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Showing 121 to 140 of 650 Records
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2007 (5) TMI 578
Issues:
1. Whether the Trade Tax Tribunal was legally justified to allow exemption on beltings as agricultural implements?
2. Whether the Trade Tax Tribunal was legally justified to hold that beltings are not covered under a specific notification and are taxable at a certain rate?
Issue 1:
The case involved a dealer manufacturing and selling rubber belting, claiming exemption from taxes on the turnover of sales of belts as part of agricultural implements for the assessment year 1990-91. The assessing authority initially held the turnover taxable under a specific notification, but the first appellate authority and the Trade Tax Tribunal later ruled in favor of the dealer. They held that the belts used in a harvester, an agricultural implement, were covered under a different notification exempting agriculture implements from taxes. The Tribunal confirmed that the belts manufactured by the dealer were specialized for use in harvesters only, with purchase vouchers supporting this claim. The Tribunal's decision was based on the specific notification exempting agriculture implements, parts, accessories, and attachments thereof, which covered the dealer's specialized belts for harvesters.
Issue 2:
The legal argument revolved around conflicting notifications and the applicability of tax exemptions. The standing counsel argued that the beltings should be taxed at a certain rate under a particular notification covering beltings of all kinds, even if used in a harvester. However, the dealer contended that a subsequent notification exempted agriculture implements and their parts from taxes, including the specialized belts used in harvesters. The dealer's position was supported by the fact that the belts were uniquely designed for harvesters, as confirmed by the authorities below and the Tribunal. The standing counsel relied on a Supreme Court decision involving cotton fabric to support their argument, but the court found this case distinguishable and not applicable to the current scenario. The court also referenced previous judgments regarding the interpretation of notifications and exemptions related to specific types of goods used in exempted vehicles or implements.
In conclusion, the High Court dismissed the revision, upholding the Tribunal's decision to exempt the dealer's specialized belts used in harvesters from taxes based on the notification exempting agriculture implements. The court emphasized the unique nature and specific use of the belts in harvesters, which aligned with the exemption provided under the relevant notification. The court's decision was supported by legal precedents and interpretations of notifications related to tax exemptions for goods used in specific types of implements or vehicles.
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2007 (5) TMI 577
Issues involved: The judgment involves the following issues:
1. Justification of redetermining/rectifying the rate of tax on Central sales of cotton yarn u/s 22 of the Act.
2. Justification of not accepting/granting benefit of form C and denying concessional rate of tax on sale of cotton yarn covered by C form.
3. Justification of upholding the order passed by the assessing authority u/s 22 of the Act.
4. Justification of confirming levy of interest when disputing the rate of tax and filing C forms.
Issue 1 - Redetermination of Tax Rate: The Tribunal's decision to redetermine the rate of tax on Central sales of cotton yarn u/s 22 of the Act was challenged. The applicant, engaged in manufacturing cotton yarn, argued that the Tribunal's action was debatable and involved a change of mind. The Court held that unnecessary taxation should be avoided, and taxation should be in accordance with the law.
Issue 2 - Rejection of Form C Benefit: The main contention was the rejection of the applicant's application u/s 12B of the U.P. Trade Tax Act, leading to the rejection of form C submitted for concessional tax rate. The Court found that the applicant's submission of form C after the assessing officer sought to enhance the tax rate was justified. The rejection of the application was set aside, and the matter was remanded for appropriate orders.
Issue 3 - Upholding Assessing Authority's Order: The Tribunal's decision to uphold the order passed by the assessing authority u/s 22 of the Act was challenged. The Court emphasized that the law does not permit unnecessary taxation and that tax should only be levied in accordance with the law. The appeal was allowed, and the rejection of the application u/s 12B was set aside.
Issue 4 - Confirmation of Interest Levy: The Tribunal's confirmation of the levy of interest despite the applicant's bona fide dispute over the tax rate and submission of C forms was questioned. The Court considered the applicant's diligence in obtaining the forms and the timing of their submission. The dismissal of the appeal on this ground was set aside, and the matter was remanded for appropriate orders.
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2007 (5) TMI 576
Issues:
Assessment of penalty under section 4B(5) of the U.P. Trade Tax Act, 1948 against a rice miller for not utilizing purchased paddy in the manufacture of rice.
