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2014 (12) TMI 1426
Maintainability of petition - Oppression and mismanagement - bona fide purchasers or not - failure to disclose material facts/suppression of material facts - Invocation of jurisdiction of this Bench conferred upon it by virtue of the provisions contained in Sections 397, 398 and 399 read with Sections 402, 403 and 406 of the Indian Companies Act, 1956 - HELD THAT:- If the Petitioner was not a consenting party to the sale transaction, she should have refunded this amount immediately. To my mind, this clearly proves misconduct on the part of the Petitioner. The settled proposition that the law relating to oppression and mismanagement is basically based on equity, fairness and probity on the part of the shareholders of a Company whether such party is a Petitioner or Respondent in the petition filed under Section 397/398 of the Act, cannot be ignored. They are supposed to approach the CLB under the said provisions with all fairness and trustworthiness. It is, therefore, established that the Petitioner has not approached the CLB with clean hands.
For the reasons discussed hereinabove, the Petitioner having approached to the CLB with unclean hands is not entitled to any discretionary reliefs - the petition deserves to be dismissed on the said preliminary ground.
Time Limitation - HELD THAT:- There are no hesitation to hold that the instant petition filed under Section 397/398 of the Act is not hit by the law of limitation as, firstly, the provisions of Limitation Act are not applicable to a petition filed under Section 397/398 of the Act, secondly, the acts of oppression and mismanagement being continuing in nature, the cause of action continues until the alleged acts of oppression and mismanagement are brought to an end and in such case the question of limitation therefore becomes irrelevant. In the instant case the alleged acts of oppression according to the Petitioner's case pertain to the period 2010 and the petition being filed in 2012 cannot be said to be time barred nor does the petition suffer from delay and laches.
Whether the subject property has been grossly undervalued by the Respondent No. 2 or not? - HELD THAT:- There are no force in the contention of the petitioner that the Respondent No. 2 has agreed to sell the property at grossly undervalue for his sole benefit and to deprive the Petitioner from the right value of the shares in the Company. She further failed to substantiate her allegation that the Respondent No. 2 has gained wrongfully out of the impugned sale transaction. While rendering this finding, it is made clear that the validity of the agreement for sale is already under challenge before the Hon'ble High Court in the civil suit filed by the Respondent Nos. 4 to 8 for specific performance. Therefore, it is refrained from expressing any opinion with respect to the validity of the agreement for sale purportedly entered into between the Respondent Nos. 4 to 8 and the Respondent No. 2 on behalf of the Company. My finding is limited on the aspect that the Petitioner has failed to establish her version that the alleged value of shares determined between the Respondent No. 2 and the Respondent Nos. 4 to 8 for effecting sale of Company's shares was not just, proper and adequate. This point is decided accordingly.
There are no substance in the complaints made by the Petitioner saying that she was discriminated because she was not paid full consideration of her shares, whereas the other shareholders have been paid full consideration and that the Respondents have made an attempt to expropriate 8738 shares - the Respondent No. 2 has categorically stated that the proposed gift of 8738 shares has already been cancelled and the Petitioner is still owner of the 8738 shares and her name exists in the Register of Members, which is deposited with the Hon'ble High Court pursuant to the order passed by it in the pending civil suit seeking specific performance of the alleged agreement for sale in dispute with respect to these shares. In view of the statement made above, the Petitioner's grievances as to alleged expropriate of 8738 shares held by her comes to an end. With respect to 2039 shares held by her which is the subject matter of the civil suit, it is held that the Petitioner has already received the consideration - these complaints do not amounts to acts of oppression and mismanagement as defined in Section 397/398 of the Act.
As regards payment of the amount with respect to certain shares to Ms. Meena Khetani and Ms. Bindu Khetani, are concerned, the Respondent No. 2 in his pleadings and written submissions has clearly stated that the gift in favour of Ms. Meena Khetani and Ms. Bindu Khetani as per the alleged family arrangement could not take place owing to the pre-emption clause of the Articles of Association of the Company and as such the payments made to Ms. Meena Khetani and Ms. Bindu Khetani have been reversed as stated in the Affidavit of the Respondent No. 2 dated 17/07/2013. In view of the above, the entire complaint made by the Petitioner as to the alleged gifting of shares and making payment thereof to them - The contention of the Respondent No. 2's Counsel that the part payments were made in between January to July, 2010 and the agreement came to be negotiated in July, 2010 makes the document doubtful, is also meaningless. It is a common practice of the mark that some amount is paid as advance even at the early stage of negotiation with a purpose to block the deal and then final terms for sale transaction are settled.
