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Showing 61 to 80 of 691 Records
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2008 (5) TMI 695 - ITAT DELHI
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... ... ..... es, the two years limit is available to the Assessing Officer. Obviously, the legislature in its wisdom thought that in respect of notices served upon the assessee on or before 1-4-2000, sufficient time would be available to the Assessing Officer to complete the assessment within a period of one year from the end of the financial year in which the notice was served. Thus, we do not find any infirmity in the order of the CIT (Appeals) for applying the amended provisions of section 153(2) of the Act. 10. Accordingly, we confirm the action of the CIT (Appeals) for holding that assessment orders passed by the Assessing Officer are null and void as they are time barred. As the appeals have not been dealt with on merit by the CIT (Appeals), and we ate going to confirm the action of the CIT (Appeals) on legal ground of limitation period for completion of the assessment, we are also not going on the merits of the case. 11. In the result, all the appeals of the revenue are dismissed.
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2008 (5) TMI 693 - ITAT LUCKNOW
Investment in shares for earning dividend income - addition made u/s 14A - expenditure on interest paid on borrowed funds - whether expenditure incurred on borrowed funds which are invested in the shares of other companies, the dividend income therefrom is exempt, would be allowable as deduction against other income which is taxable - CIT held that the claim of assessee is allowable as a business expenditure as it was inclined on grounds of commercial expediency.
Whether it would make any difference to the application of Section 14A if the borrowed funds were earlier accounted for in the merged companies and after merger they are accounted for in the assessee company - HELD THAT:- In our considered view, it will not make any difference in the applicability of Section 14A in the case of assessee company. It is undisputed fact that the claim of expenditure is debited in the accounts of the assessee company, therefore, allowability of this claim has to be examined only in the hands of assessee company. It is immaterial from where funds are borrowed into the assessee company or whether those funds were held by any other companies which merged into the assessee company and finally as a result of merger assessee company look over the assets and liabilities including the liability of borrowed funds and thereby committing to make payments of financial charges in respect of such borrowed funds.
Similarly, where dividend income is earned from the shares then such income would be taxable in the hands of the assessee in subsequent years when dividend income is held taxable. In any case, the taxability of exemption of dividend income has to be examined only in the hands of assessee company in the light of Section 10(33)/115O of the Act. Similarly, claim of expenditure: in relation to such exempted income will have to be examined in the hands of assessee company. Therefore, the first argument of the Assessee is rejected.
Whether expenditure was actually incurred or not also does not arise. Once expenditure is actually incurred then the only question that remains to be (sic) whether it can be allowed against other business income if no dividend income is earned? - HELD THAT:- Merely because the assessee docs not earn anything his entire expenditure in relation to such dividend income would be set off against other taxable income whereas if another assessee earns from dividend and then his expenditure incurred in relation thereto could not be set off against other taxable income. In a similar situation, Hon'ble Supreme Court in Rajendra Prasad Moody's case (supra) observed that such a result is highly strange and anomalous.
Once the assessee has invested money in shares for earning dividend income then computation of dividend income has to be carried out separately under a separate head. The expenditure relating thereto has to be accounted for as per Section 57(iii). This computation may lead to a positive income or may lead In negative income depending upon whether receipts are higher or expenditure is higher. Even if there is no income from dividend still then expenditure relating there to will have to be accounted for u/s 57(iii) only.
If dividend income is not exempt then loss arising as a result of computation of dividend income under the head 'income from oilier sources' will fall for set off against 'other income'. It dividend income is exempt u/s 10(33) of the Act then loss arising as a result of computation of dividend income would not be available for set off by virtue of Section 14A. In other words, by computing dividend income in accordance with Sections 56 to 59 -under the head 'income from other sources' the resulting figure, whether positive or negative, will be considered as exempt Under Section 10(33) i.e. it will not be available for inclusion while computing total income of the assessee.
