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Showing 41 to 60 of 691 Records
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2008 (5) TMI 715 - CESTAT BANGALORE
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... ... ..... een explained. Hence, the demand of Service Tax for the relevant period holding that they are not computer system, in our view, is not correct. On going through the write-up, we are of the considered view that the entire MICR Cheque Processing Solution consists of a computer system and it cannot be equated or compared with an ATM machine. Even if the classification of the Document Processor whatever it be by this Tribunal in the said final order, cannot justify the demand of service tax on the entire computer system especially when the same is exempted during the relevant period. 5. Summing up, we hold that the MICR Cheque Processing Solution consisting of the mainframe system, S/390 Imaging hardware system, software and document processor including the stacker modules should be considered as a computer system during the relevant period and the appellants are rightly entitled for the benefit of the exemption Notification. Hence, we allow the appeal with consequential relief.
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2008 (5) TMI 714 - SUPREME COURT
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... ... ..... e statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver.” 19. When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. 20. As observed in Nathi Devi’s case (supra) if the words used are capable of one construction, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the sections of the Act. 21. In view of analysis made above, the inevitable result is that the appeal deserves to be allowed which we direct.
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2008 (5) TMI 713 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... above, the bank guarantee dated 19.5.2008, furnished by the petitioner is ordered to be released. However, the property bearing No. 343-A, Block No. B, Sushant Lok Colony, Gurgaon (Haryana), owned jointly by the Managing Partner Shri Gaurav Sud and his father Shri Narinder Kumar Sud, which is free from any encumbrances shall be kept as security to meet any future demand of the revenue, although strictly speaking it is not required by law. The inquiry/investigation initiated against the petitioner by the DRI shall be finalized expeditiously but not beyond the period of one year from today. We also make it clear that any observation made in this order shall not be considered as an expression of opinion on the merits of the controversy and neither of the parties should feel prejudiced about their rights as available in law, which shall remain intact. 24. The writ petition stands disposed of in the above terms. 25. A copy of the order be given dasti on payment of usual charges.
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2008 (5) TMI 712 - GUJARAT HIGH COURT
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... ... ..... matter, we are of the view that no useful purpose would be served by keeping these petitions pending. 6. We, therefore, dispose of these petitions with a direction that the petitioners as well as the respondents shall abide by the outcome of Writ Petition (Civil) No.113 of 2008 and connected matters before the Hon'ble Supreme Court. 7. We further direct that till the Hon'ble Supreme Court decides the issue which is raised in the present group of petitions, the assessing authorities and the appellate authorities under the Income Tax Act, 1961 shall not take up the matters which are to be treated as pending before the Settlement Commission and disposal of these petitions on the above ground shall not come in the way of the Settlement Commission in disposing of the matters before it in accordance with law. 8. Liberty to revive the petitions in case of necessity, upon filing a note before the Registry. Registry is directed to place a copy of this order in each petition.
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2008 (5) TMI 711 - GAUHATI HIGH COURT
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... ... ..... ontract found in the tender file is an afterthought and was subsequently planted by the respondents, it is not possible for a writ court to verify the correctness of such contention inasmuch as the same is in the realm of disputed question of facts. Determination of this contention will necessarily require adduction of oral and/or documentary evidence by the parties, which cannot be done in a summary proceeding like Article 226 of the Constitution. 21. It is a settled law that a party can invoke the writ jurisdiction of this Court for the purpose of enforcement of established legal and constitutional rights and not for establishing legal and constitutional rights. Therefore, this contention must also meet the same fate. 22. In the view that I have taken, there is no merit in this writ petition, which is hereby dismissed. However, on the peculiar facts obtaining in this case, I direct the parties to bear their respective costs. The interim order dated 6.7.2007 stands vacated.
