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Showing 21 to 40 of 489 Records
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2006 (10) TMI 500
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... ... ..... lly denied having any thing to do with the trading of shares or with the affairs of API could not be relied upon. It could be her second thoughts to wriggle out of this tangled situation which impelled her to change the earlier statements. Admittedly, she had close proximity with Shri Dilip Pendse and it is also a fact that Shri Pendse had access to unpublished price sensitive information and the appellant also sold 2.5 lac TFL shares in the month of March before the results were declared in April, 2001. The appellant therefore made huge profits from this transaction. There are a number of loan transactions between API and the companies of Shri Pendse. It is quite understandable that Shri Pendse would have helped her to get the loans arranged for API but this did not imply that the appellant had noting to do with the affairs of the company of which she and her husband were the directors. In the result, we find no merit in the appeal and dismiss the same. No order as to costs.
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2006 (10) TMI 499
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... ... ..... the implication of Section 68 of the Indian Evidence Act, the trial Court had dismissed the suit. 3. Against the aforesaid judgment of the trial Court, the plaintiff-respondent went in appeal before the lower appellate Court. After service of notice of the appeal, the appellant defendant did put in appearance in that Court but did not seek any opportunity to contest the suit by filing counter pleadings in the form of written statement. The Court below therefore, after hearing the counsel for the parties, was of the view that since the facts of commission of fraud and misrepresentation for obtaining the impugned sale deed were not disputed by any pleading coming from the defendants, it found that the factual assertions made in the plaint were duly proved from the evidence of the plaintiff, as filed on record. The lower appellate Court also found that the affidavit filed on record did establish the factual assertions made in the plaint, which were not at all disputed/contested
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2006 (10) TMI 498
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... ... ..... ent to be finalized later on. For & on behalf of For & on behalf of KESAR ENTERPRISES LIMITED GOA CARBON LIMITED AUTHORISED SIGNATORY AUTHORISED SIGNATORY 34. By the aforesaid letter of intent, there was no transfer of right to use the goods. The goods were not in existence and were not in a deliverable stage. The right to use the machinery was transferred only by the agreement dated 24th March, 1991 and not prior to that. When the lease agreement was executed on 24th March, 1992, the impugned machinery were already in existence inside the State of U.P. Admittedly, they have not been imported in the course of inter-State transaction from outside the State of U.P. in pursuance of the agreement dated 24th March, 1992. Thus, the applicant cannot claim the benefit of Clause (i) of Section 3-F(2)(a) of the Act. 35. For the reasons stated above, I do not find any merit in the present revisions. 36. In the result, all the three revisions fail and are, accordingly, dismissed.
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2006 (10) TMI 497
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... ... ..... for the appellants in spite of notice), I find that the provisions of Section 75 prescribing interest on service tax paid belatedly are mandatory and therefore the appellants are liable to pay interest. Therefore there is no ground for interfering with the impugned orders which are accordingly upheld and the appeals rejected. (Dictated in Court)
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2006 (10) TMI 496
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... ... ..... section 143(2) could no longer be invoked but the notice was required to be within the limitation prescribed under section 147 of the Act. 5. This aspect of the matter has not been gone into by the Tribunal as the appeal was accepted on the other issue. In the absence thereof, we do not express any opinion on this question. 6. For the above reasons, answer to the question raised is rendered in favour of the revenue and against the assessee and it is held that bar contained in Proviso to section 143(2) of the Act could not be invoked to the reassessment under section 148 of the Act in view of amendment by Finance Act, 2006. We do not express any opinion on the question sought to be raised by the assessee in absence of any finding recorded by the Tribunal. As other issues raised in the appeal before the Tribunal have not been gone into, we deem it appropriate to remand the case to the Tribunal for fresh decision in accordance with law. 7. The appeal is disposed of accordingly.
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2006 (10) TMI 495
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... ... ..... the same. Each case, however, must be determined in the fact situation obtaining therein. 18. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. 19. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. Counsel fee assessed at ₹ 10,000/-.
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2006 (10) TMI 494
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... ... ..... to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. These aspects were highlighted in State through SP, New Delhi v. Ratan Lal Arora (2004 (4) SCC 590). Consequently, the learned Single Judge in the High Court committed a grave error in law in extending the benefit of probation even under the Code. The sentences of imprisonment shall be six months under Section 7 and one year under Section 13(2) of the Act, both the sentences to run concurrently. So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate counts are concerned, they shall remain unaffected and are hereby confirmed. The appeal is accordingly allowed.
