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Showing 21 to 40 of 658 Records
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2007 (11) TMI 696
Issues involved: Dispute over land tax payment, ownership of property, issuance of possession certificate, appropriateness of writ remedy.
The petitioner requested the court to direct respondents 2 to 4 to accept the land tax paid for the property and change the Thandaper in his favor, along with seeking a possession certificate for the property. The respondents, in their counter affidavit, claimed that the State Government is the owner of the property due to a revenue sale. The learned Single Judge, noting the dispute over property title, ruled that a writ is not the appropriate remedy and directed the petitioner to establish his rights in a civil forum. The petitioner appealed this decision, arguing that he should not be required to prove his title in a civil suit.
The appellant contended that the learned Judge erred in directing him to establish his property rights through a civil suit. The court, while rejecting the appeal, modified the order to allow the petitioner to establish his rights in an appropriate forum through proper proceedings. This modification was made to safeguard the petitioner's interests without causing prejudice to the other party.
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2007 (11) TMI 695
Petition u/s 482 of the Code of Criminal Procedure - Compounding after the confirmation of the conviction passed by the Magistrate Court - Dishonor of Cheque u/s 138 of the Negotiable Instrument Act (Act) - "insufficiency of funds" - Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power u/s 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? - HELD THAT:- We hold that order passed in the revision which has become final cannot be altered by invoking Section 482 even if the matter is subsequently compromised between the parties or complainant wants to withdraw the complaint. By using inherent powers, court cannot violate the written provisions of the Code. If the offence is compounded, virtue of Section 320(8) will amount to acquittal and in view of Section 326, conviction confirmed by the High Court in revision cannot be modified by a proceedings u/s 482.
Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not further imposition of fine or any type of sentence can be passed in view of Section 320(8).
We are of the view that even if relief u/s 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction u/s 482. Thus, we overrule the decision of Sabu George's case to long as it holds that Section 482 can be invoked for accepting compounding of the offence under N.I. Act after the conviction is confirmed in a revision by the High Court.
In K. Kandasamy and Anr. v. K.P.M.V.P. Chandrasekharan Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S. Godge and Anr. [2005 (3) TMI 814 - SUPREME COURT]. Apex Court allowed the compounding of offence u/s 138 of the N.I. Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Supreme Court in appropriate proceedings if the offence is compounded, if so advised.
As found in Abdul Latheef's case (supra) the direction in the revisional order is to pay the compensation and not to deposit the compensation. Therefore if the amount is paid to the complainant there is no question of the petitioner undergoing default sentence. In this case as seen from joint petition entire amount ordered as compensation is paid. The remaining part is only the appearance of the petitioner before the Magistrate Court, and undergo imprisonment till the rising of the court.
Since there was the stay of execution of judgment, petitioner is allowed to appear before the Magistrate Court to receive the remaining part of the sentence if he chooses to do so. Hence this Criminal M.C. is dismissed.
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2007 (11) TMI 694
Issues involved:
Applicability of Article 136 of the Limitation Act, 1963 in execution proceedings.
Summary:
The appeal questioned the applicability of Article 136 of the Limitation Act in a case arising from a judgment and order passed by the Bombay High Court, Nagpur Bench, affirming a decision of the Civil Judge, Junior Division.
Background:
The suit filed by the predecessor-in-interest of the respondents was initially dismissed, but a second appeal led to a decree for possession of land. A review petition was filed and dismissed, leading to further legal proceedings.
Key Points:
- The appellant contended that the execution of the decree was barred by limitation due to lack of a stay order from the Court.
- The High Court upheld the execution proceedings, stating that the decree was enforceable immediately upon passing.
- The Supreme Court clarified that the decree for possession became enforceable upon pronouncement, and an execution petition was required within 12 years.
- The Court emphasized that the stay order from 1988 did not impact the execution of the decree, as it was meaningless after the review petition dismissal.
- The direction for computation of mesne profit did not hinder the execution of the possession decree.