Validity of the POA purportedly executed by the Company in favour of the Respondent No. 2 based on a Board Resolution dated 14/06/2011 - HELD THAT:- The Petitioner had received part payment and the Respondent No. 3 admittedly has received the entire amount with respect to her shareholding in the Respondent No. 1 Company. It has also been held hereinabove that the Petitioner and Respondent No. 3 both had given the consent to the impugned sale transaction. Therefore, even assuming that there is some irregularity in the circular resolution dated 12/06/2011 and/or Board Resolution dated 14/06/2011, it does not make the POA, which is a registered document, a void document. Even in absence of Circular/Board Resolution, it is well established that all the shareholders including the Petitioner and the Respondent No. 3 had granted authority to the Respondent No. 2 for the purpose of negotiations of the sale of subject property. Therefore, raising these technical issues with respect to the validity of the circular resolution, pursuant to which POA is executed, are without merits. It is therefore held that the POA is a valid and subsisting document and the aforesaid ground taken by the Petitioner as an act of oppression thus fails.
The Petitioner has failed to make out a case under section 397/398 of the Act - Petition dismissed.
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2014 (12) TMI 1425
Evasion of VAT - intent to evade - Framing of charges - whether omission on the part of the petitioner to furnish information at Information Collection Centre and transporting iron materials via an escape route with an intent to evade payment of Value Added Tax (VAT) constitute offence under Section 415 IPC punishable under Section 420 thereof? - HELD THAT:- When the allegations levelled against the petitioner are analysed in the light of ingredients of offence of cheating in view of the provisions of Section 415 IPC, it is difficult to concur with the orders passed by the Courts below whereby the petitioner has been charged for commission of offence punishable under Section 420 IPC by the trial Court and the revision petition against the order passed by the trial Court has been dismissed by the Additional Sessions Judge, Mansa. Perusal of the order passed by the revisional Court would evident that the Court has neither adverted to the allegations against the petitioner nor bothered to examine those allegations in the light of relevant provisions of IPC particularly the offence of cheating defined in Section 415 thereof.
The criminal proceedings against the petitioner are nothing short of abuse and misuse of process of law. It is added that ordinarily this Court would not interfere in the trial proceedings as the charge sheet has been framed and few witnesses have also been examined but the said fact in the circumstances obtaining in the instant case should not deter this Court from exercising its inherent power to prevent blatant abuse and misuse of process of law.
The criminal proceedings initiated against the petitioner and orders passed in those proceedings cannot be allowed to sustain and accordingly stand quashed - Petition allowed.
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2014 (12) TMI 1424
Dismissal of bail application of the petitioner filed under Section 167 (2) of Code of Criminal Procedure - possession of 60 jute bags containing poppy husk - HELD THAT:- If the investigation is not completed within a period of 180 days, extension of time up to one year can be granted on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused. In the present case the application for extension of time was filed by the Additional Public Prosecutor without the report of the Public Prosecutor. The report of the Public Prosecutor as per Section 36-A(4) is the essential requirement for granting extension of time. In the present case this report is not a part of the application and the reason given for extension of time is that the report of the Chemical Examiner has not been received and, therefore, the challan could not be presented.
In the case of JEEVAN SHARMA @ VICKY VERSUS STATE OF PUNJAB [2014 (1) TMI 1946 - PUNJAB AND HARYANA HIGH COURT], the reason for extension of time was being sought on the ground that the report of FSL, Mohali had not been received. Hon'ble the Supreme Court in the case of SANJAY KUMAR KEDIA VERSUS NARCOTICS CONTROL BUREAU [2007 (12) TMI 9 - SUPREME COURT] held that under Section 36-A (4) of the Act, extension could be given by the Court on the report of the Public Prosecutor indicating he progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days.
In the present case, no such report of the Public Prosecutor was attached with the application. Hence, the application for extension of time was wrongly allowed as the petitioner had a right to be released on bail as per Section 167(2) of the Criminal Procedure Code.
Order dated 10.11.2014 passed by Judge, Special Court, Jalandhar is set aside. The petitioner is enlarged on bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Jalandhar - petition allowed.
