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Showing 181 to 200 of 1440 Records
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2023 (5) TMI 1260
Seeking grant of Default Bail - criminal conspiracy thereby cheating and inducing a consortium of 17 banks led by Union Bank of India (UBI) to sanction huge loans - siphoning off and misappropriation of funds - default on repayment of the legitimate dues - HELD THAT:- The Constitution of India is a fountainhead of the law of the land and procedures and is a shining light to show and guide us in order to secure the ends of the justice. Part-III of the Constitution of India confers fundamental rights. One of the most important fundamental rights enshrined in the Constitution of India is that of personal liberty. The basic underlying idea of Part –III of the Constitution of India is to protect the people against the might of the State - Any law in this country has to be subservient to the Constitution of India and must fulfil the object and intendment of the same.
The provisions in the Cr. PC also in a way are meant to safeguard the rights of an individual. Thus, the strict adherence to the provisions of the Cr. P.C. in fact amounts to ensuring the fulfilment of the golden principles laid down in the Constitution of India. Section 57 of the Cr. P.C. provides that a person arrested cannot be detained for more than 24 hours and such person has to be produced within such time before the Court of law - It is a settled proposition that in the first 15 days, the Court can remand such accused to judicial or police custody. Section 167 (2) (a) (i) of the Cr. P.C. provides that such a custody cannot exceed 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term not less than ten years. Section 167 (2) (a) (ii) states that the detention cannot exceed 60 days where the investigation relates to any other offence.
The Court is very clear in its mind that merely because in the charge sheet if the investigating agency has stated they want to conduct further investigation, the charge sheet cannot be termed as a preliminary charge sheet. The police has a right to conduct further investigation. However, at the same time, the investigating agency under the garb of further investigation cannot be allowed to file the police report without completion of investigation, only to defeat the right of statutory bail. The basic concept is that to fulfil the provision of Section 167, the charge sheet has to be filed upon completion of investigation - The material collected by the investigating agency so far, to the mind of this Court falls too short. Rather, if, this report is considered to be a complete investigation qua the accused persons, the investigating agency will suffer a lot. The Court as a guardian of the administration of justice has to ensure that there is strict compliance of the provisions. The investigating agency in its anxiety of keeping the accused persons in custody may take a plea that investigation is complete. However, the best judge in this regard should be the trial Court.
This Court considers that the learned Trial has rightly made an observation that now the time has come when the legislature will have to make certain provisions where the period of investigation for such serious offences have to be extended subject to certain limitations and restrictions. It has repeatedly been held that merely because cognizance has been taken, the right to statutory bail cannot be extended or defeated - This Court is of the considered opinion that the charge sheet filed by the CBI in the present case is an incomplete/piecemeal charge sheet and terming the same as a final report under section 173 (2) Cr.P.C. merely to ruse the statutory and fundamental right of default bail to the accused shall negate the provision under Section 167 Cr. PC and will also be against the mandate of Article 21 of the Constitution of India.
There is no illegality or perversity in the order of the learned Sessions Judge - The Court is the guardian of the rights bestowed upon the accused persons. Strict compliance of the procedure is necessary to protect the fundamental rights of an individual. Merely, filing of the chargesheet, whether incomplete or piecemeal cannot defeat the basic purpose of Section 167 (2) Cr. P.C. - Section 167 (2) Cr.P.C. must be interpretated bearing in mind the three-fold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and establishing a rationalized procedure that protects the interests of the indigent strata of society. These objects essentially serve as components of the overarching fundamental right guaranteed under Article 21 of the Constitution of India.
The present petition is dismissed.
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2023 (5) TMI 1259
Revised claim made in the return filed u/s 153A - Carry forward of Short Term Capital Loss - long-term capital loss made in the return u/s 153A which has been further revised and claimed as short-term capital loss - HELD THAT:- Since, in the case of the assessee, the original return u/s 139(1) for the year under consideration was filed on 17.10.2016, however, due to search action at the premises of the assessee on 30.11.2017, the assessment for the year under consideration got abated and consequently notice u/s 153A was issued.