Analysis:
The applicant, a rice miller, was penalized under section 4B(5) of the U.P. Trade Tax Act, 1948 for selling purchased paddy to other millers instead of using it for rice production. The penalty was initially set at Rs. 1 lac but was later reduced to Rs. 20,000 after rectification under section 22 of the Act. The applicant's appeals against the penalty were unsuccessful, leading to the current revision challenging the Tribunal's order dated June 29, 2001.
The applicant argued that the penalty was unjust, citing Notification No. 2604 dated March 19, 1979, and Notification No. 2601 dated February 28, 1994. However, the Tribunal ruled that the applicant did not qualify for the benefits of the latter notification as it pertained to dealers without recognition certificates. The Tribunal's decision was deemed valid as per the law.
The counsel for the applicant contended that since the applicant was not a rice miller, the penalty for not utilizing the purchased paddy was unwarranted. However, the court held that as a recognition certificate holder purchasing paddy at concessional rates, the applicant was obligated to use the paddy for rice production as per the Act.
Citing legal precedents like Commissioner of Sales Tax v. B.S. Industries and Commissioner, Sales Tax U.P. v. Jaiswal Rice Mill, the court emphasized that raw materials purchased for notified goods must be used for the specific purpose for which the recognition certificate was granted. The court concluded that the penalty was justified, and the revision was dismissed without costs.
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2007 (5) TMI 575
Issues involved: Classification of "Amul Tazza Milk" u/s Kerala General Sales Tax Act, 1963 and Central Sales Tax Act, 1956.
Classification of "Amul Tazza Milk" as a milk product:
The petitioner, a co-operative society, claimed exemption on the sales turnover of "Amul Tazza Milk" as pasteurised milk u/s entry 23 of the Third Schedule to the Kerala General Sales Tax Act, 1963. However, the assessing authority classified it as a milk product u/s entry 92 of the First Schedule. The Tribunal upheld this classification based on the processing methods and addition of vitamins A and D. The petitioner contended that the milk should be considered pasteurised even with the added vitamins, retaining its identity. The court analyzed the definitions of pasteurised milk and milk products, emphasizing that the addition of vitamins does not change the nature of the milk. It concluded that the authorities misdirected themselves in classifying the product as a milk product, directing the re-quantification of tax liability treating "Amul Tazza Milk" as pasteurised milk u/s entry 23 of the Third Schedule.
Interpretation of relevant entries:
The court examined entry 92 of the First Schedule, encompassing milk products, and entry 23 of the Third Schedule, covering fresh milk including pasteurised, toned, or reconstituted milk. It highlighted the inclusive and exclusive nature of the entries, clarifying the distinction between milk products and fresh milk. By delving into the process of pasteurisation and the addition of vitamins A and D, the court determined that "Amul Tazza Milk" should be considered pasteurised milk under entry 23, exempt from tax liability. The judgment emphasized the importance of maintaining the product's identity despite processing methods, ensuring accurate classification for taxation purposes.
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2007 (5) TMI 574
Issues Involved:
1. Whether the order passed by the assessing authority on May 29, 2003, dropping the proceedings under section 21 of the U.P. Trade Tax Act, is considered an "order" under section 10B of the Act.
2. Whether the period of limitation for initiating proceedings under section 10B of the Act starts from the date of the original assessment order or from the date of the order dropping the reassessment proceedings.
Issue-wise Detailed Analysis:
1. Nature of the Order Passed on May 29, 2003:
The primary issue was whether the order passed by the assessing authority on May 29, 2003, dropping the proceedings under section 21 of the Act, constitutes an "order" under section 10B. The Commissioner of Trade Tax argued that this order should be considered an "order" within the meaning of section 10B, allowing it to be revised. The Tribunal had previously held that this order was not an "order" for the purposes of section 10B. However, the court found that the order dated May 29, 2003, was indeed an "order" as it involved the examination of account books, consideration of the original assessment, and application of legal principles. The court emphasized that the term "order" is broad and includes decisions made by statutory authorities, thereby concluding that the order in question is revisable under section 10B.
2. Period of Limitation for Initiating Proceedings Under Section 10B:
The second issue was whether the limitation period for initiating proceedings under section 10B starts from the original assessment date or from the date the reassessment proceedings were dropped. The Tribunal had ruled that the limitation period started from the original assessment dates, i.e., February 27, 1999, and June 17, 2000, for the respective assessment years. The court, however, disagreed with this interpretation. It held that the limitation period should start from the date of the order dropping the reassessment proceedings, i.e., May 29, 2003. The court reasoned that the subject matter for consideration under section 10B was the legality and propriety of the order dated May 29, 2003, and not the original assessment orders. Therefore, the period of limitation for exercising revisional power under section 10B should be calculated from the date of the order dropping the proceedings.
