appeal being devoid of merits is dismissed.
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2022 (3) TMI 1547 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - time granted to the petitioner to reply was not made fully available to the petitioner - HELD THAT:- Show Cause Notices were issued as to why the proposed variations should not be made, where, the Revenue directed the assessee to submit their response through the registered e-filing account at www.incometax.gov.in by 23:59 hours of 28.03.2022.
In response to the said notices dated 27.03.2022, when the petitioner / assessee made an attempt to upload the reply, the web portal did not allow the assessee as it was closed by 28.03.2022 at 18:50 and 18:52 hours respectively, for which, evidences i.e., the screen shot print outs have been filed in the typed set of papers.
Thereafter, the assessment order has been passed in respect of W.P.No.7932 of 2022, which is impugned herein under Section 147 r.w.s. 144B on 28.03.2022 at 23:32 hours IST that means well before the time granted to the petitioner to reply i.e., 23.59 hours, the very assessment order itself was passed at 23:32 hours, that too by closing the web portal from uploading the reply by the assessee by 18:52 hours on 28.03.2022.
Thus, the evidences would show clearly that the time granted to the petitioner to reply was not made fully available to the petitioner to utilize and in fact even before the closing time of filing the reply, the very impugned assessment orders were passed. On that ground itself, it can easily be construed that the principles of natural justice has been violated. Therefore, on that ground, this Court is inclined to set aside these orders and remit the matter back to the respondents for reconsideration.
Respective impugned orders of assessment are set aside and the matters are remitted back to the respondents for reconsideration.
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2022 (3) TMI 1546 - DELHI HIGH COURT
Reopening of assessment against company ceased to exist - HELD THAT:- As petitioner submits that the impugned notice is void ab initio as it has been issued in the name of a non-existing entity as relying on the decision of Maruti Suzuki India Limited [2019 (7) TMI 1449 - SUPREME COURT] wherein it has been held that the issuance of a notice to a non-existing company is a substantive illegality and not a procedural violation.
Issue notice.
Respondents accepts notice on behalf of the respondents. He prays for and is permitted to file a counter affidavit within six weeks. Rejoinder affidavit, if any, be filed before the next date of hearing.
List on 7th September, 2022 along with connected matters.
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2022 (3) TMI 1545 - CALCUTTA HIGH COURT
Validity of impugned supplementary SCN and addendum supplementary SCN - Challenge on the ground that the same is without jurisdiction and the law does not permit issuance of such supplementary show cause notice - HELD THAT:- The respondent submits that this Court should not entertain the prayer at this stage and liberty should be given to the respondents to consider and dispose of the said objection/representation in accordance with law and considering such submission of the parties, it is deemed fit to direct Commissioner of Customs (Port)/ respondent concerned to consider and dispose of the aforesaid objection/representation against the impugned show cause notice and addendum thereto in accordance with law and by passing a reasoned and speaking order after giving opportunity of hearing to the petitioner or its authorised representative within six weeks from the date of communication of this order. Petitioner shall be also entitled to take all the points before the Authority concerned at the time of consideration of the aforesaid representation which he has taken in this writ petition.
It is recorded that this Court has not gone into the merit of the aforesaid representation and respondent concerned while considering and disposing of the aforesaid objection/representation shall act strictly in accordance with law - petition disposed off.
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2022 (3) TMI 1544 - SUPREME COURT
Refusal to reject the plaint in exercise of powers Under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC) - rejection mainly on the ground that the suit is barred by limitation - rejection also on the ground that a suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act would not be maintainable as against the actual owner.
Whether the suit can be said to be barred by limitation or not? - HELD THAT:- At this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected Under Order VII Rule 11(d) Code of Civil Procedure on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole.
As observed and held by this Court in the case of Ram Prakash Gupta [2007 (10) TMI 715 - SUPREME COURT], rejection of a plaint Under Order VII Rule 11(d) Code of Civil Procedure by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible.
From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application Under Order VII Rule 11 Code of Civil Procedure, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.
Applying the law laid down by this Court in the case of Ram Prakash Gupta to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it.