In the return of income filed u/s 153A, the assessee claimed long term capital loss on the sale of the shares, subsequently, the said return was revised and the assessee claimed that since shares held only for the period of 35 months and therefore, loss arising from the same of those shares was in the nature of the short-term capital loss.
In view of the decision of the Hon’ble Supreme Court in the case of JSW Still Ltd. [2020 (2) TMI 307 - BOMBAY HIGH COURT] the return claiming the loss has been filed in terms of section 139(1) of the Act and therefore, the assessee is eligible for carry forward of the loss as per the provisions of law. In the facts of the case, the Assessing Officer need to verify and compute the quantum of loss, therefore , in the interest of substantial justice, we feel it appropriate to restore this issue back to the file of the AO for examining the computation of claim of loss sought to be carried forward by the assessee - Ground of appeal of the assessee allowed for statistical purpose.
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2023 (5) TMI 1258
Rectification of mistake u/s 154 - Jurisdictional High Court case has not been considered - claim of ‘long term capital loss’/’short term capital loss’ on the sale of the shares rejected as same was not filed in return of income as per sec 139(1) - assessee revised the return of income filed u/s 153A wherein the assessee revised the long term capital loss and offered the same as short term capital loss - Tribunal has not allowed either the claim of the ‘long term capital loss’ filed in the original return of income u/s 153A or claim of ‘short term capital loss’ filed in the revised return of income u/s 153A - assessee submitted that this loss from the sale of the shares was revised as shares were held only for a period of 35 ( thirty five) months and therefore eligible for short term capital loss only.
HELD THAT:- As decided in the case of JSW Steel Ltd. [2020 (2) TMI 307 - BOMBAY HIGH COURT] wherein it is held that in case of the abated assessment new/fresh claim made in the return of income filed u/s 153A of the Act is eligible for deduction.
Since, in the case of the assessee the decision of the Jurisdictional High Court has not been considered which is a mistake of the law apparent from record as held in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] that non-consideration of decision of the Jurisdictional High Court or Supreme Court is a mistake apparent from record and which can be rectified u/s 254(1) of the Act. Miscellaneous Application of the assessee is allowed.
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2023 (5) TMI 1257
Validity of reassessment proceedings - Submission is, the original assessment order came to be passed upon limited scrutiny. That exercise was directed mainly on the issuance of shares by the present petitioner - HELD THAT:- Merely because an audit objection may have been received as to the manner in which the assessment order came to be written may not be enough to reach conclusion of escapement in assessment. Thus, it has been submitted, reassessment proceedings in the present case has been initiated on a simple change of opinion, over the same material.
Matter requires consideration. As revenue prays and is granted four weeks' time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit.
List thereafter showing the name of Sri Krishna Agarwal as counsel for the revenue - In the meanwhile, reassessment proceedings for the Assessment Year 2016-2017 shall remain stayed.
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2023 (5) TMI 1256
Disallowance u/s.40A(3) - amount being paid in excess of Rs.20,000/- in a day to procurement of sand - HELD THAT:- Going by nature of business and practicability of the line of trade, we have to consider that though ultimate bill of sand procured subsequently given by Mr. M.Palanisamy, the fact is to be considered that sand is transported by trucks past midnight on account of prohibition to run on the day.
Actually, there is prohibition to run heavy trucks i.e. from 6.00 am to 6.00 pm in metros and big cities of India. The sand loads carried by different truck drivers are delivered at different locations of projects on the same day past mid-night. Although, cost of each load delivered in one single site may not exceed Rs.20,000/-, but on the same day different drivers have delivered different loads at different locations as is noted from ledger account submitted by the assessee, different drivers have delivered different loads at different locations of assessee’s construction sites and cumulatively, on a single day exceeds Rs.20,000/-.
Considering that since major portion of sand will consist of lorry freight, drivers who bring delivery of sand would demand cash payment in night in order to make wage payments. Hence although, provisions of section 40A(3) applies to present case, but neither the Assessing Officer nor the CIT(A) has gone into factum of delivery of sand load of trucks, whether truck drivers are agents of assessees or agent of sand supplier.