Conclusion:
The court concluded that:
1. The order dated May 29, 2003, is an "order" within the meaning of section 10B and is revisable.
2. The period of limitation for initiating proceedings under section 10B starts from the date of the order dropping the reassessment proceedings, i.e., May 29, 2003, and not from the original assessment dates.
The Tribunal's orders in the second appeals were set aside, and the appeals filed by the dealer-opposite party were dismissed. The revisions were allowed with costs amounting to Rs. 4,000 in total.
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2007 (5) TMI 573
Issues:
Reopening of assessment based on unconsidered documents from Enforcement Branch, validity of reassessment order, interpretation of section 24 of Delhi Sales Tax Act, whether two assessment orders can stand together for the same assessment year.
Analysis:
The judgment pertains to an assessee engaged in the business of resale of photographic goods and registered as a dealer in electronic goods for the assessment year 1990-91. The assessing officer initially raised a demand of Rs. 17,91,802 against the dealer. Subsequently, the assessment was reopened due to the discovery that the dealer was taxed at a lower rate and certain documents from the Enforcement Branch were unconsidered due to time constraints. In the reassessment, an additional tax of Rs. 2,34,610 was imposed on top of the earlier demand.
The dealer appealed against both the original assessment order and the reassessment order, but both appeals were dismissed by the Additional Commissioner of Sales Tax. Further, the appeal to the Appellate Tribunal, Sales Tax was also dismissed. The assessee then sought reference of seven questions under section 45(1) of the Delhi Sales Tax Act, 1975, but the Appellate Tribunal concluded that no questions of law needed to be referred to the court.
The High Court identified two key questions of law arising from the Tribunal's order. Firstly, whether the Tribunal correctly interpreted section 24 of the Delhi Sales Tax Act in upholding the reopening of assessment based on unconsidered documents from the Enforcement Branch. Secondly, if the first question is answered affirmatively, whether two assessment orders can coexist for the same assessment year.
In the absence of any other questions being pressed or argued, the High Court issued a writ of mandamus directing the Appellate Tribunal, Sales Tax, to refer the identified questions of law for the court's opinion. The parties were instructed to appear before the Tribunal for settling the statement of the case, and ten copies of relevant documents were to be submitted to the court as per the Rules. Finally, the petition was disposed of by the court.
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2007 (5) TMI 572
Issues:
Interpretation of provisions under Madhya Pradesh Commercial Tax Act, 1994 and Madhya Pradesh VAT Act, 2002 regarding deductions for works contracts; Challenge to the constitutionality of section 26(2) of the Madhya Pradesh VAT Act, 2002; Impact of subsequent amendments on the legality of deductions; Refund of deductions made under the challenged provision.
Analysis:
The petitioner executed a work order involving technical services and claimed that it did not essentially involve the supply of goods, seeking a concessional rate of deductions under section 35 of the Madhya Pradesh Commercial Tax Act, 1994. Subsequently, under the Madhya Pradesh VAT Act, 2002, deductions were to be made for works contracts involving the sale of goods. The petitioner challenged the validity of section 26(2) of the Madhya Pradesh VAT Act, 2002, arguing it was ultra vires based on previous judicial decisions. The court noted that the provision, similar to section 35(1) of the Commercial Tax Act, did not exclude the value of labor and services from deductions, leading to a finding that the deductions made were beyond the State Legislature's competence.
The court considered the arguments presented by both parties. The State contended that subsequent amendments in 2007 addressed the deficiencies highlighted in previous judgments, making the provision in line with constitutional validity. However, the court found that prior to the 2007 amendment, section 26(2) of the Madhya Pradesh VAT Act, 2002 did not exclude the value of labor and services from deductions, similar to the issue with section 35(1) of the Commercial Tax Act. Consequently, deductions made by the respondent were deemed beyond the State Legislature's competence.
As a result of the analysis, the court directed the refund of deductions made under section 26(2) of the Madhya Pradesh VAT Act, 2002 from a specified period. The court clarified that if the petitioner had tax liabilities for the relevant period and claimed adjustments against the deductions, those amounts would not be refunded. The petitioner remained liable for taxes determined through assessment, and any refunded amounts were to be returned by the concerned department. The judgment concluded by disposing of the writ petition in accordance with the directions provided.