Decision:
The Supreme Court held that both the Executing Court and the High Court erred in ruling that the Execution Petition was not time-barred. The appeal was allowed, and the impugned judgment was set aside with costs awarded.
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2007 (11) TMI 693
Issues involved: Challenge to notices for production of books of accounts for 1994-95 and 1995-96 on the ground of limitation.
Summary:
The petitioners challenged the notices (Exts. P7 to P9) to produce books of accounts for 1994-95 and 1995-96, arguing that the proceedings were time-barred. The petitioners relied on Rule 32(21) of the KGST Rules, which specifies the period for preservation of accounts by dealers. The rule mandates that accounts must be preserved for two years from the date of completion of final assessment or from the date of disposal of any appeal or revision related to the assessment. The petitioners contended that since there were no pending appeals or revisions, and the assessments had become final, the notices were issued beyond the prescribed time limit for book preservation. Consequently, the court disposed of the petition, directing the first respondent not to compel the petitioners to produce the books of accounts for the mentioned years. The penalty proposal contained in the notices was also quashed. However, the court clarified that the department could still collect information, compare it with the filed returns, and revise assessments if they find discrepancies, after issuing a notice to the petitioners. The respondents were permitted to disregard the limitation period for initiating proceedings from the date of filing the original petition until the judgment was produced.
In conclusion, the court ruled in favor of the petitioners, holding that the notices for production of books of accounts for 1994-95 and 1995-96 were time-barred as per the provisions of Rule 32(21) of the KGST Rules.
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2007 (11) TMI 692
Issues involved: Petitioner's entitlement to exemption, pending appeals (Ext.P2 and Ext.P7), Revenue Recovery proceedings (Ext.P8).
Entitlement to exemption: The petitioner claims entitlement to exemption and states that Ext.P2 appeal on this issue is pending consideration of the first respondent. The appeal is directed to be considered as per Ext.P4 judgment in W.A.1411/2007. The petitioner submits that the appeal will be considered at the State Level Committee to be convened by the first respondent within two months.
Assessment and appeals: For the assessment in the year 2002-03, Ext.P3 assessment notice was issued, and assessment was completed as per Ext.P6, rejecting the petitioner's claim for total exemption based on Ext.P1 notification. Subsequently, the petitioner filed Ext.P7 appeal and stay petition, which are pending consideration of the third respondent. While orders are not passed in the stay petition, Revenue Recovery proceedings have been initiated by Ext.P8, leading to the filing of the writ petition.
Conditional stay of recovery action: The judgment notes that the fate of Ext.P7 appeal depends on the outcome of Ext.P2 appeal. Considering this, the court decides to grant a conditional stay of Ext.P8. It is directed that further proceedings pursuant to Ext.P8 shall be deferred if the petitioner remits a sum of Rs. 4,00,000/- (Four Lakhs) within one month from the date of the judgment.
Conclusion: The writ petition is disposed of with the directive for the conditional stay of recovery proceedings upon the petitioner's compliance with the specified payment within the given timeframe.
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2007 (11) TMI 691
Issues Involved:
1. Illegal/Fraudulent Transfer of Petitioner's Shareholding
2. Illegal/Fraudulent Removal of Petitioner as Director
3. Illegal/Fraudulent Adjustment of Unsecured Loan
Summary:
1. Illegal/Fraudulent Transfer of Petitioner's Shareholding:
The petitioner alleged that his shareholding was transferred to Respondent No. 7 without his consent, and the original share certificates were still in his possession. The respondents argued that the petitioner had signed the transfer deeds and received full consideration. However, the petitioner produced the original share certificates during the hearing, and the respondents failed to produce the original certificates to prove the transfer. The court found that the transfer was done illegally and fraudulently, violating Section 108 of the Companies Act, 1956, and declared the transfer null and void, directing the company to rectify the register of members accordingly.