No clarity is coming out from the orders of lower authorities on this issue. Hence, another angle is that in case, entire amount of Rs.2.59 crores is added to the returned income of the assessee, profit margin of the assessee will be more than 50%, which is not at all possible in the given scenario and nature of business of the assessee. Therefore we estimate fair amount of disallowance and thus, we estimate disallowance at 25% of sand supplied by the assessee - Appeal of the Revenue is partly allowed.
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2023 (5) TMI 1255
Oppression and mismanagement - Fraud and illegal financial activities committed by them while managing the company - criminal breach of trust and forgery
Contention is that even if the case of the prosecution is taken on its face, as is emerging from the first information reports and the grounds on which the charge sheet has been filed, no cognizable offence is emerging and therefore the trial court has committed manifest illegality in taking cognizance of the offences and in issuing process against the applicants.
HELD THAT:- There is no bar in lodging an FIR or in conducting an investigation or even in the trial or conviction of an offender under two different enactments, but the bar is only with regard to the punishment of the offender twice for the same offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted under either or both enactments but shall not be liable to be punished twice for the same offence.
The word civil court appearing herein above could not be read as criminal court. If the intention of the Legislature was to exclude the provisions of Indian Penal Code, with regard to the offences investigated under Companies Act, then nothing had prevented the Legislature from making such a provision. Even otherwise, it is a well established principle of law that the exclusion of the jurisdiction of the Court has to be specific and cannot be inferred, and the provisions excluding the jurisdiction have to be construed strictly. Thus, in the considered opinion of this Court the word "Civil Court", emerging in this section cannot be read as "Criminal Court".
Prima facie, there are specific allegations made by opposite party no. 2 in the FIR's lodged by him and the Investigating Officer having conducted investigation by collecting the material and recording the statements of the witnesses under Section 161 of the Cr.P.C. and considering the same, filed the charge sheet - The Court has to consider whether from allegations contains in FIR and material collected during the course of investigation prima facie any offence is disclosed. Correctness or otherwise of the said allegations has to be be decided only during trial. At the initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of the accused. Criminal complaints could not be quashed only on the ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out , Criminal proceeding shall not be interdicted.
Thus, no illegality appears to have been committed by the investigating officer in submitting the charge sheet or by the trial court in taking cognizance and in issuing process. Resultantly all the petitions filed by the applicants placed above are not having force and for the reasons mentioned herein before, all these petitions are dismissed.
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2023 (5) TMI 1254
Levy of penalty u/s 271D - assessee has violated the provisions of section 269SS by accepting cash of Rs. 40.00 lakhs being his share for sale of the immovable property - Whether no satisfaction recorded by AO in the original assessment order? - HELD THAT:- Since admittedly there is no recording of satisfaction by the Assessing Officer in the body of the assessment order for initiating penalty proceedings u/s 271D of the I.T.Act, therefore, respectfully following the decision of Srinivas Reddy Reddeppagari [2022 (12) TMI 1446 - TELANGANA HIGH COURT] the penalty levied by the AO and sustained by the CIT (A) is liable to be quashed. We hold accordingly and direct the AO to cancel the penalty levied u/s 271D - Decided in favour of assessee.
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2023 (5) TMI 1253
Rejection of Tender - undertaking fresh tender process after disqualification of TATA Motors from the Tender - carrying on further exercise to ascertain whether EVEY also stood disqualified - HELD THAT:- This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution.
It is not in dispute that the first and the foremost requirement of the Tender was the prescribed operating range of the single decker buses which would operate for around and average of 200 Kms in a single charge in “actual conditions” with 80% SoC without any interruption. Then materials on record would indicate that the TATA Motors in its bid deviated from this requirement and had informed BEST that it could carry the operating range in the “standard test conditions” which was not in accordance with the Tender conditions. The High Court has rightly observed in its impugned judgment that the bid of the TATA Motors failed to comply with the said clause. TATA Motors deviated from the material and the essential term of the Tender - the restriction on revision of documents under Clause 16 of Schedule I, which states, “No addition/correction, submission of documents will be allowed after opening of technical bid,” is only limited to the documents necessary to be included in the technical bid and would not be applicable to any such document which does not form a part of the technical bid.