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2007 (5) TMI 571
Issues:
- Interpretation of registration certificate terms "machinery and their parts" under CST Act
- Eligibility of purchasing lathe machine at concessional rate against declaration in form C
- Imposition of penalty under section 10A of the CST Act
Interpretation of Registration Certificate Terms:
The revision petition involved a dispute over the interpretation of the terms "machinery and their parts" in the registration certificate issued under the Central Sales Tax Act. The assessee argued that the lathe machine in question, used for repairing and molding parts of the main machinery producing glass chetons, fell within the ambit of these terms. The court analyzed the broad scope of the term "machinery" and concluded that ancillary or supportive machines aiding in manufacturing could be included. It distinguished a Madras High Court judgment and held that the general wording of the registration certificate allowed for such interpretation.
Eligibility of Purchasing Lathe Machine:
The assessee contended that the lathe machine, though indirectly used in production, was essential for the manufacturing process and thus eligible for concessional rate purchase against form C declaration. Citing case law, including judgments from Allahabad High Court and West Bengal Taxation Tribunal, supporting similar interpretations in different contexts, the court found merit in the assessee's argument. It emphasized the importance of considering the practical utility and purpose of the machinery in determining eligibility for concessional rates.
Imposition of Penalty under Section 10A:
The Revenue argued for upholding the penalty under section 10A of the CST Act, claiming that the lathe machine was not covered by the registration certificate terms and was merely a supportive machine. However, the court disagreed, noting that the authorities had erred in imposing the penalty. It referenced judgments setting aside penalties in cases involving similar machinery purchases against concessional rates. Consequently, the court allowed the revision petition, setting aside all previous orders and the penalty imposed under section 10A of the CST Act.
In conclusion, the court's detailed analysis focused on the interpretation of registration certificate terms, the essentiality of the lathe machine in the manufacturing process, and the incorrect imposition of the penalty. By considering relevant case law and the practical utility of the machinery, the court ruled in favor of the assessee, highlighting the importance of a broad and practical interpretation of statutory provisions in tax matters.
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2007 (5) TMI 570
Issues Involved:
1. Legality of the demand for security deposit by the Superintendent of Taxes, Jagiroad Check-post.
2. Compliance with the Assam Value Added Tax Act, 2003, specifically Section 76(4).
3. Communication of reasons for demanding security.
4. Quasi-judicial nature of tax and security demands.
5. Administrative directions interfering with quasi-judicial functions.
Issue-wise Detailed Analysis:
1. Legality of the Demand for Security Deposit by the Superintendent of Taxes, Jagiroad Check-post:
The petitioner, a registered dealer of coal in Meghalaya, contended that the demand for security deposit by the Superintendent of Taxes at Jagiroad Check-post was illegal and without jurisdiction. The petitioner argued that this demand violated the Assam Value Added Tax Act, 2003. The court examined the provisions of Section 76(4) of the Act, which allows the officer-in-charge of the entry check-post to demand security if certain conditions are met, such as incomplete or incorrect documents or the transporter not having a permanent address within the State.
2. Compliance with the Assam Value Added Tax Act, 2003, Specifically Section 76(4):
The court analyzed Section 76(4) of the Assam Value Added Tax Act, 2003, which states that security can be demanded if the driver or transporter does not provide correct and complete documents or if the transporter has no permanent address within the State. The court emphasized that the conditions precedent for demanding security must be satisfied and that such demands cannot be routine but must be based on specific circumstances as outlined in the Act.
3. Communication of Reasons for Demanding Security:
The court highlighted the importance of communicating reasons for demanding security to ensure fairness and to act as a check against arbitrariness. It was noted that while the Act does not explicitly require communication of reasons, it is imperative for the officer to inform the person from whom security is demanded about the reasons for such a demand. This ensures transparency and allows the concerned person to understand the basis for the demand.
4. Quasi-judicial Nature of Tax and Security Demands:
The court reiterated that the demand for tax and security is a quasi-judicial act and must be exercised in a quasi-judicial manner, strictly in compliance with the relevant statute. The court referred to the Supreme Court's judgment in Orient Paper Mills Ltd. v. Union of India, which stated that quasi-judicial powers cannot be controlled by administrative directions and must be exercised independently and impartially.