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2008 (5) TMI 710 - PUNJAB & HARYANA HIGH COURT
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... ... ..... me of the assessee. As the assessee had died, the legal heir being unaware of the sources of investment filed return of income including the impugned amount only to demonstrate her bona fides and willingness not to prolong any litigation with the revenue. We find that in this case ostensibly the assessee had died and his legal heir, namely, his wife, was not in a position to explain the circumstances leading to the impugned investment and it was under these circumstances that she accepted the charge made out by the Assessing Officer in the notice under Section 148 of the Act. Therefore, in the instant case, the disclosure made by the legal heir of the assessee was bona fide and voluntary with a view to avoid litigation and therefore, deletion of penalty under Section 271(1)(c) of the Act in the present case is justified. We find no error in the order of the Tribunal and the same is upheld. No substantial question of law arises for our determination in this appeal. Dismissed.
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2008 (5) TMI 709 - SUPREME COURT
Passenger died in Train Accident - fault on the part of the Railways or Contributory negligence - 'accidental falling of a passenger from a train carrying passengers' Section 123(c) of the Railways Act - Principle of strict liability - Section 124A - Claim for compensation - Claims Tribunal disallowed the claim, but the appeal against the said decision was allowed by the Kerala High Court and compensation from the date of the petition till the date of payment was granted.
HELD THAT:- We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an 'accidental falling of a passenger from a train carrying passengers'. Hence, it is an 'untoward incident' as defined in Section 123(c) of the Railways Act.
If we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act.
Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
The accident in which Smt. Abja died is clearly not covered by the proviso to 124A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to Section 124A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124A of the Railways Act, and not its proviso.
Section 124A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A it is wholly irrelevant as to who was at fault.
Rylands v. Fletcher (supra) in fact created a new legal principle (the principle of strict liability in the case of hazardous activities), though professing to be based on analogies drawn from existing law. The judgment is noteworthy because it is an outstanding example of a creative generalization. As Wigmore writes, this epoch making judgment owes much of its strength to 'the broad scope of the principle announced, the strength of conviction of its expounder, and the clarity of his exposition'.
The Principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says "permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads". Thus in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault.
However, apart from the principle of strict liability in Section 124A of the Railways Act and other statutes, we can and should develop the law of strict liability de hors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta's case [1986 (12) TMI 378 - SUPREME COURT]. In our opinion, we have to develop new principles for fixing liability in cases like the present one.
Therefore, we are of the opinion that the submission of ld Counsel for the appellant there was no fault on the part of the Railways, or that there was contributory negligence, is based on a total misconception and hence has to be rejected.
Thus, there is no force in this appeal which is accordingly dismissed. There shall be no order as to costs.
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2008 (5) TMI 708 - SUPREME COURT
Decree of eviction - `Change of user' in the suit premises - Clause 9 of the unregistered Tenancy Agreement between the parties - violation of provisions of Section 108(o) of the Transfer of Property Act - whether the expression `change of user' would cover a situation wherein the property is let out for a particular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non- residential purpose or for a particular business and despite such express conditions, the property is used for the purpose other than the specified - Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose or not?.
HELD THAT:- We have noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose.
In the case of Bajaj Auto Limited vs. Behari Lal Kohli [1989 (8) TMI 344 - SUPREME COURT], this Court observed that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose.
In our view, the clause 9 in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement.
Therefore, Clause 9 of the Lease Agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same.
Violation of provisions of Section 108(o) - In our view, the High Court was justified in coming to a conclusion that since this was not a case of `Change of User' within the meaning of Section 108(o) of the Transfer of Property Act, it could not be held that the appellant had violated the provisions of Section 108(o) of the Transfer of Property Act. Section 108(o) requires the lessee to use the property as a man of ordinary prudence would use his property and not to use it for a purpose different to that for which it was leased.
We are of the view that although the premises was leased out exclusively for the named officer of the respondent, the fact that it was subsequently used for the residence of some other officer of the respondent would not constitute `change of user' so as to be hit by Section 108(o) of the Transfer of Property Act.
