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Showing 41 to 60 of 773 Records
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2009 (12) TMI 1024 - SUPREME COURT
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... ... ..... o receive better terms of gratuity under any award or agreement or contract with the employer than the benefits conferred under the Act. The comparison, if any, could be only between the terms of gratuity under any award or agreement or contract and payment of gratuity payable to an employee under Section 4 of the Act. There can be no comparison between a Pension Scheme which does not provide for payment of any gratuity and right of an employee to receive payment of gratuity under the provisions of the Act. Viewed from any angle the order of the Controlling Authority is unsustainable. The order is liable to be set aside and the same is accordingly set aside. 28. However, the judgment of ours is applicable to only such of those employees/workmen who retired from the service between 1.1.1986 and 31.10.1992. 29. In the result, the appeal preferred by the bank is dismissed with costs quantified at ₹ 25,000/- and the writ petitions are allowed without any order as to costs.
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2009 (12) TMI 1023 - ITAT CHENNAI
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... ... ..... ties as also the meaning of "royalty" as per the DTAAs. Since these aspects have never been examined by the lower authorities, we are of the opinion that the claim has to be verified by the assessing officer. Therefore, while holding that the payments were only "royalty" we set aside the orders of the assessing officer and the Commissioner of IT (Appeals), and remit the issue back to the assessing officer for the limited aspect of examining its claim that it was saved from the rigour of Section 40(a)(i) on account of the relevant articles in the respective DTAAs. 20. In result, the appeal of the revenue is allowed for statistical purposes. 21. When the assessees appeal was taken up, learned Counsel submitted that he was not pressing it due to the small quantum involved. Therefore, the assessees appeal is dismissed as not pressed. 22. To summarise, the appeal of the revenue is allowed for statistical purposes, whereas that of the assessee stands dismissed.
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2009 (12) TMI 1022 - BOMBAY HIGH COURT
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... ... ..... ns practising the profession of law whether in litigious matters or non litigious matters would be governed by the 1961 Act and the Bar Councils framed thereunder, apart from the powers of the Court to take appropriate action against advocates who are found guilty of professional misconduct. 60. For all the aforesaid reasons, we hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act. We further hold that the expressions ‘ to practise the profession of law’ in section 29 of the 1961 Act is wide enough to cover the persons practising in litigious matters as well as persons practising in non litigious matters and, therefore, to practise in non litigious matters in India, the respondent Nos.12 to 14 were bound to follow the provisions contained in the 1961 Act. The petition is disposed of accordingly with no order as to costs. Chief Justice
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2009 (12) TMI 1021 - ITAT MUMBAI
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... ... ..... he extent such sum is credited by the assessee to employees' account in relevant fund on or before the due date. Thus unless and until such remittances are made it remains assessee's income, and even if remitted after due date, it continues to be assessee's income. However due date gets extended by the number of grace days given under the statute governing respective remittance by virtue of decision of Hon'ble Madras High Court in CIT v. Shri Ganapathy Mills Co. Ltd. 2000 243 ITR 879 and CIT v. Salem Co-operative Spinning Mills Ltd. 2006 284 ITR 621. Thus, assessee is entitled to claim deduction out of employees contribution to the extent of remittances made within the grace period mentioned in respective statutes governing such deduction. Therefore, we find no error in the order of the CIT(A) which calls for an interference. In the result, ground No. 2 of the revenue stands dismissed. 11. Thus appeal of the revenue is partly allowed for statistical purposes.
