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2015 (3) TMI 1417 - SUPREME COURT
Murder - allegation is that the deceased was proceeding in his car, the assailants came in a white Ambassador car, intentionally dashed the said car against the car driven by the deceased - Section 319 of the Code of Criminal Procedure - whether on the facts mentioned earlier the Sessions Court is obliged to summon PW64 as an additional accused exercising the power Under Section 319 of the Code of Criminal Procedure? - HELD THAT:- The Section authorizes the Court making any inquiry into or conducting the trial of an offence to "proceed" against any person (other than the accused facing trial) subject to two conditions (i) that from the "evidence" it appears to the Court that such a person "has committed any offence", and (2) that such a person "could be tried together with the accused."
When could a person appearing to have committed an offence "be tried together with the accused" already facing trial? - HELD THAT:- As rightly noticed by the High Court, the only clause if at all relevant for the purpose of the present case is Section 223(d) which stipulates that persons accused of different offences committed in the course of the same transaction could be charged and tried together - It is admitted on all hands that except the evidence of PW64 and his statement Under Section 164 Code of Criminal Procedure there is no other evidence on record of the Sessions Court to indicate that PW64 has committed any offence. Both the evidence and the statement Under Section 164 Code of Criminal Procedure of PW64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW64 was a party at least at the initial stage. According to PW64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would legally absolve him of guilt are questions with which we are not concerned for the purpose of this case.
Therefore, if law permits the use of the content of either the evidence given at trial or the statement made Under Section 164 Code of Criminal Procedure by PW64, he could be tried for an offence punishable Under Section 120B Indian Penal Code. Because, on his own admission, PW64 agreed to kill Vijayan for a price and accepted money from A2 towards the part payment of such price and also drafted A3 into the conspiracy.
Before this Court, the main argument was that "Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since Section 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the Appellants. The breach of the last obligation vitiated the trial and the action was discriminatory. In the alternative, even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court". - In substance, this Court held that once the prosecution chose to examine Ethyl Wong as a witness she was bound to answer every question put to her. In the process, if the answers given by Ethyl Wong are self-incriminatory apart from being evidence of the guilt of the others she could not be prosecuted on the basis of her deposition in view of the proviso to Section 132 of the Evidence Act - This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined Under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself.
Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee Under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss, the policy Under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso grants immunity to such a witness by declaring that "no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding".
The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.
The High Court rightly refused to summon PW64 as an accused to be tried alongwith the Appellant and others - Appeal disposed off.
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2015 (3) TMI 1416 - DELHI HIGH COURT
Theft of electricity - institution of prosecution - whether the owner of the factory was the petitioner where the electricity theft was detected? - allegation is that petitioner was possessor and occupier of the premises in question - HELD THAT:- This Court has gone through the provision of Section 391 Cr.P.C. which provides that while dealing with appeal, if the Appellate Court thinks additional evidence is necessary, it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate.
The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391 Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C.
In the present case, it is apparent from the record that FIR was registered on 30.03.2000; charge sheet was filed on 12.07.2000; judgment of conviction was passed on 12.08.2004; order on sentence was passed on 26.08.2004; criminal appeal filed by the petitioner was dismissed on 16.12.2006 and now we are in the year 2015. The learned Additional Sessions Judge released the petitioner on probation for a period of three years, which period is already complete.
The compensation amount of Rs.4,00,000/- is reduced to Rs.2,00,000/-, subject to adjustment of amount already deposited. In case of non-payment of remaining compensation amount by the petitioner, same would be recovered as fine - revision petition is disposed off.
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2015 (3) TMI 1415 - ITAT AHMEDABAD
Disallowance retention money as well as on licence fee - case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) r.w.s.254 was framed - CIT-A deleted the addition - HELD THAT:- As decided in NARAN LALA PVT. LTD. VERSUS THE D.C.I.T., NAVSARI CIRCLE, NAVSARI AND VICE-VERSA [2011 (6) TMI 1019 - ITAT AHMEDABAD] complete facts of the case were not examined and verified including the amount if any incurred by the assessee for business purpose out of the retention amount.