We are unable to agree with this contention of Mr. Mukherjee for the simple reason that for a decree to be passed under the Act, the landlord has to plead and prove one of the grounds mentioned in Section 13 of the Act. Even if we accept that the appellant had made out a case under Section 13(1b) of the Act to the extent that the respondent was liable to be evicted u/s 108(o) of the Transfer of Property Act, in view of our findings made on that aspect, the appellant is not entitled to a decree of eviction under the Act.
We are, therefore, of the view that Clause 9 of the Agreement, which requires the respondent to use the suit premises only for its particular named officer, cannot be looked into even for collateral purposes and that the decision of this court in Smt. Juthika Mullick's case[1995 (10) TMI 249 - SUPREME COURT] would not be of any help to the appellant because in that case, the lease deed was registered.
Secondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute "Change of User" within the meaning of Section 108(o) of the Transfer of Property Act and, therefore, the respondent cannot be evicted for violation of the provisions of Section 108(o) of the Transfer of Property Act.
W do not find any merit in this appeal and the appeal is therefore dismissed - Since the appeals have been dismissed, all the interlocutory applications, if any, now pending before this Court have become infructuous and accordingly, they are disposed of as infructuous.
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2008 (5) TMI 707 - SUPREME COURT
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... ... ..... ould, in the normal course ensure that their employees or agents also adhere to the above guidelines during the loan recovery process. 14. We deem it appropriate to remind the banks and other financial institutions that we live in a civilized country and are governed by the rule of law. 15. Looking to the gravity of the above allegations, we expect that the matter will be investigated as expeditiously as possible and, in any event, it must be concluded within a period of three months and, thereafter, the concerned Deputy Commissioner of Police is directed to submit the report of the investigation in the High Court. 16. In the facts and circumstances of this case we direct the appellant to pay costs of this litigation to the respondents which is quantified as ₹ 25000/-. The costs be paid within three weeks. We direct that the matter be listed before the High Court after the report of the Deputy Commissioner of Police is filed. 17. This appeal is accordingly disposed of.
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2008 (5) TMI 706 - SUPREME COURT
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... ... ..... he decision of the State Government. Since the appellant had filed a representation/review of the decision of the State Government, it was expected by him that an order should be passed on the said representation/review. Therefore, in our view, the delay in moving the writ application against the decision of the State Government was sufficiently explained by the appellant and, therefore, the writ petition ought not to have been dismissed on the ground of delay and latches. Accordingly, we set aside the impugned orders of the Division Bench as well as of the learned Single Judge. The writ petition is, accordingly, restored to its file. The High Court is requested to decide the writ petition on merits in accordance with law after giving opportunity of hearing to the parties and after permitting the parties to exchange their affidavits, if not already exchanged in the meantime. Accordingly, the appeal is allowed to the extent indicated above. There will be no order as to costs.
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2008 (5) TMI 705 - GUJARAT HIGH COURT
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... ... ..... from this Court, whichever is earlier. On receipt of the proof of debt from the secured creditors, and if such proof is already having with the Official Liquidator, the same shall be forwarded to the Chartered Accountant for the purpose of verification of the claim of the Secured Creditors and working out the final ratio between the Secured Creditors and workers. It is, however, made clear that while finalizing the claim of the secured creditors, the Chartered Accountant will consider the dues of secured creditors having first charge and second charge on the date of winding up order. On receipt of such report from the Chartered Accountant, the Official Liquidator will file report before this Court for appropriate relief including further disbursement between the secured creditors and the workers. Till such report is filed, no direction to the secured creditors for refund of the amount, is issued. 18.With this direction and observation, this report is accordingly disposed of.