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2009 (12) TMI 1020 - CESTAT MUMBAI
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... ... ..... all scale exemption No one to one relationship of inputs used and the final products manufactured and cleared from the factory credit of duty paid on inputs cannot be confined to a particular raw material to which the credit is related and out of which a final product is manufactured assessee not required to reverse the CENVAT credit. 4. Heard. 5. I have gone through the submissions made by both the parties and find that the case of the respondent is squarely covered by the decision of Punjab & Haryana High Court in Commissioner of Central Excise, Chandigarh Vs. CNC Commercial Ltd. - 2008 (224) ELT 239 (P&H), wherein the Hon'ble High Court has held that in these facts and circumstances, while opting for SSI exemption the assessee is not required to reverse the CENVAT Credit. Following the same ratio, I do not find any merits in the appeal filed by the Revenue. Accordingly, the impugned order is upheld and the appeal is rejected. (Dictated and pronounced in Court)
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2009 (12) TMI 1019 - GUJARAT HIGH COURT
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... ... ..... present in the Court, states that the respondent No.1 will decide the application pending before it, at Annexure-D at page No.27 to the petition, within a reasonable period, as may be directed by this Court. 4.0 Looking to the facts and circumstances of the case and since the application in question is pending consideration before the respondent No.1-authority, I am of the opinion that it would be appropriate that the said application may be decided first, as it would substantially redress the grievance raised by the petitioner in this petition. So, without entering into merits of the matter and in view of aforesaid statement made by Mr.J.K. Shah, learned Assistant Government Pleader, the respondent No.1-authority is directed to consider the application preferred by the petitioner at Annexure-D, which is pending before him within a period of four weeks from the date of receipt of writ of this order. With the above direction and observations, the petition stands disposed of.
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2009 (12) TMI 1018 - ANDHRA PRADESH HIGH COURT
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... ... ..... member of the public, to whom the conduct alleged against the petitioner in the present case could not be attributed, can file such a writ petition for the same relief, this disability would not attach to him. The relief claimed by the petitioner in the writ petition, being in the nature of a class action, without seeking any relief personal to them ought not to be dismissed merely on the ground of lack of standing since this is a matter of public concern and relates to the good governance of the State itself. (Dr. Kashinath G. Jalmi v. The Speaker, 1993 (2) SCC 703 ). We. see no reason to non-suit the petitioner on this ground. 75 G. O. MS. NO.76 Housing (HB. II)Department dated 25.11.2005 and Document no.2678 of 2007 dated 27.9.2007 executed by the 2nd respondent in favour of the 3rd respondent are ultra vires Sections 45 and 79 (1) of the Act. They are declared void and are, consequently, quashed. The writ petition is allowed. However, in the circumstances, without costs.
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2009 (12) TMI 1017 - SUPREME COURT
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... ... ..... e made out by the Petitioners, the same is of little consequence in view of their admission that the Respondents, Subhash Paliwal and Gopal Paliwal, were their landlords and that they were paying rents for the suit shop room to them. 20. The various decisions cited by Ms. Shobha quite unequivocally lay down the law relating to amendment of pleadings, but they cannot be applied to the facts of this case in view of the admissions made on behalf of the petitioners that they had been paying the rents for the suit shop room to the respondents. 21. In view of such admission, little remains to be considered in the present proceedings, notwithstanding Ms. Shobha's submission regarding the definition of "landlord" in Section 3(iii) of the 1950 Act in support of her submission that Subhash Paliwal did not fall within the description of "landlord" in the Act. The Special Leave Petition is, accordingly, dismissed. 22. There will, however, be no order as to costs.
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2009 (12) TMI 1016 - ITAT, NEW DELHI
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... ... ..... of individuals would be an object of general public utility. In view thereof, promotion of sports and games is considered to be a charitable purpose within the meaning of section 2(15) of the IT Act, 1961. Therefore, an association or institution engaged in the promotion of sports and games can claim exemption under Section 11 of the IT Act, 1961, even if it is not approved under Section 10(23) of the Act relating to exemption from tax of sports associations and institutions having their object as the promotion control, regulation and encouragement of specified sports and games. 7. In view of the above, we are inclined to agree with the learned AR that order passed by the AO is devoid of any merits and no interference is required in the order of CIT(A), the finding of which has not been controverted by the learned DR during the course of hearing before us. 8. In the result, the appeal of the Revenue is dismissed. Decision pronounced in the open Court on 21st December, 2009.