ITAT Mumbai Bench in the case of ACIT v. City Corp Finance Ltd.[2007 (10) TMI 446 - ITAT MUMBAI] held that the expenditure incurred in relation to dividend income would not be allowable as deduction against other income. Similar view was held by the Hon'ble ITAT Mumbai Bench in the cases of Mohanlal M Shah v. Dy. CIT [2006 (8) TMI 229 - ITAT BOMBAY-G], Harish Krishnakant Bhatt v. ITO[2004 (8) TMI 342 - ITAT AHMEDABAD], ACIT v. Dakshesh S Shah [2003 (2) TMI 434 - ITAT MUMBAI] and D.J. Mehta v. ITO [2006 (3) TMI 205 - ITAT BOMBAY-I].
As a result, we hold that in view of majority of the decisions of various Benches of the Tribunal that expenditure incurred in relation to earning exempted income would not be allowable as deduction against other income, the expenditure will not be allowed to be set off against other business income as it is incurred in relation to dividend income which is not includible in the total income. Further for the purposes of allowability or disallowability of such expenditure it is immaterial whether any income (which is exempt Under Section 10(33)) is actually earned or not.
As a result, we allow the appeal of the Revenue.
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2008 (5) TMI 692 - SC ORDER
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... ... ..... Delhi-II reported in 2005 (186) E.L.T. 451 (Tri.-Del.). Admittedly, against the relied on judgment, no appeal has been filed by the Revenue in this Court. In view of this, this appeal is dismissed. No costs.
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2008 (5) TMI 691 - SUPREME COURT
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... ... ..... ut jurisdiction, and thus are nullities. In such a case even the principle of res judicata (wherever applicable) would not apply. In Chief Justice Of Andhra Pradesh And Others v. L. V. A. Dixitulu And Others AIR 1979 SC 193 at 198 , this Court held "If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case." See also Union of India v. Pramod Gupta (D) by LRs and Ors., (2005) 12 SCC 1 Where a jurisdictional issue is raised, save and except for certain categories of the cases, the same may be permitted to be raised at any stage of the proceedings. 6. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. Counsel's fee assessed at ₹ 25,000/- (Rupees twenty five thousand only).
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2008 (5) TMI 690 - GUJARAT HIGH COURT
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... ... ..... d 15.02.2006 after giving the petitioners an opportunity of being heard, in accordance with law and without being influenced by the order dated 31.03.2008 passed by the Additional Director General of Revenue Intelligence, Ahmedabad. The order shall be passed as expeditiously as possible and preferably within one moth from the date of receipt of the order. The application stands disposed of accordingly.
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2008 (5) TMI 689 - DELHI HIGH COURT
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... ... ..... ause Notices issued to the Petitioner. In respect of consignment of Denim Shirts and Jackets reliance has been placed on the pendency of a Special Leave Petition in the Supreme Court of India. There can be no gainsaying that criminal prosecution and preventive detention have different fields of operation and do not require to co-exist or to be prosecuted contemporaneously. Every prosecution does not result in preventive detention. Preventive detention may, in certain circumstances, become imminently necessary, whereas prosecution may be initiated later on, especially since no prescriptive period is prescribed in respect of such offences. 26. In this analysis the inevitable conclusion is that the Petition is not maintainable at this stage since it is not open to the Petitioner to challenge the impugned Detention Order on any of the grounds raised before us until such time as it is served/executed on the Petitioner. The Petition is dismissed but we refrain from imposing costs.
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2008 (5) TMI 688 - CESTAT, NEW DELHI
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... ... ..... d in favour of the Respondent by the Tribunal in the case of Emcure Pharmaceuticals Ltd. vs. CCE. He further submits that the Respondent already deposited the entire amount of duty with interest and, therefore, there is no reason for imposition of penalties. 5. After hearing both the sides and on perusal of the records, I find that the Commissioner (Appeals) set aside the penalties as the issue involved in these cases relates to interpretation of provisions of Rules 3 (7) (a) of the Cenvat Credit Rules, 2004. I find that the Tribunal decided this issue in favour of the Respondents in the case of Emcure Pharmaceuticals Ltd. (supra). In any event, the Respondents are not disputing the payment of duty. Ld. Counsel also submits that they have deposited the duty with interest. Therefore, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeals filed by the Revenue are rejected. Order dictated and pronounced in open court on 2.5.2008.