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2006 (10) TMI 493
Scheme of compensation - Expression 'compensation' u/s 23(1) of the Land Acquisition Act, 1894 as amended by Act 68 of 1984 ("the Act") read in the context of Section 28 or Section 34 - Rule of appropriation in execution of money decrees - whether the rule, of what may be called the different stages of appropriation, set out in Prem Nath Kapur (supra) is correct or whether the rule requires to be re-stated on the scheme of the Land Acquisition Act understood in the context of the general rules relating to appropriation and the rules relating to appropriation in execution of money decrees and mortgage decrees - HELD THAT:- It is clear from the scheme of the Act and the express language used in Sections 23(1) and (2), 34 and 28 and now Section 23(1-A) of the Act that each component is a distinct and separate one. When compensation is determined u/s 23(1), its quantification, though made at different levels, the liability to pay interest thereon arises from the date on which the quantification was so made but, as stated earlier, it relates back to the date of taking possession of the land till the date of deposit of interest on such excess compensation into the court. The liability to pay interest is only on the excess amount of compensation determined u/s 23(1) and not on the amount already determined by the Land Acquisition Officer under Section 11 and paid to the party or deposited into the Court or determined u/s 26 or Section 54 and deposited into the court or on solatium u/s 23(2) and additional amount u/s 23(1-A).
Though, a decree holder may have the right to appropriate the payments made by the judgment-debtor, it could only be as provided in the decree - if there is provision in that behalf in the decree or, as contemplated by Order XXI Rule 1 of the Code as explained by us. The Code or the general rules do not contemplate payment of further interest by a judgment debtor on the portion of the principal he has already paid. His obligation is only to pay interest on he balance principal remaining unpaid as adjudged either by the court of first instance or in the court of appeal. On the pretext that the amount adjudged by the appellate court is the real amount due, the decree-holder cannot claim interest on that part of the principal already paid to him. Of course, as indicated, out of what is paid he can adjust the interest and costs first and the balance towards the principal, if there is a shortfall in deposit. But, beyond that, the decree- holder cannot seek to re-open the entire transaction and proceed to recalculate the interest on the whole amount and seek a re-appropriation as a whole in the light of the appellate decree.
On the scheme of the Act, especially the wording of Section 34 and Section 28 of the Act it is not possible to say that the said approach made in Prem Nath Kapur [1995 (11) TMI 441 - SUPREME COURT] is erroneous or is unreasonable or is not a line of approach that is not warranted. Therefore, when the judgment debtor State makes a deposit along with the calculation appropriating distinct sums towards various heads of compensation as awarded by the reference court or by the appellate court in the appellate decree, and the amount is received by the decree holder, the decree holder must be taken to be not entitled to seek an appropriation as if the judgment debtor has not made any intimation and that he is entitled to appropriate at his volition.
Considering the scheme of compensation under the Act in the context of the specific nature of the items specifically referred to in Section 23 of the Act, we are of the view that the approach adopted in Prem Nath Kapur (supra) is justified. A reappropriation by seeking to reopen the satisfaction already rendered might result in interest being made payable even on that part of the principal amount that had already been deposited and received by the decree holder and that would be in the realm of unjust enrichment.
We are satisfied that the essential ratio in the Prem Nath Kapur (supra) on appropriation being at different stages is justified though if at a particular stage there is a shortfall, the awardee decree holder would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless, of course, the deposit is indicated to be towards specified heads by the judgment debtor while making the deposit intimating the decree-holder of his intention. We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of appropriation.
It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the reference court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder [2001 (9) TMI 1121 - SUPREME COURT] on the ground that the execution court cannot go behind the decree. But if the award of the reference court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the reference court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder (supra) and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (September 19, 2001) and not for any prior period.
We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question.
The appeals will now be placed before the appropriate Bench for being disposed of in the light of the answers given by us.
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2006 (10) TMI 492
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... ... ..... of a sufficient degree of durability appropriate to the context. 8. It was also held that the phrase "enduring benefit" is not thinking of advantages that are permanent. There is a difference between the lasting and the everlasting. 9. In the light of the above ratio laid down by the Supreme Court, we are of the view that upgradation of computers by changing certain parts thereby enhancing the configuration of the computers for improving their efficiency but without making any structural alterations is not of an enduring nature. The expenditure incurred by the assessee has therefore to be treated as revenue expenditure. 10. Similar view has been taken by this Court in T. C. Nos. 1397 and 1398 of 2005, by judgment dated 20-1-2006 (CIT v. Southern Roadways Ltd. (2006) 282 ITR 379 (Mad)). Accordingly, the second question is answered in the affirmative, against the revenue and in favour of the assessee. 11. In the result, the tax case appeal stands dismissed. No costs.