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2009 (12) TMI 1015 - GAUHATI HIGH COURT
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... ... ..... but to hold, and I do hold, that the respondent had not been able to make out any prima facie case for granting of injunction. 145. I may, at this stage, pause here to point out that the other relief, which the respondent has sought for, in its application under Section 9, is appointment of a receiver when the contract is not specifically performable, when injunction cannot be granted and when the disputes remain alive only for the purpose of determination of liabilities, the question of appointment of receiver to manage the suit property, or the question of granting injunction, until appointment of receiver, also does not arise at all. The application made by the respondent, under Section 9, was, thus, wholly misconceived and not tenable in law. Situated thus, I hold that the impugned order is wholly illegal and needs to be set aside. 146. In the result and for the reasons discussed above, this appeal is allowed and the impugned order, dated 24.2.2009, is hereby set aside.
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2009 (12) TMI 1013 - MADRAS HIGH COURT
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... ... ..... ons to whom the shares were transferred, and (v) the reasons as to why the transfer of shares were suppressed before the Debts Recovery Tribunal, in the Application filed in February 2006 in I.A. No. 67 of 2006. The Company is also directed to file into Court, within two weeks from the date of receipt of a copy of this order, certified copies of the Transfer Deeds dated 22.10.2009 and 30.11.2009 issued by the Office of the concerned Sub-Registrar containing all the endorsements relating to registration. In fine, C.A. No. 1000 of 2009 is dismissed. C.A. No. 1740 of 2009 is disposed of with the directions contained in the preceding paragraph. C.A. No. 1741 of 2009 is closed, recording the statement made by the Company that there was no agenda for the AGM. However, the disposal of these Applications in the manner indicated herein, will not preclude the Bank from initiating any action before the Tribunal, for the violation of the any of the interim orders passed by the Tribunal.
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2009 (12) TMI 1012 - DELHI HIGH COURT
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... ... ..... ves up this role. The court's intercession at every stage is crucial, more so, at the interlocutory stage. 10.3 Therefore, in coming to the conclusion, which I have, I have examined the impugned advertisement and the result is that I am of the view that impugned advertisement does not fall prima facie within the tort of .malicious falsehood.. The defendant has set up an arguable case. There is a possibility that the submission which is even if it is assumed is directed towards the plaintiff, is true. This is apart from my reasoning hereinabove that I am not persuaded to hold that the impugned advertisement is directed against the plaintiff. 11. For the reasons given above, the application is dismissed. CS(OS) 2029/2009 12. The defendant shall file the written statement within two weeks. Replication, if any, be filed before the next date. 13. List before the Jt. Registrar on 27.04.2010 for completion of pleadings, filing of original documents and admission/denial, thereof
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2009 (12) TMI 1011 - HIGH COURT OF BOMBAY
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... ... ..... 9 executed by the plaintiffs in favour of the 2nd defendant. 16. Considering the aforesaid aspect, we are totally convinced that the application for injunction has been filed by the plaintiff only with a view to delay the proceedings before the arbitral tribunal and it cannot be said to be a genuine and bona fide application at all. Looking from all angles, in our view, the learned single Judge was absolutely justified in rejecting the prayer for injunction and rightly not exercised his discretion in view of the facts and circumstances of the case. Learned Counsel for the appellant at this stage submits that the appellant will file its reply in the arbitration proceedings on or before 10th January, 2010. It is for the appellant to file such a reply before the arbitral tribunal and to cooperate with the arbitration proceedings thereafter. 17. Subject to what is stated above, the Appeal is dismissed with costs quantified at ₹ 25,000/. Costs to be paid to respondent No. 1
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2009 (12) TMI 1010 - KERALA HIGH COURT
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... ... ..... compliance of Section 43B of the I.T. Act and since the Tribunal has found that the assessee has made payment before the date of filing of return, we allow the assessee's appeal by reversing the order of the Tribunal and that of the first appellate authority and remand the matter back to the assessing officer for granting deduction of the amount actually paid before the date of filing of the return.