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2008 (5) TMI 687 - SUPREME COURT
Jurisdiction u/s 482 Cr.P.C - Victimisation and harassing of medical students by college authorities - Seeking for entrustment of further investigation of the cases to CBI - two separate petitions u/s 482 Cr.P.C. for quashing of the FIRs.
HELD THAT:- If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the proceedings. [See State of Maharashtra v. Ishwar Piraji Kalpatri [1995 (11) TMI 455 - SUPREME COURT]; Zhandu Pharmaceuticals Works Limited and Others v. Mohd. Sharaful Haque and Another [2004 (11) TMI 519 - SUPREME COURT]; State of Bihar & Anr. v. J.A.C. Saldanah [1979 (11) TMI 268 - SUPREME COURT]. There may be some exceptions to the said rule but we are not concerned with such a case.
The entire details of the facts of the present case do indicate that the appellants during their study of MBBS Course had some problems with the second respondent; some staff of the College and the then SHO of P.S. Vijay Nagar, whose daughter was also studying in the same College. The record would reveal that both the appellants being NRI candidates have undergone physical and mental agony and torture during their students career in pursuing the MBBS course. They had spent most of their precious time in litigation in the courts fighting for their genuine and legitimate claims. They may be lacking in some indiscipline activities in the College for which they have been facing criminal proceedings for the past about 3 years.
Looking to the entire backdrop of the peculiar facts of countless incidents having faced by the appellants during their primary life as MBBS students and the nature of the offences alleged against them in the above mentioned crime cases lodged by Mrs. Indra Mohini Sharma and Rajender Kuntal in Police Station Vijay Nagar, Ghaziabad and allegations and counter allegations in various complaints made by the parties against each other and coupled with the tenor and contents of the apology tendered by the appellants, we are of the view that it is a fit case where we should exercise our jurisdiction under Article 142 of the Constitution of India.
We are conscious of the well- settled law that in case of persons against whom prima facie case is made out and charge sheet is filed in the competent court, it is that court which will then deal with the case on merits in accordance with law and the High Court should not except in extraordinary circumstances exercise its jurisdiction u/s 482 Cr.P.C. so as to quash the prosecution proceedings after they have been lodged.
Therefore, taking into consideration the future career of the appellants who by this time might have joined the noble medical profession and owing to the reasons and observations above stated, this appeal is allowed as a result thereof the order of the High Court impugned in this appeal is set aside subject to the directions contained herein - We, are of the opinion that it is a fit case where we should exercise our discretionary jurisdiction under Article 142 of the Constitution of India so as to bring the dispute between the parties to an end.
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2008 (5) TMI 686 - SUPREME COURT
Renewal of a Mediclaim Policy - entitled to automatic renewal - Cheque towards payment of the premium for the purpose of renewal of the policy, refused on the purported ground of `high claim ratio' - `State' within the meaning of Article 12 of the Constitution - contract of insurance is no longer in the realm of contract?.
HELD THAT:- If it is a `State' its action must be fair and reasonable. It has been so held in a catena of decisions of the Court as for example Life Insurance Corporation of India v. Consumer Education and Research Centre [1995 (5) TMI 247 - SUPREME COURT].
There cannot be any doubt that Directive Principles of State policy by themselves per se are not enforceable in a court of law. [See Kesavananda Bharati v. State of Kerala[1973 (4) TMI 114 - SUPREME COURT].
The action on the part of the authorities of the appellant was highly arbitrary. Respondents though were not entitled to automatic renewal, but indisputably, they were entitled to be treated fairly. We have noticed hereinbefore some of the clauses contained in the prospectus as also the insurance policy. When a policy is cancelled, the conditions precedents therefor must be fulfilled. Some reasons therefor must be assigned.