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2014 (12) TMI 1423
Deduction u/s. 80IB(5) - manufacturing activity done by the assessee or not? - HELD THAT:- Assessee is engaged in the business of manufacturing of lubricating oil and antistatic conning oil as has been mentioned even in para 3 of the assessment order itself. The entire profit shown in the profit & loss account was claimed as deduction u/s. 80IB(5). Without going into much deliberation and the decision in Daman Plastic [2013 (2) TMI 934 - ITAT MUMBAI] Assessee is entitled for deduction u/s 80IB of the Act.
Even otherwise, a provision in the taxing statute granting incentives for promoting growth and development should be construed liberally. Our view is fortified by the decision in Bajaj Tempo Ltd. [1992 (4) TMI 4 - SUPREME COURT], Impel forge and allied Industries Ltd. [2008 (12) TMI 370 - PUNJAB & HARYANA HIGH COURT] and CIT vs. Sadhu Forging Ltd we are of the view, that the assessee is entitled for deduction u/s. 80IB. Even otherwise, a provision in the taxing statute granting incentives for promoting growth and development should be construed liberally. Our view is fortified by the decision in Bajaj Tempo Ltd. vs. CIT [1992 (4) TMI 4 - SUPREME COURT]
AO denied the deduction merely on the ground that the assessee was doing job work for the sister concern, therefore, ultimate product was produced by sister concern - Assessee claimed that identically for A.Ys. 2005-06 and 2006-07, the claim of the assessee was accepted. The assessee has produced emulsifier by using raw material like fatty acids, glycols, vegetable oils, caustic soda, and other additives, consequently, the 'end product' is 'commercially known differently', therefore, in our view, the new article/new product emerged/manufactured, consequently, the assessee is entitled for deduction u/s. 80IB of the Act. Our view is fortified by the decision and the ratio laid down in CIT vs. Vinbros & Company [2012 (9) TMI 802 - SC ORDER], CIT vs. Zainab Trading Pvt. Ltd. [2011 (2) TMI 109 - MADRAS HIGH COURT], CIT vs. Esquire Translam Industries [2010 (7) TMI 77 - MADRAS HIGH COURT], Titanor Components Ltd. [2013 (11) TMI 69 - DELHI HIGH COURT], CIT vs. Ambuja Ginning Pressing & Oil Company Pvt. Ltd. [2010 (11) TMI 380 - GUJARAT HIGH COURT] and Midas Polymer Compounds Pvt. Ltd. [2010 (12) TMI 414 - KERALA HIGH COURT]
Since, the 'end product' was 'commercially known differently', therefore, it can be said that it was manufacturing activity done by the assessee, therefore, in view of the discussion made hereinabove, we are of the view that assessee is entitled for deduction u/s. 80IB. Appeal of the assessee is allowed.
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2014 (12) TMI 1422
Levy of Entry tax on craft paper applying notification dated 15.01.2009 - Section 4(1) of the U.P. Tax on Entry of Goods into Local Areas Act, 2007 - HELD THAT:- The contention of learned counsel for the applicant is not acceptable for the reason that any goods of any description entering the local area is not subjected to entry tax, it is only the goods specified in the Schedule as notified by the State Government is leviable with entry tax. The goods as specified in the notification inter alia provides for paper for packing purpose.
A finding of fact has been recorded by the Tribunal that the dealer is manufacturer of laminated sheets using craft paper as raw material and not for packaging purposes.
The finding of fact stands concluded by the Tribunal. The Court is not inclined to interfere with the impugned order - Revision dismissed.
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2014 (12) TMI 1421
Imposition of penalty under Section 67(1) of the KVAT Act.
Petitioner points out that, the course and procedure pursued by the concerned respondent is per se wrong and illegal in all respects as the 3rd respondent has ventured into an exercise, whereby the classification dispute has been wrongly decided in a penalty proceedings, which cannot be a proper course.
HELD THAT:- After hearing both the sides and after going through the materials on record, this Court finds that there is considerable force in the submission made by the learned counsel for the petitioner.
This Court finds that the matter requires to be considered in the light of the ruling rendered by this Court as per the decision in M/S. CHAKKIATH BROTHERS VERSUS THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES SPECIAL CIRCLE-1, ERNAKULAM [2014 (6) TMI 974 - KERALA HIGH COURT]. Accordingly, Exts. P7 to P9 orders are set aside and the matter is directed to be reconsidered by the 3rd respondent.
The writ petition is disposed of.
