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Showing 101 to 120 of 888 Records
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2009 (8) TMI 1192 - GUJARAT HIGH COURT
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... ... ..... r. 3. Mr. Parikh further states that if the petitioner approaches the respondent authorities on Monday copy would be supplied at the earliest. 4. Responding to this the learned advocate Mr. Dave states that the petitioner or his authorized representative will approach the respondent authorities on Monday for getting the certified copy of the order. 5. Upon the arrangement being arrived at the learned advocate Mr. Dave seeks permission to withdraw this petition at this stage reserving the right of the petitioner to revive this petition, in case of difficulty in getting certified copy of the order. The petition stands disposed of as withdrawn.
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2009 (8) TMI 1191 - GUJARAT HIGH COURT
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... ... ..... seeks permission to withdraw this petition with a view to pursue alternative remedy available to her. Permission as prayed for is granted. The petition stands disposed of as withdrawn. Notice discharged. No costs.
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2009 (8) TMI 1190 - SUPREME COURT
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... ... ..... o not go beyond Rule 177 but they are a part of gap-filling exercise and discipline to be followed by the management. For example every school shall prepare balance sheet and profit and loss account. Such conditions do not supplant Rule 177. If reasonable fee structure is the test then transparency and accountability are equally important. In fact, as can be seen from Reports of Duggal Committee and the earlier Committee, excessive fees stood charged in some cases despite the 1973 Rules because proper Accounting Discipline was not provided for in 1973 Rules. Therefore, the Further Directions given are merely gap-fillers. Ultimately, Rule 177 seeks transparency and accountability and the Further Directions (in para 27) merely brings about that transparency. Lastly, it may be noted that the matter has come up to the Apex Court from PIL. Hence there is no merit in the above plea. 23. Subject to the above clarification, review petitions stand dismissed with no order as to costs.
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2009 (8) TMI 1189 - GUJARAT HIGH COURT
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... ... ..... d, if the facts of the present case are considered, prima facie, at the admission stage, the following deserves to be passed A) Admit. B) As the defence of the respondent Company is found to be not bonafide, before this Court passes the further order for issuing advertisement in accordance with law, by way of an opportunity to be given to the respondent Company for showing its ability to pay the debt and also to show the complications which may arise on account of the advertisement upon its commercial solvency or insolvency as the case may be, the respondent is directed to deposit the amount of ₹ 89,19,840/- being equivalent Indian rupees at the rate of ₹ 80/- per pound of £ 1,11,498.21. So far as amount equivalent to £ 48,343.13 is concerned, no order for directing to deposit is made at this stage. Such amount be deposited with this Court without two weeks on or before 15th September, 2009. 15. S.O. to 17th September, 2009 for passing further orders.
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2009 (8) TMI 1188 - SUPREME COURT
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... ... ..... trespasser. ii. For the aforementioned purpose, he shall pay the requisite court fee in terms of the provisions of the Court Fees Act. iii. Such an application for grant of leave to amend the plaint as also requisite amount of court fees should be tendered within four weeks from date. iv. The defendant - appellant would, in such an event, be entitled to file his additional written statement. v. The learned trial judge shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue. vi. All the evidences brought on record by the parties shall, however, be considered by the court for the purposes of disposal of the suit. vii. The learned trial judge is directed to dispose of the suit as expeditiously as possible and preferably within 3 months from the date of filing of the application by the plaintiffs in terms of the aforementioned direction (i). 24. The appeals are allowed with the aforementioned directions. No costs.
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2009 (8) TMI 1187 - PUNJAB AND HARYANA HIGH COURT
Condonotaion of delay - delay in filing appeal - Section 5 of the Limitation Act, 1963 - Held that: - an appeal to the High Court should be made within a period of 180 days only from the date of communication of the decision or order - icient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Therefore, the instant appeal has to be held to be barred by limitation.
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2009 (8) TMI 1186 - SUPREME COURT
Whether the liability of the guarantor and principle debtors are co-extensive and not in alternative?