When an exclusion clause is resorted to, the terms thereof must be given effect to. What was necessary is a pre-existing disease when the cover was inspected for the first time. Only because the insured had started suffering from a disease, the same would not mean that the said disease shall be excluded. If the insured had made some claim in each year, the insurance company should not refuse to renew insurance policies only for that reason. The words `incepts for the first time' as contained in clause 4.1 as also the words `continuous and without break' if the renewal premium is paid in time, must be kept in mind as also the reasons for cancellation as contained in clause 7(1)(n) thereof.
Renewal of a mediclaim policy subject to just exceptions should ordinarily be made. But the same does not mean that the renewal is automatic. Keeping in view the terms and conditions of the prospectus and the insurance policy, the parties are not required to go into all the formalities. The very fact that the policy contemplates terms for renewal, subject of course to payment of requisite premium, the same cannot be placed at par with a case of first contract.
It is essential that the Regulatory Authority must lay down clear guidelines by way of regulations or otherwise. No doubt, the regulations would be applicable to all the players in the field. The duties and functions of the Regulatory Authority, however, are to see that the service provider must render their services keeping in view the nature thereof. It will be appropriate if the Central Government or the General Insurance Companies also issue requisite circulars.
Appellants before us being subsidiaries to General Insurance Corporation cannot ignore the statutory provisions. They are bound by the directions issued by the Central Government.
We would request the IRDA to consider the matter in depth and undertake a scrutiny of such claims so that in the event it is found that the insurance companies are taking recourse to arbitrary methodologies in the matter of entering into contracts of insurance or renewal thereof, appropriate steps in that behalf may be taken.
These appeals are dismissed with costs.
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2008 (5) TMI 685 - SUPREME COURT
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... ... ..... ziabad. Registrar to ensure compliance. It shall be open for the State Government to recover the cost from the salary of the office/officers who are responsible to auction the property in question in such unruly manner by holding an inquiry. The Chief Secretary Government of U.P. is further directed to take appropriate action against the officers or employees who had acted in arbitrary manner while proceeding with the auction and sale of the property in question. Let a copy of the judgment be sent to the Chief Secretary, Govt. of U.P. by the office within a week for appropriate action." 20. We are of the opinion, however, that High Court's direction that action should be initiated against the concerned officers, is not justified and we accordingly expunge these directions more particularly as SPL's conduct as well does it no credit. We, however, maintain the directions in so far as the costs are concerned. With this minor modification, the appeals are dismissed.
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2008 (5) TMI 684 - SUPREME COURT
Arbitration Proceedings - Construction of a compound wall and a bridge over a nala - clauses 18 and 34 of the contract - Payment of escalation charges as the work had not been completed within four months - delay had been caused by the opposite party - contractor served a notice on Pawanhans invoking the clause relating to arbitration - payment rejected by observing that as a "No Dues Certificate" had been submitted by the contractor - "No Dues Certificate" under duress - HELD THAT:- We are of the opinion, that it was open to the contractor to contend that it was liable to be compensated on account of the fact that delay had been occasioned on account of reasons attributable to Pawanhans. It is significant that the Division Bench of the High Court has been silent on this aspect of the matter and has not referred to the finding of the learned Single Judge with regard to the responsibility for the delay.
We are further of the opinion that clause 43 and 43 (1) and (2) when read together clearly visualize escalation of price on account of reasons beyond the control of the contractor and attributable to the other side. Moreover clause 43 (2) clearly states that the remedy under clause 43(1) would be in addition to such other remedy that may be open to the contractor under the other provisions.