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2014 (12) TMI 1420
Non-payment of service tax - appellants had supplied labour but did not pay service tax under manpower recruitment or supply agency service - Extended period of limitation - HELD THAT:- As per the agreement the appellants were being paid for operating the mill @ Rs. 160/- PMT of the quantity of gods produced, It is thus evident that the payment was based on production as a result of operation of the mull. Under Section 65(68) of the Finance Act, 1994 manpower recruitment or supply agency means “any person engaged in providing any service directly or Indirectly in any manner tor recruitment or supply of manpower temporary or otherwise, in any manner” It is evident that the activity rendered by the appellants does not fall in the said definition inasmuch as they did not supply any manpower to any other person and merely engaged the manpower themselves to operate the mill and. got paid on the basis of production on per metric ton basis It also comes out that the activity done by them amounted to manufacture.
Extended period of limitation - extended period has been invoked on the ground that the appellants had never disclosed these facts and non-payment of service tax which came to notice of the department only at the time of audit and thus the appellants had intentionally not paid service tax with indent to evade the same - HELD THAT:- It is thus evident that mere son-payment of ‘service tax has been ipso fact equated with the Intention to evade which, as is too well settled to need citing of precedent, is legally unsustainable.
In the case of the Rameshchandra C. Patel CST, Ahmedabad [2011 (11) TMI 415 - CESTAT, AHMEDABAD] it was held that the Agreement between parties talking about products to be manufactured sad payments to be made. and silent about number of men or labour to be used or manner in which they have to be used or quantum of payment to be made to them would not be covered under manpower recruitment or supply agency service.
The requirement of pre-deposit is waived - appeal allowed.
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2014 (12) TMI 1419
Manipulative, fraudulent and unfair trade practices - Shares allotted on preferential basis - 46 allottees made a collective profit of ₹313.01 Crore on their total investment of ₹12.99 crore, a substantial return of approximately 2309 % on their investment in a period of 18 months (including the lock in period) - entire modus operandi of allotting preference shares at a premium, announcing a stock split and then bringing in connected entities to provide exit was a scheme devised to rake in ill-gotten gains
HELD THAT:- Preferential allotment was used as a tool for implementation of the dubious plan, device and artifice of Radford Group & Suspected Entities and preferential allottees.
The manipulation in the traded volume and price of the scrip by a group of connected entities has the potential to induce gullible and genuine investors to trade in the scrip and harm them. As such the acts and omissions of Radford Group & Suspected Entities and allottees are ‘fraudulent’ as defined under regulation 2(1)(c) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (‘PFUTP Regulations’) and are in contravention of the provisions of regulations 3(a), (b), (c) and (d) and 4(1), 4(2)(a), (b), (e) and (g) thereof and section 12A(a), (b) and (c) of the SEBI Act, 1992.
As directors of Radford during the relevant time (i.e. Prakash Bhawarlal Biyani, Manish Nareshchandra Shah, Rajesh Kumar Maheshwari and Nitin Shivratan Murarjka), being in control of the day to day affairs of Radford, had the knowledge of its acts and omissions. They were also under an obligation to ensure that acts and transactions of Radford were not in violation of any of the applicable provisions of SEBI Regulations or other applicable laws. Therefore, prima facie find that these directors were responsible for Radford 's acts and omissions in this case.
A detailed investigation of the entire scheme employed in this case is necessary to find out the role of any other entity therein including LTP contributors, Suspected entities, connection amongst the concerned entities and the ultimate owners of funds used for manipulating the price of the scrip. Therefore, while SEBI would investigate into the probable violations of the securities laws, the matter may also be referred to other law enforcement agencies such as Income Tax Department, Enforcement Directorate and Financial Intelligence Unit for necessary action at their end as may be deemed appropriate by them.
SEBI strives to safeguard the interests of a genuine investor in the Indian securities market. The acts of artificially increasing the price of scrip mislead investors and the fundamental tenets of market integrity get violated with impunity due for such acts. Under the facts and circumstances of this case, I prima facie find that the acts and omissions of Radford Group & Suspected Entities and allottees as described above is inimical to the interests of participants in the securities market. Therefore, allowing the entities that are prima facie found to be involved in such fraudulent, unfair and manipulative transactions to continue to operate in the market would shake the confidence of the investors in the securities market.
Considering these facts and the indulgence of a listed company in such a fraudulent scheme, plan, device and artifice as prima facie found in this case, this is a fit case where, pending investigation, effective and expeditious preventive and remedial action is required to be taken by way of ad interim ex -parte in order to protect the interests of investors and preserve the safety and integrity of the market.
