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Showing 101 to 120 of 902 Records
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2009 (8) TMI 1206
Issues involved: Determination of addition on account of difference between closing stock declared to the bank and closing stock shown in the books of accounts.
Summary:
The Tribunal found that when the closing stock declared in the return was inflated to secure a loan, no addition could be made if there was no discrepancy in the account books. The assessee hypothecated stocks to the bank for credit but maintained physical control over them. The bank did not physically verify the stock. The assessee provided complete documentation to support the stock valuation. The Sales Tax Officer verified the documents and found no discrepancies. The AO did not find any undisclosed sources for stock investment. As there was no evidence of discrepancy in the books of accounts, the Tribunal upheld the CIT(A)'s decision to delete the addition. Citing previous judgments, the Tribunal ruled in favor of the assessee, stating no legal question arose. The appeal by the Revenue was rejected, and the judgment was dismissed.
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2009 (8) TMI 1205
Issues involved: Appeals by assessee against assessment for Asstt. Years 2003-04 and 2005-06, and against penalty u/s 271(1)(c) of the Income-tax Act, 1961 in the respective years.
Assessment Year 2003-04:
The appellant contested the addition of share money from various persons, arguing that the share application money received should not be added to the assessee's income based on relevant judgments. The contention was that the details were provided to the AO, but the CIT(A) rejected the claim citing new evidence. The Tribunal noted the conflicting views and referred the issue back to the AO to seek confirmations from the assessee and decide accordingly, considering the legal precedents.
The Tribunal allowed the appeal for statistical purposes and set aside the penalty appeal for the same year, pending the resolution of the main issue.
Assessment Year 2005-06:
The appellant challenged the addition of a specific amount paid by one of the directors on behalf of the company, which was later converted into share application money. The appellant argued that all relevant documents were submitted to the authorities, and the director's identity and tax assessment status were established. The Tribunal found that the documents submitted were not new evidence, as claimed by the CIT(A), and ruled in favor of the appellant, deleting the additions made.
Consequently, the penalty imposed under section 271(1)(c) was also deleted. The Tribunal allowed the appeal for this year as well.
Separate Judgement:
None.
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2009 (8) TMI 1204
Issues: Appeal against deletion of addition of share application money and commission by CIT (Appeals) u/s 68 of Income Tax Act, 1961 for assessment year 2001-02.
Share Application Money Addition:
The Assessing Officer added Rs. 10 lacs as unexplained share application money based on a typographical error in the balance sheet. The CIT (Appeals) noted that the actual share application money received was Rs. 5 lacs, supported by evidence like PAN, ROC details, and IT return. The CIT (Appeals) referenced legal precedents to establish the genuineness of the transaction. The Assessing Officer's lack of investigation and reliance on external information led to the deletion of the addition.
Commission Addition:
The addition of Rs. 20,000 on account of commission paid for obtaining the unexplained cash credit was also deleted by the CIT (Appeals) due to the deletion of the principal amount. Since the principal amount was deleted, the question of assessability of commission paid did not arise.
Judicial Analysis:
The ITAT Delhi upheld the CIT (Appeals) decision, citing that the necessary particulars were provided by the assessee to prove the identity of the share applicants. The ITAT emphasized that the Assessing Officer's requirement for more than PAN, assessment particulars, and confirmations was contrary to legal precedents. The ITAT confirmed the deletion of the addition based on the typographical error and the correct share application money being Rs. 5 lacs. The ITAT dismissed the revenue's appeal, affirming the CIT (Appeals) order.
Conclusion:
The ITAT Delhi dismissed the revenue's appeal against the deletion of the share application money and commission additions, emphasizing the importance of providing necessary evidence to establish transactions and highlighting the significance of legal precedents in such matters.
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2009 (8) TMI 1203
Issues Involved:
1. Jurisdiction of CIT (A)
2. Enhancement of addition by CIT (A)
3. Justification of enhancement notice and addition
4. Subject matter of assessment and jurisdiction of CIT (A)
5. Binding nature of ITAT order on CIT (A)
6. Finality of ITAT order and indirect action by CIT (A)
Issue-wise Detailed Analysis:
1. Jurisdiction of CIT (A):
The appellant contested that the order of the CIT (A) dated 26.12.08 was unsustainable as it was passed in gross violation of its jurisdiction. The Tribunal noted that the CIT (A) had deviated from the earlier findings of the ITAT and CIT (A) in the assessee's own case without proper justification. The Tribunal emphasized that the CIT (A) should not have deviated from the established principles and previous decisions without substantial reasons.