2. Illegal/Fraudulent Removal of Petitioner as Director:
The petitioner claimed that his removal as a director was illegal and based on a blank resignation letter handed over to the respondents. The respondents contended that the petitioner had resigned voluntarily and used the resignation letter to get his collateral security released from the bank. The court noted that directorial complaints are generally not grounds for a petition u/s 397/398 unless in the case of family companies or companies in the nature of partnership. The court found that the petitioner had resigned on his own and did not grant relief on this ground.
3. Illegal/Fraudulent Adjustment of Unsecured Loan:
The petitioner argued that his unsecured loan of Rs. 14,77,124/- was adjusted fraudulently in the company's books based on a non-existent 'Written Settlement Agreement.' The respondents failed to produce the agreement despite repeated opportunities. The court noted the continuous oppression due to the illegal adjustment and found the respondents' actions objectionable.
Conclusion:
The court dismissed the preliminary objections raised by the respondents regarding the petitioner's qualification u/s 399 of the Act and the maintainability of the petition. The court set aside the illegal transfer of the petitioner's shareholding and directed the company to rectify the register of members. The petitioner's removal as a director was not considered a valid ground for relief in this petition. The petition was disposed of with the above directions, and all interim orders were vacated.
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2007 (11) TMI 690
Issues involved:
The issues involved in this case include diversion of furnace oil, duty demands on imported furnace oil, duty demand on short receipt of furnace oil, demand on clandestinely removed yarn, duty demand on clearance of waste, confiscation of furnace oil, imposition of penalties, and personal penalties on individuals.
Duty demands on imported furnace oil:
The appellants procured fuel for electricity generation under EOU scheme. The demands were made for duty evasion on furnace oil allegedly diverted to another EOU unit. The Tribunal found no intention to evade duty as the oil was used within the EOU framework. The demands were set aside due to procedural errors and lack of malafide intent.
Duty demand on short receipt of furnace oil:
A demand was made based on short receipt of furnace oil, but it was found to be based on presumption and not corroborated by evidence. The demands were not upheld as there was no concrete proof of short deliveries.
Confiscation of furnace oil:
Confiscation of furnace oil was ordered by the Commissioner, but the Tribunal found no evasion of duty on the transferred oil. As the oil was not available for confiscation, the redemption fine was set aside.
Demand on clandestinely removed yarn:
Demands were raised on clandestinely removed yarn, but the Tribunal directed a reworking of the duty applicable based on previous Tribunal decisions regarding duty payments by EOUs.
Duty demand on clearance of waste:
The demand on clearance of waste was challenged as documents were not furnished to determine the classification of waste. The Commissioner was directed to re-determine the duty demand after providing necessary documents and hearing the appellants.
Imposition of penalties:
Penalties were imposed on the appellants and individuals under various rules. The determination of penalties was deferred pending quantification of demands. The appeals were partially allowed and partially remanded for further proceedings.
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2007 (11) TMI 689
The Delhi High Court dismissed the appeal by the Revenue against an order passed by the Income Tax Appellate Tribunal for the Assessment Year 2001-02. The Court held that no substantial question of law arose based on a previous decision.
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2007 (11) TMI 688
Issues involved:
The issue involves challenging the order passed by a learned Single Judge of the Madhya Pradesh High Court dismissing the criminal revision petition filed by the appellant. The main contention is regarding the application of Section 302 of the Indian Penal Code (IPC) to the facts of the case, specifically in relation to a fatal accident involving a bus and a train near an unmanned railway crossing.
Background Facts:
The incident occurred when a bus, driven by the appellant, was hit by a train at a railway crossing, resulting in injuries to several passengers and the death of two individuals. Charges were framed under Section 302 and alternatively under Section 304, 325, and 323 of the IPC. The appellant contested the framing of charges under Section 302, arguing that it was an error of judgment and that Section 304A IPC would be more applicable.