The High Court should have been a bit slow and circumspect in reversing the action of BEST permitting EVEY to submit a revised Annexure Y. The BEST committed no error or cannot be held guilty of favoritism, etc. in allowing EVEY to submit a revised Annexure Y as the earlier one was incorrect on account of a clerical error. This exercise itself was not sufficient to declare the entire bid offered by EVEY as unlawful or illegal.
Thus, that part of the judgment and order passed by the High Court by which the decision of BEST to accept the tender of EVEY was set aside, is set aside - it was left to the discretion of BEST to undertake a fresh tender process - appeal dismissed.
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2023 (5) TMI 1252
Several allegations of sexual harassment against the Appellant - Breach of the principles of natural justice - ample opportunities to the Appellant to cross-examine the complainants and the witnesses was provided - appellant deliberately elected not to appear before the court - incidents in question relate to the period when the Vishaka Guidelines were in place and it had been clarified in Medha Kotwal Lele [2012 (10) TMI 1269 - SUPREME COURT] that the Complaints Committee will be deemed to be an inquiry authority for the purposes of the CCS Rules - HELD THAT:-It may be clarified at the outset that to satisfy itself that no injustice has been meted out to the Appellant, the High Court was required to examine the decision-making process and not just the final outcome. In other words, in exercise of powers of judicial review, the High Court does not sit as an Appellate Authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at.
Rule 14 prescribes the procedure required to be followed for conducting an inquiry by a Public Authority which entails issuance of a charge sheet, furnishing details of the Articles of Charge, enclosing statements of imputations in respect of each Article of charge, forwarding of a list of witnesses and the documents sought to be relied upon by the Management/employer. The said procedure may not have been strictly followed by the Committee in the present case, but it is not in dispute that all the complaints received from time to time and the depositions of the complainants were disclosed to the Appellant - The charges levelled by all the complainants were of sexual harassment by the Appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non-framing of the Articles of Charge by the Committee cannot be treated as fatal. Nor can the Appellant be heard to state that he was completely in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately. So far, so good.
The undue haste demonstrated by the Committee for bringing the inquiry to a closure, cannot justify curtailment of the right of the Appellant to a fair hearing. The due process, an important facet of the principles of natural justice was seriously compromised due to the manner in which the Committee went about the task of conducting the inquiry proceedings - This Court has repeatedly observed that even when the Rules are silent, principles of natural justice must be read into them. In its keen anxiety of being fair to the victims/complainants and wrap up the complaints expeditiously, the Committee has ended up being grossly unfair to the Appellant. It has completely overlooked the cardinal principle that justice must not only be done, but should manifestly be seen to be done. The principles of audi alteram partem could not have been thrown to the winds in this cavalier manner.
In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the Appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on. Records also reveal that the Appellant had furnished a detailed reply in defence.
There is no doubt that matters of this nature are sensitive and have to be handled with care. The Respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the Appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference.
This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the "as far as practicable" norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the Appellant, duly endorsed by the Appellate Authority cannot be sustained - matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009.
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2023 (5) TMI 1251
Recovery of unpaid Electricity dues from subsequent owner - erstwhile owner went into liquidation - Premises sold in auction sales generally on an "as is where is" basis - Phrase “as is-where-is” - Obligation to provide electricity to consumers Under Section 43 of the 2003 Act - precondition to reconnection or release of a fresh connection - scope of the regulatory powers of the State Commission Under Section 50 - Jurisdiction Under Article 142 of the Constitution.
Supply of electricity discontinued due to the failure of the previous owners to pay the dues for consumption of electricity on the premises -
HELD THAT:- Taking all facts and circumstances into consideration, including the lapse of more than two decades since the appeals were filed before this Court and the equities arising in favour of one party or the other, we direct the Electric Utilities to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers.