2. Enhancement of Addition by CIT (A):
The CIT (A) enhanced the addition to Rs. 95,00,347/- based on the belief that the assessee had shown higher profits in the Kala Amb unit to claim higher deductions under Section 80-IC. The Tribunal found that the CIT (A) had made this enhancement on the basis of assumptions and presumptions, without properly appreciating the reasons provided by the assessee for the disparity in net profits between the Faridabad and Kala Amb units. The Tribunal concluded that the enhancement was not justified as it was based on estimates and not on concrete evidence.
3. Justification of Enhancement Notice and Addition:
The appellant argued that the CIT (A) was not justified in issuing an enhancement notice and making an addition based on belief and estimation. The Tribunal observed that the CIT (A) had ignored the detailed explanations provided by the assessee regarding the allocation of expenses and the reasons for the lower net profit in the Faridabad unit. The Tribunal held that the method adopted by the CIT (A) for enhancing the addition was not warranted and was against the principles of judicial propriety.
4. Subject Matter of Assessment and Jurisdiction of CIT (A):
The appellant contended that the CIT (A) exceeded his jurisdiction by going beyond the subject matter of the assessment. The Tribunal agreed, noting that the CIT (A) had deviated from the established method of computation accepted in earlier years without substantial justification. The Tribunal emphasized that the CIT (A) should have adhered to the principles and findings of the higher appellate authority.
5. Binding Nature of ITAT Order on CIT (A):
The appellant argued that the CIT (A) was bound to follow the ITAT order dated 19.10.07, which had decided the issue of profit transfer in the appellant's favor. The Tribunal agreed, stating that the CIT (A) should not have deviated from the findings of the ITAT without substantial reasons. The Tribunal emphasized the importance of consistency and adherence to the principles established by higher appellate authorities.
6. Finality of ITAT Order and Indirect Action by CIT (A):
The appellant contended that the CIT (A) indirectly attempted to shift the profit of the two units on estimation, despite the finality of the ITAT order. The Tribunal noted that the department had not filed an appeal against the ITAT order, rendering it final. The Tribunal held that the CIT (A) should not have deviated from the established findings and should have adhered to the principles of judicial consistency.
Conclusion:
The Tribunal allowed the appeal filed by the assessee, holding that the enhancement made by the CIT (A) was not justified. The Tribunal emphasized the importance of consistency, adherence to established principles, and the binding nature of higher appellate authority decisions. The Tribunal deleted the enhancement made by the CIT (A) and upheld the method of computation followed by the assessee, which had been accepted in earlier years.
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2009 (8) TMI 1202
Issues Involved:
1. Validity of the Show Cause Notice.
2. Authorization and Limitation of the Revision Petition.
3. Misreading of the Memorandum and Articles of Association.
Summary:
1. Validity of the Show Cause Notice:
The appellants contended that the Show Cause Notice issued by the Enforcement Directorate was without any cause of action and lacked application of mind. This was admitted by the Directorate in the order dated 8.6.04. The Enforcement Directorate's order supported the appellants' case, stating, "The charge against the notices that they did not take prior permission of the Govt. with respect to the FDI in the equity shares of the Noticee company is not sustainable."
2. Authorization and Limitation of the Revision Petition:
The revision petition was filed by an unauthorized person after more than one and a half years, despite the 45-day limitation period prescribed u/s 35 of FEMA. The Tribunal had previously emphasized the need for proper authorization, as seen in the case of Director, Enforcement Directorate Vs. Starlite Lighting Ltd. The Tribunal noted, "We cannot say that Shri T.K. Gadoo, DLA, bears any authority to file this revision petition." The respondents conceded that no mechanism was formed to address these deficiencies until an order was issued on 23.02.2009 authorizing Deputy Legal Advisers. The appellants cited the Supreme Court judgment in State of Punjab and Ors. Vs. Bhatinda District Cooperative Milk Producers Union Ltd., which held that statutory authority must exercise its jurisdiction within a reasonable period.