It appears however that no steps were taken on which the contractor addressed a letter dated 2nd February 1993 for payment of dues and again stated that if the payment was not made, the dispute should be referred to the arbitrator. In response to this letter, Pawanhans in its letter dated 9th February 1993 replied that the matter was under scrutiny and it would take about 2 months for verification and that the contractor would be informed in due course. As no reply was received, a letter dated 21st May 1993 was addressed by the contractor relating to the undertaking that the enquiry would be completed within 2 months but complaining that nothing had been done and on the contrary on 8th June 1993 the claim for any payment was rejected by Pawanhans observing that as a "No Dues Certificate" had been submitted by the contractor, the question of any balance payment being due did not arise. It is at this stage that the contractor had invoked the clause for arbitration.
We have reproduced the correspondence in extenso to show that the contractor was compelled to issue a "No Dues Certificate" and in this view of the matter, it could not be said that the contractor was bound by what he had written. It is also clear that there is voluminous correspondence over a span of almost 2 years between the submission of the first final bill on 3rd June 1991 and the second final bill dated 2nd February 1993 and as such the claim towards escalation or the plea of the submission of a "No Dues Certificate" under duress being an after thought is not acceptable.
We are therefore of the opinion that the judgment of the Division Bench is erroneous and we accordingly set it aside. The judgment of the learned Single Judge is accordingly restored. In the facts and circumstances of the case, in that Pawanhans has taken advantage of a beleaguered contractor, and has behaved in a most unbecoming manner in pushing it ever deeper into the chasm, the contractor will have its costs which are computed at ₹ 10,000/-. The appeals are accordingly allowed.
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2008 (5) TMI 683 - ITAT DELHI
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... ... ..... by the learned DR, it has been held that it is not open to the Assessing Officer to make disallowance under section 14A according to his own discretion or on ad hoc basis and it is statutory required to compute the disallowance in the manner provided by sub-sections (2) and (3). However, it is to be noted that sub-sections (2) and (3) are inserted by Finance Act, 2006 with effect from 1-4-2007. There is nothing in the Act, which expressly or by necessary implication suggest that insertion of sub-sections (2) and (3) to section 14A is retrospective in nature. Even under sub-sections (2) and (3) the Assessing Officer is to determine the amount of expenditure in accordance with such method is to be prescribed. However, no such method has been prescribed till date and hence disallowance cannot be made under section 14A even under sub-section (2) or sub-section (3) of section 14A. We, therefore, delete the disallowance of ₹ 3,90,267. 9. In the result, the appeal is allowed.
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2008 (5) TMI 682 - SC ORDER
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... ... ..... er Shergill, Praveen Kumar For the Respondent Shekhar Naphade, Chinmoy Khaladkar, Sanjay Kharde, Asha G. Nair, Ravindra Keshavrao Adsure, Pramod Dayal, Nikunj Daya ORDER Heard. No merit. The special leave petitions are dismissed.
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2008 (5) TMI 681 - ITAT, BANGALORE
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... ... ..... ring these receipts as eligible for deduction under s. 80-IB. 50. Grounds of appeal Nos. 14 and 15 are in respect of allowability of deduction under s. 80-IB on the sale of monitors. 50.1 This issue has also been decided against the assessee for the asst. yr. 2001-02 and our findings are the same as recorded for the asst. yr. 2001-02. 51. Grounds of appeal Nos. 16 and 17 are in respect of charging of interest under s. 234B. 51.1 The interest is consequential and we have already held that the AO will allow consequential relief in respect of interest. 52. Ground of appeal No. 18 is against charging of interest under s. 234D. 52.1 This issue has also been discussed in our order while disposing of appeal for the asst. yr. 2001-02. Following that, it is held that interest under s. 234D is chargeable in case regular assessment is made after 1st June, 2003 irrespective of assessment year. 53. In the result, appeals filed by the Revenue as well as by the assessee are partly allowed.
