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Case Laws
Showing 161 to 180 of 1621 Records
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2016 (5) TMI 1468
Levy of Central Excise Duty on coal - Validity of Notification dated 21-10-2015 - Held that:- The impugned notification dated 21-10-2015 issued by the Mahanadi Coalfields Limited under Annexure-1 appears to be in violation of the same - application allowed.
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2016 (5) TMI 1467
Principles of res judicata - Principle of estoppel - inheritance of property by illegitimate sons - U.P. Consolidation of Holdings Act, 1953 - Held that:- Where the decision is on a pure question of law then a Court cannot be precluded from deciding such question of law differently. Such bar cannot be invoked either on principle of equity or estoppel. No equitable principle or estoppel can impede powers of the Court to determine an issue of law correctly in a subsequent suit which relates to another property founded upon a different cause of action though parties may be same. As explained earlier, in such a situation the principle of res judicata is, strictly speaking, not applicable at all.
Principle of estoppel - Held that:- It operates against the party and not the Court and hence nothing comes in the way of a competent court in such a situation to decide a pure question of law differently if it is so warranted.
The issues of facts once finally determined will however, stare at the parties and bind them on account of earlier judgments or for any other good reason where equitable principles of estoppel are attracted.
Appeal dismissed.
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2016 (5) TMI 1466
Jurisdiction - power of Commissioner to disqualify from attending before any authority in connection with any proceedings under the Act, any legal practitioner, Chartered Accountant, Cost Accountant or sales tax practitioner - case of petitioner is that it is the Bar Council of Gujarat which would be empowered to take disciplinary action against the petitioner and not the Commissioner, inasmuch as, the petitioner no longer continues to be a sales tax practitioner as envisaged under clause (c) of sub-section (1) of section 81 of the GVAT Act.
Held that:- Issue Notice returnable on 9th June, 2016. By way of ad-interim relief, the respondent is restrained from proceeding further pursuant to the impugned show cause notice dated April, 2016 (Annexure “D” to the petition).
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2016 (5) TMI 1465
Nature of income - power subsidy received as grant for promotion of industrial unit - revenue receipt OR capital receipt - diversion of views by members judicial and accountant - Held that:- Hon'ble President, ITAT, in his capacity as Third Member, has concurred with the conclusions arrived at by the learned Accountant Member that the power subsidy received by assessee in the above facts and circumstances is capital in nature. In accordance with the majority view, therefore, the appeals filed by the assessee are allowed.
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2016 (5) TMI 1464
Additions u/s 14A - assessee contented formula under Rule 8D has been applied without establishing any nexus between exempt income and expenditure incurred thereon for earning such exempt income - Held that:- The investments would definitely involve certain administrative and establishment cost since the decision to make investments, track investments, sale of such investments and follow-up of the receipt of income, sale proceeds etc have to be undertaken which entails definite costs. It is for this purposes that Rule 8D(2)(iii) provides that one half percent of the average value of the investments will be deemed to be expenditure incurred for the same. When the Act has specified a definite formula for working out the expenditure to be disallowed, the Department is not required to establish the nexus between the exempt income and expenditure incurred thereon for earning such exempt income. In view of the law laid down by the statute, since the assessee has not excluded any expenditure relatable to earning exempt income, AO has disallowed ½ % of average value of the investments as per Rule 8D(2)(iii) as expenditure incurred for earning of exempt income and the ld. CIT(A) has rightly confirmed the disallowance made by the AO. - Decided against assessee.
Disallowance under section 35D - Held that:- In the present case, the assessee is stated to have incurred expenditure for creating intangible content of the motion picture industry. The expansion activity has not been completed in the assessment year under consideration as accepted by the assessee and therefore, either expansion activity has been completed or the production activity of the assessee has been carried out for which the assessee has claimed amortization of expenses under section 35D which in our opinion is not permissible. CIT(A) has elaborately discussed the issue with regard to claim of deduction u/s 35D by relying on various decisions and the assessee could not counter the findings of the CIT(A). Thus, we confirm the order of the CIT(A) - Decided against assessee.
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2016 (5) TMI 1463
Addition on account of peak credit - AO to apply gross profit @ 10% - Held that:- As gone through the order of Jurisdictional High Court in the case of CIT vs. Jagdishchandra Vishwakarma [2011 (2) TMI 1508 - MADHYA PRADESH HIGH COURT] wherein the facts are that all the payments were made through account payee cheques, but assessee could not produce the seller. Therefore, in that case, the Tribunal had held that if all the payments have been made through account payee cheques, the purchase cannot be termed as bogus.