3. Misreading of the Memorandum and Articles of Association:
The proceedings were initiated based on a misreading of the appellant company's Memorandum and Articles of Association. The company was engaged in manufacturing, trading, and providing consultancy services related to oil exploration, not in the business of oil exploration itself. The Enforcement Directorate's order stated, "There is nothing on record to show that the company is engaged in the business of oil exploration." The Tribunal's decision to impose a penalty was based on the incorrect assumption that the company was involved in oil exploration.
Conclusion:
The appeal was allowed, and the impugned order was set aside with costs of Rs. 50,000. The judgment highlighted the lack of cause of action, unauthorized filing of the revision petition, and misinterpretation of the company's business activities.
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2009 (8) TMI 1201
The Supreme Court dismissed the appeal in the case with citation 2009 (8) TMI 1201 - SC. Judgement was delivered by S.H. Kapadia and Mr. Aftab Alam, JJ.
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2009 (8) TMI 1200
Issues involved: Seizure of primary gold of foreign origin, retraction of statement by respondent, investigation by Commissioner of Customs, confiscation of gold, penalty deletion.
In the present case, the respondent was intercepted by police authorities and found in possession of primary gold of foreign origin. Subsequently, the gold was seized by Customs authorities and the respondent was arrested, remaining in judicial custody from 15-5-1998 to 13-7-1998. After release, the respondent retracted his earlier statement about the gold being purchased lawfully, claiming to have bought it from a specific party in Delhi. The Commissioner of Customs investigated and confirmed that the gold in question was indeed purchased by the respondent from the mentioned Delhi party. Based on this evidence, the Tribunal upheld the decision to set aside the confiscation and delete the penalty imposed.
The appellant's counsel argued that the respondent's retraction from his statement after a two-month delay should not be believed. However, it was clarified that the retraction occurred immediately after the respondent's release from judicial custody on 14-7-1998. The Commissioner of Customs' investigation further supported the respondent's claim of purchasing the gold from a specific party in Delhi, rendering the confiscation of the gold as illegal. The Tribunal's decision was based on a proper appreciation of the material evidence on record, without giving rise to any substantial question of law.
Therefore, after considering the arguments presented by the parties and the evidence provided by the Commissioner of Customs, the High Court dismissed the appeal, affirming the Tribunal's decision regarding the confiscation and penalty deletion related to the seized gold.
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2009 (8) TMI 1199
Issues Involved: Appeal against deletion of depreciation disallowance and levy of interest u/s 234B and 234C of the Income Tax Act 1961.
Deletion of Depreciation Disallowance:
The case involved an appeal by the revenue against the deletion of disallowance of depreciation. The assessee, a non-resident company engaged in dredging operations in India, had filed its return declaring total income. The original assessment u/s 143(3) was completed, followed by a notice u/s 148. The AO completed the assessment at a higher income, including disallowance of depreciation. The ld. CIT(A) deleted both disallowances. The revenue appealed, arguing against the deletion. Both parties agreed that the issue was in favor of the assessee based on previous Tribunal decisions and High Court rulings. The Tribunal upheld the CIT(A)'s order, citing that the assets were used for business purposes and not sold, discarded, or demolished, thus rejecting the revenue's appeal.
Levy of Interest u/s 234B and 234C:
The appeal also contested the levy of interest u/s 234B and 234C. Both parties agreed that this issue favored the assessee based on a recent High Court decision. The Tribunal found merit in the parties' plea, citing the High Court's decision that when a duty is cast on the payer to pay tax at source, no interest can be imposed on the payee-assessee for failure to do so. The Tribunal upheld the CIT(A)'s order on this issue, rejecting the revenue's grounds.
In conclusion, the Tribunal dismissed the revenue's appeal, upholding the decisions of the CIT(A) on both the deletion of depreciation disallowance and the levy of interest u/s 234B and 234C.
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2009 (8) TMI 1198
Issues involved: Appeal by revenue challenging ITAT orders deleting undisclosed income addition, validity of VDIS declarations, disallowance of capital gains claim, genuineness of transactions, applicability of Uttamchand Jain case.