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2008 (5) TMI 704 - ITAT MUMBAI
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... ... ..... n the Bombay High Court has been consciously departed from by this High Court. On the contrary, in CIT v. Garden Silk Weaving Factory , while dealing with an argument to the effect that there being a decision of the Bombay High Court, on the point, there, under consideration, the view expressed in the said decision should be accepted, even if it does not appeal to the court, on the principle of comity of judicial decisions and in the interest of the assessees of the two adjoining States, it was observed by a Division Bench of this court that it (sic) have been inclined to accept the submission provided there were no other views in the filed." 7. In view of the above discussion we hold that notice under Section 143(2) issued by the A.O is a time barred notice and consequently the assessment (sic) a void or ab-initio, accordingly it is quashed. Consequently the appeal of the assessee is allowed and that of Revenue is dismissed Order pronounced on the 23rd day of May, 2008
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2008 (5) TMI 703 - DELHI HIGH COURT
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... ... ..... sing Officer who was of the opinion that this was the capital invested by the Assessee in its business of steel items under the name of Kamal Steel-II. There is nothing on record to show how much investment, if any, was made by the Assessee who explained that having been in the business of steel, he had the goodwill of the vendors and so there was no necessity of a capital investment. Moreover, it has been found that the regular returns were filed by the Assessee in 1994-95 and the investments, if any, could have been investigated in the regular return rather than in the block assessment. We may also note that the unexplained investment was reduced from ₹ 10 lacs as estimated by the Assessing Officer to ₹ 5 lacs by the CIT (A). Really, the entire exercise was done on the basis of an estimate and not on the basis of facts and no evidence of any sort has been shown to us in this regard. No substantial question of law arises in respect of this issue also. Dismissed.
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2008 (5) TMI 702 - DELHI HIGH COURT
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... ... ..... onal Secretary to the Government of India -vs- Smt. Alka Subhash Gadia, 1992 (Suppl.) (1) SCC 496; may no longer be an impediment for him. The Appellant is present in Court today. Without prejudice to the contentions of either parties, we direct the Appellant to appear before the Deputy Director, Directorate of Enforcement,10-A, Jam Nagar House, Akbar Road, New Delhi on 30.5.2008 at 11.00 AM. Counsel for the Respondent states that the Order together with the reasons and other documents shall be served on the Appellant on that date. In this manner the order which could not be served on the Appellant for last over 15 years shall stand served on the Appellant. For a period of 10 days thereafter the Respondents are directed to refrain from taking any coercive steps against the Appellant. Whatever remedies are available to the Appellant, he may take recourse of. Appeal as well as CRL.M.A. 15959/2006 stand disposed of in these terms. A copy of this Order be given dasti, as prayed.
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2008 (5) TMI 701 - SUPREME COURT
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... ... ..... know the value of money, the quality and content of Scotch Whisky. They are supposed to be aware of the difference of the process of manufacture, the place of manufacture and their origin. Respondent No. 3, the learned Single Judge as also the Division Bench of the High Court, therefore, failed to notice the distinction, which is real and otherwise borne out from the precedents operating in the field. See - Kerly's Law of Trade Marks and Trade Names, Thirteenth Edition pg. 600 . 110. Had these tests been applied the matter might have been different. In a given case probably we would not have interfered but we intend to do so only because wrong tests applied led to a wrong result. 111. So far as the applicability of the 1999 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application. 112. For the reasons aforementioned, the impugned judgment is set aside. The appeal is allowed. No costs.
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2008 (5) TMI 700 - SUPREME COURT
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... ... ..... en in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma v. Narayanan Nair 1994ECR195(SC) ). 34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi v. G. Alex and Anr. (2004)8SCC569 ) & Hardesh Ores (P) Ltd. v. Hede and Company (2007)5SCC614 ). 35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsel's fee assessed at ₹ 25,000/- (Rupees Twenty Five Thousand only). 36. We, however, do not find any specific ground to initiate contempt proceedings against the respondent at this stage. Contempt Petition is dismissed accordingly.