After passing of the impugned orders, there is a change on the matter in issue and the points have now been decided in favour of the assessee which is also not disputed by the learned DR. However, the authorities below have no occasion to examine the facts of the case in the light of the above decisions cited by the learned Counsel for the assessee. Both the parties agreed that the matter may be remanded to the file of the AO for reconsideration of the issue in the light of the decision delivered by the Hon'ble Punjab & Haryana High Court [2009 (11) TMI 995 - PUNJAB AND HARYANA HIGH COURT] and the Hon'ble Supreme Court (2009 (5) TMI 16 - SUPREME COURT). We find force in the submissions of both the parties that the matter requires reconsideration in the light of the above decisions.
Thus the issue is restored back to the file of AO to decide the same - Appeal of the Revenue is allowed for statistical purposes.
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2015 (3) TMI 1414 - SC ORDER
Permission for withdrawal of SLP - petitioners has submitted that the matters have been settled out of the Court - HELD THAT:- Permission is granted.
The Special Leave Petitions are, accordingly, disposed of as withdrawn.
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2015 (3) TMI 1413 - DELHI HIGH COURT
Assessment in respect of the company which was amalgamated u/s 391/394 of the Companies Act - Assessment in name of the transferor or amalgamating company - corporate death of an entity upon amalgamation - Curable defect u/s 292B - HELD THAT:- Revenue was informed that the original assessee (i.e. the transferor under the scheme of amalgamation) had been dissolved pursuant to the amalgamation scheme and approved by the Court and that consequently the return for AY 2009-2010 had not been filed by the original assessee. A reply to the Revenue’s questionnaire was given by the assessee on 12th November, 2010, again bringing to the notice of the authorities that the scheme of amalgamation had dissolved the original assessee in whose shoes the transferee company had completely stepped in.
Despite this, the AO finalized the assessment u/s 153C, in respect of the original assessee. In appeal it was successfully contended on behalf of the assessee – which was represented by the transferee that the assessment under Section 153C was invalid since it was completed in respect of a non-existent entity. This order was appealed against by the Revenue unsuccessfully; the ITAT rejected its appeal.
We notice that the ITAT followed the ruling of this Court in M/s. Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] subsequently followed in other rulings (refer to Additional Commissioner of Income Tax vs. Micra India Pvt. Ltd [2015 (5) TMI 613 - DELHI HIGH COURT] - No substantial question of law arises.
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2015 (3) TMI 1412 - TELANGANA HIGH COURT
Seeking the relief against Look Out Circular(LOC) issued - petitioner is now required to go to London in order to save his job, but on account of LOC the petitioner was not permitted to leave the country by the Immigration Authorities - HELD THAT:- Petitioner has thereafter made a detailed representation dated 19.12.2014 before the Superintendent of Police, Guntur, pointing out that he has already exceeded his stay in India beyond 180 days, which is the maximum permissible period and as such, he cannot remain in India and required to return to London as his salary is being with held by his employer and that in view of the fact that the petitioner has no intention to obstruct the hearing of the cases and he has already surrendered before the Court voluntarily, requested that the LOC to be taken back. However, as no action is being taken, the present writ petition is filed. The instructions received earlier by the learned Government Pleader however show that on the basis of opinion of Assistant Public Prosecutor, the Superintendent of Police declined to take any action on the request of the petitioner for withdrawal of LOC. Since such a reason was not acceptable to this Court, the Superintendent of Police was directed to file a counter.
In the present case, petitioner has already made an appropriate representation before the Superintendent of Police as referred to above. However, apparently, the Superintendent of Police is not inclined to withdraw the said circular - Since no purpose would be served by directing the petitioner to approach the Superintendent of Police for the purpose of withdrawal of LOC, this writ petition is disposed of permitting the petitioner to move the Court of Special Judicial Magistrate of First Class, Prohibition & Excise, Guntur - Petition disposed off.
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2015 (3) TMI 1411 - ITAT JAIPUR
Deduction u/s 80P - CIT(A) treating the receipts on account of interest from employees, interest on savings, dividend and income from no dues certificates as income from banking business activities and consequent allowance of deduction u/s 80P(2)(i)(a) & 80P(2)(d) - HELD THAT:- It is evident from the assessment order that the assessee had income from interest from the employees, interest on savings, dividend and income from no dues certificate which has been held by the AO as Income from other sources.
