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Showing 21 to 40 of 691 Records
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2008 (5) TMI 735 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... e appeal would stand condoned with direction to the court to decide the appeal against the ex-parte decree and order passed. 41. The facts as pleaded are not much in dispute otherwise. Since the matter in regard to setting aside of this ex-parte decree is pending before the Appellate Court, I am leaving it for the Appellate Court to deal with this ex-parte decree and pass an appropriate order. Appellate Court has to realise that the parties in this case must prove their claim and obtain an appropriate relief by leading legal and valid evidence and that no one should be permitted to take any advantage of unfair nature. This court would have such power to guide the Appellate Court while exercising jurisdiction under Article 227 of the Constitution. Since the delay in filing the appeal has been condoned, the issue in regard to locus of Ajit Singh son of late Shri Daljit Singh to file this application seeking condonation of delay is rendered infructuous and need not be gone into.
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2008 (5) TMI 734 - ORISSA HIGH COURT
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... ... ..... lateral and stale challenge without any explanation for the delay is not maintainable. In any event, the appropriate authority of the Government has not taken any final decision after the matter has been remanded by the revisional authority for hearing by the State. Hearing is continuing. It is open to the Petitioner to appear before the Secretary in connection with his application for hearing. No final decision has been taken by the Secretary, So going by these facts. it cannot be said that the Petitioner's case at the moment is ripe for interference by this Court, however, this Court considered all the points discussed above, since questions were raised about the competence and legality of the hearing process. 43. For the reasons discussed above, this Court is of the opinion that there is no merit in this writ petition and all the contentions of the writ Petitioner fail. The writ petition is dismissed. There would be no order as to costs. B.N. Mahapatra J. 44. I agree.
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2008 (5) TMI 733 - ALLAHABAD HIGH COURT
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... ... ..... unt books no discrepancy was found other than the seizure, which also included the transaction in question. The imposition of penalty by rejecting the explanation that the entry had been made in the account books subsequently does not appear to be correct. It is not the case where the dealer after making entries submitted its explanation after a week or ten days but in the present case it had done so on the same day the seizure had been made. Further looking into the past and previous conduct of the dealer, in my opinion, the authorities below erred in imposing the penalty. The goods being referable to a registered dealer and also having been accounted for in the account books, the imposition of penalty cannot be sustained. 12. Accordingly revision succeeds and is allowed and the penalty imposed under Section 13-A (4) of the Act is knocked off. Any amount deposited by the dealer in excess may be refunded in accordance with law. 13. There shall however be no order as to costs.
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2008 (5) TMI 732 - RAJASTHAN HIGH COURT
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... ... ..... covered by the decision rendered by this Court in D.B.I.T.A.No.118/2005 decided on 17.3.2008 in the case of this very assessee. For the same reasons, this appeal is also dismissed.
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2008 (5) TMI 731 - ALLAHABAD HIGH COURT
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... ... ..... is erroneous. Question No. 1 is answered in favour of the revenue and against the assessee. 9. So far as the question on merit is concerned, perusal of the order of the Tribunal reveals that the issue has not been properly considered by the Tribunal. The Tribunal has not recorded any finding that whether on the facts and circumstances there was any default under section 269T of the Act and the penalty under section 271E of the Act was leviable. The Tribunal has also not considered that there was any reasonable cause in committing default under section 271E of the Act as required for the imposition of the penalty under section 273B of the Act. If there was a reasonable cause, no penalty was leviable under section 273B of the Act. In this view of the matter, the order of the Tribunal is vitiated. 10. In the result, appeal is allowed. The order of the Tribunal is set aside. The matter is remanded back to the Tribunal to decide appeal afresh in the light of the observation made.