Whether the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A. 156 of 1997?
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2009 (8) TMI 1184 - DELHI HIGH COURT
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... ... ..... ods as the CFL has reported 47.94 damage in violation of Section 2(ia) of Prevention of Food Adulteration Act. The submission of the petitioner is that the betel nuts are likely to be deteriorated. Having regard to the two conflicting reports, it would be appropriate to send the goods for re-testing. Learned counsel for the respondent submits that there is no provision for re-testing under the Prevention of Food Adulteration Act. On the other hand, learned counsel for the petitioner has drawn our attention to the judgment of this Court in the case of Magma India Vs. Union of India 2005(189) ELT 261. In view of the principle laid down and having regard to the facts and circumstances of the case, we direct the respondent to get the goods tested again from CFL as well as DPPQS without informing the petitioner in this behalf. The respondent shall act further on the basis of reports. Writ petition is disposed of. Copy of the order be given dasti to the counsel for the respondent.
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2009 (8) TMI 1183 - CESTAT KOLKATA
Quantum of redemption fine - the Commissioner noticed the fact that there was a merger of approximately 20 to 22% therefore the redemption fine be enhanced
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2009 (8) TMI 1182 - GUJARAT HIGH COURT
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... ... ..... the case, the CESTAT is correct in rejecting the appeal on the ground that in order to qualify under the definition of input service, the service has to be received in the factory of production? 3. Whether on the facts and circumstances of the case, the Appellate Tribunal is correct in rejecting the appeal of the Appellants on the ground that the services received in respect of generation of electricity which is used in or in relation to the manufacture of dutiable products, are not entitled for Cenvat credit? Post the matter along with Tax Appeal No.1037/2008.
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2009 (8) TMI 1181 - ITAT AHMEDABAD
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... ... ..... should make communication with the company to ascertain whether any shares were transferred in the name of the assessee or not and if transferred, then on what date. Further, the Assessing Officer should also make inquiry from the broker about the reason for non mentioning of STT in the contract note and about the genuineness of the share transactions and contract note. The Assessing Officer should also verify the market price of the share on the date of purchase and date of sale by making communication with the Stock Exchange. Thereafter, the Assessing Officer should reframe the assessment as per law after allowing sufficient opportunity to the assessee. Thus this ground of appeal of the assessee is allowed for statistical purposes. 22. In the result, the appeal of the assessee in ITA No. 3997/Ahd/08 is partly allowed and the appeal of the revenue in ITA No. 93/Ahd/09 is allowed for statistical purposes. Order signed, dated and pronounced in the Court on 13th August, 2009.
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2009 (8) TMI 1180 - ITAT BANGALORE
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... ... ..... the present case; and (ii) Likewise, the case of Sword Global (I)P. Ltd. v. ITO reported in (2008) 306 ITR (A.T) 286 is rather identical to the issue which was before the Hon'ble High Court of Karnataka referred supra (i). With respects, we are of the opinion that this case is not directly applicable to the facts of the case on hand. 7.3 In over all consideration of the facts and circumstances of the issue and respectfully following the findings of the Hon'ble Tribunal cited supra, we are of the considered view that the assessing officer had allowed the deduction u/s 10A after due verification and consideration of the issue and that when the assessing officer had taken one of the possible views then the order of the AO cannot be termed as erroneous and the CIT was not having power to cancel the assessment order u/s 263 of the Act. It is ordered accordingly. 8. In the result, the assessee company's appeal is allowed. Pronounced in the open court on this 7.8.2009.
