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2011 (1) TMI 1588
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... ... ..... up any lacunae, as alleged by the learned Counsel for the Petitioner. Nor will it cause any prejudice to the Petitioner, as he has already placed the relevant evidence on the record. 9. Counsel for the Respondent has rightly relied on the judgment of the Supreme Court in the case of Fatehsinh Mohansinh Chauhan(supra) to state that ultimately the object should be to delve at the root of the matter and elicit the truth by obtaining proper proof of facts for arriving at a just and correct decision that should matter with the criminal court. In the facts and circumstances of the present case, this Court is not inclined to exercise its extraordinary power under Article 226 of the Constitution of India read with Section 482 Code of Criminal Procedure to interfere in the impugned order, as it does not suffer from any illegality, arbitrariness or perversity, nor would the said order result in miscarriage of justice. 10. The petition is dismissed, along with the pending applications.
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2011 (1) TMI 1587
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... ... ..... involvement in it. Yet, at this stage, the materials on record do not reveal that the only exception - a libel based on falsehood, which cannot be proven otherwise during the trial- applies in this case. Therefore, the Court is of opinion that granting an injunction would freeze the entire public debate on the effect of the port project on the Olive Ridley turtles' habitat. That, plainly would not be in public interest; it would most certainly be contrary to established principles. To recall the words of Walter Lippman The theory of the free press is not that the truth will be presented completely or perfectly in any one instance, but that the truth will emerge from free discussion For these reasons, the Court is of opinion that the application for interim injunction, i.e. IA No. 9089/2010 has to fail. It is accordingly, dismissed. CS (OS) No. 1407/2010 The suit shall be listed before the regular Bench, according to Roster, for further proceedings, on 21st February, 2011.
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2011 (1) TMI 1586
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... ... ..... hat the Appellant at the time of the commission of the offence did not know the nature of his act; that it was either wrong or contrary to law. In our opinion, the plea of the Appellant does not come within the exception contemplated under Section 84 of the Indian Penal Code. 12. As regards the decisions of this Court in the cases of Mohinder Singh (supra) and Shrikant Anandrao Bhosale (supra), relied on by the Appellant same are clearly distinguishable. In those decisions, this Court on fact found that the accused at the time of commission of crime was suffering from Schizophrenia and in that background held that accused is entitled to the protection under Section 84 of the Indian Penal Code. Here on fact, we have found that the Appellant was not suffering from unsoundness of mind at the time of commission of the crime and therefore the decisions relied on in no way advance the case of the Appellant. 13. We do not find any merit in the appeal and it is dismissed accordingly.
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2011 (1) TMI 1585
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... ... ..... e violation of Regulations 3 (a) to (d), 4(1) and (2) (h) of the SEBI (FUTP) Regulations, 2003 . It is not in dispute that the Act permits imposition of monetary penalties in addition to the action taken under Sections 11 and 11 B of the Act. Since all the allegations against the Appellants which have been discussed hereinabove stand established, the adjudicating officer was justified in imposing the penalties. The only argument of the learned Counsel for the Appellants is that the amounts of penalties imposed are highly excessive in the circumstances of this case. We do not agree with her. Having regard to the heinousness of the conduct of the Appellants which has adversely affected the interest of the investors/shareholders and the integrity of the securities market, we do not think that any amount of penalty could be excessive. We are not inclined to reduce the amounts. For the reasons recorded above, all the appeals fail and they stand dismissed with no order as to costs.
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2011 (1) TMI 1584
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... ... ..... t be appreciated. We are of the considered opinion that the order dated 7th June, 2001 passed by the second Respondent, Annexure P-17, deserves to be quashed and the matter to be remitted for reconsideration and accordingly we so direct. The second Respondent shall consider the matter after affording an opportunity of hearing to the Petitioner and decide the issue on the anvil of the decision rendered by the Apex Court in American Hotel & Lodging Association Educational Institute (Supra). Needless to say, the said Respondent shall fix a date of hearing and it would be obligatory on the part of the Petitioner to cooperate and produce documents, which are required to get the lis decided. 7. In view of the order passed by us, the challenge to the other orders is totally immaterial for the simple reason when the infrastructure becomes extinct, the super-structure cannot remain. 8. The writ petition is allowed to the extent indicated above. There shall be no order as to costs.