CIT(A) had dealt with each items in his order and had given detailed findings on all the issues raised before him. After considering various judgements as mentioned above he treated the income as Income from business or profession and also entitled the assessee for deduction u/s 80P(2)(i)(a) of the Act i.e. interest from employees, interest on savings, dividend and Income from no dues certificate.
DR has not controverted the findings given by the ld. CIT(A). The judgements relied on by the ld. DR in the cases of Totgar’s Co-operative Sale Society Ltd.[2010 (2) TMI 3 - SUPREME COURT] is on surplus fund deposited with bank and interest income. CIT vs. Nawanshahar Central Co-Op. Bank Ltd. 3 [2012 (9) TMI 404 - SC ORDER] are squarely applicable in this case as the Hon'ble Supreme Court allowed 80P(2)(a)(i) deduction on underwriting commission and interest on PSEP Bond. Thus in view of the facts and circumstances of the case, we find no reason to interfere in the order of the ld. CIT(A) and the appeal of the Revenue is dismissed.
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2015 (3) TMI 1410 - SUPREME COURT
Eligibility criteria stipulated by the UGC Regulations of Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges - appointment as Vice-Chancellor - whether the post of Associate Professor held by the Appellant-Dr. Kalyani Mathivanan in a private aided College can be considered as an equivalent post, satisfying requirement of paragraph 7.3.0 of the UGC Regulations, 2010? - whether the prescriptions contained in paragraph 7.3.0 of the Annexure to the UGC Regulations, 2010 is mandatory or directory? - whether the U.G.C. Regulation, 2010 would override the provisions of the University Act, 1965 and the Statute framed thereunder?
HELD THAT:- The University Grants Commission has been established for the determination of standard of Universities, promotion and co-ordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the Universities [see Section 26(1)(e)(g)] UGC is empowered to frame Regulations - It is only when both the Houses of the Parliament approve the Regulation, the same can be given effect. Thus, the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the Fund of the Commission.
Chapter VI of the University Act deals with Statutes, Ordinances and Regulations. Section 30 stipulates the matters which can be provided under Statutes. This includes the constitution or reconstitution, powers and duties of the authorities of the University. Section 32 deals with Ordinances which may provide for all or any of the matters mentioned therein including the qualifications and emoluments of teachers of the University - The word statutes with respect to University means law of the University. In the present context it means the provisions of the University Act and the statutes, ordinances and Regulations framed therein. Chapter V of the Statutes of Madurai Kamaraja University relates to Vice-Chancellor. Clause 2(1) of Chapter V stipulates that Vice-Chancellor should be a whole-time Officer of the University who would be the academic head and principal executive officer of the University with powers and duties mentioned therein.
From UGC Regulations, 2010, it is clear that the Vice-Chancellor should be a distinguished academician with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization. Whereas the post of Vice-Chancellor under University Act, 1965 and statute made thereunder is not a teaching post but an officer of the University.
Whether any of the provisions of the State Legislation (University Act, 1965) and statutes framed thereunder is in conflict with the Central Legislation i.e. UGC Act, 1956 including UGC Regulations, 2010? - HELD THAT:- UGC Regulations, 2010 is not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this connection, one may refer paragraph 8(p)(v) of Appendix-I dated 31st December, 2008 and Regulation 7.4.0 of UGC Regulations, 2010 - It is also not the case of the Respondents that the Scheme as contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been adopted and implemented by the State Government. It is also apparent from the facts that University Act has not been amended in terms of UGC Regulations, 2010 nor was any action taken by the UGC Under Section 14 of UGC Act, 1956 as a consequence of failure of University to comply with the recommendations of the Commission Under Section 14 of the UGC Act, 1956.
The appointment of Dr. Kalyani Mathivanan as Vice-Chancellor, Madurai Kamaraj University as made by the G.O. (1D) No. 80, Higher Education (H2) Department, Government of Tamil Nadu dated 9th April, 2012 is upheld - appeal allowed.