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2008 (5) TMI 699 - DELHI HIGH COURT
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... ... ..... pra) did not adversely comment upon its earlier Division Bench decisions in KSL and Industries Ltd. (supra) or the single bench decision in Peacock Industries Ltd. (supra) and the said decisions were merely distinguished by observing that in these decisions the Court did not deal with the aspect of examination of the complainant and his witnesses by the magistrate on oath before issuance of process under Section 200 Cr.P.C and that they dealt with the aspect of examination of any person who has tendered his evidence on affidavit being summoned for examination by the Court at the instance of either the prosecution or the accused. Learned single Judge of the Bombay High Court in Peacock Industries Ltd. (supra) has gone into very great depth while examining the issue raised before me and I am, Therefore, not required to once again examine the same particularly since I am in respectful agreement with the said decision. For the reasons aforesaid the present petition is dismissed.
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2008 (5) TMI 698 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
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... ... ..... or subject to such conditions as it may deem fit.” 5. From the perusal of the above it is clear that it is the mandatory obligation on the part of the appellants to make pre-deposit of the penalty amount while filing an appeal. It is well settled that legal provisions cannot be recasted or rewritten to avoid mere hardship. In this regard reference can be made to the Apex Court judgment in Nasiruddin v. Sita Ram Agarwal - (2003) 2 SCC 577. 6. This Tribunal was lenient enough when permitting the appellant to make deposit of the penalty amount. The appellant has failed to comply with the conditional judicial order dated 25-9-2007. The said order clearly spelt out the consequence of non-compliance thereof. The appellant has not shown any bona fide in compliance with the said conditional order. Thus no equity lies in favour of the appellant. In such a situation, this appeal is dismissed for non-compliance of judicial order. This appeal may be consigned to record.
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2008 (5) TMI 697 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... 26. As regards the petitioners' next allegation that R-3 has been illegally appointed as a director, it is noticed that R-3 was appointed as Additional Director on 26.5.2005, the day when S. Ajit Singh Jhikka father of R-2 died. At that time, after his death, only R-2 was the director of the company and he alone cannot convene the board meeting to appoint R-3 as additional director. 27. Further, under Article 22, 23, and 24, the directors have to retire by rotation and in the absence of any AGM, both the directors-R-2 and R-3 have not been reappointed in the general meeting on rotational basis and they cannot continue as directors of the company. Illegal appointment of R-3 is hereby set aside. The Board be reconstituted in the next AGM to be held within one month of receipt of this order giving due representation to the petitioners. 28. With the above directions, I dispose of the petition. All CAs stand disposed of. All interim orders stand vacated. No orders as to cost.
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2008 (5) TMI 696 - SUPREME COURT
Offence Punishable u/s 138 Negotiable Instruments Act - Dishonour of the cheques - forged and fabricated cheques - alteration by changing figure in digit - legally recoverable debt or not - High Court convicted the appellant - HELD THAT:- We find that the learned Single Judge has not addressed himself on the legal question raised before him by the appellant that the criminal liability of the appellant under the provisions of Section 138 of the Act are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques.
The learned Single Judge has also not given cogent, satisfactory and convincing reasons for disbelieving and discarding the pre-charge evidence of the appellant corroborated by the evidence of the expert opinion in regard to the interpolation in and fabrication of the cheques by adding one more figure '0' to make ₹ 30,000/- to ₹ 3,00,000/- and similarly adding one more figure '0' to make ₹ 40,000/- to ₹ 4,00,000/-. In the backdrop of the facts of these cases, we are of the opinion that the judgments and orders of the High Court cannot be sustained on the premise that the High Court has not addressed itself on the above-said two legal questions raised by the appellant and, therefore, the impugned judgments and orders dated 25.01.2007 and 19.02.2007 are set aside.
The matters are remitted to the High Court to decide the appeals filed by the respondent against the appellant and criminal miscellaneous petitions seeking for quashing the first information reports registered against the respondent and his wife.
Needless to say that any observation made by us in this judgment shall not be construed as an expression of opinion on the merits of the cases, which shall be decided by the High Court on their own merits in accordance with law.
Appeals shall stand disposed of.
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