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2011 (1) TMI 1583
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... ... ..... at there was a purchase of 250 gms. of gold jewellery from Sri N.S.R.Mohan. Thus though assessee was having sufficient source, her statement regarding purchase from Sri N.S.R. Mohan having been found to be false, we are unable to accept the genuineness of purchase to the extent it was claimed to have been made from Shri N.S.R. Mohan. Thus, out of 300 gms. of gold jewellery alleged to have been purchased, in our opinion, only 50 gms. can be accepted as properly evidenced and balance of 250 gms. would remain unexplained. Thus, in our opinion, addition for the unexplained jewellery has to be restricted to 250 gms. of gold jewellery and nothing more. The addition is directed to be limited to the value of 250 gms. of gold jewellery and to this extent order ld. CIT(A) is set aside. . Ordered accordingly. Ground No.2 of the Revenue is allowed to the extent cited above. 8. In the result, appeal of the Revenue is treated as partly allowed. Order pronounced in open Court on 03-01-2011.
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2011 (1) TMI 1582
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... ... ..... ney with the assessee from advance of ₹ 50 lakhs received earlier by him from the proposed sale of property, we find that the assessee has not been able to produce any evidence for the purchase. Nevertheless, in our opinion, in the circumstances of the case, we can consider that 150 grms. of gold jewellery to have been purchased by the assessee out of the balances available with him. Thus out of the total gold jewellery of 1035.95 gms. we can consider 450 gms. to have been explained by the assessee, leaving a balance of 585.95 gms. as unexplained. Similarly against 12.05 ct. of diamond jewellery we can consider 10 ct. as explained, leaving a balance of 2.05 carets as unexplained. AO is directed to make additions on these lines based on the same method of valuations as done earlier. Ordered accordingly. Ground No.3 of the revenue is allowed to the extent cited above. 9. In the result, appeal of the Revenue is partly allowed. Order pronounced in open Court on 03 -01-2011.
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2011 (1) TMI 1581
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... ... ..... e having been made without any notice to the petitioner and at an arbitrary price which was ridiculously and hugely less than the value fixed by the authorities themselves at the time of confiscation, the same cannot be legally relied upon. Accordingly, this writ petition is allowed and the respondents are directed to pay Rs. 14,63,684.00 (Rs. 21,68,100/- which is the value of the articles assessed by the authorities at the time of seizure minus Rs. 7,04,416.00 which was paid to the petitioner by the authorities on 16.02.2004) within four months from the date of receipt/production of a copy of this order along with interest at the rate of 12% per annum from the date of seizure up to the date of payment of the entire amount. It may be noted that any loss accrued to the Department of Revenue, Union of India in this matter may be compensated by deducting the amount of loss from the pockets of the authorities due to whose mistake public exchequer has been burdened in such manner.
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2011 (1) TMI 1579
Ascertain the difference in the inks utilised for different handwritings in a disputed (pro-note) document - Suit on a pro-note for recovery of sum alongwith interest and costs - whether there are differences between the inks used for signatures in the suit pro-note and other printed form?
HELD THAT:- Since various scientific avenues are available for finding out the age of the ink in a document, it must be subjected to tests as suggested by various scientists. Hence, following the ratio in the decisions in Kalyani Baskar's case [2006 (12) TMI 545 - SUPREME COURT] and T. Nagappa's case [2008 (4) TMI 789 - SUPREME COURT], and direct to refer the disputed document to such examination in order to provide an opportunity when a good material is available, to rebut the presumption as per law, by non-destructive method in this regard.
If the expert concerned considers that such examination would destruct a part of the document or the document itself, they may report the fact before the Court and the Court thereafter shall pass further orders for the proof of the facts on the basis of pleadings and other evidence. Latching the opportunity to the accused in the attempt at the stage of rebutting the presumption u/s 118(a) and 139 of the Negotiable Instruments Act is not at all "fair trial". As per the settled law, every opportunity shall be extended to the party to a case to establish his defence.
In this situation, it is also regarded that it is the view of the Supreme Court that some delay in taking steps for referring the document to the wisdom of the expert cannot be a legal embargo for entertaining the plea.
Therefore, the disputed document has to be referred to the expert for ascertaining the age of the ink and practical hardships, if any, sustained by the expert shall be brought to the notice of the Court and the Court shall thereafter act according to the settled principles and procedures, in affording appropriate opportunity to the Petitioner/Defendant to prove his case.
Hence, interference with the order challenged before this Court has become inevitable, which is set aside. The revision deserves to be allowed.
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2011 (1) TMI 1578
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... ... ..... 0 for assessment year 2006-07, wherein the Tribunal has held in para-6 as under - “6. … … Thus once it is held that unaccounted assets declared as income during survey is to be assessed under the head business, then assessee is entitled to claim higher amount of remuneration to partners as per limit prescribed under section 40(b). Since there is no dispute over the calculation, we decline to interfere in the order of ld. CIT(A) in granting higher remuneration to the partners. The appeal filed by the Revenue is dismissed.” As the income declared during the survey is considered by Assessing Officer as business income and this is not disputed by Revenue even now before us, consequential deduction u/s 40(b) will be available. The assessee has rightly claimed he deduction u/s.40(b) of the Act. Accordingly, this issue of Revenue’s appeal is dismissed. 5. In the result, Revenue’s appeal is dismissed. Order pronounced in Open Court on 21/01/2011.