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2008 (5) TMI 730 - DELHI HIGH COURT
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... ... ..... t businessman.” (P. 82) 5. Under the circumstances, we are of the view that it was not possible for the Assessing Officer to substitute his opinion of the amount that should have been spent towards entertainment and promotion of exports. 6. We do not see any substantial question of law arising in this appeal and there is no doubt about the correctness of the conclusion arrived by the Tribunal. 7. The second issue is with regard to prior period expenses of ₹ 5,51,337. Insofar as this is concerned, the Tribunal has found that the amount got crystallized in the relevant accounting year and that was also the year in which payments were made. Since the liability got crystallized in the relevant accounting year, the Tribunal was of the view that the prior period expenses could not have been disallowed. 8. In our opinion, there is no error in the view taken by the Tribunal in this regard. 9. No substantial question of law arises in the appeal. 10. The appeal is dismissed
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2008 (5) TMI 729 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Offence under SEBI ACT - Insider trading - Possession of unpublished price sensitive information - violation of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - HELD THAT:- In view of the interpretation of regulation 3 and on the admitted facts of this case, there would be a presumption that the appellants being insiders, traded on the basis of the unpublished price sensitive information in possession of Gandhi and the onus to rebut that presumption was on them. They have not only failed to rebut the presumption but have not even attempted to offer an explanation as to the basis which prompted them to trade. Faced with this situation, the learned counsel for the appellants contended that at no stage of the proceedings were they asked for an explanation as to the basis of their trade and, therefore, there was no occasion for them to offer an explanation. We cannot accept this contention.
The appellants were clearly informed in the show cause notice that they “had sold 3600 shares on 21.1.1999 (before the board meeting) and 22.1.1999 (in the first half hour before the market could react to the news) on the basis of unpublished price sensitive information”. In view of this specific allegation and considering the fact that the appellants are insiders there was a presumption against them and it was for them to have offered an explanation to rebut that presumption.
The facts which prompted the appellants to trade in the scrip of the company while in possession of unpublished price sensitive information were only within their knowledge and it was for them to spell out those facts to rebut the presumption raised by regulation 3 against them. So much so, we asked the learned counsel for the appellants during the course of the hearing to tell us the reasons which prompted/motivated the appellants to trade in the scrip, being insiders. He was unable to offer any explanation. It is, thus, clear that the appellants have failed to discharge the onus of rebutting the presumption raised against them under regulation 3 of the regulations. They must, therefore, fail.
Therefore, it is not necessary to deal with the other contentions raised by the learned counsel for the appellants.
We hold that the appellants were guilty of insider trading. The penalty levied on them is not on the higher side keeping in view the seriousness of the charge and, therefore, it does not call for any interference in appeal. The appeal is accordingly dismissed with no order as to costs.
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2008 (5) TMI 728 - ITAT AHMEDABAD
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... ... ..... de in the case of M/s.Vijay Proteins Ltd. From these facts it is evident that the CIT(A) has sustained the addition at 12.5% of the non-genuine purchases considering the facts of the assessee's case. We, therefore, do not find any justification to interfere with the order of the CIT(A) in this regard. The same is sustained." After considering the facts and the arguments of both the sides, we are of the opinion that it would meet ends of justice, if the disallowance is sustained at 12.5% of the purchase from these two parties. The Assessing Officer is directed to work out the disallowance accordingly." Since the facts of the assessee's case are identical, we respectfully following the above decision of the ITAT, direct the Assessing Officer to disallow 12.5% of the purchases made during the year under consideration. 10. In result, assessee's appeal is partly allowed while Revenue's appeal is dismissed. Order pronounced in Open Court on 20th May, 2011.
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2008 (5) TMI 727 - GUJARAT HIGH COURT
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... ... ..... made U/S. 36(1)(iii) of the Act in respect of interest relatable to diversion of interest bearing funds to interest free advances? III. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in directing to allow depreciation on Butchlor Plant, which was ready for use but was not actually put to use by assessee? IV. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the receipt by way of gain on cancellation of foreign exchange contracts is a capital receipt not liable to tax? V. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in allowing the assessee's claim of deduction U/S. 37(1) on account of donation of ₹ 25,00,000/ made to a voluntary organisation, having no business connection with the assessee?” Issue notice to the other side. Paper Book be filed within three months. List the appeal for final hearing after three months.
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2008 (5) TMI 726 - SUPREME COURT
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... ... ..... st. Mukri Gopalan (supra) was distinguished stating 53. Mr Gupta, appearing on behalf of the respondent, however, placed reliance upon a decision of this Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker. Therein this Court was concerned with extension of the period of limitation in a case wherein an appeal was to be preferred before an Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 1965. As for preferring an appeal a period of limitation is prescribed, it was held that Section 5 of the Act was applicable and, therefore, the said decision is of no help to the respondent. It was not dissented from. 32. We, therefore, are prima facie of the opinion that the Nagar Palika Parishad, Morena (supra) was not correctly decided and, thus, the matter requires consideration by a Larger Bench. It is ordered accordingly. 33. Let the records of the case be placed before the Hon'ble the Chief Justice of India for constituting an appropriate Bench.