The conclusions are summarised below:
a. The duty to supply electricity Under Section 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity;
b. The duty to supply electricity Under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities;
c. For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the premises are different, it will be considered as a fresh connection and not a reconnection;
d. A condition of supply enacted Under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character;
e. The scope of the regulatory powers of the State Commission Under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners;
f. The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act;
g. The Rule making power contained Under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge;
h. The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery Under Section 56 of the 2003 Act;
i. The implication of the expression "as is where is" basis is that every intending bidder is put on notice that the seller does not undertake responsibility in respect of the property offered for sale with regard to any liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities; and
j. In the exercise of the jurisdiction Under Article 142 of the Constitution, the Electric Utilities have been directed in the facts of cases before us to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers.
Application disposed off.
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2023 (5) TMI 1250
Classification of goods - toffee - to be covered under Entry No. 137 Schedule II Part A of the U.P. Value Added Tax Act, 2008 or not - it was held by High Court that One commodity has to be charged to tax at one rate. The revenue having chosen to tax the same or similar commodity at the lesser rate in case of other dealers whether manufacturer or trader, it cannot be permitted to take a different view as that may introduce uncertainty and arbitrariness in tax regime, which is never permissible.
HELD THAT:- There are no reason to interfere with the impugned order - SLP dismissed.
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2023 (5) TMI 1249
TP adjustment - adopting a percentage figure pegged at 15% for determination of profit attributable to the PE of the appellant/assessee in India - HELD THAT:- This issue covered by the decision of the Supreme Court rendered in a bunch of appeals, titled Director of Income Tax, New Delhi v. Travelport Inc. [2023 (5) TMI 227 - SUPREME COURT] Accordingly, the said question does not arise for our consideration, as it stands covered by the aforementioned decision of the Supreme Court.
Characterization of receipt - booking fee received by the appellant/assessee as taxable as business income, or royalty - HELD THAT:- The said question raised by the appellant/revenue is covered by a decision rendered in New Skies Satellite Bv & Ors. [2016 (2) TMI 415 - DELHI HIGH COURT] Accordingly, this question also does not arise for our consideration, as it also stands covered by the aforesaid decision of the court.
Whether payments, which are subject to withholding tax u/s 195 are not liable for interest under Section 234B of the Act? - Provisions contained below section 209(1)(d) of the Act introduced by Finance Act, 2012 w.e.f 01.04.2012 would apply only in a situation where persons responsible for tax has paid or credited such income without deduction of tax. In the instant case, since the income has been received by the taxpayer after deduction of tax at source, the proviso is not applicable as has been held by the coordinate Bench of the Tribunal in BG International Ltd. [2021 (2) TMI 265 - ITAT DELHI], Even otherwise, when no addition sustains section 234B would not apply.
None of the questions of law, as proposed, arise for our consideration.
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2023 (5) TMI 1248
Invocation of bank guarantees furnished by the petitioner - direction to the respondents to return the bank guarantees furnished by the petitioner - HELD THAT:- In State of Bihar &Ors. v. Jain Plastics and Chemicals Ltd. [2001 (11) TMI 1032 - SUPREME COURT], the Hon'ble Supreme Court was to adjudicate upon the issue-whether the High Court ought not to have exercised its jurisdiction under Article 226 of the Constitution of India for granting relief in case of alleged breach of contract. The Apex Court held that a writ petition under Article 226 of the Constitution of India is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent therein, to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is available to a litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ, but ordinarily, that would be a good ground in refusing to exercise the discretion under Article 226 of the Constitution of India.
This court cannot countenance the argument that, whereas, otherwise, a dispute owing to its private law origins ought to have been agitated before a civil court, merely because the entity so breaching the contract is a State or its functionary, the case is to be considered under Article 226 of the Constitution of India. Arbitrariness, under Article 14 of the Constitution of India needs to be pleaded in exclusion to claims of pure breach of contract. In the present petition, the petitioner has not been able to persuade this court that the breach so alleged on the part of respondents is of such a nature that it may be considered arbitrary and deserves to be entertained under the writ jurisdiction of this court alone.