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2008 (5) TMI 680 - SUPREME COURT
Doctrine of promissory estoppel - Interpretation and/or application of the provisions of the Andhra Pradesh Electricity Reforms Act, 1998 vis-a-vis the orders passed by the Andhra Pradesh Electricity Regulatory Commission - generation, supply and distribution of electrical energy in the State of Andhra Pradesh used to be governed by the provisions of the Electricity (Supply) Act, 1948 - HELD THAT:- Indisputably, pursuant to or in furtherance of the said policy decision, 31 companies in the private sector showed their interest for setting up MPPs. The Government of Andhra Pradesh, upon taking into consideration the said applications allowed the respondents herein to set up MPPs capacity in private sector with residual fuel in industrial load centres in the State, whereafter, approval for the same had been granted - at this stage notice the fact of the matter involved in the respective appeals including the proceeding before the Commission.
The Commission for all intent and purport took a policy decision that the electricity generated by the company would be transferred to APTRANSCO. Whereas most of the respondents could not start production, LVS Power did. We will state the facts of the same at some details at an appropriate place but suffice it to point that pursuant to the interim decision taken by the Commission, LVS Power cancelled the agreements it had entered into with the consumers. Negotiations were held for fixing the rate of the tariff. It did not succeed.
When an application for grant of exemption is filed, the same is required to be dealt with independently. What was necessary for the said purpose was interest of the consumers as well as the consideration that supply and distribution cannot be maintained unless the charges for electricity supply are adequately levied and duly collected - The Commission, therefore, was bound to strike a balance. It should have given due consideration as to how and in what manner the MPPs were established. They were not per se inconsistent with the object sought to be achieved by the 1998 Act.
It is strange that while Commission was so conscious of is own power as envisaged under Clause (e) of Sub-section (1) of Section 11 of the Act in prohibiting third party sale so far as MPPs are concerned, it even could not take its own order to its logical conclusion. It is with some displeasure that we must notice as to how Commission mis- directed itself at every stage. Despite the State supported the application for grant of exemption, the third party sale was prohibited - The Commission itself is responsible for the said situation. If it has the power to regulate, as it has been contending, it should have proceeded progressively and not regressively. It could have taken into consideration the provisions of Section 11 (1)(f) whereby one of its function is to promote competitiveness and progressively involve the participation of private sector, while ensuring fair deal to the customers.
The Commission had been waiting for some directions of the Government of Andhra Pradesh. It is from that angle it must be held that the decision of the State to allow MPPs. to generate electricity was a matter of policy. The Commission for all intent and purport has frustrated the policy and object of the Act. APTRANSCO in terms of Chapter V of the Act also acts as a statutory authority. The Commission must function within the fourcorners of the 1998 Act. It is again subject to the power of the State Government under Section 12. It has referred the matter again and again to the State and when the State asked it to proceed in the manner, it backed out and APTRANSCO was constituted with the principal object of engaging the business of promoting and supply of electrical energy.
The licence under Section 14 is necessary but the same is only for transmission and supply and not for generation of electrical energy. Such a licence is required so as to enable the Commissioner to effectively control and regulate transmission and supply. It is also relevant to note that Section 21 provides for restriction on licensees and generating companies. Sub-section (4) empowers a holder of supply or transmission licence to enter into arrangements for the purchase of electricity. Sub-section (5) provides that any agreement relating to any transaction of the nature described in any of the sub-sections unless made with or subject to such consent as aforesaid, shall be void. It, therefore, restricts the power and activities of APTRANSCO.
It is in the aforementioned situation that the doctrine of promissory estoppel should be held to be applicable.
In this case interest of justice would be subserved if in modification of the order passed by the High Court, the impugned judgments are set aside and the Commission constituted under the 2003 Act is directed to consider the matter afresh in the light of the new statute - Appeal disposed off.
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2008 (5) TMI 679 - SUPREME COURT
Doctrine of Promissory Estoppel - Withdrawal of concessions - Interpretation of notification dated 14.02.1997 - Grant of concessional tariff for a period of three years @ 60%, 70% and 80% of the consumption charges - expression "set up" - High Tension Industries - Whether by reason of the notification dated 31.01.1995, the entrepreneurs who had set up new high tension industries after the said date have acquired any right pursuant thereto? - Retrospective effect.