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2006 (10) TMI 491
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... ... ..... filed against the order relied upon by the Tribunal. In this view of the matter we do not find any merit in this appeal. The appeal is dismissed.
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2006 (10) TMI 490
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... ... ..... treated a case where market value has been truly set forth and, on the other hand, a case where market value is not truly set forth. In this view of the matter, it is abundantly clear that imposition of ''penalty' by the Assistant Commissioner (Stamps) is wholly uncalled for and without jurisdiction. Accordingly it is held that the order imposing penalty is arbitrary, without jurisdiction and no penalty can be imposed in the facts of the present case. ANSWER In view of the above discussion we answer the second question by holding that the relevant date for determining the market value of the property for being subject matter of the sale deed is the third i.e. January 3, 1985 when the Court executed the sale deed in question on behalf of the vendors. The Registrar General is directed to send a copy of this judgment to the Chief Controlling Revenue Authority in accordance with Section 59 of the Stamp Act. The reference is decided accordingly. No order as to costs.
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2006 (10) TMI 489
Delay in process of election to constitute the new Municipal body - Whether Article 243U of the Constitution, by which the duration of the Municipality is fixed is mandatory in nature and any violation could be justified? - Powers of the State Election Commission and Election Commission of India - HELD THAT:- In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State governments to recognize the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures.
In fact, in the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India. In terms of Article 243K and Article 243ZA(1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision. The words, 'superintendence, direction and control' as well as 'conduct of elections' have been held in the "broadest of terms" by this Court in Mohinder Singh Gill's case [1977 (12) TMI 138 - SUPREME COURT].
Article 243K(3) also recognizes the independent status of the State Election Commission. It states that upon a request made in that behalf the Governor shall make available to the State Election Commission "such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by Clause (1). It is accordingly to be noted that in the matter of the conduct of elections, the concerned government shall have to render full assistance and co-operation to the State Election Commission and respect the latter's assessment of the needs in order to ensure that free and fair elections are conducted. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the concerned State Government in discharging its constitutional obligation of holding the elections to the Panchayats or Municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the concerned State Government to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfill the constitutional mandate.
Taking into account these factors and applying the principles of golden rule of interpretation, the object and purpose of Article 243U is to be carried out. As the elections to the Ahmedabad Municipal Corporation have already been held and the new Municipal body constituted, no further direction is required in the matter. With these observations, we dispose of the appeal with no order as to costs.
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2006 (10) TMI 488
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... ... ..... the fact that the appellant herein was allowed to carry out certain repairs in the suit property, which was carried out by him, the courts below directed the Defendants 2 to 4 to pay a sum of ₹ 12,225.42/- towards the cost of the construction to the Plaintiff and directed the Plaintiff to pay a sum of ₹ 74,906/- with interest towards counter claim. It is needless to mention that the amount ordered to be paid by the Defendants to the Plaintiff be set off and the balance amount is payable by the Plaintiff as per the decree and judgement passed by the courts below. 23.In view of the above said discussions, this court is of the considered view that the said findings of the courts below are based on valid evidence. Further, no question of law, much less a substantial question of law is involved in this second appeal. 24.In the result, this second appeal fails and the same is dismissed, at the admission stage itself. No costs. Consequently, the connected MP is closed.
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2006 (10) TMI 487
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... ... ..... used. There is no dispute that the sanction order was passed by the competent authority. Dr. A. Chelliah, learned Counsel for the appellant, however, submitted that the sanction order was vitiated as there was no material on which it could have been passed. We do not agree. 9. In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a Court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same at great details. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated. There is no merit in this appeal. Hence it is dismissed.
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2006 (10) TMI 486
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... ... ..... w Private Limited was sold to Respondent No. 5 on 07.02.2002 by the share purchase agreement. It is also brought to our notice at the time of hearing that all the 8 petitioners who have challenged the policy decision of the Government of India have resigned their job and joined some other service. The statement was not disputed or denied by learned senior counsel for the petitioners. 29. For the foregoing reasons, we hold that there is absolutely no merit or substance in the contentions raised by learned senior counsel for the petitioners. The writ petitions are, therefore, liable to be dismissed and the policy decision taken by the Government of India to transfer the Hotel Agra Ashok to M/s Mohan Singh and Yamuna View Private Limited cannot be assailed at the instance of the employees. The writ petitions are accordingly dismissed, however, there will be no order as to costs. In view of the disposal of the writ petitions, the transfer cases are also disposed off accordingly.