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2011 (1) TMI 1577
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... ... ..... any authority was given to the complainant to fill in the contents will have to be decided after evidence is led by both parties and, for that purpose, it is not necessary to send it to the Handwriting Expert. Secondly, this application has been filed at a belated stage. No reply was given to the statutory notice alleging that contents were not filled up by the accused. The contention of the learned Counsel for the applicant that only after suggestions made by the accused were denied by the complainant, it became necessary to file an application for sending the cheques to Handwriting Expert, cannot be accepted. In my view, it is clear from the facts and circumstances of the case that the application is only made to protract the trial. I am informed that the trial is on the verge of completion and the written arguments are also submitted, as a result interim order which was passed earlier by this Court was vacated on 19/11/2010. 18. Criminal Application is therefore dismissed.
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2011 (1) TMI 1576
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... ... ..... dated 13.12.1993. He would further submit that there may atleast be a direction for trying the said probate case, along with the present suit by the learned Single judge. We find justification in the said submission. 22. In view of all the above, O.S.A.NO.398 of 2010 is dismissed and O.S.A.No.397 of 2010 is allowed in part in the following terms - (i)The impugned order to the extent the learned Single Judge has allowed marking of the unregistered Will dated 13.12.1993 is set aside and it is clarified that the said Will can be allowed to be proved in evidence in T.O.S.No.38 of 2004, if only the same is probated in accordance with law. (ii)The order of the learned Judge allowing to mark the other four documents enumerated in the order subject to proof of those documents in accordance with law is confirmed. (iii)If any application is filed, by the respondents seeking probate of the Will dated 13.12.1993, the said case shall also be tried along with T.O.S.No.38 of 2004. No costs.
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2011 (1) TMI 1575
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... ... ..... providing due and reasonable opportunity of being heard to the assessee. 7. Now we will deal with I.T.A. No.593/Luc/10. In this appeal the only grievance of the assessee relates to the rejection of application moved by the assessee for grant of approval u/s 80G of the I.T. Act, 1961. It is noticed that the learned CIT rejected the said application for the reason that the application for registration u/s 12AA of the Act has been rejected. Since the issue relating to the registration u/s 12AA of the Act has been set aside to the file of the learned CIT in the former part of this order while deciding the assessee’s appeal in I.T.A. No.613/Luc/10, therefore, the issue relating to grant of approval u/s 80G is also set aside to the file of learned CIT to be adjudicated afresh after providing due and reasonable opportunity of being heard to the asssee. 8. In the result, the appeals are allowed for statistical purposes. (The order was pronounced in the open court on 12/01/2011)
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2011 (1) TMI 1574
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... ... ..... delay attributable has to be seen. The statute specifically provides and empowers that such a question arises as to the period to be excluded. It shall be decided by the Chief Commissioner or Commissioner and that decision shall be final. In this view of the matter, we set aside the order of the lower authorities and remit this issue back to the file of the Assessing Officer, who will decide in accordance with Explanation (2) to section 244A(b) of the Act and the decisions of the Hon’ble Supreme Court in the case of CIT vs. Narendra Doshi reported in 254 ITR 606 and in the case of CIT vs. Shelly Products reported in 261 ITR 376, after affording adequate opportunity of being heard to the assessee. The assessee is also at liberty to move to the Chief Commissioner or Commissioner for the appropriate decision for the calculation of interest which is only consequential to the refund. 7. In the result, the appeal of the assessee is treated as allowed for statistical purposes.
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2011 (1) TMI 1573
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... ... ..... ontinued, the expenses incurred for the maintenance of the corporate entity has to be allowed as legitimate business expenses during he relevant previous year, even though there was no business receipts. Expenses which are relatable to earning of ‘income uth House Property’ are to be allowed to the extent the same is allowable as per the provisions of the Act. Those expenses out of the disputed amount should be allowed which are not relatable to the business of development of property etc. No detailed evidence is available on the record and the lower authorities have not done the requisite exercise. We, therefore, set aside the impugned orders of the authorities below and remit the matter back to the file of the AO with the direction that a fresh order be passed as per law after giving the assessee adequate opportunity of being heard. 13. In the result, the appeal of the revenue is allowed for statistical purposed. Order pronounced in the open court on 31-01-2011.