HELD THAT:- We may notice that concessional tariffs, however, were to be granted only for three years. Those three years of concessional tariffs, therefore, were available to any industry which had been set up after 3.01.1989 till the concession is withdrawn.
A promise was made to grant the concessional tariff not only for the new industries which were to be set up thereafter but also to the pre- existing industries. The right accrued to them is sought to be taken away w.e.f. 15.02.1997. Those who were eligible upto 14.02.1997 to avail the benefit of the notification dated 31.01.1995 became ineligible.
An accrued right ordinarily cannot be taken away with retrospective effect. It is not a case where the notification has a retroactive operation. A person may apply on a particular date for grant of electrical connection. He may get the electrical connection within a few days or a few weeks or a few months. According to the State Electricity Board, keeping in view the role played by all the three players, namely, the consumer, the Board and the State, an outer limit of 18 months is taken for grant of supply.
A statute, even a subordinate legislation, may have to be construed reasonably. A subordinate legislation ordinarily would not be given a retrospective effect. Retrospective effect can be granted only if there exists any power in that behalf. There is nothing to show that such a power has been conferred upon the State in terms of the Act.
The proviso is an exception to the main clause whereas all industries which were set up on or after 15th February become wholly ineligible for any tariff concession but those who had set up prior thereto shall continue to avail themselves of the said tariff concession. Legally, those who had not become consumer of electrical energy, but were the potential consumers, they had not only applied for it but they were and, in fact, some of them has also been gone into commercial production. Once they have set up the high tension industries and who had gone up for commercial production must be held to have set up the high tension industries. Once they have set up the high tension industries after 31st March, 1995, they became entitled to the benefit of concessional tariff for a period three years.
Such concession was to be availed by them from the date of grant of service connection. If they had already been granted service connection, they would continue to avail themselves of the said tariff concession. However, the difficulty arises only in cases where despite applying for grant of electrical communication, actual service connection had not been granted. If a literal interpretation of the proviso is taken recourse to, the same may result in an anomaly in the sense that in one case, connection may be granted in one day and in another case, connection may not be granted for a long time.
Because of the acts of discrimination on the part of the officers of the Board or the State, the entrepreneurs would suffer. It is in the aforementioned limited sense, the doctrine of promissory estoppel will have application. If doctrine of promissory estoppel applies, the right accrued in terms thereof cannot be withdrawn with a retrospective effect. [See Mahabir Vegetable Oils (P) Ltd. [2006 (3) TMI 234 - SUPREME COURT], Southern Petrochemical Industries Co. Ltd. [2007 (5) TMI 591 - SUPREME COURT]]
It is not a case where decisions were altered pursuant to any representation made by the State. Concessions in tariff had been granted by reason of a statutory provision. Such concessions could also be withdrawn. If the appellants have not altered their position pursuant to any promise, the doctrine of promissory estoppel would not apply. If that be so, the question of any right being vested in the appellants would also not apply.
In Kasinka Trading & Anr. v. Union of India & Anr.[1994 (10) TMI 64 - SUPREME COURT], the power of the State to change its policy decision in public interest was emphasized. It was held that the power which can be used for grant of concession, namely, Section 25(1) of the Customs Act itself is the source to rescind the earlier notification
We have noticed that some of the industries had even installed generators. They had to do it. They inevitably had to do it because the Board would not supply power. We think that for the said purpose, the proviso has to be read down. It must be made applicable to them who not only had started commercial production before the said date, namely, 14.02.1997 but also had applied and were otherwise ready to take electrical connections having deposited the amount asked for, wherefor their industries were otherwise ready for consuming electrical energy.
We, therefore, held: 1. As the concession had been granted by the State, it had the power to withdraw the same.
2. It is not a case where in view of the doctrine of promissory estoppel, the State could not have in law amended the Schedule.
3. In view of existence of public interest the doctrine of promissory estoppel would have no application.
4. Even otherwise the appellants having not preferred appeals against the judgment of the Division bench of the High Court, the said questions cannot be permitted to be raised before us.