This court is of the considered opinion, that the present petition, involves disputed questions of facts; has a purely contractual origin without any aspect of public law; and that the petitioner has an alternative remedy to pursue. The mere fact that the petition is pending since long, it cannot be made a ground to entertain a petition which is incapable of being decided in writ jurisdiction. The maintainability of the writ petition must be entertained or not, is a matter that can be determined by this court either at the threshold or at the stage of final disposal. The mere passage of time is not a ground to entertain a writ petition, which is either not found to be maintainable or the court, while considering the overall facts and circumstances, comes to the conclusion that the same ought not to be entertained and the parties may be relegated to more appropriate civil remedies.
In Unitech Ltd. & Ors. v. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors. [2021 (2) TMI 1181 - SUPREME COURT], the Hon'ble Supreme Court held that the jurisdiction under Article 226 of the Constitution of India was rightly invoked by the single judge and the Division Bench of the Andhra Pradesh in this case when the foundational representation of the contract had failed.
This court, on the ground that the present petition has contractual roots and basis, requires to make factual findings on disputed questions, has no element of public law and does not involve arbitrariness in the context of Article 14 of the Constitution of India, finds that the present petition should not be entertained - this court is not inclined to entertain the present petition - Petition dismissed.
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2023 (5) TMI 1247
Principles of natural justice - Notice in the proceedings was issued to the petitioner on 21.10.2022 seeking his reply within 30 days - denial of opportunity of oral hearing before the Assessing Authority - HELD THAT:- Reliance placed in the decision of coordinate bench in Bharat Mint & Allied Chemicals [2022 (3) TMI 492 - ALLAHABAD HIGH COURT]. Once it has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
The impugned order itself has been passed on 25.11.2022, while reply to the show-cause-notice had been entertained on 14.11.2022. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created - Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
The matter is remitted to the respondent no.2/Assistant Commissioner, State Tax, Sector-6, Aligarh to issue a fresh notice to the petitioner within a period of two weeks from today - Petition allowed by way of remand.
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2023 (5) TMI 1246
Rejection of grant of two advance increments to Respondent No. 1 in terms of Clause 6.18 of the revised University Grants Commission (UGC) Scheme, 1998 and Government Order dated 21st December, 1999, on his placement as a Selection Grade Lecturer - whether the 29th March, 2001 was a clarification of Clauses 6.16 to 6.19 of the Government Order dated 21st December, 1999, or whether, it amended or modified the same?
HELD THAT:- The Government Order dated 29th March, 2001 modifies the Government Order dated 21st December, 1999 by providing, inter-alia, that Lecturer would not be simultaneously eligible for the incentives under Clause 6.16 and 6.19 thereof. On a reading of the Government of Kerala’s Order dated 29th March, 2001, it is evident that teachers holding both M.Phil. degree and Ph.D. degree at the time of their entry in service are entitled to four advance increments which is as per the Government Order dated 21st December, 1999. However, the incentives specified in paragraphs 6.16 to 6.18 of the aforesaid Government Order are not to be given simultaneously. In other words, a teacher is not simultaneously eligible for the incentives as stated in paragraphs 6.18 and 6.19. Similarly, a teacher is not eligible for benefits specified in paragraphs 6.17 and 6.19 simultaneously. This would mean that this is the only modification made to the Order dated 21st December, 1999.
In the State Government Order dated 29th March, 2001 also, paragraph 3 reiterates that teachers holding both M.Phil. degree and Ph.D. degrees at the time of their entry in service are entitled to four advance increments which is on par with paragraph 6.16 of the Government Order dated 21st December, 1999. Paragraphs 4 and 6 of the said Order categorically state that the incentive specified in paragraphs 6.16 to 6.18 and paragraphs 6.18 and 6.19 of the earlier Government Order would not be simultaneously applicable. Even paragraph 7 of the said Order states that the teacher is not eligible for the benefits specified both in paragraphs 6.17 and 6.19 simultaneously.