5. Administrative Directions Interfering with Quasi-judicial Functions:
The petitioner alleged that the demand for security was based on general instructions from the Commissioner of Taxes, Assam, rather than specific reasons related to the conditions outlined in Section 76(4). The court emphasized that no superior authority can interfere with the quasi-judicial functions of an assessing authority through administrative directions. The court clarified that security can only be demanded based on the conditions specified in the Act and not due to general instructions.
Conclusion:
The court concluded that the demand for security by respondent No. 3 (Superintendent of Taxes, Jagiroad Check-post) was not accompanied by any communicated reasons, making it non-compliant with Section 76(4) of the Assam Value Added Tax Act, 2003. The court directed that security deposits should not be demanded unless the conditions specified in Section 76(4) are fulfilled and reasons for such demands are communicated to the concerned person. The writ petition was disposed of with these observations and directions, modifying the interim directions issued earlier.
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2007 (5) TMI 569
Issues involved: Challenge to assessment order u/s Orissa Value Added Tax Act, 2004 based on jurisdictional grounds.
Summary:
The petitioner, a registered dealer under the Orissa Value Added Tax Act, challenged the assessment order dated January 17, 2007, passed by the Sales Tax Officer, Assessment Unit, Jagatsinghpur. The challenge was based on the grounds that the assessment should have been done by the assessing authority of the range, not the assessment unit. The relevant provisions of the OVAT Act and Rules were cited to support this argument.
The petitioner contended that as per rule 34(12)(b) of the Orissa Value Added Tax Rules, dealers granted registration and assigned with TIN numbers can only be assessed by the "assessing authority of the range." The impugned assessment order was passed by the Sales Tax Officer, not the assessing authority of the range, as required by the rule. Therefore, the order was held to be without jurisdiction and not in conformity with the rule.
The High Court set aside the assessment order and directed the petitioner to appear before the Assistant Commissioner of Sales Tax, Cuttack II Range for further proceedings. The Sales Tax Officer, Assessment Unit, Jagatsinghpur, was instructed to transfer the records to the Assistant Commissioner. The writ application was disposed of, and a copy of the order was provided to the counsel for the Revenue for compliance.
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2007 (5) TMI 568
Issues involved:
Challenge to tax realization procedure at check-post, compliance with statutory requirements in way-bill and invoice, necessity of adjudication before tax payment.
Analysis:
The writ petition challenges the tax realization procedure at a check-post, despite the petitioner paying the tax. The petitioner, a registered dealer, transported goods to a specific location but failed to provide all required particulars in the way-bill. The court acknowledged the discrepancies in the documents and agreed with the Revenue that the papers were not in order. The court referred to section 74(2) of the Orissa Value Added Tax Act, 2004, allowing the Revenue to detain the vehicle and issue a notice in case of lapses, which was not done in this instance. The petitioner alleged paying tax under coercion, but the court found no clear evidence of coercion, emphasizing the need for proper documentation and compliance.
The court noted the absence of protest or dispute in tax payments by carriers, as highlighted by the Revenue. The petitioner cited a previous judgment requiring adjudication in similar cases, but the court distinguished the present case due to changes in legal requirements under the VAT regime. Despite non-compliance with current regulations in the invoice and way-bill, the court agreed that some form of adjudication was necessary, following the precedent set by the previous judgment.
The court issued specific directions for future cases at check-posts: issuing notices for non-compliant way-bills and invoices, recording tax payments in case of waiver of notice, providing reasons for higher valuation of consignments, and allowing for detailed assessment of tax payments by the taxing authority. The judgment emphasized the importance of complying with statutory requirements and ensuring a minimum application of mind by the authorities involved in tax realization procedures. The writ petition was disposed of with the outlined directions, addressing the issues raised regarding the tax realization process at check-posts.
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2007 (5) TMI 567
Whether the service rendered by an ESI hospital is gratuitous or not, and consequently whether it falls within the ambit of `service' as defined in the Consumer Protection Act, 1986?
Whether Section 74 read with Section 75 of the Employees' State Insurance Act, 1948 ousts the jurisdiction of the consumer forum as regards the issues involved for consideration?
Held that:- The appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees' State Insurance Act, 1948. Appeal allowed.
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2007 (5) TMI 565
Whether the facts and circumstances warrant a finding of negligence and deficiency in service on the part of BDA necessitating award of compensation?