Validity of VDIS declarations: Assessees, dealers in diamonds, declared jewellery under VDIS 1997, accepted by Department with certificates issued. Claimed to have sold declared jewellery in relevant year, offered capital gains for taxation. AO disallowed claim citing buyers' statements on transactions not being genuine, later retracted. Tribunal, following Uttamchand Jain case, allowed claims and deleted additions. Appeals filed against Tribunal's decision.
Genuineness of transactions: Revenue argued distinctions from Uttamchand Jain case, buyers not participating in assessment, commission payment to middleman. Tribunal justified reliance on Uttamchand Jain, buyers' participation in assessment proceedings, affidavits confirming transactions' genuineness. Identity of purchasers established, sale proceeds accounted for, no evidence to doubt transactions' genuineness. Tribunal held Uttamchand Jain decision applicable to present cases.
Judgment: High Court affirmed Tribunal's decision, dismissed revenue's appeals based on Uttamchand Jain case. Upheld genuineness of transactions, buyers' participation in assessment proceedings, and VDIS declarations. No costs awarded.
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2009 (8) TMI 1197
Issues Involved:
1. Deletion of addition on account of deferment of sales tax.
2. Deletion of addition on account of prior period expenses.
Summary:
Issue 1: Deletion of addition on account of deferment of sales tax
The Assessing Officer (AO) disallowed Rs. 42.21 lakhs from the sales tax deferment shown as outstanding in the balance sheet, citing non-compliance with Section 43B of the Income-tax Act, 1961. The AO argued that the deferment was not converted into a loan during the previous year as required. The assessee contended that the Karnataka Government had amended Section 19-C of the Karnataka Sales Tax Act, treating the deferment as a loan, and cited Board Circular No.496 dt.25.9.1987, which allows such deferments to be considered as paid for the purposes of Section 43B. The CIT(A) accepted the assessee's argument, noting that the Karnataka Government had indeed provided for such deferment and directed the deletion of the disallowance. The Tribunal upheld the CIT(A)'s decision, referencing the Karnataka Sales Tax Act and supporting documents, confirming that the assessee met all conditions for the deferment to be treated as paid.
Issue 2: Deletion of addition on account of prior period expenses
The AO added Rs. 1,71,544 for prior period expenses, arguing that the expenses were crystallized in the past but billed and paid in the current assessment year. The CIT(A) allowed the expenses, stating they were crystallized during the assessment year under consideration. The Tribunal upheld this decision, referencing the case of Saurashtra Cement And Chemical Industries Limited v. Commissioner Of Income Tax (213 ITR 523), which allows expenses to be deductible in the year they crystallize under the mercantile system of accounting.
General Grounds:
Grounds No.3 and 4 were deemed general in nature and required no specific adjudication.
Conclusion:
The appeal of the Revenue was dismissed in its entirety.
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2009 (8) TMI 1196
Issues involved:
The judgment involves issues related to additions made by the Assessing officer on account of cash credit u/s.68 of the Income-tax Act, 1961, treatment of exports to Russia as bogus, computation of deduction u/s.80HHC, and deletion of penalty levied u/s.271(1)(c) of the Act.
Additions on Account of Cash Credit u/s.68:
The Assessing officer alleged that the assessee was involved in bogus exporting of goods to Russia based on information from the Directorate of Revenue Intelligence. The assessee argued that the addition of the same amount u/s.68 would result in double taxation as the income had already been offered for taxation. The Tribunal upheld the CIT(A)'s order, stating that the addition would amount to double taxation and dismissed the Revenue's appeals on this issue.
Computation of Deduction u/s.80HHC:
The issue revolved around whether the loss at the first limb of Section 80HHC should be ignored and taken as "Nil" for computation of deduction u/s.80HHC. The Fifth proviso to sub-Section(3) of Section 80HHC introduced by the Finance Act, 2005 was highlighted. Both parties agreed that the matter should be reconsidered by the Assessing officer in view of the amendment. The Tribunal set aside this issue for re-examination by the Assessing officer.