While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company [1968 (1) TMI 62 - SUPREME COURT]. However, it is required to be noted that even the Plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the Plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed - Whether the Plaintiffs shall be entitled to any relief Under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought Under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers Under Order VII Rule 11 Code of Civil Procedure.
The High Court has committed a grave error in allowing the application Under Order VII Rule 11 Code of Civil Procedure and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers Under Order VII Rule 11 Code of Civil Procedure. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.
The impugned judgment and order passed by the High Court allowing the C.O. and quashing and setting aside the order passed by the trial court refusing to reject the plaint Under Order VII Rule 11 Code of Civil Procedure and consequently rejecting the plaint Under Order VII Rule 11 Code of Civil Procedure is hereby quashed and set aside - Appeal allowed.
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2022 (3) TMI 1543 - MADRAS HIGH COURT
Prolonged suspension of an employee - applicability of the case of Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT] - Section 167(2) of the Code of Criminal Procedure, 1973.
Currency of a suspension order can go beyond three months or not, if within the period aforesaid the memorandum of charges/charge-sheet is not served on the delinquent officer/employee.
The court is required to analyze the judgment of the Apex Court in the case of Ajay Kumar Choudhary, taking note of the facts and if paragraphs (21) and (22) are read together it would become clear that even the Apex Court has not applied the direction given in paragraph (21) in view of the filing of the charge-sheet during the pendency of the appeal or litigation before the court.
Now the matter is being referred to Larger Bench, on account of two conflicting judgments delivered by the Division Benches on a challenge to the order of suspension - By the order of reference, the learned Single Judge referred to the view expressed by a Division Bench in the case of the THE DIRECTOR GENERAL OF POLICE, MYLAPORE AND ORS. VERSUS T. KAMARAJAN [2019 (11) TMI 1798 - MADRAS HIGH COURT], and the subsequent judgment delivered by another Division Bench in the case of the THE CHAIRMAN-CUM-MANAGING DIRECTOR TANGEDCO; THE CHIEF ENGINEER (PERSONNEL) TANGEDCO; THE SUPERINTENDING ENGINEER CEDC/SOUTH-1/TANGEDCO, CHENNAI VERSUS R. BALAJI [2021 (8) TMI 1384 - MADRAS HIGH COURT], where a view different than the view expressed earlier by the Division Bench in T. Kamarajan has been taken.
HELD THAT:- Reference made to the judgment of the Apex Court in the case of STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [2018 (8) TMI 2120 - SUPREME COURT]. The aforesaid judgment is again to be read in the context of the facts given therein. That was a case of deemed suspension, as the employee therein remained behind bars for more than 48 hours. Wherein, largely the issue was in reference to challenge to the charge memo. In paragraph (27) of the said judgment, the court analyzing the facts did not find it appropriate to continue the order of suspension, as there would be no threat to the fair trial. The judgment in the said case was on its own facts. Thus, the judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet is not served within three months. Rather, the issue of challenge to the order of suspension should be analyzed on the facts of each case. It is keeping with the gravity of the charges and the period therein because in case of trap, the order of interference with the order of suspension may have serious consequences.
At this stage, it is to be noted that in certain cases where memorandum of charges/charge-sheet was not filed within three months, the order of revocation was passed with a direction to the employer to post the delinquent in a non-sensitive post - such direction may have serious repercussions. For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions. Thus, the court should analyze each case on its facts when a challenge to the order of suspension has been made.
The reference is answered by holding that:
(i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension.
(ii) The judgment in R. Balaji, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam.
(iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable.
(iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet.