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2015 (3) TMI 1409 - SUPREME COURT
Requirement of sanction u/s 197 Code of Criminal Procedure before launching the prosecution - rebuttable presumption insofar as the guilt of the offence is concerned - HELD THAT:- Under Section 48, the guilt is deemed to be committed the moment the offence under the 1974 Act is alleged against the Head of the Department of a Government Department. It is a rebuttable presumption and under the proviso to Section 48, the Head of the Department will get an opportunity to demonstrate that the offence was committed without his knowledge or that in spite of due diligence to prevent the commission of such an offence, the same came to be committed. It is far different from saying that the safeguard provided under the proviso to Section 48 of the 1974 Act would in any manner enable the Head of the Department of the Government Department to seek umbrage Under Section 197 Code of Criminal Procedure and such a course if permitted to be made that would certainly conflict with the deemed fiction power created Under Section 48 of the 1974 Act.
There is no specific provision providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. If one can visualise a situation where Section 197 Code of Criminal Procedure is made applicable in respect of any prosecution under the 1974 Act and in that process the sanction is refused by the State by invoking Section 197 Code of Criminal Procedure that would virtually negate the deeming fiction provided Under Section 48 by which the Head of the Department of Government Department would otherwise be deemed guilty of the offence under the 1974 Act. In such a situation the outcome of application of Section 197 Code of Criminal Procedure by resorting to reliance placed by Section 4(2) Code of Criminal Procedure would directly conflict with Section 48 of the 1974 Act and consequently Section 60 of the 1974 Act would automatically come into play which has an over riding effect over any other enactment other than the 1974 Act.
There is no scope for invoking Section 197 Code of Criminal Procedure even though the Appellants are stated to be public servants - Appeal dismissed.
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2015 (3) TMI 1408 - ITAT DELHI
Reopening of assessment u/s 147 - Addition u/s 14A r.w.rr. 8D - HELD THAT:- Once the assessee did not press the issue of initiation of re-assessment proceedings before the Tribunal and allowed the decision to be taken on all issues on merits, we now cannot unsettle the earlier tribunal order by entertaining any ground about the initiation of re-assessment. AR fairly admitted that the order of the tribunal in the first round has been accepted by the assessee. In this view of the matter, we cannot permit the assessee to raise the ground against the initiation of reassessment once again, after having not pressed the same in the first round before the tribunal. This ground is, therefore, not allowed.
Disallowance u/s 14A - AO was not correct in applying the provisions of Rule 8D for computing disallowance u/s 14A. Our view is fortified by the judgment of Maxopp Investments Ltd. [2011 (11) TMI 267 - DELHI HIGH COURT] in which it has been held that the provisions of Rule 8D can apply only from the assessment year 2008-09 and in the earlier periods, the disallowance is required to be made on a reasonable and acceptable method of apportionment.
For interest aspect it is vivid from the assessee’s balance sheet that total investments at the end of the year stand at ₹ 167.74 crore. The assessee’s capital along with reserve and surpluses stand at ₹ 448.33 crore. This shows that the assessee’s Shareholders’ funds is far in excess of the investment made in securities yielding exempt income - in CIT vs. Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] has held that if there are interest free funds available with the assessee sufficient to meet its investment and, at the same time, loan has been raised, it can be presumed that the investments were from interest free funds and, resultantly, no disallowance of interest can be made.
Recently, the Hon’ble Bombay High Court in CIT vs. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] has held that no disallowance of interest can be made u/s 14A if the assessee’s own capital is more than the investments fetching exempt income. Similar view has been taken by the Hon’ble Gujarat High Court in the case of CIT vs. Suzlon Energy Ltd. . [2013 (7) TMI 697 - GUJARAT HIGH COURT]. In view of the above judgments, it is patent that the disallowance u/s 14A on account of interest was not rightly made by the AO.
Disallowance towards expenses incurred for earning exempt income - we find that the AO made addition by applying the mandate of Rule 8D(2) (iii). On the other hand, the ld. CIT(A) bifurcated total expenses into those exclusively relating to the manufacturing activity and those which are common to both manufacturing activity and exempt income. Such amount of common expenses was determined by the ld. CIT(A) at ₹ 80.23 crore. The ld. DR could not point out any deficiency in computing the base amount of expenses at ₹ 80.23 crore.