Deletion of Penalty u/s.271(1)(c):
The penalty levied by the Assessing officer u/s.271(1)(c) was deleted by the CIT(A) in light of the Tribunal's decision confirming the deletion of additions made on account of unexplained cash credit u/s.68. The Tribunal upheld the deletion of the penalty, stating that the Assessing officer had accepted the turnover for working out deduction u/s.80HHC. The appeals of the Revenue on this issue were dismissed.
Conclusion:
The Tribunal allowed the Revenue's appeal in ITA No.1684/Ahd/2004 partly for statistical purposes, dismissed the Revenue's appeals in ITA No.790-795/Ahd/2005, and dismissed the Assessee's COs No.151-153/Ahd/2005 as not pressed. The judgment was pronounced in Open Court on 07/08/2009.
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2009 (8) TMI 1195
Issues involved: Interpretation of provisions u/s 10A of the IT Act, 1961 regarding foreign travel expenses for computing deduction.
Summary:
The appeal was filed against the order of CIT, Bangalore for the assessment year 2004-05 concerning foreign travel expenses for the purpose of computing deduction u/s 10A of the IT Act, 1961. The Tribunal decided in favor of the assessee based on previous decisions and interpretations of relevant provisions. It was held that expenditure on foreign travel for software delivery should be reduced from export turnover and total turnover while computing deduction u/s 10A, following the principles established in various cases. The Tribunal emphasized that the term "total turnover" for sec.10A purposes should be understood in the same manner as for section 80HHE, and any expenses excluded from export turnover should also be excluded from total turnover. The AO was directed to exclude foreign travel expenses from total turnover for computing the deduction u/s 10A. The appeal of the assessee was allowed, and the order was pronounced in the open Court on the date of hearing.
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2009 (8) TMI 1194
Issues involved: Challenge to tax liability, disallowance of trade discount claim, addition of escaped turnover, imposition of penalty under Section 67 in a 'composite order'.
The judgment by the High Court of Kerala addressed the challenge to an order (Ext. P5) passed by the first respondent, which fixed the tax liability, disallowed the claim for trade discount, added the escaped turnover, and imposed a penalty under Section 67 through a 'composite order'. The petitioner contested the order through a Writ Petition.
The Court noted that the petitioner was given an opportunity to respond to the pre-assessment notice and the notice related to the penalty under Section 67. However, it was observed that the petitioner did not raise any objection specifically regarding the imposition of penalty, which raised concerns about the proceedings' sustainability. The Court highlighted that the order only referred to a notice under Section 25, not Section 67, and questioned the validity of the proceedings based on a previous decision.
Upon considering the facts and circumstances, the Court unequivocally held that the 'Composite Order' (Ext. P5) was incorrect and unsustainable. It emphasized that penalty imposition cannot be done as a matter of course and requires a specific finding regarding the conscious act of the assessee leading to the violation. The Court set aside the Ext. P5 order and directed the first respondent to reexamine the proceedings after providing proper notice to the petitioner in accordance with the law. Additionally, all coercive actions against the petitioner were ordered to be temporarily halted.
In conclusion, the Writ Petition was disposed of accordingly, ensuring a fair and lawful process in the tax assessment and penalty imposition proceedings.
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2009 (8) TMI 1193
Issues involved: Appeal against the order of the Learned Commissioner of Income Tax(Appeals)-I, Surat regarding disallowance of commission/brokerage payment and interest under section 40A(2)(b) of the I.T. Act.
Disallowed Commission/Brokerage Payment:
The revenue appealed against the order directing deletion of the disallowance of commission payment to a sister concern. The Assessing Officer disallowed the deduction under Section 40A(2)(b) due to lack of evidence on services provided. However, the Commissioner allowed the deduction based on the appellant's submissions, stating a convincing case was made. The Tribunal remanded the matter back to the Commissioner for a reasoned order, allowing the appeal for statistical purposes.
Disallowed Interest Payment:
The revenue appealed against the order directing deletion of the disallowance of interest paid to a sister concern. The Assessing Officer disallowed the interest amount, citing interest-free advances to sister concerns. The Commissioner deleted the addition based on submissions, without a detailed reasoning. The Tribunal remanded the matter back to the Commissioner for a well-reasoned order, allowing the appeal for statistical purposes.