In the instant case, the facts are not identical but in this case, the AO has not made any enquiry to prove that the money given by the assessee to Jai Deep Trading Company has returned back to the assessee, though the assessee has denied to make any bogus purchases from the above party. AO and CIT(A) is not justified in his action. In the result, the appeal of the assessee is partly allowed and we reverse the finding of the CIT(A) and we delete the addition on account of peak credit. We also direct the AO to apply gross profit @ 10%. - decided against revenue.
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2016 (5) TMI 1462
Nature of income - sale of land - business income or capital gains - assessee is a partnership firm, engaged in the business of development and construction - Held that:- assessee has capitalized interest cost in the cost of Badlapur land and this conduct of the assessee is in consonance with the treatment for a Capital Asset. It is a settled legal position that interest in respect of a Capital Asset is required to be added to the cost of Investment/Capital Asset.
Although the assessee has shown the Badlapur Land as WIP (i.e. inventory) in its books of accounts, yet since its inception, the accounting treatment given to Badlapur land in its books of accounts is that of/as applicable to a Capital Asset (i.e. Investment). The Hon'bIe Supreme Court has clearly held in the case of Kedarnath Jute Mfg. Co. Ltd. Vs. CIT [1971 (8) TMI 10 - SUPREME COURT] that the entries in books of accounts are not conclusive and that the true nature of income/expense is determinative in deciding the taxability of income or allowability of an expense.
AO directed to treat the gains on sale of Badlapur Land as LTCG in place of business income. - Decided in favor of assessee.
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2016 (5) TMI 1461
Condonation of delay - eligible reasons for delay - Held that:- The Court is of the view that in view of the special circumstances explained in the petition, with the Petitioner company having been in liquidation for several years, the Petitioner should not be prejudiced in pursuing the appeal which has been decided ex parte against it by the ITAT.
In the peculiar facts and circumstances, the Court sets aside the impugned order passed by the ITAT and allows the M.A. thereby condoning the delay on the part of the Petitioner in seeking recall of the ex parte order dated 3rd June 2003 of the ITAT dismissing the appeal.
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2016 (5) TMI 1460
Scheme of Arrangement - demerger company - adherence to Quorum of the meeting - Held that:- Requirement of obtaining the consents/no objections of the customers, joint development partners, tenants, vendors/brokers etc., as prayed for by the applicants, is dispensed with.
In case the quorum as noted above for the above meetings is not present at the meetings, then the meetings shall be adjourned by half an hour, and thereafter the persons present and voting shall be deemed to constitute the quorum. For the purpose of computing the quorum the valid proxies shall also be considered, if the proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings is filed with the registered offices of the demerged and resulting companies at least 48 hours before the meetings. The Chairpersons and Alternate Chairpersons shall ensure that the proxy registers are properly maintained.
The Chairpersons and Alternate Chairpersons shall ensure that notices for convening the aforesaid meetings of the equity shareholders, secured and unsecured creditors of the demerged and resulting companies, along with copies of the Scheme of Arrangement and the statement under Section 393 of the Companies Act, 1956, shall be sent to the equity shareholders, secured and unsecured creditors of the demerged and resulting companies by ordinary post at their registered or last known addresses at least 21 days before the date appointed for the meetings, in their presence or in the presence of their authorized representatives. Notice of the meetings shall also be published in the Delhi editions of the newspapers “Business Standard” (English) and (Hindi) editions in terms of the Companies (Court) Rules, 1959 at least 21 days before the date appointed for the meetings.
The Chairpersons and Alternate Chairpersons will be at liberty to issue suitable directions to the management of the demerged and resulting companies so that the aforesaid meetings of the equity shareholders, secured and unsecured creditors of the demerged and resulting companies are conducted in a just, free and fair manner. The fee of the Chairpersons and the Alternate Chairpersons for the aforesaid meetings shall be ₹ 50,000/- each in addition to meeting their incidental expenses. The Chairpersons will file their reports within two weeks from the date of holding of the aforesaid meetings.