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2009 (8) TMI 1179 - ITAT BANGALORE
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... ... ..... xemption u/s 10A without setting off of loss of non-STPI Unit and consequently, allow the carry forward of such losses of non-STPI Unit. The same is upheld. 7. In the result, the appeal of the revenue is dismissed. ITA No.345(B)/2009 8. The only issue in this appeal is with regards to the expenditure incurred in foreign currency on travel and communication reduced from the export turnover as well as total turnover. 9. Since we have decided the issue in favour of assessee in its own case for the assessment year 2003-04, vide para-4 of this order, wherein we have held that the expenditure incurred in foreign currency on travel and telecommunication reduced from export turnover has to be reduced from the total turnover as well for the purpose of computing deduction u/s 10A of the IT Act. Facts being same, so following the same reasoning, we hold so. 10. In the result, both the appeals filed by the revenue are dismissed. Order pronounced in the open Court on the date of hearing.
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2009 (8) TMI 1178 - BOMBAY HIGH COURT
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... ... ..... 9 of the agreement dated 9th January, 1996. On behalf of the appellant the leaned counsel submits that the appellant had also pointed out various judgments of the Supreme Court in their support, which have not been considered as also the issue of limitation. Considering the facts and circumstances, we set aside the impugned order and remand the matter back to the tribunal for de novo consideration according to Law. Appeal disposed of accordingly.
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2009 (8) TMI 1177 - SUPREME COURT
Notification u/s 4 of the Land Acquisition Act, 1894 ('the Act') was issued in respect of the land in question on 29.8.2002 - Thereafter a Notification u/s 6 was issued on 18.6.2003. The said Notification u/s 6 was challenged and the writ petition filed by the appellants was allowed on 20.1.2004 - Notification u/s 6 dated 18.06.2003 was quashed - Subsequently a second Notification u/s 6 dated 30.10.2006 was issued - Validity of Notification u/s 6 dated 30.10.2006 - HELD THAT:- In our opinion, the said Notification was clearly barred by clause (ii) of the proviso to Section 6. It can be seen from the proviso to Section 6 that it is couched in negative language. It is well settled that when a Statute is couched in negative language it is ordinarily regarded as peremptory and mandatory in nature.
In this connection we may also refer to the Mimansa Rules of Interpretation, which were our traditional principles of interpretation for over 2500 years, but which are unfortunately ignored in our Courts of law today. In the Mimansa system illustrations of many principles of interpretation are given in the form of maxims (nyayas). The negative injunction is illustrated by the Kalanja nyaya or Kalanja maxim.
The Kalanja maxim (na kalanjam bhakshayet) states that `a general condemnatory text is to be understood not only as prohibiting an act, but also the tendency, including the intention and attempt to do it.' It is thus mandatory. A plain reading of the proviso to Section 6 shows that it is a general prohibition against the whole world and not against a particular person. Hence the Kalanja maxim of the Mimansa system will in our opinion apply to the proviso to Section 6.
In fact, a Constitution bench decision of this Court in Padma Sundara Rao (Dead) and Others Vs. State of T.N. And Others [2002 (3) TMI 44 - SUPREME COURT] is clearly in support of the submission of the learned counsel for the appellants that the proviso to Section 6 is mandatory, and hence the Notification u/s 6 dated 30.10.2006 is time barred.
In our opinion, when the language of the Statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the Statute is not clear or ambiguous or there is some conflict etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation. Therefore, there can be no estoppel against a Statute. Since the Statute is very clear, the period of limitation provided in Clause (ii) of the proviso to Section 6 has to be followed, and concessions of the counsel can have no effect.
In Govt. of A.P. v. B. Satyanarayana Rao [2000 (4) TMI 818 - SUPREME COURT] it has been held as follows:- ''The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.” It may be seen from the judgment dated 20.1.2004 of the High Court that in the aforesaid judgment no specific reference has been made to the limitation period prescribed in clause (ii) to proviso to Section 6, though no doubt Section 6 has been generally referred to. Hence, in our opinion, the observations in paragraph 3 of the aforesaid judgment dated 20.1.2004 have to be construed as per incuriam.
In view of the aforesaid discussion, we allow this appeal and set aside the impugned judgment and order dated 21.01.2008. However, it is open to the respondent-State of Maharashtra to issue a fresh Notification u/s 4 of the Act and take proceedings in accordance with law thereafter.