In view of the foregoing, in order to protect the interest of the investors and the integrity of the securities market, in exercise of the powers conferred upon me in terms of section 19 read with section 11(1), section 11 (4) and section 11B of the SEBI Act, 1992, pending inquiry/investigation and passing of final order in the matter, hereby restrain the named persons/entities from accessing the securities market and buying, selling or dealing in securities, either directly or indirectly, in any manner, till further directions.
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2014 (12) TMI 1418
Rejection of books of accounts - GP Estimation - AO estimated the G.P. at 12.34% on sales of dolomite and 10% G.P. on job work - On appeal, the CIT(A) adopted G.P. @ 10% in respect of sale of dolomite and @ 8% in respect of job work.
HELD THAT:- It is true that G.P. rate cannot be uniform in all the years and it varies from year to year depending on several factors such as local market condition, fluctuation in rates etc. It is also observed that the A.O. has not cited any comparable case while estimating G.P. in respect of sale of dolomite.
As regards the job work undertaken by the assessee, it is stated that this is the first year for the assessee to undertake this work and the AO failed to cite any comparable case while applying 10% G.P. on job work. It is seen that the ld. CIT(A) has sustained the addition of Rs. 3,82,023/- which appears to be on higher side particularly considering the facts and circumstances of the present case.
Nature of the business carried out by the assessee, we think it proper to restrict the addition on both counts.
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2014 (12) TMI 1417
Refund claim - telecommunication service to international roamers - Export of service - HELD THAT;- The delay is condoned - appeal admitted.
Tag with S.L.P. (C) No. 29712 of 2014.
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2014 (12) TMI 1416
Whether a party to an arbitration proceeding may be permitted to raise objections Under Section 34 of the Arbitration and Conciliation Act, 1996, with regard to the jurisdiction of the Arbitral Tribunal after the stage of submission of the written statement? - HELD THAT:- All objections to jurisdiction of whatever nature must be taken at the stage of the submission of the statement of defence, and must be dealt with Under Section 16 of the Arbitration Act, 1996. However, if one of the parties seeks to contend that the subject matter of the dispute is such as cannot be dealt with by arbitration, it may be dealt Under Section 34 by the Court.
Though, it cannot be said that the upholding of a state law would not be part of the public policy of India, much depends on the context. Where the question arises out of a conflict between an action under a State Law and an action under a Central Law, the term public policy of India must necessarily understood as being referable to the policy of the Union. It is well known, vide Article 1 of the Constitution, the name 'India' is the name of the Union of States and its territories include those of the States.
There are no hesitation in coming to the conclusion that the amendment application raised a ground which was contrary to law and ought not to have been allowed by the High Court.
Appeal allowed.
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2014 (12) TMI 1415
Monetary benefits in excess of the entitlement - whether all the private Respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer? - HELD THAT:- The instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.
The orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction Under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs. 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or a Diploma in Library Science, the degree of M. Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed - This Court did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties.
Following few situations summarised, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
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2014 (12) TMI 1414
TP Adjustment - comparable selection - whether ITAT is correct in law in rejecting the comparable companies adopted by the TPO which was selected by the Tax Payer itself and remitting the case to the Assessing Officer for fresh consideration in terms of its directions to determine the subject issue? - HELD THAT:- Tribunal, in relation to the aforesaid question, has rendered a fact finding which instances are acceptable or non-acceptable. We do not think that we should substitute our appreciation of fact in the absence of any allegation of perversity. We have seen the judgment and order and the findings of the learned Tribunal and it does not appear to us that the same are not based upon without any material. We do not find any element law to decide in this appeal.
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2014 (12) TMI 1413
Requirement of obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - HELD THAT:- The issues raised in this petition are squarely covered by this Court’s order THE MEDIA N MEMBERS CLUB VERSUS STATE OF KARNATAKA, THE COMMISSIONER OF POLICE, THE JOINT COMMISSIONER OF POLICE, THE DEPUTY COMMISSIONER OF POLICE, THE ASSISTANT COMMISSIONER OF POLICE, THE INSPECTOR OF POLICE, BANGALORE [2014 (10) TMI 1068 - KARNATAKA HIGH COURT] and RELIANCE RECREATION CLUB VERSUS THE SUPERINTENDENT OF POLICE, THE DEPUTY SUPERINTENDENT OF POLICE, THE CIRCLE INSPECTOR OF POLICE, THE SUB INSPECTOR OF POLICE, THE ASST. SUB INSPECTOR OF POLICE [2014 (12) TMI 1412 - KARNATAKA HIGH COURT] where it was held that where it was held that Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.