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2016 (5) TMI 1459
Declaration of drought-like situation in some village in a district or a taluka or tehsil or block in the states of Bihar, Gujarat and Haryana - providing essential relief and compensation to people affected by the drought - failure of these States to declare a drought (if indeed that is necessary) effectively deprives the weak in the State the assistance that they need to live a life of dignity as guaranteed under Article 21 of the Constitution -
Held that:- Each of the three States that we are concerned with have their own unique method of determining whether there is a drought or not. According to the learned Additional Solicitor General the Manual and the Guidelines are indicative and not mandatory. The third affidavit of the Union of India complicates the matter by introducing the concept of 'federalism' that is the relationship between the Union and the States with respect to drought. The ostensible purpose of introducing this concept is to enable the Union of India to wash its hands off in matters concerning drought declaration and to give enough elbow room to a State Government to decide whether to declare a drought or not since the Manual is only a reference document and a guide for action and the State Governments could face situations under which they may need to deviate from the guidance given in the Manual. Under the circumstances, it is stated in the third affidavit of the Union of India that it would not be proper for the Union of India to sit in judgment over the decision of the State Governments or to frame binding guidelines.
Hence, it will not be proper to direct the states of Bihar, Gujarat and Haryana to immediately declare drought in Taluka/Tehsil/Blocks as suggested by the Petitioner. These states in any case have taken their own reasoned decision for not declaring drought in their states which have already been enumerated in the earlier affidavits filed by this department dated 10th February, 2016 and 11th March, 2016.
As mandated necessary Force, fund and plan need to be established to fulfill the required - The Secretary in the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture in the Government of India is directed to urgently hold a meeting within a week with the Chief Secretary of Bihar, Gujarat and Haryana to review the apparent drought situation with all the available data and if so advised persuade the State Government to declare a drought in whichever district, taluka, tehsil or block is necessary.
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2016 (5) TMI 1458
Validity of the Telecom Consumers Protection (Ninth Amendment) Regulations, 2015, notified on 16.10.2015, (to take effect from 1.1.2016), by the Telecom Regulatory Authority of India - Manifest arbitrariness and unreasonableness - violation of the fundamental rights under Articles 14 and 19(1)(g) of the Constitution - Amendment made in the exercise of powers conferred by Section 36 read with Section 11 of the Telecom Regulatory Authority of India Act, 1997 - credit only the calling consumer (and not the receiving consumer) with one rupee for each call drop (as defined), which takes place within its network, upto a maximum of three call drops per day.
Held that:- The power to make the Impugned Regulation is traceable to Section 36(1) of the Telecom Regulatory Authority of India Act, 1997 - though the Regulation making power under the said Act is wide and pervasive, and is not trammeled by the provisions of Section 11, 12(4) and 13, it is a power that is non-delegable and, therefore, legislative in nature. The exercise of this power is hedged in with the condition that it must be exercised consistently with the Act and the Rules thereunder in order to carry out the purposes of the Act. Since the regulation making power has first to be consistent with the Act, it is necessary that it not be inconsistent with Section 11 of the Act, and in particular Section 11(1)(b) thereof. This is for the reason that the functions of the Authority are laid down by this Section, and that the Impugned Regulation itself refers to Section 11(1)(b)(i) and (v) as the source of power under which the Impugned Regulation has been framed - Under clause 5, the licensor reserves the right to modify the terms and conditions of the licence if in the opinion of the licensor it is necessary or expedient so to do in public interest or in the interest of security of the State or for the proper conduct of telegraphs. It may be stated that no modification of the licence has in fact been attempted or has taken place in the facts of the present case.
Violation of Fundamental Rights - Held that:- One of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation - the language of the Regulation is definite and unambiguous – every service provider has to credit the account of the calling consumer by one rupee for every single call drop which occurs within its network. The Explanatory Memorandum to the aforesaid Regulation further makes it clear, in paragraph 19 thereof, that the Authority has come to the conclusion that call drops are instances of deficiency in service delivery on the part of the service provider. It is thus unambiguously clear that the Impugned Regulation is based on the fact that the service provider is alone at fault and must pay for that fault. In these circumstances, to read a proviso into the Regulation that it will not apply to consumers who are at fault themselves is not to restrict general words to a particular meaning, but to add something to the provision which does not exist, which would be nothing short of the court itself legislating. For this reason, it is not possible to accept the learned Attorney General’s contention that the Impugned Regulation be read down in the manner suggested by him.