Appeal allowed. No order as to the costs.
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2009 (8) TMI 1176 - SUPREME COURT
Constitutional validity of reservation - Interpretation and/ or application of the notifications and/or the circulars - Presidential Notification, issued under Article 341 of the Constitution of India specifying Scheduled Castes - whether in the absence of a Presidential Notification, listing any group of persons as a Scheduled Tribe in Delhi, can by policy, the benefit of reservation in services be accorded to migrant Scheduled Tribes in the Union Territory of Delhi? - HELD THAT:- We are unable to accept the contention that the members of scheduled castes and scheduled tribes notified as such in other States would come within the purview of the backward classes within the meaning of clause (4) of Article 16 of the Constitution of India. If a caste or tribe is notified in terms of the Scheduled Caste Order or Scheduled Tribe Order, the same must be done in terms of clause (1) of Article 341 as also that of 342 of the Constitution of India, as the case may be. No deviation from the procedure laid down therein is permissible in law. If any amendment/alteration thereto is required to be made, recourse to the procedure laid down under clause (2) thereof must be resorted to.
Reservations have been made in terms of the policy decision of the Central Government, namely, 7.5% for the members of scheduled tribes, 15% for the members of scheduled castes and 27% for the members of backward classes. If the members of the scheduled castes and scheduled tribes in other States are to be treated as backward classes for Delhi; intensive studies were required to be made in regard to the question whether they would come within the purview of the definition of ‘backward classes’ so as to answer the description of ‘socially and educationally backward’.
When reservation for scheduled castes or scheduled tribes had been earmarked, persons answering the description thereto only can be appointed. No recruitment is permissible for a backward class against a scheduled caste or scheduled tribe quota. That itself would be violative of clauses (1) and (4) of Article 16 of the Constitution of India. Furthermore, if a person is to be treated as scheduled caste or scheduled tribe in terms of Article 341 of the Constitution of India, the benefit attached thereto in all other areas must be conferred on him. A person cannot be treated to be a member of scheduled caste for one purpose and not for another purpose.
By judicial process or otherwise, the said executive instructions which are consistent with the constitutional scheme could not have brought about an altogether different situation as a result whereof those who are residents of Delhi being belonging to the members of the Scheduled Castes and, thus, entitled to be regarded within the framework of the quota provided for by the Government could not have been deprived therefrom by way of bringing in another class of persons within the purview of the said category of Scheduled Castes who are not entitled to the said benefit.
By reason of such an Act, those who are entitled to the benefit of the doctrine of protective discrimination contained in Clause (4) of Article 16 of the Constitution of India had been deprived of their constitutional right. Once it is found that the constitutional violation of this nature has been committed, in our opinion, the Courts would be entitled to apply the principle of strict scrutiny test or closer scrutiny test or higher level of scrutiny. It is commonly believed amongst a section of Academicians that strict scrutiny test in view of the Constitution Bench decision of this Court in Ashok Kumar Thakur [2008 (4) TMI 775 - SUPREME COURT] is not applicable in India at all.
We are of the opinion that in respect of the following categories of cases, the said test may be applied:- 1. Where a statute or an action is patently unreasonable or arbitrary.
2. Where a statute is contrary to the constitutional scheme.
3. Where the general presumption as regards the constitutionality of the statute or action cannot be invoked.
4. Where a statute or execution action causes reverse discrimination.
5. Where a statute has been enacted restricting the rights of a citizen under Article 14 or Article 19 as for example clauses (1) to (6) of Article 19 of the Constitution of India as in those cases, it would be for the State to justify the reasonableness thereof.
6. Where a statute seeks to take away a person’s life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right.
7. Where a statute is ‘Expropriatory’ or ‘Confiscatory’ in nature.
8. Where a statute prima facie seeks to interfere with sovereignty and integrity of India.
However, by no means, the list is exhaustive or may be held to be applicable in all situations.