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2011 (1) TMI 1572
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... ... ..... uo;ble Delhi High Court in the case of DIT Vs. Jacobs Civil Incorporated, ITA No. 491 of 2008 inter alia, it is held that the provisions of section 234D has no retrospective applicability and hence no interest be leviable upto A.Y. 2003-04. The Special bench in the case of Ekta Promoters Pvt. Ltd. (supra) has also held that interest u/s 234D could not be charged for assessment years prior to A.Y. 2004-05, even though the refund for such earlier years have been received after 1-6-2003. We are aware that Kerala High Court in the case of CIT Vs. Kerala Chemical and Proteins Ltd. (325 ITR 1) has taken a contrary view. It is settled legal position that in case there are two contrary views on a particular issue, the view which favours the assessee should be adopted. In view of above, interest u/s 234D is not justified and the same is directed to be deleted. 7. In the result, the appeal is partly allowed as indicated above. Decision pronounced in the open court on 31st January 2011.
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2011 (1) TMI 1571
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... ... ..... ioner has not pointed out as to how the order of the AO was not in accordance with law. Even the learned Commissioner has not pointed out in the impugned order as to what is stand of the department in the preceding assessment year for filing any appeal before the Hon’ble High Court or Hon’ble Supreme Court. The AO considering the facts and circumstances of the case and the material on record rightly followed the order of the Tribunal for the purpose of giving relief to the assessee. We therefore do not find any perversity in the approach of the AO in allowing relief to the assessee under Section 80P(2)(a)(vi) of the I.T.Act. We therefore do not subscribe to the view of the learned Commissioner in the impugned order. The impugned order under Section 263 of the I.T.Act is set aside and his quashed. Resultantly, the assessment order dated 19-12-2007 is restored. 6. In result, the assessee’s appeal is allowed. Order pronounced in Open Court on 21st January, 2011
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2011 (1) TMI 1570
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... ... ..... paying its debts. It was held that the aim of equity is to promote honesty, and not to frustrate the legitimate rights of financial corporations which after advancing the loans take steps to recover their dues from the defaulting party. HRML inspite of the decision in the case of Haryana Steel & Alloys Ltd. entailing similar questions persisted with the present petition, obviously because the interim order operating herein was to its advantage. It is rather the conduct of HRML which is found malafide and in an attempt to deprive public monies. HRML for this reason also is not entitled to any equitable relief under Article 226 of the Constitution of India. 38. Accordingly, W.P.(C) 14999/2006 is without any merit; the same is dismissed and the interim order is vacated. HRML to also pay costs of this petition of ₹ 1 lac each to IFCI and KMBL. W.P.(C) 9662/2007 is dismissed as infructuous. CONT. CAS(C) No.461/2008 is also dismissed, no case of contempt having been made.
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2011 (1) TMI 1569
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... ... ..... cution.” The accused is facing criminal prosecution under Sections 108, 132, 135 (1) (a) (1) (A) (B) of the Customs Act for evading custom duty on the goods. The goods imported in the name of his firm 'M/s Maa Shakti Industries' is under seizure of DRI. The custom duty which is payable on undeclared imported goods cannot be realized imposing any condition while releasing the accused on bail as the same can be realized by a separate proceeding under the Customs Act. The condition No.1 imposed by the learned Sessions Judge appears to be harsh which amounts to denial of bail, therefore, the learned Sessions Judge, Lucknow could not impose condition No.1 while allowing the bail application of the accused, which is liable to be quashed and the revision deserves to be allowed. The criminal revision is, therefore, allowed. The impugned order dated 7.6.2010, passed by the learned Sessions Judge, Lucknow is modified to the extent that the condition No.1 shall be deleted.
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2011 (1) TMI 1568
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... ... ..... allowance of ₹ 25000/- out of that price of ₹ 3 lakhs per cent. This is somewhat in the nature of an anti climax to the finding of the Commissioner of Income-tax (Appeals) himself. It looks like disallowance for the sake of disallowance. Therefore, we find that there is no reason to treat the purchase value of the land at ₹ 2,75,000/- as against ₹ 3 lakhs per cent stated by the assessee. This interference made by the Commissioner of Income-tax (Appeals) is set aside and the purchase value of the land in the hands of the assessee-company is directed to the accepted at the rate of ₹ 3 lakhs per cent as conceded by the assessee-company. It is to be seen further, that the directors in turn have declared long term capital gains in their hands. 19. The assessee is successful in its appeal. 20. In result, the appeal filed by the Revenue is dismissed and the appeal filed by the assessee is allowed. Order pronounced on Thursday, the 20th of January, 2011.
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