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2022 (3) TMI 1542 - ORISSA HIGH COURT
Seeking stepping up of pay at par with junior - petitioner, having come to know that his junior is getting higher scale of pay than him, represented to the Government to step up his pay to the level of his junior - HELD THAT:- The benefit of stepping up of pay shall be allowed to the senior only in the case of promotion to the higher post for removing the anomalies on account of fixation of pay under Rule-74(b) or (c) of the O.S.C. subject to the conditions mentioned in sub-clauses (a) to (d). As per sub-clause (a), both the junior and senior officer should belong to the same cadre and the posts in which they have been promoted or appointed should be identical in the same cadre - In this case, although the petitioner and Shri Mohanty had belonged to two different cadres, but, when they were promoted to OAS Class-II cadre, they belonged to same cadre and their posts were identical, and undisputedly the petitioner was senior to Shri Mohanty in the gradation list having placement at sl. no. 327 and sl. No. 329 respectively. Subsequently, both of them were promoted to the cadre of OAS Class-I (Jr.) having their placement in the gradation list at sl. no. 494 and sl. No. 496 respectively and in the said cadre also the petitioner was senior to Shri Mohanty. Therefore, sub-clause (a) of the resolution is satisfied. According to sub-clause (b), the scales of pay of the lower and higher posts, in which they are entitled to draw pay, should be identical. To that extent, there is no dispute that scales of pay of OAS Class-II and OAS Class-I (Jr) are identical to each other and accordingly the petitioner's scale of pay was fixed in terms of said scales of pay in the respective cadre. The petitioner has satisfied this condition to be eligible to get the benefit of stepping up of pay.
Rule-11 of the Orissa Service Code states that cadre means, strength of service or part of service sanctioned as a separate unit. Therefore, the petitioner and Shri Mohanty, who was junior to the petitioner, both belonging to OAS Class-II cadre, become the strength of service or part of service sanctioned as a separate unit. More so, their scale of pay in lower or higher post in which they entitled to draw pay should be identical - It is trite-law that if no specific definition has been given to a word or phrase in the Act, then the meaning attached to the same in the dictionary is to be taken as external aid for interpretation of the same.
In view of the meaning attached to the words "stepping up of the pay" and applying the same to the factual matrix of the case in hand, there is no iota of doubt that the principle has already been set up by the apex court in Gurcharan Singh Grewal v. Punjab SEB, [2009 (1) TMI 940 - SUPREME COURT], wherein the apex Court has held that the general norm is that a senior cannot be paid less than his junior even if anomaly in senior's pay is due to difference of incremental benefits. His pay has to be stepped up with reference to higher pay of the junior.
As the undisputed fact is that the junior to the petitioner, namely, Shri A.C. Mohanty was drawing higher pay in OAS Class-II cadre, before being promoted to OAS Class-I (Jr) cadre, therefore, the petitioner ought to have asked for stepping up of his pay much earlier when both of them were continuing in OAS Class-II cadre itself. Having not done so and making such a claim after being promoted to OAS Class-I (Jr.) cadre, the stand has been taken by the State that it is hit by the principle of waiver and also limitation, as has been prescribed under the Administrative Tribunals Act 1985. When discrimination has been meted out to the petitioner, the principle of waiver or limitation, as stated in the counter affidavit filed by the State, has no meaning, in view of the fact admittedly a junior to the petitioner is receiving higher pay than that of the petitioner.
By applying the provisions of Article 14 of the Constitution of India, this Court is of the opinion that the petitioner is entitled to get the benefit of stepping up of pay at par with his junior Shri A.C. Mohanty from the date he was inducted to OAS Class-II, i.e. from 20.06.1980 and the pay scale of the petitioner should be revised accordingly and he should be granted differential arrear benefits, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment - Petition allowed.
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2022 (3) TMI 1541 - ITAT DELHI
Jurisdiction to reassess - Jurisdiction over Appellant as employed in the Army - Army Salary Circle AO or Income-tax Officer, Ward 3(5) Gurugram - HELD THAT:- It is now well settled that it is only the AO holding charge over an assessee for assessment purposes who could issue a notice for reassessment. No AO, other than the assessee’s own AO, could issue a notice for reassessment.
ITO Ward 3(5), Gurugram has issued the notice u/s 148 to the Appellant as employed in the Army after having recorded a satisfaction as to the alleged escapement of income of the Appellant. ITO Ward 3(5) Gurugram does not seem to have made any inquiry on the relevant issues before issuing a notice u/s 148 to the Appellant. No material in this behalf has been brought before us by the Department.
As in Lt. Col. Paramjeet Singh [1996 (3) TMI 120 - PUNJAB AND HARYANA HIGH COURT] has ruled that if the assessment proceedings of an assessee is to be reopened or if the income for the relevant assessment year is to be reassessed, it is the Income-tax Officer who could assess the same in the first instance who has jurisdiction to proceed in the matter u/s 147 r.w.s. 148 unless of course the case had been transferred by a competent authority to another AO u/s 127 of the Act. No such transfer order u/s 127 of the Act has been produced before us to validate the jurisdiction as assumed by the ITO, Ward 3(5), Gurugram. It is thus clear that the assumption of jurisdiction to reassess the Appellant by the Gurugram AO is irregular and fallacious.