Held that:- Both parties - BDA as also the Respondent proceeded on the basis that time was not the essence of the contract. The houses were delivered in 1997 at a price agreed in 1986. By 1997, the value had gone up many times (more than 10 times according to BDA). The Respondent had the benefit of such rise in value. The respondent also failed to prove any negligence on the part of BDA. In this factual background, we find it difficult to hold that there was 'deficiency in service' on the part of BDA entitling the respondent for any compensation by way of interest or otherwise. Consequently, the respondent is not entitled to any compensation.
Where a development authority undertakes to construct buildings or allot houses or building sites either as amenity or as benefit, it amounts to rendering of a service and will be covered by the expression 'service made available to potential users' referred to in section 2(o) of the Act. But this Court did not examine or deal with the question whether a contract for sale of a house premises, (that is site with a constructed house), as contrasted from a contract of construction amounted to 'providing a service of any description to a potential user including housing construction'. Be that as it may. Though there appears to be some logic in the contention of BDA, we do not propose to decide the issue, as we are allowing this appeal on other grounds, and as this contention was not specifically pressed before the Commission. We leave this question open for decision in an appropriate case.
Allow this appeal and set aside the order dated 11.4.2002 of the National Consumer Disputes Redressal Commission. As the main prayer for completion and delivery of the houses was complied with during the pendency of the complaint, and as we have held that respondent is not entitled to interest or compensation, the complaint is disposed of with a direction to BDA to complete the process of execution and registration of sale deed/s in respect of the houses without claiming any extra cost, within three months from today. The cost of stamp duty and registration in respect of such sale deeds will be borne by the respondent.
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2007 (5) TMI 564
Whether Clause 4 of Work Order No.114 dated 16th of May, 1985 which says that any dispute arising between the department and the contractor/society shall be referred to the Superintending Engineer, Anandpur Sahib, Hydel Circle No. 1 Chandigarh for orders and his decision will be final and acceptable/binding on both the parties" constituted an arbitration agreement?
Held that:- Demand notice was served on the appellants by the respondent on 16th April 1990 and the application under section 20 of the Act was filed on 13th November 1990 which is admittedly within the period of limitation as contemplated under Article 137 of the Limitation Act. The right to apply accrued for the difference arising between the parties only when service of demand notice was effective, which should be the date for holding that the difference had already arisen between the parties. Such being the settled law, we are of the view that the application under section 20 of the Act was clearly filed within the period of limitation. Appeal dismissed.
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2007 (5) TMI 563
Whether Arbitral Tribunal has jurisdiction?
Held that:- Where a party has received notice and he does not raise a plea of lack of jurisdiction before the arbitral tribunal, he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(v) of the Act on the ground that the composition of the arbitral tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown.
Though respondent no.1 had ample opportunity to appear before Justice N.N. Goswami (Retd.) and raise a plea of jurisdiction to the effect that he had been wrongly appointed as arbitrator by appellant no.1, yet, it chose not to do so. This feature of the case weighs heavily against respondent no.1. The learned Single Judge has taken this fact as an additional ground for rejecting the petition filed by respondent no.1 under Section 34 of the Act and we are in agreement with the said view. Appeal is allowed with costs throughout and the judgment and order dated 7.12.2004 of the Division Bench of the High Court is set aside.
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2007 (5) TMI 562
Validity of auction sale - Auction sale took place due to default in payment of loan taken from Respondent - Held that:- Under Rule 107(11)(g) of the Rules, 15% of the price of the immovable property has to be deposited by the auction purchaser at the time of the purchase, and the remaining 85% of the purchase money has to be paid within 15 days from the date of such sale. Admittedly, in the present case, the aforesaid 85% of the purchase money was not paid within 15 days from the date of the sale nor even thereafter - Following decision of Manilal Mohanlal Shah and others vs. Sardar Sayed Ahmed Sayed Mahmad and another [1954 (4) TMI 46 - SUPREME COURT] and Balram vs. Ilam Singh and others [1996 (8) TMI 473 - SUPREME COURT] - Auction sale of the appellants’ property was a nullity, and there was no valid auction sale - said property be again auction sold after advertising it in at least two well-known newspapers having wide circulation, mentioning therein the date, time and place of the auction sale and after complying with the procedure under Rule 107 of the Rules - Decided partly in favour of Appellant.