The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein games(s) is / are played by the members. The CC TV footage of atleast prior 15 days’ period shall be made available by the petitioner, to the police, as and when called upon to do so - petition disposed off.
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2014 (12) TMI 1412
Requirement of obtaining of licence under the relevant Licensing Order/s of the State Government or under the Karnataka Police Act, 1963 - HELD THAT:- The issues raised in this petition are squarely covered by this Court’s order THE MEDIA N MEMBERS CLUB VERSUS STATE OF KARNATAKA, THE COMMISSIONER OF POLICE, THE JOINT COMMISSIONER OF POLICE, THE DEPUTY COMMISSIONER OF POLICE, THE ASSISTANT COMMISSIONER OF POLICE, THE INSPECTOR OF POLICE, BANGALORE [2014 (10) TMI 1068 - KARNATAKA HIGH COURT] where it was held that where it was held that Regulatory mechanism is required, to check the illegal activities, if any, in the club(s) / association(s), registered as a society, under the Karnataka Societies Registration Act. When the club/association allows its member(s) to play games with stakes or make any profit or gain out of such games, police has the authority to invoke the provisions of the Act.
The petitioner shall install within a period of six weeks, CC TV cameras, at all the places of access to its members and also at all the places, wherein games(s) is / are played by the members. The CC TV footage of atleast prior 15 days’ period shall be made available by the petitioner, to the police, as and when called upon to do so - petition disposed off.
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2014 (12) TMI 1411
Penalty u/s 271(1)(c) - additions in the Net Profit Ratio @5% on estimate basis as the assessee could not produce the relevant details asked for, during the course of assessment proceedings due to the fact that they were misplaced by the Accountant - meaning of word ‘concealment’ and ‘inaccurate’ - HELD THAT:- CIT(A) has rightly applied the decision of Reliance Petro Products Ltd [2010 (3) TMI 80 - SUPREME COURT] which is squarely applicable in the present case of the assessee as held that penalty based merely on the finding given in assessment order is not valid.
CIT(A) has rightly applied the decision of the Hon’ble Delhi High Court decision in the case of CIT vs. JK Synthetic Ltd. [1996 (2) TMI 123 - DELHI HIGH COURT] wherein it was held when the concealment proceedings u/s. 271(1)(c) in a case is purely based on assessment order penalty cannot be levied.
Levy of penalty in this case is not justified particularly when the assessment was framed on the income determined on estimate basis and without bringing any material on record to substantiate that the assessee willfully and intentionally concealed the income or furnished the inaccurate particulars of the income, hence, we do not see any reason to interfere with the order of the Ld. CIT(A), accordingly, we uphold the same and decide the issue against the Revenue.
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2014 (12) TMI 1410
Simultaneous proceedings under different acts for same offence - Dishonour of Cheque - complaint for the offence punishable under Section 138 of the Negotiable Instruments Act as well as offence punishable under Section 420 of the Indian Penal Code imposed - HELD THAT:- In the decision in Kolla Veera Raghav Rao [2011 (2) TMI 1257 - SUPREME COURT] it is observed by the Hon’ble Supreme Court that Section 300 (1) of the CrPC is wider than Article 20 (2) of the Constitution of India as while the said Article only states that ‘No person shall be prosecuted and punished for the same offence more than once’, the said Section states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts - the Hon’ble Supreme Court had held as follows: “In the present case, although the offences are different but the facts are the same. Hence, Section 300 (1) of the CrPC applies. Consequently, the prosecution under Section 420 of the IPC was barred under Section 300 (1) of the CrPC.” Holding so, the Hon’ble Supreme Court while setting aside the judgment of this Court had allowed the appeal.
Reverting to the facts of the case on hand, it is to be restated that both the cases against the accused based on the same set of facts are still pending and no conviction is yet recorded in any one of the two cases. Therefore, as rightly urged, unless the accused is tried and convicted by a competent Court for the offence punishable under section 138 of the NI Act, the question of bar under Section 300 (1) of the CrPC for the prosecution under Section 420 of the IPC does not arise; and for Section 300 (1) of the CrPC to apply the accused must first establish that he was earlier tried and convicted for an offence on the same set of facts. Be that as it may. Nonetheless, the learned counsel for the accused submits that even if the accused were to be tried on the same set of facts at two different trials for the two offences and albeit he were to be found to be guilty, still he cannot be convicted and punished for both the offences in view of the provision of Section 300 (1) of the CrPC and that therefore, subjecting him to the ordeal of a criminal trial for the offence under Section 420 of the IPC on the same set of facts is not only an abuse of process of Court but would also be an exercise in futility, and, hence the same cannot be permitted. This Court finds force and acceptable merit in this submission.