5. Proviso appended to the main provision should be read down as stated in paragraphs 44 and 45 supra.
6. In view of our findings aforementioned, we have not gone into the merit of the matter involved in each case separately.
We direct accordingly. The matters would now be examined by the Appropriate Authority of the Board, as directed by the High Court in individual cases - Appeals are allowed.
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2008 (5) TMI 678 - ITAT DELHI
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... ... ..... ersy because we have held that the company has proved the identity and creditworthiness of the shareholders and the genuineness of the transaction also stands established. Therefore, s. 68 has no application in the assessment of the company. 9. For the above reasons, we delete the addition of ₹ 44 lacs out of the addition of ₹ 50 lacs made under s. 68 of the IT Act taking note of the clarification made by the learned counsel for the assessee that the addition of ₹ 6 lacs has become final in the earlier proceedings. The first two grounds are partly allowed. 10. Ground No. 3 which is against the levy of interest under s. 234B was not argued. The assessee would however be eligible for consequential relief, if any. 11. Ground No. 4 challenges the proceedings as without jurisdiction but no arguments were advanced in support of the ground. The same is dismissed. 12. Ground No. 5 is general and requires no decision. 13. In the result, the appeal is partly allowed.
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2008 (5) TMI 677 - SUPREME COURT
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... ... ..... case of State of Tamil Nadu State Transport Corpn. Ltd. (supra) decided in the month of April, 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5 per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award i.e. 18.05.2005 in the present case. Consequently, we hold that the appellants would be entitled to be paid interest at the rate of 7.5 from the date of application till the date of payment. 15. In terms of the above directions and observations the appeal stands disposed of directing the payment of interest at the aforesaid rate. So far as the issue with regard to enhancement of compensation is concerned, the same was not pressed before us and consequently the prayer for enhancement of quantum of compensation as raised in the memorandum of appeal stands dismissed. However, in the circumstances of the case there will be no order as to costs.
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2008 (5) TMI 676 - HIMACHAL PRADESH HIGH COURT
Stay/Dispensation of pre-deposit - Financial hardship ... ... ... ... ..... e facts and especially that the FIR has been registered and the matter is pending investigation ought to have been looked into by the authority below. 8. emsp Keeping in view the facts and circumstances of the present cases, we are of the considered view that interest of justice would be met and the interest of Revenue could be adequately protected, if the petitioner immediately furnishes a bank guarantee to the satisfaction of the Commissioner (Appeal) in terms of the order dated 11th December, 2006 passed by the Appellate Tribunal and the matters be heard on merits. 9. emsp Considering that the matter has been pending before the Commissioner Appeals for quite sometime, it is also directed that the authority shall, after the bank guarantee is submitted, hear the parties and adjudicate the appeals expeditiously and possibly within four months from the date of receipt of the copy of the order. 10. emsp In view of the aforesaid directions, the petitions are disposed of finally.
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2008 (5) TMI 675 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Interest and penalty ... ... ... ... ..... of issue of supplementary invoices and the date of original payment of duty at the time of clearance. 2. emsp I find that the issue is squarely covered by the decision of this Tribunal in their own case vide order No. A/1566/C-IV/SMB/2007, dated 19-11-2007 2009 (234) E.L.T. 255 (Tribunal) , wherein in identical circumstances, the demand of interest and penalty was set aside in terms of Hon rsquo ble Bombay High Count rsquo s judgment in Appeal No. 42 of 2007 decided on 3-4-2007. The learned DR brings to my notice another decision of the same Member in the case of Insulators and Electrical Co. v. CCE, Bhopal - 2006 (202) E.L.T. 734 (Tri.-Del.), wherein interest was held to be payable in almost similar circumstances. 3. emsp Looking into the fact that the applicants have already got favourable decision by the Tribunal in their own case, I waive the pre-deposit of interest and penalty and stay recovery thereof till disposal of the appeal. (Dictated and pronounced in open Court)
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