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2007 (5) TMI 561
Retirement benefits - Held that:- Appeal dismissed. The legal effect of the order passed by the learned Single Judge could be that he became entitled to receive all retiral benefits. Thus, it is permissible for him to raise all contentions in support of the order passed by the learned Single Judge, in terms of the provisions contained in Order 41, Rule 33 of the Code of Civil Procedure and the principles akin thereto.
Furthermore, the respondent has retired as far back as on 01.11.1996. At this late stage, we are of the opinion that we should not allow an illegality to be perpetuated which is otherwise apparent on the face of his record.
Therefore, are of the opinion that although the learned Single Judge and also the Division Bench of the High Court may not be correct in passing the impugned judgments, we should in exercise of discretionary jurisdiction under Article 142 of the Constitution of India, should allow the Writ Petition of the respondent to do complete justice to the parties.
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2007 (5) TMI 560
Whether an arbitration clause comes to an end, if the contract containing such arbitration agreement, was abrogated?
Whether section 11 of the Act is inapplicable in regard to the arbitrations which are to take place outside India?
Whether the appointment of the Arbitrator, and the reference arbitration are governed by the laws in force in Hong Kong and not by the Arbitration and Conciliation Act, 1996?
Held that:- Appeal allowed. Sub-section (1) of section 16 of the Act makes it clear that while considering any objection with respect to the existence or validity of the arbitration agreement, an arbitration clause which forms part of the contract, has to be treated as an agreement independent of the other terms of the contract; and a decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. The first contention is, therefore, liable to be rejected.
Merely because the parties have agreed that the venue of arbitration shall be Hong Kong, it does not follow that Laws in force in Hong Kong will apply. The arbitration clause states that the Arbitration and Conciliation Act, 1996 (an Indian Statute) will apply. Therefore, the said Act will govern the appointment of arbitrator, the reference of disputes and the entire process and procedure of arbitration from the stage of appointment of arbitrator till the award is made and executed/given effect to.
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2007 (5) TMI 559
Petition challenging the order of Vesting u/s 14T(3) of the West Bengal Land Reforms Act - Provision contained in Section 14V vis-a-vis the definition of land as contained in Section 2(7) and Section 3A(3) of the West Bengal Land Reforms Act as ultra vires Article 300A of the Constitution - HELD THAT:- We, therefore, find substance in the contention of Dr. Mondal that a Division Bench of this Court having declared the provision contained in the West Bengal Land Reforms Act regarding vesting without making any lawful provision for compensation for such vesting in the Act as ultra vires the Constitution of India, the State cannot be permitted to proceed with the said provision of vesting against the petitioners as long adequate provision is not made in the Statute for compensation.
We, respectfully follow the decision of the Division Bench of this Court in the case of Paschim Banga Rajya Bhumijibi Sangha, which is still binding upon us as a valid precedent and consequently, set aside the order passed by the Tribunal on the ground that without making lawful provisions of compensation for vesting in the West Bengal Land Reforms Act, the State cannot go on with the process of vesting against the writ petitioners.
The order impugned thus, is, set aside. The writ application is allowed to the extent indicated above. This order, however, will not stand in the way of the State in continuing with the process of vesting if adequate lawful provision is incorporated in the Act for compensation for the vested land.
Thus, there will be, however, no order as to costs.
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2007 (5) TMI 558
Issues involved:
The competency of the court to entertain anticipatory bail applications under the Customs Act, 1962 and the validity of directing service of prior notice before arrest in case of an FIR being registered.
Competency of the court:
The petitioner challenged the order of the Addl. Sessions Judge directing service of prior notice on the respondent, arguing that the court at Tis Hazari was not competent to entertain anticipatory bail applications under the Customs Act, 1962. However, it was found that there were no administrative instructions limiting such applications to the courts at Patiala House. Therefore, the Addl. Sessions Judge's order could not be interfered with on the ground of lack of competency.
Validity of prior notice before arrest:
The petitioner also contended that directing service of 7 days' prior notice before arrest, as done by the Addl. Sessions Judge, was not justified. Referring to Supreme Court decisions in Crl. Appeal No. 555/2000 and Crl. Appeal No. 1399/2003, it was highlighted that such a condition was disapproved. The Supreme Court had set aside similar orders in the past, stating that imposing a prior notice condition after refusal of anticipatory bail was not justified. Consequently, the Addl. Sessions Judge's order directing prior notice before arrest was set aside, in line with the Supreme Court's stance on the matter.
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9911796707