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2008 (5) TMI 725 - SUPREME COURT OF INDIA
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... ... ..... para 1471 In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible. 37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State. 38. For the reasons aforementioned, the appeal is dismissed. No costs.
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2008 (5) TMI 724 - MADHYA PRADESH HIGH COURT
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... ... ..... eedings or there is some other clear indication that pending actions are affected. In view of the aforesaid law laid own by the Supreme Court, we are of the considered opinion that all cases pending in the Court of Judicial Magistrate First Class as on 22.2.2008 are not affected by the Amendment and will be continued to be tried by the Judicial Magistrate First Class because there is no provision in the Amendment or no clear indication in the Amendment that pending cases before the Judicial Magistrate First Class are to be made over to the Court of Sessions. All cases which were pending before the Judicial Magistrate First Class as on 22.2.2008 if, in the meanwhile, committed to the Court of Sessions, will be sent back to the Judicial Magistrate First Class for trial in accordance with law. We answer the reference accordingly. The reference made by the learned Sessions Judge Jabalpur as also the reference made by the learned Additional Sessions Judge, Indore are disposed of.
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2008 (5) TMI 723 - SUPREME COURT
Doctrine of promissory Estoppel - discontinuation of old concessations - Investment subsidy - `Tourism' was declared to be an `Industry' - concession on electricity tariff limited to five years - whether the said Government Order dated 26.9.2000 is reasonable having been given retrospective effect and retroactive operation?
HELD THAT:- The wide range of concessions as noticed hereinbefore, inter alia, covered electricity and water charges. It is not a case where some exemptions or concessions were to be given for a specific period or as a one time measure. No time limit was fixed for applicability in respect of the policy decisions. It was not based on any formula or criteria to evaluate the realization of the object of grant of such concession over a period. It was an open ended offer. It must, therefore, be held that the Government was satisfied that the need was to grant concession if not permanently, at least for a long time.
It is now a well settled principle of law that the Doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication.
The law which emerges from the discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefore has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by necessary implication. It is a principle of rule of law. A presumption can be raised that a statute or statutory rules has prospective operation only.
The State of Kerala in this case did not grant any concession by itself. The Central Government took a larger policy of treating the tourism as an industry. A wide range of concessions were to be granted by way of one time measure; some of them, however, had a recurring effect. So far as grant of benefits which were to be recurring in nature, the State exercises its statutory power in the case of grant of exemption from payment of building tax wherefor it amended the statute. It issued directions which were binding upon the Board having regard to the provisions contained in Section 78A of the 1948 Act. The Board was bound thereby. The Board, having regard to its financial constraints, could have brought its financial stringency to the notice of the State. It did so. But the State could not have taken a unilateral decision to take away the accrued or vested right. The Board's order dated 11.10.1999 in law could not have been given effect to. The Board itself kept the said notification in abeyance by reason of order dated 8.11.1999.
Appellants, indisputably, continued to derive the benefits in terms of the original order. They obtained certificates of classification. It is on the aforementioned context, the question as regards construction of the impugned notification dated 26.9.2000 arises. Ex facie, the said policy decision could not be given a retrospective effect or retroactive operation. The State was not exercising the power under any statute to grant or withdraw the concession. It was exercising its statutory power of issuing direction.
It is, therefore, a statutory authority. The 1948 Act does not authorize the State to issue a direction with retrospective effect. The Board, therefore, could only give prospective effect to such directions in absence of any clear indication contained therein. By reason of withdrawal of concession with retrospective effect, the accrued right of the appellants had been affected.
Thus, the impugned GO dated 26.9.2000 must be held to have a prospective operation and not a retrospective operation. That view would save it from being vulnerable to the challenge of being hit by Article 14 of the Constitution of India - We, however, are not in a position to accept the contention that the Bills could not have been issued having regard to Sub-section (2) of Section 56 of the Act. Appellants herein have incurred liabilities.
The liability to pay electricity charges is a statutory liability. The Act provides for its consequences. Unless, therefore, the 2003 Act specifically introduced, the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the said Act. In our opinion, having regard to Section 6 of the General Clauses Act, the liability continues.
We, therefore, are of the opinion that the High Court was not correct in its view to the aforementioned extent. The judgment of the High Court is, thus, set aside to the aforementioned extent. The appeals are allowed with costs.