This court finds that it would be just and appropriate to order stay of the proceeding in the case crime no. 6 of 2012 of the III Town Police Station of Karimnagar registered for the offence punishable under Section 420 of the IPC till the final disposal, on merits, of the CC 139 of 2012 taken on file by the learned Magistrate for the offence punishable under Section 138 of the NI Act, as such a course sub serves the ends of justice and would protect the interests of both the parties - Petition disposed off.
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2014 (12) TMI 1409
Direct recruitment to the post of Assistant Registrar from among the practising members of the Bar - affected petitioners who possessed B.L. Degrees have filed the writ petitions, arraying the persons promoted as respondents, who were possessing B.A.L. Degree, in view of the promotion Notification No.165/2013 dated 21.8.2013.
HELD THAT:- Insofar as the plea based on a large number of employees acquiring B.A.L. Degree is concerned, we feel that it is of no consequence as they were acquired by the persons to get into the channel of promotion and they were fully aware of the fact that the existing rules then provided for only 25% of the cadre strength for them in terms of the proviso which was an exception to the rule. Their expectation thus cannot be higher than that.
The first set of amendments itself made it clear what was the intent while enacting the amendment to the Rules. Sub-rule (g) was added in Rule 1 to clearly define a law degree to be one recognised by a University in India and recognised by the Bar Council of India for admission as an advocate or an attorney of an Indian Court. Only the B.L. Degree satisfies this test. Thus, Rule 6(b)(2) in the context of this definition leaves no manner of doubt that it is the B.L. Degree alone which was a pre-requisite, and B.A.L. Degree would not qualify the person for such an appointment, but for the insertion of the proviso. The proviso is thus clearly an exception to the rule, as held by us aforesaid and must be construed accordingly.
The fact that the proviso is followed by a “notwithstanding” clauseauthorizing the Chief Justice to vary the percentage of vacancy or cadre/subcadre posts to be filled up by promotion from one or other category of eligible employees cannot imply that the Chief Justice is authorised to negate the rule itself as read with the definition clause. The exigencies of situation would thus permit some variation, not possible for us to quantify, but suffice to say, as not permitting the destruction of the main clause.
The present case is not one of change of intendment of an enactment by insertion of certain mandatory conditions to be fulfilled in order to make the enactment workable, since the definition clause was never changed, which defines a law degree for purposes of the rules, but on the other hand was inserted by the first set of amendments. Thus, the general principle that a proviso carves out an exception to the main provision would continue to apply and must be limited to the subject matter of the enacting clause. This is not an exceptional case of the proviso being a substantive provision itself, principle in any case made applicable to taxation matters.
It cannot obliterate the earlier substantive provision, which is the result which would follow if the ratio is changed to 25% for B.L. and 75% for B.A.L., creating a proviso which is overwhelmingly in favour of the exception, rather than the main rule. There is thus substance in what was canvassed on behalf of the petitioners that the amendment of the year 2013 seeks to make the proviso the rule and the rule the proviso.
The amendment dated 30.7.2013 seeking to reverse the ratio between B.L. and B.A.L. Degree holders for as 25% and 75% respectively cannot be sustained and is hereby quashed.
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2014 (12) TMI 1408
Interpretation of statute - entry C-I-29 and notification thereunder dated 9.5.2002 - packing materials - classification of goods - HELD THAT:- The Notification itself states that in exercise of powers conferred by Entry 29 of the schedule ‘C’ appended to the Bombay Sales Tax Act, 1959 (Bom.LI of 1959), the Government of Maharashtra, with effect from the 1st April, 2001, and in supersession of the Government Notification, Finance Department, No.STA.1100/CR-122/Taxation-1, dated 11th August, 2000, specifies the goods, more particularly described in the Schedule appended to this Notification, to be Industrial inputs and packing materials, whether sold under a generic name or any brand name, for the purposes of the said entry no.29. If the Industrial inputs and packing materials and covered from time to time under the heading or sub-headings as the case may be of the Central Excise Tariff Act, 1985 have been brought within the purview of a single Notification then we must see as to why the supersession was effected. The earlier Notification of 11th August, 2000 also notified the Industrial inputs and packing materials.