Appellant's Argument:
The appellant's counsel contended that the accident near the unmanned railway crossing, where the train hit the rear portion of the bus, indicated no apparent negligence on the part of the appellant. It was argued that Section 302 did not apply, and the more appropriate charge would be under Section 304A IPC.
Respondent's Argument:
In response, the respondent's counsel argued that the passengers' warnings to the appellant not to cross the railway line indicated negligence on the part of the appellant, who was allegedly acting rashly and negligently without proper care and caution.
Analysis of Section 304A IPC:
Section 304A of the IPC pertains to cases where death is caused by a rash or negligent act, without the intention to cause death or the knowledge that the act would likely result in death. It focuses on acts that are rash and negligent, directly leading to another person's death, with negligence and rashness being essential elements under this section.
Legal Interpretations:
Various legal sources were cited to explain negligence, recklessness, and the standard of care required under the law. The definitions and distinctions between negligence, recklessness, and intent were discussed, emphasizing the high degree of negligence required for criminal liability.
Judgment:
The Supreme Court allowed the appeal, altering the charges from Section 302 IPC to Section 304A IPC, along with additional sections under the IPC related to rash and negligent acts. The court found that prima facie, Section 302 IPC did not apply to the circumstances of the case, leading to the alteration of charges based on the analysis presented during the appeal.
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2007 (11) TMI 687
The Supreme Court dismissed the special leave petition, condoning the delay and stating that the Trial Court's findings were factual and did not require interference.
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2007 (11) TMI 686
Issues Involved:
1. Nullity of the foreign judgment and decree.
2. Territorial jurisdiction of the court.
3. Maintainability of the suit.
4. Applicability of Section 13 CPC to challenge the foreign judgment and decree.
5. Limitation period for filing the suit.
Summary:
Issue 1: Nullity of the Foreign Judgment and Decree
The plaintiff challenged the foreign judgment and decree of the High Court of Justice, Queen's Division Bench, England, claiming it was obtained fraudulently and without proper service of summons. The court examined whether the foreign judgment was conclusive u/s 13 of the Code of Civil Procedure (CPC). The court found that the judgment was given ex parte due to the plaintiff's non-appearance and did not address the merits of the case, thus failing to meet the requirements of Section 13(b) CPC, which mandates that a foreign judgment must be given on the merits to be conclusive.
Issue 2: Territorial Jurisdiction
The court held that it had territorial jurisdiction to try the suit as the defendants sought to enforce the decree within its jurisdiction, and the plaintiff resided and worked in Delhi. Therefore, the legality and validity of the enforcement of the decree had to be examined within the jurisdiction of this court.
Issue 3: Maintainability of the Suit
The defendants argued that the suit was not maintainable. However, the court noted that both the objections to the execution and the suit had to be examined together. The court concluded that the plaintiff was not devoid of a remedy to object to the execution of the decree.
Issue 4: Applicability of Section 13 CPC
The court reiterated that the foreign judgment did not meet the parameters of Section 13(b) CPC as it was not given on the merits of the case. The judgment was based solely on the plaintiff's failure to appear, and there was no evidence that the merits of the controversy were examined by the foreign court.
Issue 5: Limitation Period
The defendants raised the plea of limitation, but no positive evidence was led in that regard. The court found that the plaintiff's objections to the execution and the suit for declaration and injunction were not barred by limitation. This aspect was not seriously contested by the defendants.
Relief
The court decreed in favor of the plaintiff, declaring that the foreign judgment and decree were not conclusive and granted a permanent injunction restraining the defendants from enforcing the said decree. The objections to the execution were upheld, and the execution petition was dismissed. Each party was ordered to bear its own costs.
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2007 (11) TMI 685
Issues Involved:
1. Professional misconduct u/s 11(4) and 11B of the Securities and Exchange Board of India Act, 1992.
2. Violation of Regulations 4(a), 4(b), 4(c), 4(d), and 5 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 1995.
3. Violation of Regulation 3 of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992.
Summary:
Issue 1: Professional Misconduct
The Tribunal did not concern itself with the charge of professional misconduct against Arora in this appeal.