Apportionment of expenses - CIT(A) was not justified in allocating ₹ 26.21 lac towards exempt income by apportioning such total expenditure of ₹ 80.23 crore in the ratio of dividend income to the total turnover of the company. There can be no comparison between dividend income on the one hand and total turnover on the other, which contains only a part as income. On the contrary, a valid base for apportionment is exempt income to taxable income.
As in the case of HT Media Ltd. [2015 (8) TMI 708 - ITAT DELHI] has also approved the apportionment of common expenses in the ratio of exempt income to total income. To this extent, the impugned order is set aside and the matter is sent back to the AO. We direct the AO to compute disallowance u/s 14A by apportioning total expenses of ₹ 80.23 crore in the ratio of exempt income to total income. However, it is made clear that the total disallowance should not exceed 10% of the exempt income, being the amount of disallowance sustained in the first appeal in the original round, against which the Revenue did not choose to prefer any appeal. - Appeal of the Revenue is partly allowed for statistical purposes a
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2015 (3) TMI 1407 - MADRAS HIGH COURT
Dishonor of Cheque - whether, a power of attorney can speak about a fact, which is in the personal knowledge of the petitioner, the drawee of the cheque, stated to be received the cheque amount, in the police station? - HELD THAT:- Record of proceedings shows that revision case is pending from 2011 onwards. The petitioner has obtained stay of the proceedings in STC. No. 590 of 2007 and even after this Court ordered private notice, as early as on 09.09.2011, proof has not been filed for effecting service on the respondent. Thus, it is also evident from the above that it is the petitioner, who has protected the proceedings in STC No. 590 of 2007 on the file of the learned Judicial Magistrate No. I, Tiruppur, and not the respondent.
The power of attorney can adduce evidence on the facts relating to issuance of cheque, dishonour, issuance of notice and filing of complaint, and these facts can be deposed with documents. He comes into picture, only after all the legal requirements for instituting a complaint, are met and authorised to speak about the abovesaid facts. Power of attorney is given to institute a complaint under Section 138 of the Negotiable Instruments Act, 1881, and to conduct the case. It cannot be contended that, whatever transpired between the parties is within the personal knowledge of the power of attorney. On the facts of this case, he cannot speak as to what transpired in the Crime Branch Police Station, Tiruppur, regarding payment, stated to have been made by the drawer, towards the cheque amount. The abovesaid fact can be spoken to, only by the complainant and not by the power of attorney.
The revision petition is dismissed.
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2015 (3) TMI 1406 - ITAT CHENNAI
Condonation of delay - sufficient cause of delay - delay around 8 ½ years - CIT(A) refusing to condone the delay around 8 ½ years in filing these appeals against the order passed by the Assessing Officer - HELD THAT:- The assessee has to establish that there was no negligence or inaction and the right granted under law to challenge the order was not abandoned. It cannot be overlooked that on expiry of the period of limitation prescribed for seeking remedy, a corresponding right accrues in favour of the other party and the same should not be lightly interfered with. Coming to the facts of the present case, the assessee has to explain the period of delay by bringing the material on record to support the sufficient cause.
The assessee has to show that the assessee is vigilant during this period and the delay was beyond his control. Condoning of inordinate delay of around 8 ½ years should not frustrate the legitimate expectation of the other party as the Revenue would have come to the conclusion that the order of the Assessing Officer has been accepted by the assessee and reached finality especially the assessee should not take up the requisite legal remedies for such an inordinate length of time of 8 ½ years.
Considering the findings of the CIT(Appeals), since he has not examined actual circumstances which has prevented the assessee to file appeals against the orders of the Assessing Officer, we are not in a position to express any opinion about condoning of the delay. The ld. CIT (Appeals), who is required to examine whether the facts narrated by the assessee in his petition for condonation of delay as true or not which he failed to examine the same. Thus, in our opinion he is required to examine the contents, details in petition whether it is true or not. In our opinion, rule of limitation are not meant to destroy the right of the parties - The length of delay is not a material to condone the delay, the cause of delay is to be considered to condone the delay.
We are inclined to hold that the Commissioner of Income Tax (Appeals) has to have necessary enquiry regarding averments made by the assessee in his affidavit and thereafter decide in accordance with law. - Appeal filled by assessee for statistical purposes.