Assumption of jurisdiction by a different AO at Gurugram who was other than the AO holding jurisdiction over the assessee for the relevant year was invalid.
Status of Appellant selling the agricultural lands - whether the property is an HUF property or individual? - HELD THAT:- There is nothing on record brought before us, whether, the above named assessees (4 brothers) have applied for any PAN for HUF or whether any account was opened in the name of HUF or earlier there was any existing PAN. Neither there is any mentioned in the deed that all the individuals had entered into the agreement as HUF or jointly representing HUF. At the time of issuance of notice, the AO could not have created HUF by allotting separate PAN or create any entity without any information provided by the assessees. Even the sale consideration was received individually. The action of the assessee also does not indicate that the transaction was entered in the capacity of HUF, albeit it was entered in the individual capacity collectively. In these circumstances, it is difficult to uphold the contention of the assessee and accordingly we reject the same.
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2022 (3) TMI 1540 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Compulsory delisting against the company - Payment of reinstatement fee to the Exchange - company was granted 30 days time to submit all pending compliances including payment of all outstanding Exchanges dues and to complete the formalities for revocation of suspension of securities of the company - Whether appellant entitled to pay annual listing fee during the suspension period? - as argued appellant is not entitled to pay the reinstatement fee as demanded by the respondent - HELD THAT:- We find that reinstatement fee is one of the requirements for purpose of revocation of suspension in the trading of securities. This requirement of payment of reinstatement fee is also gathered from the Circular dated December 19, 1994 issued by SEBI and Master Circular of listing dated January 18, 2019 wherein it becomes obligatory for a Company whose securities continue to be listed at the Exchange to pay annual listing fee as well as reinstatement fee for considering revocation of suspension in trading in the securities of the company.
The respondent is entitled to levy fee for the purpose of revocation of suspension of trading in securities and the same is binding on companies desirous of such revocation. The Byelaw also empowers the respondent to reinstate suspended securities subject to conditions as it deems fit. Further in Clause 43 of the Listing Agreement the respondent is entitled to levy reinstatement fee upon companies seeking revocation of suspension of trading in securities.
We do not find any error in the interim order passed by the Delisting Committee. The appeal fails and is dismissed with no order as to costs.
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2022 (3) TMI 1539 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Offence under SEBI Act - fraudulent scheme of issuing GDR with an ulterior motive - whether the appellants had played part in the fraudulent scheme of issuing GDR with an ulterior motive? - HELD THAT:- Appeals of Farmax India Limited and Mr. M. Srinivasa Reddy, M.D. - Very stand of the appellant Mr. Srinivasa Reddy that he was credulous enough to sign blank documents; further he-the Managing Director of Farmax being instrumental in obtaining a Board Resolution as detailed (supra), the defense taken by him and Farmax is merely an eyewash. Millions of US$ were involved in the transaction. Their silence for a period of three years would clearly show the involvement of these appellants in the entire episode. The appeals filed by these appellants therefore fail.
Appellant Farmax on its own has not indulged into fraudulent activity but the activities is imputed to it as the Board of Directors and the Managing Director had indulged into the same. Since the penalty would be in fact on the shareholders of the company in our view, imposition of penalty of Rs. 12 crore would be excessive. In the circumstances, the Appeal challenging the order of the AO needs to be partly allowed and the penalty needs to be reduced from Rs. 12 crore to Rs. 5 crore.
Sanjay Aggarwal And Nithish Bangera - The very fact that the appellant provided a draft of disclosure to be made by the Farmax to the exchanges that the issue of the GDR was successfully subscribed; that he has forwarded the draft Resolution to be passed by the appellant Farmax which culminated in authorizing the pledge of GDR proceeds; seeking of signatures on blank documents from appellant Farmax would clearly shows that the appellant did not act simply as a bonafide coordinator between the company and the Lead Manager etc. The appeal of the appellant Sanjay Aggarwal, therefore fails.