The articles such as Ghamelas might be used in construction, agriculture etc. but they are not industrial inputs or packing materials would exhibit complete ignorance of the commercial word as well. It is for that reason that we emphasised the principles evolved by the Hon’ble Supreme Court. If they would guide us and they were equally binding and ought to have guided the Tribunal when it exercise its initial Appellate jurisdiction. In such circumstances, the plain reading of the entry and as made by the Tribunal in the initial stage while deciding the Appeal to be found in paras 10 to 12 of its order would demonstrate that it is this exercise which thereafter put the Tribunal itself in doubt. It is that doubt which required it to refer the questions to this Court. None would now therefore fault the Tribunal for reading the entry industrial inputs and packing materials properly. The fact that the Industrial inputs and packing materials have been notified throughout under the Notifications and in terms of the heading or sub-headings of these articles and materials under the Central Exercise Tariff Act, 1985 would show that household wares or domestic articles were not intended and rather never intended to be brought in. The exclusionary part of the entry itself will clarify this aspect. The articles of plastics and notified for use of conveying or carrying articles packed in plastic materials would denote that the understanding throughout was to bring in such articles which are used in trade, commerce and Industry.
The Tribunal was not correct in concluding that all articles which have been manufactured by the dealer would not fall in the Entry C-I-29 and Notification dated 9th May, 2002 - the issue is necessarily have to be answered and in terms of the articles referred to in the notification in favour of the dealer against the Revenue.
Reference disposed off.
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2014 (12) TMI 1407
Set off of Brought forward losses - applicability of section 79 - Tribunal allowing the set off of brought forward losses and by holding that the Assessee Company was deemed to be a company in which public is substantially interested - HELD THAT:- In the present case, item (B) was invoked because in the Assessee company the voting power has been unconditionally acquired and to the extent indicated in item (B) by a company to which the clause applies or any subsidiary of such company if the whole of the share capital of such subsidiary company has been held by the parent company or by its nominees throughout the previous year. After perusal of the share holding pattern, the Tribunal concluded that the shares of Tata Industries Limited have been transferred to Tata Power Co. Ltd. It may be that, now, the voting power under section 2(18)(b) is acquired by the Tata Power Co. Ltd. but once that company falls within the definition of the term “a company in which public are substantially interested”, then, the Tribunal's conclusion cannot be faulted.
There is material on record to indicate that as to how Tata Industries Limited and Tata Power Co. Ltd. have been treated by the Department/Revenue as companies in which public are substantially interested.
Section 79 provides for carry forward and set off losses in case of certain companies. That refers to a change in the share holding pattern taking place in a previous year in the case of a company, not being a company in which the public are substantially interested. Therefore, the prohibition which is carved out by this section becomes applicable. Obviously, therefore, if it is a company in which public are substantially interested, applicability of section 79 is ruled out. In the present case, we are not concerned with the section 43A of the Indian Companies Act. So long as the record indicated, the share holding pattern and the details which are set out at para 20 of the Tribunal's order which was undisputed, then, the Tribunal was justified in directing the Assessing Officer to allow the claim of brought forward losses. We do not see any substantial question of law arising for determination and consideration in this Appeal. Once the factual position and emerging from the record is noticed, then, the Assessee satisfies the condition stipulated and specified in section 2(18). The first question, therefore, cannot be termed as a substantial question of law.
Computation of book profit u/s 115JB - inclusion of claim of depletion in producing properties as claimed - HELD THAT:- Assessee had to prepare a Profit and Loss Account for the relevant previous year in accordance with PartII and PartIII of Schedule VI to the Indian Companies Act, 1956. Since, the Tribunal found that the guidance can be taken from the Notes of accounting standards issued by the ICAI on depreciation accounting and we have held that such a course was permissible, then, the Tribunal was justified in referring to para 4 of this guidance Note and thereafter relying upon it. Once the guidance Note indicates that depreciation also includes the depletion of natural resources through the process of extraction or use, then, the Tribunal was justified in eventually directing that the Assessing Officer must recompute the book profit under section 115JB after allowing the claim of depletion in producing properties as claimed by the Assessee. We have referred to the relevant provisions in the Indian Companies Act, 1956. Section 211(3C) of that Act specifically refers to the standards of accounting and which have been laid down by the ICAI. In these circumstances, the view taken by the Tribunal on this count cannot be termed as perverse. We do not see how a substantial question of law would arise for our determination and consideration. In such circumstances, the question No.4 is also not a substantial question of law.
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