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2015 (3) TMI 1405 - MADRAS HIGH COURT
Benami transaction - Real owner of property purchased - title of the first respondent/first defendant in respect of the suit property - appellants/surviving defendants contend that even if it is assumed that the suit property was purchased by the respondent/plaintiff with his own funds, since it was purchased in the name of the first appellant/first defendant, in view of the bar provided under Section 4 of the Benami Transaction (Prohibition) Act - Whether the Courts below erred in law in relying upon Exs. A13, A14, A15, A17 and A18 to reject the case of the appellants? - HELD THAT:- The Courts below did not rely on Exs. A13, A15, A17 and A18 for the purpose of making a decision as to whether the funds for the purchase of the suit property under Ex. B1 was provided by the respondent/plaintiff; that on the other hand, the Courts below relied on Ex. A14 alone for the above said purpose and that the reliance made on Ex. A14 is not erroneous in law. The first substantial question of law is answered accordingly
Whether the Courts below have rendered a perverse finding that the purchase of the suit property in the name of the first appellant was made entirely out of the funds provided by the respondent? - The respondent/plaintiff was able to prove that it was he who provided the funds for the purchase of the house site under Ex. B1 in the name of his wife, namely the first respondent/first defendant. The concurrent findings of the courts below to the above said effect cannot be said to be defective or erroneous, much less perverse warranting an interference by this Court in exercise of its power in this second appeal. The second substantial question of law is answered accordingly.
There was a settlement between the respondent/plaintiff and his wife, the first appellant/first defendant on 25.09.1990 and the said settlement was arrived at in the presence of Panchayatdhars and the Inspector of Police, Ayakudi Police Station - The document referred to in Paragraph 6 of the written statement of the first appellant/first defendant as containing the acknowledgment made by the respondent/plaintiff has not seen the light of the day. In the absence of any witness and in the absence of any document, based on the mere averment made in the written statement alone, the Court cannot hold that the said averment stands substantiated by the first appellant/first defendant. As the above said contention of the first appellant/first defendant has not been substantiated either by oral or documentary evidence, there shall be no question of holding the respondent/plaintiff to be estopped from denying the title of the first appellant/first defendant in respect of the suit property on the basis of the alleged acknowledgment of title. Hence, the fourth substantial question of law is answered accordingly, holding that the appellants have not proved that the respondent/plaintiff had acknowledged the title of the first appellant/first defendant and hence he was estopped from denying her title to the suit property. The Courts below have not committed any error in not rendering a finding that the respondent herein/plaintiff was estopped from disputing the title of the first respondent/first defendant in respect of the suit property in the light of the averments contained in paragraph 6 of the written statement of the first appellant/first defendant. The fourth substantial question of law is answered accordingly.
Whether the Courts below failed to properly construe the scope of Section 3(2) and Section 4 of the Benami Transaction Prohibition Act, 1988 in coming to the conclusion that the respondent/plaintiff was entitled to maintain his claim against the appellants? - In the case on hand there is no pleading and no evidence to show that the purchase made under Ex. B1 was not for the benefit of the first appellant/first defendant and on the other hand it was for the benefit of the respondent/plaintiff. On the other hand, there is a clear and categorical admission made by the respondent/plaintiff both in his pleadings and evidence that the purchase was made for the benefit of his wife and also his son in the name of his wife, namely the first appellant/first defendant.
The courts below have committed an error in holding that the respondent herein/plaintiff was entitled to succeed in the suit filed by him on the basis of his contention that the suit property had been purchased by him with his own funds in the name of his wife for her benefit and that still he was entitled to the declaration of his title in respect of the suit property as well as for the recovery of possession of the same from the appellants/surviving defendants. The third substantial question of law, accordingly decided in favour of the appellants/surviving defendants holding that the first appellant/first defendant shall be entitled to the suit property purchased in her name. In view of the foregoing discussions, especially the answer given to the third substantial question of law, the appellants are bound to succeed in the second appeal and the decree passed by the lower appellate court confirming the decree passed by the trial court is liable to be set aside, with the result that the suit itself is liable to be dismissed.
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2015 (3) TMI 1404 - SUPREME COURT
Seeking grant of bail - constitutional validity of Section 438 Code of Criminal Procedure - Appellant contends that once the writ petition is disposed of by the High Court declining to quash the FIR registered against Respondent Nos. 1 to 4, the High Court in exercise of its power Under Article 226 of the Constitution of India - HELD THAT:- If the Court was of the opinion that there was no other convenient or adequate remedy open to the Petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the Petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante.