The other string to the bow of this argument is that the Impugned Regulation would be worked in such a manner that the service provider would be liable to pay only when it is found that it is at fault. This again falls foul of constitutional doctrine.
The appellants have strongly contended that a 2% allowance of call drops on the basis of averaging call drops per month has been allowed to them by the Quality of Service Regulations -
Held that:- First and foremost, the 2009 Quality of Service Regulation is made under Section 11(1)(b)(v), which is the very Section which is claimed to be the source of the Impugned Regulation. Secondly, both regulations deal with the same subject matter – namely, call drops, and both regulations are made in the interest of the consumer. If an average of 2% per month is allowable to every service provider for call drops, and it is the admitted position that all service providers before us, short of Aircel, and that too in a very small way, have complied with the standard, penalizing a service provider who complies with another Regulation framed with reference to the same source of power would itself be manifestly arbitrary and would render the Regulation to be at odds with both Articles 14 and 19(1)(g) - it is clear that the Quality of Service Regulations and the Consumer Regulations must be read together as part of a single scheme in order to test the reasonableness thereof. The countervailing advantage to service providers by way of the allowance of 2% average call drops per month, which has been granted under the 2009 Quality of Service Regulations, could not have been ignored by the Impugned Regulation so as to affect the fundamental rights of the appellants, and having been so ignored, would render the Impugned Regulation manifestly arbitrary and unreasonable - Secondly, no facts have been shown to us which would indicate that a particular area would be filled with call drops thanks to the fault on the part of the service providers in which consumers would be severely inconvenienced. The mere ipse dixit of the learned Attorney General, without any facts being pleaded to this effect, cannot possibly make an unconstitutional regulation constitutional.
The licence conditions, which are a contract between the service providers and consumers, have been amended to the former’s disadvantage by making the service provider pay a penalty for call drops despite there being no fault which can be traceable exclusively to the service provider, and despite the service provider maintaining the necessary standard of quality required of it – namely, adhering to the limit of an average of 2% of call drops per month - it is clear that the laying down of a penalty de hors condition 28, which, as we have seen, also requires establishing of fault of the service provider when it does not conform to a quality of service standard laid down by TRAI, would amount to interference with the licence conditions of the service providers without authority of law. On this ground also, therefore, the Impugned Regulation deserves to be struck down.
Transparency - Held that:- Under Section 4(1) every public authority is not only to maintain all its records duly catalogued and indexed but is to publish, within 120 days from the enactment of the said Act, the procedure followed by it in its decision making process, which includes channels of supervision and accountability - Under Section 8, there is no obligation to give to any citizen information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security of the State etc. Subject, therefore, to well-defined exceptions, openness in governance is now a legislatively established fact.
The Impugned Regulation is ultra vires the TRAI Act and violative of the appellant’s fundamental rights under Articles 14 and 19(1)(g) of the Constitution.
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2016 (5) TMI 1457
Additions u/s 153A - additions by invoking provisions of sec. 68 - Held that:- We allow the appeals filed by the assessees on the issue of section 153A r.w.s. section 143(3) of the I.T. Act wherein we have already held that in absence of any incriminating documents found and seized during the course of search, the Assessing Officer is not justified in making the additions in nonabated assessment orders while passing the orders u/s 153A r.w.s. 143(3) of the Act. Thus, we quash the non-abated assessment orders for the A.Ys. 2002-03, 2003-04 & 2005-06. Accordingly, this issue of incriminating material involved in the assessee’s appeals allowed in favour of assessee
Addition in respect of RIB Bonds, on protective basis - addition u/s 68 - addition on ground as assessee has purchased this bond by his own money by paying cash to the donor - Held that:- we find that during the course of search, no such documents or evidences establish any payment of cash by the assessee to the donor. We also find that on merit, this issue is covered by the decision of this bench in the case of ACIT vs. Phoolchand Agrawal [2012 (3) TMI 621 - ITAT INDORE] as held that gifts of RIBs received by an assessee from one NRI cannot be treated as income of the assessee - addition made by the Assessing Officer u/s 68 of the Act on account of RIB gift and subsequently, enhanced by the learned CIT(A) is not sustainable.