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2009 (12) TMI 1009 - DELHI HIGH COURT
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... ... ..... be allowed to use the same while comparing/stating the advantages of its services and disparaging the services of the Plaintiff. The issue No. 4 is decided accordingly. Issue No. 1 28. In the above circumstances, the Plaintiff, is entitled for the decree of injunction. The Defendant is permanently restrained from using the words 'useless' and 'no real successes' and/or any other words in its advertisement which in any way disparages or defames the products of the Plaintiff or injure the goodwill and reputation of the Plaintiff. Issue No. 3 and 4 29. As the Defendant is permanently restrained from using any statement in the advertisement which are defamatory and/or harm the Plaintiff's reputation and goodwill, the prayers of the Plaintiff with regard to recovery of ₹ 1 crore and interest for quantified damages is rejected being not proved. 30. The suit is accordingly disposed of. The Plaintiff is entitled to costs. Decree sheet be drawn accordingly.
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2009 (12) TMI 1008 - CESTAT AHMEDABAD
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... ... ..... affidavit submitted only now. Learned SDR submits that in any case the letters and affidavit would require verification and therefore, suggests that matter be remanded for this purpose. 4. In this case, in view of the fact that appellants have submitted letters with affidavits of the suppliers of the goods, who were found to be non existent, the fact as to whether the letters and affidavits were filed by the same persons, is required to be verified and thereafter the matter is required to be re-adjudicated. Further, it has also been submitted that show cause notices have been issued to the weavers also. Therefore, we waive the requirement of pre-deposit under Section 35F of Central Excise Act, 1944 and allow the stay petition and take-up the appeal itself for decision and remand the matter to Original Adjudicating Authority, who shall proceed to decide the matter afresh after giving opportunity to the appellants to represent their case. (Dictated and pronounced in the Court)
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2009 (12) TMI 1007 - SUPREME COURT
Arbitration Proceedings - Application filled u/s 20 - for appointment of an arbitrator - Grant of interest by the arbitrator - Agreement was entered between the appellant and the North Eastern Railway for the construction of bridge - special conditions of the contract (SCC) and they stipulate that the General Conditions of Contract (GCC) and standard specifications of the North Eastern Railways shall form part of the aforesaid contract - payments made to the appellant after completion of the contract but they were received by them “under protest” - High Court considered Clause 30 of SCC and Clause 52 of GCC and found them to be similar and these clauses, according to High Court, bar interest and damages in respect of withholding or retention under the lien.
HELD THAT:- The arbitrator in his award after perusal of the level Book No.1, Graph-Sheets, Logbook No. 1A and Logbook No.4 came to a clear finding that there were manipulations/alterations/over writings by the railways and as a result of which the volume of work done by the contactor has been reduced.
It is well settled that the arbitrator is the master of facts. When the arbitrator on the basis of record and materials which are placed before him by the railways came to such specific findings and which have not been stigmatized as perverse by the High Court, the High Court in reaching its conclusions cannot ignore those findings.
But it appears that in the instant case, the High Court has come to the aforesaid finding that the items mentioned above are excepted matters and non-arbitrable by completely ignoring the factual finding by the arbitrator and without holding that those findings are perverse.
It goes without saying that in order to deny the claims of the contractor as covered under excepted matters, the procedure prescribed for bringing those claims under excepted matters must be scrupulously followed. The clear finding of the arbitrator is that it has not been followed and the High Court has not expressed any dis-agreement on that. Therefore, the finding of the High Court that those items are non-arbitrable cannot be sustained.
Before discussing the implication of these clauses, it may be noted that the Arbitration Act, 1940 does not contain any provision enabling the arbitrator to give interest. Section 29 of the Arbitration Act enables the Court to award interest from the date of the decree and at such rate as the Court deems reasonable.
The present Act of 1996 (the Arbitration and Conciliation Act, 1996), however, empowers the Arbitrator under Section 31(7)(a) and (b) to grant interest. Admittedly, in this case the 1996 Act is not attracted. Therefore, the provisions of 1940 Act will govern. The arbitrator’s power to grant interest is governed by the various judicial pronouncements and the provisions of Interest Act of 1978.