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2009 (8) TMI 1192
The Gujarat High Court ordered that the respondent authorities supply the certified copy of the order in original to the petitioner. The petitioner reserved the right to revive the petition if any difficulty arises in obtaining the certified copy. The petition was disposed of as withdrawn.
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2009 (8) TMI 1191
The High Court of Gujarat allowed the petitioner to withdraw the petition to pursue an alternative remedy. No costs were awarded. (Citation: 2009 (8) TMI 1191 - GUJARAT HIGH COURT)
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2009 (8) TMI 1190
Issues Involved:
1. Commercialization of education by unaided recognized schools.
2. Authority of the Director of Education to regulate school fees.
3. Transfer of funds from schools to societies or trusts.
4. Constitutionality of the Delhi School Education Act, 1973 and its rules.
5. Appointment and findings of the Duggal Committee.
6. Impact of Supreme Court decisions on the case.
Detailed Analysis:
1. Commercialization of Education by Unaided Recognized Schools:
The High Court examined whether unaided recognized schools were indulging in commercialization of education and exploiting students and parents. It was found that the government had failed to perform its statutory functions under the Delhi School Education Act and Rules, leading to large-scale commercialization. The High Court held that it was the obligation of the Administrator and/or Director of Education to prevent commercialization and exploitation in private unaided schools, including those run by minorities.
2. Authority of the Director of Education to Regulate School Fees:
The High Court upheld the Director of Education's authority to regulate school fees under Section 24 of the Act. The Director had issued an order on 10.09.1997, limiting registration, admission, and other fees. The High Court found that the Director had the power to issue directions to rectify defects or deficiencies found during inspections or otherwise in the working of the school. However, the Supreme Court later clarified that the Director's authority is limited and does not extend to general regulation of fees for unaided schools, as per the decisions in T.M.A. Pai Foundation and P.A. Inamdar.
3. Transfer of Funds from Schools to Societies or Trusts:
The High Court and the Director of Education prohibited the transfer of funds from schools to societies or trusts, citing Rule 177 of the Delhi School Education Rules, 1973. The Supreme Court, however, clarified that while schools cannot transfer funds to societies, they can transfer funds to other schools under the same management, as long as it is for educational purposes and not for profiteering.
4. Constitutionality of the Delhi School Education Act, 1973 and its Rules:
The constitutionality of the Act and its rules was not directly challenged in the case. However, the Supreme Court emphasized that any statutory directions must conform to the principles laid down in T.M.A. Pai Foundation and P.A. Inamdar, which provide greater autonomy to unaided institutions in setting their fee structures, subject to the prohibition of profiteering and capitation fees.
5. Appointment and Findings of the Duggal Committee:
The High Court appointed the Duggal Committee to examine the fee structures of individual schools. The Committee found several irregularities and malpractices in the collection and utilization of funds by schools. The Supreme Court acknowledged the Committee's findings but emphasized that any regulatory measures must align with the principles established in T.M.A. Pai Foundation and P.A. Inamdar.
6. Impact of Supreme Court Decisions on the Case:
The Supreme Court's decision in T.M.A. Pai Foundation, which overruled Unni Krishnan, established that the right to set up educational institutions is a fundamental right, subject to reasonable regulations. P.A. Inamdar further clarified the extent of regulatory control over unaided educational institutions. The Supreme Court in the present case modified the High Court's directions to ensure they were consistent with these landmark decisions, emphasizing minimal state interference and the autonomy of unaided institutions in fee determination, while preventing profiteering.
Conclusion:
The Supreme Court modified the High Court's judgment, emphasizing the autonomy of unaided schools in setting their fee structures and the limited regulatory role of the state, consistent with T.M.A. Pai Foundation and P.A. Inamdar. The review petitions were disposed of with no costs, and the state was allowed to amend its rules if necessary, subject to future challenges by school managements.
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2009 (8) TMI 1189
Issues involved:
The issues involved in the judgment are seeking winding up of the respondent Company, jurisdiction of Indian courts for enforcing a Deed of Guarantee executed in the UK, enforceability of the Deed of Guarantee without RBI approval, and the enforceability of a decree of the Court of England in India.