Issue of genuineness of LTCG/STCG - AO found that there was sudden increase in price of these cos. and as such increase in price was abnormal and not based on fundamentals - Held that:- During the course of assessment proceedings, we find that there was no incriminating documents or loose papers or any other evidence was found or seized from the assessee that the transaction of long term capital gain or short term capital gain is not genuine. various documentary evidences placed on record and in the light of the various judicial pronouncements, we are of the considered view that there was absolutely no justification for both the authorities below in disbelieving the genuineness of the long term capital gain and short term capital gain shown by the assessee in his return of income, merely on guesswork, conjectures and surmises. Accordingly, these additions are directed to be deleted. - decided in favour of assessee
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2016 (5) TMI 1456
50% depreciation on plastic crates claimed by the assessee - Held that:- In assessee’s own case for the earlier assessment year, we are of the view that plastic crates used by the assessee in its business are coming under the separate block of containers made of glass or plastic used as refills eligible for 50% depreciation. Therefore, we direct the A.O. to allow 50% depreciation as claimed by the assessee.
Disallowance of bad debts u/s 36(1)(vii) - Held that:- Since assessee failed to prove the debt and the resultant income has been offered to tax in the earlier period, the assessee cannot claim bad debt. Once the debt has been written off in the books of accounts by passing necessary journal entries, the assessee need not to prove that the debt has become bad in the financial year. The assessee has fulfilled the conditions laid down in the provisions of sec. 36(1)(vii) by written off the debts in the books of accounts. CIT(A) after considering the explanations furnished by the assessee and also taken into account the remand report of the A.O. allowed bad debt claim out of the total bad debts claim - Decided against revenue
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2016 (5) TMI 1455
Addition u/s 68 - Additions on account of share capital/share application/share premium - huge share capital and share premium money were received by the assessee and other group companies during the periods under assessment - discharge of burden of proving the cash credit - Held that:- We find that while adjudicating the same issue in case of another group assessee namely, M/s. Bhatia International Ltd. we have held that the assessee could be able to discharge the burden of proving the cash credit as contemplated u/s 68 of the Act and have directed to delete the entire addition made by the Assessing Officer on account of share capital/share premium/ share application money.
We find that the facts and circumstances of the present appeals of the assessee are the same with that of the appeal for assessment year 2002-03 (supra). The argument of both the parties are also the same and therefore, we direct to delete the addition made by the Assessing Officer on account of share capital/share premium/ share application money - Decided in favour of assessee
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2016 (5) TMI 1454
Winding up petition - company does not even exist at its registered office which appears in the records of the Registrar of Companies, West Bengal - deemed service of statutory notice - non-maintenance of the registered office - Held that:- This winding up application has been taken out by the petitioning creditor on the basis of a statutory notice dated 27th October, 2015, which was caused to be served upon the company at its registered address but was returned by the postal authorities after all attempts to render effective service failed.
As such, in the facts and circumstances of the instant case, the company shall be deemed to have been duly served with the statutory notice dated 27th October, 2015. Since there is a clear presumption of acknowledgement of debt by the company and its inability to pay off the debt, petition is admitted for a principal sum of ₹ 8,47,93,759/- – as claimed in the statutory notice dated 27th October, 2015 – together with interest thereon at the rate of 6% per annum to be calculated from the date of the statutory notice till actual payment.
If the company pays off the entire amount, including interest, within a period of four weeks from date, the instant petition will remain permanently stayed. In default, the winding up petition will automatically stand revived
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2016 (5) TMI 1453
Revision u/s 263 on share capital - AO's order erroneous and prejudicial to the revenue interest - Held that:- It is not the Department’s case that no information regarding the share application money was called for by the AO. That relevant details and documents were furnished by the assessee during the assessment proceedings has been acknowledged by the Ld. CIT in the impugned order also. Hence, no inference can be drawn that the AO has not examined the issue although he has not expressed it it in as many terms as may be considered appropriate by his superior authority and even if the same is found to be inadequate the same cannot be a ground for revision.
AO has conducted an enquiry. However, he has not launched a lengthy discussion on the issue of share capital but that does not lead to an inference that there has been a lack of enquiry on his part on the issue. It is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an AO, acting in accordance with law, makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately.