Grant of installments - interest on the delayed payment under the tariff - In all other cases, the High Court directed that 18% interest would be payable following the decision of the Court in Kerala State Electricity Board through its Special Officer (Revenue) and Anr. v. M.R.F. Ltd.[1995 (12) TMI 381 - SUPREME COURT]. The same principle would apply in this case also but the bill having been raised only in 2003, the question of charging any interest thereupon from a retrospective date would not arise.
This appeal is, thus, dismissed. However, there shall be no order as to costs.
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2008 (5) TMI 722 - SUPREME COURT
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... ... ..... the State of Punjab by the Central Government, it exercises a statutory power. It would, therefore, not a case where the functions of the State Government must be held to be confined to its territorial jurisdiction. 68. Articles 245 or 246 or for that matter, Articles 73 and 172 of the Constitution of India will have no application. 69. Even such questions have not been raised before the High Court. In issuing the notification, the Central Government was merely exercising its statutory functions. It has not exercised a power of delegation. The ground of excessive delegation of power, thus, does not arise. Some authority is required to function. If an authority has been nominated, all other questions become academic. 70. For the reasons aforementioned, civil Appeal Nos. 7024 of 2002 and 8171-8172 of 2003 are dismissed and civil Appeal arising out of SLP (C) No. 20803 of 2002 as also civil Appeal Nos. 5546 of 2003, 8169-8170 of 2003 and 3162-3165 of 2004 are allowed. No costs.
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2008 (5) TMI 721 - SC ORDER
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... ... ..... Works v. Commissioner of Customs & Central Excise, reported in 2007 (210) E.L.T. 171 (S.C.), this appeal is also dismissed in the same terms.
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2008 (5) TMI 720 - SUPREME COURT
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... ... ..... the High Courts appears to be that the power of the Magistrate should not be fettered either under Section 244 or under Sub-section (6) of Section 246 of the Cr.P.C. and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But as we have already added a word of caution that while accepting the supplementary list the Magistrate shall exercise its discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused. o p /o p 9. As a result of our above discussion, the view taken by learned Single Judge of the Patna High Court cannot be sustained and consequently, the appeal is allowed and the order passed by the learned Single Judge dated 13.12.2006 is set aside and it is for the Sub-Divisional Judicial Magistrate, Bhagalpur to examine the remaining witnesses from the supplementary list given by the complainant and then to proceed according to law. o p /o p
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2008 (5) TMI 719 - SUPREME COURT
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... ... ..... follows " The allegation contained in para 5 of the Plaint are frivolous and denied." Likewise, the 2nd Respondent also has not specifically denied the above said averment in the Plaint." Therefore, from this finding it is more than apparent that the plaintiff while filed the suit for specific performance of the contract was ready and willing to perform her part of the contract. This argument was though not specifically argued before the Division Bench, the only question which was argued was whether the principle of lis pendens will be applicable or Section 19 of the Specific Relief Act will have overriding effect to which we have already answered. In the present case the principle of lis pndens will be applicable as the second sale has taken place after the filing of the suit. Therefore, the view taken by the Division Bench of the High Court is correct and we do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs.
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2008 (5) TMI 718 - SUPREME COURT
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... ... ..... not been raised before the High Court. No substantial question of law, as propounded before us, had been formulated in the Memo of Appeal. Even no substantial question of law in precise terms has been taken in the Special Leave Petition. 19. In view of the finding of fact arrived at by the learned Court of First Appeal which has been affirmed by the High Court, we see no reason to take a different view. There is no merit in this appeal. It is dismissed accordingly with costs. Counsel's fee assessed at ₹ 25,000/- (Rupees twenty five thousand only). 20. However, on a query made by us, the learned counsel for the respondent categorically stated the property which having since been acquired under the Land Acquisition Act, the amount of compensation payable therefor would be expended only towards the maintenance of the deity. A copy of the judgment may be sent by the Registry to the Official Trustee of the Calcutta High Court who may take necessary steps in that behalf.