Winding up Petition:
The petitioner sought winding up of the respondent Company, GHCL Ltd., based on a Deed of Guarantee for goods supplied to its subsidiary Company, Rosebys Operations Limited, which was not executed. The respondent argued that since the guarantee was executed in the UK, the cause of action is outside India, making the claim unenforceable in Indian courts.
Jurisdiction and RBI Approval:
The respondent contended that the Deed of Guarantee specified exclusive jurisdiction of courts in England and Wales. However, the court found that the respondent being registered in Gujarat, Indian courts have jurisdiction. The respondent also argued that the Deed of Guarantee lacked prior approval from RBI under FEMA, making it non-enforceable in India. The court held that even without RBI approval, the respondent cannot evade liability if the petitioner acted based on the Deed of Guarantee.
Enforceability of Foreign Decree:
The respondent claimed that the decree of the Court of England is non-enforceable in India under CPC sections 13B and 13D. The court noted that the respondent did not defend the UK court proceedings, and the decree, though not on merit, exists. The court emphasized that non-enforceability of the decree is not a sole ground to deny winding up proceedings, as liability must be determined in execution proceedings.
Conclusion:
The court found the respondent's defenses not bona fide and directed a deposit equivalent to the claimed amount. The court emphasized the need for genuine defenses and commercial solvency considerations before passing further orders. The respondent was directed to deposit the specified amount, and further orders were scheduled for a later date.
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2009 (8) TMI 1188
Issues Involved:
1. Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction.
2. Whether the relationship of landlord and tenant or licensor and licensee was proven.
3. Whether the High Court committed a jurisdictional error by not formulating substantial questions of law.
4. Whether the defendant acquired title by adverse possession.
5. Whether the suit was maintainable and the appropriate court fees were paid.
Summary:
Issue 1: Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction.
The Supreme Court held that a landlord, even if unable to prove the relationship of landlord and tenant, can obtain a decree for possession based on general title. However, the defendant is entitled to raise a contention of acquiring an indefeasible title by adverse possession. The Court emphasized that an issue as to whether the defendant was a trespasser should have been framed, allowing the defendant to present evidence of adverse possession.
Issue 2: Whether the relationship of landlord and tenant or licensor and licensee was proven.
The trial court found that the plaintiffs failed to prove the landlord-tenant relationship with the defendant. The appellate court, however, ruled that the plaintiffs were entitled to a decree for possession based on their general title, despite the lack of proof of tenancy or licensure. The High Court upheld this view, stating that the defendant, not claiming to be a tenant or licensee, could be considered a trespasser.
Issue 3: Whether the High Court committed a jurisdictional error by not formulating substantial questions of law.
The Supreme Court noted that the High Court should have formulated substantial questions of law while determining the issues involved in the Second Appeal. The absence of such formulation constituted a jurisdictional error, warranting the setting aside of the High Court's judgment.
Issue 4: Whether the defendant acquired title by adverse possession.
The Supreme Court observed that the defendant's plea of adverse possession was not adequately addressed due to the lack of a specific issue being framed. The Court highlighted that the defendant had been in possession of the suit premises for over twelve years prior to the suit, making the plea of adverse possession plausible.
Issue 5: Whether the suit was maintainable and the appropriate court fees were paid.
The Court noted ambiguities regarding the amount and basis of the court fees paid. It emphasized that for obtaining a decree for recovery of possession, court fees must be paid according to the value of the subject matter of the suit, as per Section 7(v) of the Court Fees Act, 1870.
Directions Issued:
The Supreme Court, exercising its jurisdiction under Article 142 of the Constitution of India, issued directions to amend the plaint, pay requisite court fees, allow the defendant to file an additional written statement, and frame appropriate issues for further evidence. The trial judge was directed to dispose of the suit expeditiously within three months from the date of filing the application by the plaintiffs.
Conclusion:
The appeals were allowed with specific directions to ensure complete justice to the parties, emphasizing the need for proper framing of issues and adherence to procedural requirements.
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2009 (8) TMI 1187
Condonotaion of delay - delay in filing appeal - Section 5 of the Limitation Act, 1963 - Held that: - an appeal to the High Court should be made within a period of 180 days only from the date of communication of the decision or order - icient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Therefore, the instant appeal has to be held to be barred by limitation.
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9911796707