As we have already stated, in the event the state issues any instruction through circular in the National Capital Territory of Delhi to this effect, the same will deserve strict scrutiny. After following the precedent with respect to strict scrutiny it is pertinent to explore some foundational principles in this regard.
We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely Marri Chandra Shekhar Rao [1990 (5) TMI 235 - SUPREME COURT] and E.V. Chinnaiah [2004 (11) TMI 522 - SUPREME COURT]. Marri Chandra Shekhar Rao had been followed by this Court in a large number of decisions including Three Judge Bench decisions. Pushpa, therefore, could not have ignored either Marri Chandra Shekhar Rao or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the Constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket.
Following Dayanand [2008 (11) TMI 679 - SUPREME COURT], therefore, we are of the opinion that the dicta in Pushpa [2005 (2) TMI 849 - SUPREME COURT] is an obiter and does not lay down any binding ratio.
Thus, the impugned judgments cannot be sustained which are set aside accordingly. The appeal and the writ petition are allowed. In the facts and circumstances of the case, there shall be no orders as to costs.
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2009 (8) TMI 1175 - DELHI HIGH COURT
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... ... ..... fact the appeal which is admitted is ITA No.784/2005. However, it is not necessary to summon that file inasmuch as after going through the proposed second question of law as raised in this appeal and the orders passed by the ITAT, we find that it is a pure question of fact decided by theTribunal since no question of law arise, this appeal is dismissed.
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2009 (8) TMI 1174 - ITAT BANGLORE
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... ... ..... of the considered view that the assessee company is entitled to claim depreciation on ‘business information’ amounting to ₹ 1.38 crores under the category of ‘other identifiable intangibles (goodwill) which has been rightly claimed by the assessee and allowed by the AO at ₹ 35,25,666/-. 6.7. In view of the above, we are of the considered opinion that the impugned order of the Ld.CIT (LTU) is misconceived which requires to be assailed and that of the order of the AO is to be restored on this count. It is ordered accordingly. 7. Since the assessee company’s main grievance has already been addressed to, its alternate contention of treating the expenditure as ‘revenue expenditure’ has become obsolete and irrelevant. Accordingly, the alternate contention of the assessee company is not taken cognizance of. 8. In the result, the assessee company’s appeal is allowed. Pronounced in the open court on this 31st day of August, 2009.
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2009 (8) TMI 1173 - CESTAT, MUMBAI
Penalty - Quantum of ... ... ... ... ..... pay 100 of the duty amount. In the present case it is clear that the appellant has reversed entire Cenvat credit availed and paid the interest well before the issuance of show cause notice. Therefore, the appellant would be liable to pay only 25 of the duty amount as penalty. 7. emsp After perusal of the facts and circumstances of the case and the reliance placed before me, I am of the opinion that the appellant has already reversed the Cenvat credit and paid the interest thereon before issuance of the show cause notice, the penalty under Section 11AC (first proviso) of the Central Excise Act, 1944 is to be restricted upto 25 of the duty. On these observations, the penalty be reduced to 25 of Rs. 4,22,413/- under Section 11AC of the Central Excise Act, 1944. The appellant shall make deposit of the said reduced penalty within 30 days failing which, full amount of the penalty shall be payable. 8. emsp In these terms, the appeal is disposed of. (Pronounced in Court on 10-8-2009)
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2009 (8) TMI 1172 - SUPREME COURT
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... ... ..... there exists any statute or statutory rule governing the field. Some policy decision was required to be taken presumably because a large number of requests were being received from the concerned employees. It has not been contended that the said policy decision was illegal. Even if the said policy decision was illegal, first respondent cannot continue to remain posted in the State of Kerala. He may be asked to go back to his original posting, namely at some place which forms part of Gujarat Charge. 18. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in view of the fact that the first respondent has been working for a long time in the post of U.D.C., he may not be reverted to the post of L.D.C. but his seniority shall be counted from the date on which he has joined in the said post. No cost.
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