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2006 (10) TMI 485
Allegations of favoritism - Validity/legality of the selection process - inexperienced and inferior academic qualification - Advertisement for recruitment to the post of Assistant Registrar - selected candidates were not impleaded as parties - HELD THAT:- The post of Assistant Registrar in the universities was not of such nature which would answer the requirements of the tests laid down by this Court at certain times. The post requires no professional experience. What was required to be seen was academic qualification, experience and other abilities of the candidate. Whereas the ability of communication and other skills may have to be judged through interview, experience of the candidate as also the marks obtained by him in the written examination could not have been ignored. It is not that the Commission was not called upon the hold a written examination. The Rules enabled the Commission to do so. Such a written examination in fact was held.
However, the same was held only for the purpose of short-listing the candidates and not for any other purpose. It was not a fair exercise of power. The marks obtained by the candidates in the said written examination should have been taken into consideration. Evidently, the Commission did not do so. For the reasons stated hereinbefore, we would direct the State of Madhya Pradesh therefor to consider the desirability of amending the Rules suitably so that such charges of favoritism or nepotism by the members of the constitutional authority in future is not called in question.
We would, at the cost of repetition, would state that although for one reason or the other, the High Court had not addressed itself on this question, but, the very fact that such allegations had been made is a sufficient ground for the State or the Commission to take appropriate steps for amending the Rules for the said purpose.
In the instant case, however, as all the selected candidates were not impleaded as parties in the writ petition, no relief can be granted to the appellant.
The appeal is dismissed with the aforementioned observations and directions.
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2006 (10) TMI 484
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... ... ..... petition is dismissed on the ground of delay as well as on merits.
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2006 (10) TMI 483
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... ... ..... used not in the same form as iron & steel but were used for the purpose of construction of a bridge. After noticing this aspect of the matter, the Division Bench would hold that liability of the dealer would squarely come under Entry No. 6 of the sixth schedule to the Act. The said order is equally applicable to the facts of the case. The Tribunal in our view, is not right in answering the question against the State in the light of the binding order of the Division Bench in STRP No. 34/2003 dated 12.08.2004. In the circumstances, despite a strong plea made by Smt. Vani. H, learned Counsel for the assessee, we are not persuaded to take a different view than that of the finding given by a Division Bench of this High Court in STRP NO. 34/2003. 9. Respectfully following the order passed in STRP No. 34/2003 dated 12.08.2004, this revision petition stands allowed. Questions of law are answered in favour of the Government and against the assessee. Ordered accordingly. NO costs.
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2006 (10) TMI 482
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... ... ..... ion of 280 shares of (late) Nanjundaiah in favour of his wife namely, Honnamma Nanjundaiah cannot be considered in the interlocutory proceedings. Consequently, the consenter's right to exercise her right as a shareholder at the annual general meeting can neither be considered. Nevertheless, considering the fact that the Company is a closely held company and with a view to ensure the interest of legal heirs of the deceased Nanjundaiah. his wife with the authority which may be given by the remaining legal heirs of (late) Nanjundaiah. will exercise voting rights in respect of the shares held in the name of deceased Nanjundaiah. at the annual general meeting, without, however, prejudice to the contentions of the respondents in relation to the transmission of shares and recovery of the purported dues from the estate of (late) Nanjundaiah. Accordingly, while the applications in C.A. No. 44 of 2006 and C.A. No. 88 of 2006 are allowed, the rest of the applications are dismissed.
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2006 (10) TMI 481
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... ... ..... ute resolution forum cannot by any stretch of imagination be construed to mean that the Complainants (Plaintiffs herein) have consented to refer their dispute to Arbitration. (vii) The policy itself envisages that the consent of the Complainant to arbitration proceedings must be forthcoming (See paragraph 4 of the Policy and Rule 3(b)(ix) of the Rules framed there under). The decision of the Apex Court in , that there is no power conferred on the Court to refer parties to arbitration sans an arbitration agreement between the parties, and that reference must be strictly in accordance with the arbitration agreement, clinches the issue. 44. In view of the aforesaid, I have no hesitation in holding that the IN Domain Name Dispute Resolution Policy (INDRP) does not oust the jurisdiction of this Court to deal with the present suit. The inevitable result is that the present application must be rejected. The same is accordingly rejected. 45. Parties are left to bear their own costs.
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