Under the Interest Act, Section 3 empowers the Court to allow interest. But sub-Section (3) of Section 3 contains a proviso, namely, Section 3, sub-Section (3), Clause (a) (ii).
Normally there are three periods for which interests are awarded -
(a) pre-reference period i.e. from the date of the cause of action for going to arbitration and to the date of reference;
(b) the pendente lite period i.e. from the date of reference to the date of award; and
(c) the postreference period i.e. from the date of the award to the date of realization.
In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrator’s award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers [1995 (12) TMI 400 - SUPREME COURT] , find that the said clauses do not impose any bar on the arbitrator in granting interest.
In N.C. Budharaj [2001 (1) TMI 916 - SUPREME COURT] Justice Raju, speaking for the majority, considered the question of the arbitrator’s jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy [1991 (12) TMI 268 - SUPREME COURT].
We are constrained to note that Hon’ble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj [2001 (1) TMI 916 - SUPREME COURT] in passing the impugned judgment and order.
In view of such consistent views taken by both the Constitution Bench judgments, in G.C. Roy (supra) and N.C. Budharaj (supra), we are of the view that in the facts of this case, no interference is called for with the award passed by the arbitrator. The judgment of the High Court is, therefore, set aside and the award is upheld. The appeal is allowed.
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2009 (12) TMI 1006 - SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
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... ... ..... out. In a given case, the whole time member may hold the delinquent guilty of the charge levelled and the adjudicating officer may completely absolve him of the same or vice versa. Such anomalous situations could arise and these would not be in public interest. We feel that if only one enquiry is held against the delinquent and on the basis of the findings recorded therein, the same body is given the power to issue directions and impose monetary penalties as well, it would not only expedite matters but also avoid conflicting opinions. This would obviously require an amendment in the Act which is in the exclusive domain of Parliament. For the reasons recorded above, we allow the appeals, set aside the impugned orders leaving the parties to bear their own costs. In view of the observations made in para 8 above, we direct that a copy of this order be sent to the Finance Secretary, Government of India, New Delhi for information and whatever necessary action that he may deem fit.
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2009 (12) TMI 1005 - ITAT INDORE
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... ... ..... computation had been properly made Provided that in so doing he shall not be entitled to reopen matters concluded by an order under section 154, 155, 260, 262, or 263.” 9. On consideration of the facts and the rival submission, we are of the view that the provisions of sections 150 to 152 of the Act are not applicable to the present facts because the direction of the learned Commissioner of Incometax (Appeals) has already been quashed by the Tribunal vide aforesaid order dated 17th October, 2008 by holding that the learned CIT(A) could not give direction under Explanation to section 153 of the Act, therefore, it can be said that the said directions are non-existent. Here since the assessment was reopened on the direction of the learned CIT(A) which has already been quashed and the prescribed period has already expired, therefore, reopening is bad in law. Consequently, both these appeals of the assessee are allowed. Order pronounced in open Court on 11th December, 2009.
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2009 (12) TMI 1004 - PUNJAB & HARYANA HIGH COURT
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... ... ..... exchange. Once it is established from the orders passed by the CESTAT as upheld by this Court that the appellant had imported the material which is iron and steel scrap and the foreign exchange was issued to the appellant for that purpose only, it cannot be said that there is any violation of the provisions of the Foreign Exchange Regulation Act, 1973 (for short, “the Act”). If violation is not established, penalty on the appellant cannot be levied. In fact, as is evident from the proceedings, the levy of penalty on the appellant under the Act was upheld by noticing that the appellant had not challenged the orders passed by the Commissioner (Appeals) under the Customs Act which was, in fact, not correct as subsequently that order was set aside by the CESTAT, as upheld by this Court. 3. Considering the aforesaid facts, the impugned order passed by the learned Tribunal cannot be sustained and it is accordingly set aside. 4. The appeal stands disposed of.
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