As could be seen from the above said paragraph of KARTAR SINGH VERSUS STATE OF PUNJAB [1994 (3) TMI 379 - SUPREME COURT] this Court has made it very clear that High Court has no power to entertain an application for bail Under Article 226 of the Constitution of India. It has made further clear that the power should be exercised sparingly relating to the cases under the 1987 Act, that too only in rare and appropriate cases in extreme circumstances. Upon the said passage from the judgment of Kartar Singh case, learned senior Counsel for Respondent Nos. 1 to 4 has placed strong reliance in justification of the order passed by the High Court in giving direction to the learned Magistrate regarding the bail application that would be filed by Respondent Nos. 1 to 4.
The matter is remanded to the learned Magistrate to consider the bail application afresh in accordance with law after giving an opportunity of hearing to the parties - appeal allowed by way of remand.
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2015 (3) TMI 1403 - BOMBAY HIGH COURT
Grant of refund - seeking a direction to the Respondents to undertake assessment of the returns filed by the Petitioners - only grievance of the parties like the Petitioners is that the returns though furnished and submitted have not been scrutinised and verified in terms of the law - HELD THAT:- We clarify that we make no observation nor express any opinion specifically on the issue as to whether the refund could be granted to the Petitioners on the basis of their computation and calculation made in the returns or a separate procedure being evolved therefor. They will have to comply with the same including filling in the forms if necessary - We only desire that none of such applications as are noted by us and in the Petitions are kept pending by the department/Respondents. If the returns are furnished and submitted, then, they deserve to be scrutinised.
It is stated that pursuant to our oral direction, the Commissioner of Sales Tax is present in Court. He has instructed Mr. Sharma to state that all the returns and which are subject matter of the Petitions on today's board and equally those pending with the department would be taken up for scrutiny and verification periodically and as far as the Petitioners are concerned, the returns would be processed and the requisite orders would be passed within a period of 4 weeks from the date of receipt of copy of this order.
Petition disposed off.
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2015 (3) TMI 1402 - GUJARAT HIGH COURT
Grant of Regular Bail - conspiracy - floating of bogus companies by appointing several persons as the Directors - offence punishable under Section 120-B, 420, 465, 467, 468, 471, 477-A of the Indian Penal Code - HELD THAT:- Indisputably, the case on hand is one of criminal conspiracy. Prima facie it appears that as a part of the conspiracy, which was hatched, a huge amount was transferred to Dubai and Hongkong on the strength of fake Bills of Entry. Each of the accused has played his own role in the alleged conspiracy. It appears that one of the main accused persons Sunil Dipak Kumar Agrawal has been ordered to be released on regular bail.
The applicant-accused is ordered to be released on bail registered with the DCB Police Station, Surat on executing a personal bond of ₹ 5,00,000/- with one surety of the like amount each to the satisfaction of the trial Court, and subject to the conditions imposed - application allowed.
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2015 (3) TMI 1401 - ITAT HYDERABAD
Excess cash as generated from unaccounted sales - No explanation to difference in cash either during the survey proceeding or in course of assessment proceeding - HELD THAT:- There is no dispute to the fact that on physical verification excess cash was found at the time of survey. AO has treated excess cash as unexplained income of assessee by alleging assessee failed to explain the source of excess cash. However, it is the contention of assessee before ld. CIT(A) as well as before us that excess cash found at the time of survey belong to partners of HUF.
On perusal of the returns filed electronically by Giridharlal & Sons, HUF for the AYs. 2008-09 and 2009-10, it appears that not only the returns were filed prior o the date of survey, but, the HUF is also generating some amount of income. The balance sheet as on 31/03/08 also shows cash in hand of ₹ 70,000. Therefore, assessee’s claim that excess cash actually belong to HUF cannot be out rightly rejected. In the aforesaid view of the matter, considering the fact that assessee’s explanation with regard to excess cash is plausible, the addition made cannot be sustained. Accordingly, we delete the same.