This section does not visualize a case of substitution of the judgment of the Commissioner for that of the AO. Therefore, it cannot be held that in the instant case the AO’s order was erroneous and prejudicial to the interest of the revenue within the terms of section 263 of the Act. Once the issue of share capital was considered and examined by the Assessing Officer, Ld. Commissioner cannot set aside the order without recording contrary finding. - Decided in favour of assessee
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2016 (5) TMI 1452
Penalty u/s 271(1)(c) - defective notice - Held that:- Show-cause notice issued by the Assessing Officer u/s 274 for the year under consideration not being in accordance with law, the penalty order passed by the Assessing Officer in pursuance thereof is liable to be cancelled being invalid. We accordingly cancel the order passed by the Assessing Officer imposing penalty under section 271(1)(c) - Decided in favour of assessee.
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2016 (5) TMI 1451
Computation of income u/s 44B - service tax inclusion - Held that:- In view of the ratio of law laid down by the co-ordinate bench of the Tribunal in the case of “Marubeni Corporation vs. DCIT” [2013 (12) TMI 1550 - ITAT MUMBAI] and in the light of decision of the Hon’ble Delhi High Court in the case of “DIT vs. Mitchell Drilling International Pvt. Ltd.” [2015 (10) TMI 259 - DELHI HIGH COURT] we hold that service tax collected by the assessee and paid to the government account having no profit element, cannot be included in the gross receipts for computation of income under section 44B of the Act. This issue is accordingly decided in favour of the assessee.
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2016 (5) TMI 1449
Transfer pricing adjustment consequent to arriving at Arms Length Price(ALP) - international transactions or this adjustment is to be done in respect of all the business transactions of the assessee i.e. at the entity level - this Appeal was on board and detailed orders were passed indicating that the Revenue has not been bringing to the notice of the Court orders of admission in its favour in the subsequent Appeals filed by it an identical questions - Held that:- We find that the affidavit of the Principal Chief Commissioner of Income Tax merely indicates that the Department has decided to add a legal corner on its website where all questions of law which are admitted or dismissed by this Court will be entered section-wise. However, no indication is there in the affidavit as to when the proposed system of entering those questions on the website which have been admitted/dismissed would come into force.
During the hearing, Dr. Shivram who appears for the respondent-assessee suggested that the legal corner on the website should also indicate whether the question of law framed by the Revenue is rejected as the same been accepted by the Income Tax Department.
We find that the fields presently provided on entry into the website under the head “legal corner” only mentions the question which have been admitted or rejected. It is suggested that the Income Tax Department may add one more field viz. to cover cases where the question has been answered in the affirmative or in the negative.
These are suggestions for the Income Tax Department to consider and if thought appropriate the manner in which it could be implemented. To us it appears that if these suggestions are implemented, we could have transparency and consistency in the stand taken by the Revenue.
We direct the Principal Chief Commissioner of Income Tax to file an affidavit on or before 13th June, 2016 and a copy of the affidavit may also be served upon Dr. Shivram, the learned counsel appearing for the Respondent.
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2016 (5) TMI 1447
Eligibility conditions for promotion to the grade of Commissioner of Income Tax and the APARs - Held that:- It is an admitted position of the respondents that at the time of holding DPC the DGIT (Vigilance) had accorded vigilance clearance and there was no disciplinary case pending against the applicant. In para 4 (viii) and (ix) of the counter reply it has been categorically stated that the case of the applicant did not fall under any one of the three categories mentioned in DOP&T OM dated 14.09.1992.
After a query raised by the ACC, the official respondents got in touch with the MHA who informed them that the first stage advice of CVC had been obtained for initiating major penalty proceedings against the officer. It is not clear as to how in respect of an officer of Indian Revenue Service working under respondents no.1 & 2, the CVC advice was obtained by MHA.
Leaving it at that, the fact of the situation is that the respondents have not moved beyond that stage and issued any charge sheet, or are taking any action that would come within the ambit of the three categories mentioned in DOP&T OM dated 14.09.1992. Therefore, there is no ground on which the promotion of the applicant could have been kept in abeyance. The respondents have admitted that the applicant was considered fit for promotion, and that some complaints on which CVC advice was obtained by MHA, came to their notice only after a query from the ACC. In our view, pending complaint or an intention to initiate major penalty proceeding against an officer is not sufficient ground to deny him promotion.
In the face of these facts and the judgment of Hon’ble Supreme Court in K.V.Jankiraman (1991 (8) TMI 292 - SUPREME COURT), the OA is allowed. The respondents are directed to promote the applicant from the date on which his immediate his junior was promoted. The applicant will be entitled to all consequential benefits.
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