Nithish Bangera, he was sole employee of La Richesse owned by appellant Sanjay Aggarwal.The appellant was merely an employee of appellant Sanjay Aggarwal and the observation made by the learned WTM as regard the appellant Sanjay Aggarwal that he was an “advisor” and responsible chartered accountant would not be applicable in this case. One email forwarded to him seeking blank TT slips from the Farmax would not lead to believe that this appellant was aware of the entire fraudulent scheme of GDR issue. The evidence in this regard is lacking. The appeal therefore deserves to be allowed as regard the present appellant.
Prospect Capital Ltd. and John Behar Lead Manager is not merely a post office between the company issuing GDR and the investors investing in the same. The Lead Manager has to conduct due diligence in collecting and evaluating all information. It has to obtain confirmation of acceptance of subscription from the initial investors to the GDR issue etc. The Lead Manager has to show that it has carried its activity as per the procedures devied.
On the other hand, even if we ignore the alleged fact of issuing a false letter as alleged by SEBI, the very fact that the appellants failed to show that they had confined their activity only to the procedure correctly, would lead us to believe that they were involved in the clandestine scheme.
As fact that appellant no. 2 John Behar is closely connected to another noticee Arun Panchariya is an added factor in this direction -as submitted by SEBI that ESCROW agreement dated May 05, 2010 entered into between Farmax, EURAM Bank and Prospect Capital Ltd. noted that Prospect Capital Ltd. had agreed with Farmax “to procure investors for the subscription of GDRs”. However instead of procuring investors these appellants procured sole investor i.e Vintage which is an entity of Arun Panchariya connected both the appellants. Therefore our view, on facts, the order of SEBI as regards these appellants cannot be faulted with.The appeal of Prospect Capital Ltd. as well as John Behar fails.
European American Investment Bank AG - The entire reading of the order of the learned WTM in that case would show that the EURAM-FII’s role as a foreign investment institute was investigated and examined by respondent SEBI. Its role as a banker providing finances to subscribers to the GDR and accepting collateral of the GDR proceeds from the respective companies was not examined. The principle of issue estoppel therefore would not at all be applicable in the present case.
As regard the fact of the case, it is an admitted fact the appellant had advanced loan to Vintage for subscribing to the GDR of the Farmax as a sole subscriber. The Vintage is owned by noticee Arun Panchariya. Present appellant had joint venture with Arun Panchariya as detailed supra. The appellant did not explain as to why no collateral security could be obtained from Vintage or Arun Panchariya. However, the GDR proceeds to be received in future were accepted as a pledge by EURAM Bank.
As it was nothing but a case of making two entries in two accounts i.e. one in the account of Vintage of granting loan and another in the account of Farmax of receiving the GDR proceeds and holding the same as a security for the loan advance to Vintage. In the process, appellant EURAM had earned interest and the loan remained fully secured by the GDR proceeds. It would be naive to believe that EURAM Bank did not know the purpose for which the GDRs are issued and whether the pledging of the GDR proceeds for a stranger could be an object or purpose of issuing GDR.
Appellant relying on the case of Dilip S. Pendse vs SEBI Appeal No. 80 of 2009 decided on November 19, 2009 submitted that the preponderance of probability to prove the charge of fraud is higher than the regular one. Considering the status of the appellant as an International Bank; that it was registered as a foreign investment institute in India, having connection with the noticee Arun Panchariya, in our view the above test is satisfied in the present case.
Present appeal also fails.
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2022 (3) TMI 1538 - SUPREME COURT
Lapse of acquisitions of the lands under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - preliminary notification gazette on 3.9.1994 - acquisition lapsed on account of the award not having been made within a period of two years in terms of Section 11A of the Land Acquisition Act - HELD THAT:- There has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. Such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land. There being a delay in the passing of the award owing to interim orders granted by the High Court or even by the civil courts, where suits may have been filed against acquiring bodies, the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them.
The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013. The High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners.
Though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under subsection (2) of section 24 of the Act, 2013.
The matters are remitted back to the learned Single Judge to decide and dispose of the writ petitions afresh and in accordance with law and on their own merits - Appeal allowed by way of remand.
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