Whether such a modification could be made applicable retrospectively., i.e., whether the Government Order dated 29th March, 2001 to the extent that it modifies the Government Order dated 21st December, 1999 would be applicable to those lecturers who had acquired a Ph.D. degree at the time of their recruitment, such as, Respondent No. 1, who were placed in the selection grade before 29th March, 2001? - HELD THAT:- The proposition of law that a clarificatory provision may be made applicable retrospectively is so well established that we do not wish to burden this judgment by referring to rulings in the same vein. However, it is necessary to dilate on the role of a clarification/explanation to a statute and how the same may be identified and distinguished from a substantive amendment.
Reliance placed in UNION OF INDIA & ORS. VERSUS M/S MARTIN LOTTERY AGENCIES LTD. [2009 (5) TMI 1 - SUPREME COURT] wherein it was stated that when a new concept of tax is introduced so as to widen the net, the same cannot be said to be only clarificatory or declaratory and therefore be made applicable retrospectively, even though such a tax was introduced by way of an explanation to an existing provision. It was further held that even though an explanation begins with the expression “for removal of doubts,” so long as there was no vagueness or ambiguity in the law prior to introduction of the explanation, the explanation could not be applied retrospectively by stating that it was only clarificatory.
Thus, the subsequent Government Order dated 29th March, 2001 cannot be declared as a clarification and therefore be made applicable retrospectively. The said order has substantively modified the Government Order dated 21st December, 1999 to the extent of stating that teachers who had already got the benefit of advance increments for having a Ph.D. degree, would not be eligible for advance increments at the time of their placement in the selection grade - Further, merely because the subsequent Government Order has been described as a clarification/explanation or is said to have been issued following a clarification that was sought in that regard, the Court is not bound to accept that the said order is only clarificatory in nature.
Thus, lecturers such as Respondent No. 1 who were placed in the selection grade before 29th March, 2001 would be entitled to all the incentives stipulated in the Government Order dated 21st December, 1999 - appeal dismissed.
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2023 (5) TMI 1245
Maintainability of application - barred in terms of Section 10(A) of the Insolvency and Bankruptcy Code, 2016 - date of default - HELD THAT:- Prima facie there is a merit in the argument of the Counsel for Appellant and therefore we issue a formal Notice to the Respondents for 27th June, 2023. The Appellants shall deposit the requisite process fee etc. for effecting service upon the Respondents.
In the meantime, operation of the Impugned Order shall remain stayed.
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2023 (5) TMI 1244
Exemption u/s 80P(2)(d) - income by way of interest from investment made with cooperative banks shall not be entitled to deduction - HELD THAT:- We hold that the assessee is eligible for 80P(2)(d) deduction in respect of interest earned from co-operative banks based on the view taken in M/s. Bhavasar Kshtriya Co-operative Credit Society Ltd. [2022 (10) TMI 850 - ITAT BANGALORE]
It is directed that interest earned by the assessee under the head Income from other sources by granting benefit available to the assessee u/s. 57 - We direct the AO to follow the directions therein and to compute the deduction in the hands of the assessee in accordance with law. Appeal filed by assessee stands allowed.
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2023 (5) TMI 1243
Benefit of section 80P - Claim denied on the ground of belated filing of Return of Income - as argued delay in filing of return of income was occasioned due to reasons beyond the control of the assessee - HELD THAT:- Assessee cannot be denied the deduction u/s. 80P on the ground that the return of income was not filed within the due date prescribed u/s. 139(1) of the Act under proceedings made u/s. 143(1) of the Act for the Assessment Year 2019-20. Thus the intimation u/s 143(1) is invalid in law and thereby quashed. See LUNIDHAR SEVA SAHKARI MANDALI LTD., LUNIDHAR VERSUS THE ASSESSING OFFICER (CPC) , BENGALURU [2023 (2) TMI 1012 - ITAT RAJKOT] - Appeal of the assessee is allowed.