Estimate gross profit on the alleged suppression of sale - HELD THAT:- No material has been brought to our notice by ld. DR to even remotely indicate assessee has indulged in suppression of sale. Drop in sales for the post survey period may be due to various reasons but without bringing any material on record to suggest suppression of sales, merely on assumptions and presumptions sales cannot be estimated by alleging suppression of sales by assessee. More so, when it is a fact on record that assessee regularly files its VAT returns disclosing sales turnover, which is in accordance with the books of account and authorities under the VAT Act have not pointed out any sales suppression.
At least nothing of the sort has been brought to our notice. As regards the decision of RAJNIK AND CO. [2001 (4) TMI 53 - ANDHRA PRADESH HIGH COURT] on careful examination of the same, we are of the view that it is not applicable to the facts of the present case as in the case decided by the Hon’ble High Court there were evidences on record to show that assessee has suppressed sales. Whereas, in the present case there is not even a single piece of evidence to show that assessee has suppressed its sales. In view of the aforesaid, we hold that addition made by estimating sales is not proper, hence, cannot be sustained. Accordingly, we delete the same.
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2015 (3) TMI 1400 - MADRAS HIGH COURT
Freezing of petitioner's Bank Accounts - Cheating - defacto complainant - police has complied with the mandatory requirements under Section 102 CrPC or not - HELD THAT:- A cursory look at sub Section (3) of Section 102 CrPC, no doubt, makes it clear that it is the duty of the police officer acting under subsection (1) shall forthwith the report the seizure to the magistrate having jurisdiction - The word “shall” used under Sub Section (3) of the Section 102 CrPC can be meant and interpreted to cast a mandatory duty on the police officer, to seize the property and to report to the Magistrate having jurisdiction. In the light of the decisions dealing with interpretation of statutes and Section, this Court is unable to accept the contention that non compliance of sub Section (3) of Section 102 CrPC, i.e., in not reporting the factum of the seizure to the learned Magistrate having jurisdiction, would entitle the accused to seek for defreezing of the bank accounts, when the investigation is in progress and with reference to the facts on hand, statements of bank accounts have to be collected from the HDFC Bank.
On the facts and circumstances of this case, instead of directing the petitioner/accused to seek for a direction against the employer to credit of subsistence allowance, which is now stated to be lying in the District Treasury, Thiruvannamalai, this Court, in exercise of powers under Section 482 of CrPC, deems it fit to suo motu implead the Director of the Agriculture Department, Ezhilagam, Chennai, as a party respondent to this revision case, only for the purpose of enabling him to credit the subsistence allowance to which the petitioner is entitled as a Government Servant.
A direction is issued to the Manager, HDFC Bank, Thiruvannamalai Branch, to defreeze the salary account only to the limited extent of permitting the Director, Agriculture Department, Chennai, to deposit the subsistence allowances due and payable to the petitioner, within a period of two weeks from the date of receipt of a copy of this order - Criminal Revision Case is disposed of.
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2015 (3) TMI 1399 - KARNATAKA HIGH COURT
Sanction of scheme of Amalgamation - registration as NBFC - Transferee Company undertakes to register with RBI - HELD THAT:- A perusal of the papers would indicate that on consideration of the scheme the competent authorities though have raised observation regarding one aspect relating to the provisions made in the scheme, but it is not as being contrary to any law, but only for securing RBI clearance, which is undertaken. Further, despite publication of the filing of these petitions, no person interested in the affairs of the petitioner companies or their members have raised any objection to the sanction of scheme by this Court.
The Transferee company would remain liable for compliance of the law under various enactments including the Income Tax Act on the scheme becoming operational. The scheme in Clause-9 provides to protect the interests of the staff workmen and employees of the Transferor companies - petition allowed.
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2015 (3) TMI 1398 - ITAT MUMBAI
Rectification of mistake u/s 254 - A.R submitted that the said disallowance is not warranted since the own funds available with the assessee exceeds the borrowed funds - A.R submitted that the assessee is having the view that the availability of own funds and other non-interest bearing funds vis-a-vis the investment should be examined as on the date of Balance Sheet and not as on the date of making investment - HELD THAT:- We find merit in the miscellaneous petitions of the assessee and accordingly, we are of the view that the errors pointed out by the assessee require rectification.
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