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2008 (5) TMI 717 - CESTAT AHMEDABAD
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... ... ..... re by itself should not be made the basis for denial to the benefit of the Notification. It has to be kept in mind that Chapter X procedure is required to be followed to establish the receipt of the goods by the recipient unit and their utilization for the purpose of mentioned in the notifications. If the said purpose can be achieved otherwise, the procedure and technical ground of non-following the chapter X procedure should not result in denial of substantive benefit otherwise available to the assessee. Reference in this regard may be made to the Tribunal decisions in the case of Geep Industrial Syndicate Ltd. v. C.C.E., Allahabad National Aluminium Co. Ltd. v. C.C.E., Bhubaneswar ; Mahindra & Mahindra Ltd. v. C.C.E., Aurangabad 2000 (125) ELT 477 and Jay Engg. Works Ltd. v. C.C.E., Calcutta I 2001 (137) ELT 454. As such, we do not find any infirmity in the view adopted by the Commissioner (Appeals) and reject the appeal filed by revenue. (Pronounced in the open Court)
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2008 (5) TMI 716 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Ingenuine preferential allotment of shares - Disgorgement of ill-gotten gains - whether any finding has been recorded at any stage of the proceedings that the appellant has made no illegal gains? - HELD THAT:- We are of the considered opinion that the enquiry officer has not undertaken any exercise to find out the ill-gotten gains, if any, made by the appellant and the enquiry was only to find out the wrongful acts allegedly committed by the appellant. It is true that the enquiry report has been accepted by the Board as contended on behalf of the appellant and that is why a penalty has been levied debarring it from opening fresh demat accounts till the end of December 2007.
Mere acceptance of the enquiry report by the Board does not, in our view, advance the case of the appellant. Further, on receipt of the enquiry report another show cause notice was issued to the appellant on May 4, 2007 enclosing the enquiry report. We have perused that show cause notice as well and find that there is nothing therein to suggest that the appellant had made ill-gotten gains or anything about disgorgement. Thus, we have no hesitation in holding that the question regarding illegal gains, if any, made by the appellant has not been examined at all at any stage of the proceedings.
Disgorgement - It is a common term in developed markets across the world though it is new to the securities market in India. Black’s Law Dictionary defines disgorgement as “The act of giving up something (such as profits illegally obtained) on demand or by legal compulsion.” Disgorgement of illgotten gains may be ordered against one who has violated the securities laws/regulations but it is not every violator who could be asked to disgorge. Only such wrongdoers who have made gains as a result of their illegal act(s) could be asked to do so.
The least that was required of the Board was to have called upon the appellant to show cause why it should not be ordered to disgorge the amount determined in the impugned order. Not having done so, the principles of natural justice have been flagrantly violated. The impugned order, therefore, deserves to be set aside on this ground alone. We also cannot approve the observations made by the Board in the impugned order which have been reproduced in the earlier part of our order and are of the view that action for disgorgement should have been initiated only after the appropriate proceedings against the entities had concluded and their guilt established. We are satisfied that the case of the appellant is no different from the case of the other entities against whom appropriate proceedings are still pending and whose appeals came up for hearing before us on 22.11.2007.
We cannot resist expressing our anguish over the irrational manner in which the Board proceeded to pass the impugned order only against the two depositories and their participants. Why we say so is that by its ex-parte order dated April 27, 2006 which is to be read as a part of the impugned order, the Board itself had found that the financiers of the key operators were the ultimate beneficiaries of the IPO scam and it went on to identify 82 financiers and even computed the illegal gains made by some of them in that order and yet issued no directions to them to disgorge the illegal gains made by them. Instead, the two depositories and their participants against whom enquiries are pending have been ordered to disgorge the entire amount of illegal gains without even recording a finding that they made any such gains. If the illegal gains were made by financiers it was they who ought to have been directed to disgorge the amount.
One is left guessing why the Board did not issue such directions to them. It did not even initiate disgorgement proceedings against them for reasons better known to the Board. It appears that after identifying the financiers who were the ultimate beneficiaries of the scam, the Board turned a nelson’s eye towards them and chose to proceed against the depositories and their participants and that too, exparte which, to say the least, was most unfair. What is really amazing is that the Board has noticed the correct position in law in para 30 of the impugned order but did not follow the same and ordered disgorgement against those entities against whom no findings of ill-gotten gains have been made, leaving out those against whom such findings had been recorded in the ex-parte order of April 27, 2006. We need not say anything more and leave the matter at that.
In view of what has been said above and for the reasons stated in our order dated 22.11.2007 passed in Appeal no. 147 of 2006, we allow the appeal and set aside the impugned order leaving it open to the Board to initiate further proceedings in accordance with law.
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