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2023 (5) TMI 1242
Disallowances of losses on account of forfeiture of security deposit and inventory write off - counsel contended that the loss has been incurred by the assessee in the ordinary course of business arising from business commitment for which agreement was also executed - DR submitted that the directors of both the companies are from the same family - HELD THAT:- CIT(A) has given cogent reasons for non acceptance of the claim of the assessee. AO had earlier given detailed reason which goes to show that the claim remains unsubstantiated.
The onus in the instant case is very heavy on the assessee which the assessee has failed to discharge. The basis of calculation of security deposit, the proof of production of specialized glass, cost involved thereon is not available on record.
The agreement with the AE is also not available in original. Except for the transfer of fund to SAL, no other substantive evidence is available to enable us to appreciate the facts in its perspective. Without repeating various reasons provided in the assessment order and the first appellate order, we are of the view that the assessee has failed to discharge the onus towards bona fides of the claim.
Besides, it is not known as to how the payment made in pursuance of so called agreement entered in 2010 can be seen as loss accrued to the assessee in Assessment Year 2015-16 in question when the business operations were itself suspended in November, 2012. Both the assessee and the SAL are family controlled with common shareholding and therefore are privy to the exact affairs. It is not a case where a third party has been caught unaware resulting in unintended losses.
We are not convinced at all by the defense raised by the assessee in justification. We thus decline to interfere with the findings rendered by the lower authorities. Decided against assessee.
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2023 (5) TMI 1241
Money Laundering - proceeds of crime - transfer of shares by committing the offence of cheating, breach of trust, falsification and forgery - new offence unearthed by the Enforcement Directorate - power of police to investigate the case - compromise entered into between parties.
What is the nature of the new offence unearthed by the Enforcement Directorate, who are the accused in the said offence, who can investigate that offence and as to whether the first respondent police can investigate that offence arise in the instant case? - HELD THAT:- There cannot be any dispute that the Enforcement Directorate officials can neither investigate offences committed under the other acts nor interfere in the investigation conducted by another agency. However, this Court is of the view that would not mean that they have no right to file an impleading petition and oppose a quash petition filed against the FIR in the predicate offence. Since the Enforcement Directorate is concerned with the proceeds of the crime, it cannot be said as a rule that they have no right to intervene and assist the Court in a quash petition challenging the proceedings relating to the crime (i.e) the predicate offence. Though they cannot supervise the investigation of another agency or interfere in their investigation, their views cannot be shut, while this Court is hearing a petition to quash the proceedings relating to the predicate offence. Hence, this Court is of the view that the Enforcement Directorate’s impleading petition Crl.M.P.No. 4883 of 2023 deserves to be allowed and hence allowed.
Whether the impugned FIRs can be quashed on the basis of a compromise arrived at between the parties? - HELD THAT:- It is well settled that if the dispute arises out of a commercial transaction and has a predominant civil flavour, then the proceedings can be quashed on the basis of compromise. It is also settled that if the case relates to economic offences involving large-scale fraud or when there are other victims or persons involved besides the defacto complainant, then quashing on the basis of compromise may not be allowed. In the instant case, it is seen that the dispute between the defacto complainant and the accused is private in nature - That apart, it is the admitted case of the Enforcement Directorate that the offence alleged by the defacto complainant is not made out and that the defacto complainant had suppressed certain vital facts.
Thus, under normal circumstances, this Court would have quashed the impugned FIRs for the aforesaid reasons without any further discussion. However, the Enforcement Directorate have now in their impleading petition, stated that the petitioners and defacto complainant have committed other offences.
Thus it is seen that the Enforcement Directorate’s opposition to the quashing of the FIRs cannot be accepted. The Enforcement Directorate cannot resist the quashing of the FIRs prayed on the basis of compromise since the allegations in the FIRs have a predominant civil flavour which discloses a commercial dispute and is private in nature. There are no other victims or other persons involved in the offence alleged in the FIRs - The new offence said to have been committed by the petitioners alleged by the Enforcement Directorate has been the subject matter of the proceedings before the SEBI Act, 1992.
This Court is of the view that the impugned FIRs are liable to be quashed not only on the basis of the compromise but also since no offence has been made out on the allegations - Petition allowed.
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