Issue 2: Violation of FUTP Regulations
The Board alleged that Arora compromised the interests of Indian unit holders to benefit ACM by manipulating trades in mid-cap companies with low floating stock. The Tribunal found that the evidence did not support the charge of entering into transactions with the intention of artificially affecting prices or creating a false or misleading appearance of trading. The Tribunal concluded that there was nothing artificial or non-genuine in the transactions cited, and there was a transfer of beneficial ownership in each transaction.
Issue 3: Violation of Insider Trading Regulations
Arora was accused of insider trading by selling DGL shares while in possession of unpublished price-sensitive information. The Tribunal found that the information Arora allegedly accessed did not turn out to be correct, as the merger was not announced on the expected date. The Tribunal held that the sale of securities was based on Arora's analysis of publicly available information, and there was no independent evidence to support the charge of insider trading.
Vicarious Liability of Appellants
The appellants were held vicariously liable for Arora's acts. However, since Arora was absolved of all charges by the Tribunal, the appellants could not be held vicariously liable. The Tribunal emphasized that a master can only be held liable if the servant is liable. As Arora was exonerated, the appellants were also not liable.
Judicial Discipline
The Tribunal stressed the importance of judicial discipline, stating that a coordinate Bench should not take a contrary view from an earlier judgment on the same set of facts. The Tribunal referred to the Supreme Court's observations in Sub-Inspector Rooplal v. Lt. Governor, emphasizing consistency in the interpretation of law to maintain public confidence in the judicial system.
Conclusion
The appeal was allowed, and the impugned order was set aside. The Tribunal did not find it necessary to decide on the quantification of the penalty. There was no order as to costs.
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2007 (11) TMI 684
Issues Involved:
1. Sanction of the scheme of arrangement between Bharti Airtel Ltd. and Bharti Infratel Ltd.
2. Objections raised by the Regional Director, Northern Region, Ministry of Company Affairs.
3. Approval by equity shareholders, secured and unsecured creditors.
4. Transfer and vesting of assets and liabilities.
5. Legal proceedings and contracts.
6. Employee transfer and benefits.
7. Tax credits and incentives.
8. Costs and expenses.
Detailed Analysis:
1. Sanction of the Scheme of Arrangement:
The court considered the petition for the sanction of the scheme of arrangement between Bharti Airtel Ltd. (transferor company) and Bharti Infratel Ltd. (transferee company). The scheme aimed to reorganize the telecom infrastructure operations of Bharti Airtel Ltd. by transferring them to its wholly-owned subsidiary, Bharti Infratel Ltd., for more efficient management.
2. Objections Raised by the Regional Director:
The Regional Director, Northern Region, Ministry of Company Affairs, raised two main objections:
- Lack of Detailed Assets and Liabilities: The scheme did not specify the individual assets and liabilities of the telecom infrastructure undertaking. The petitioners responded by providing provisional details as of 30.9.2007, which satisfied the court.
- Voting by Unsecured Creditors: One unsecured creditor entitled to Rs. 2,26,298 voted against the scheme. The petitioners clarified that the scheme was approved by a majority in number representing 99.73% of the value of unsecured creditors present and voting, satisfying the requirement under Section 391(2) of the Companies Act.
3. Approval by Equity Shareholders, Secured and Unsecured Creditors:
The scheme was approved unanimously without any modification by the equity shareholders, secured, and unsecured creditors of the transferor company. The meetings were convened as per the court's order, and the approval was documented through affidavits and reports submitted to the court.
4. Transfer and Vesting of Assets and Liabilities:
The court ordered that all property, rights, powers, liabilities, and duties of the telecom infrastructure undertaking of the transferor company be transferred to the transferee company without further act or deed, pursuant to Section 394(2) of the Companies Act, 1956. This includes:
- Movable and immovable assets.
- Current assets and liabilities.
- Permits, licenses, and approvals.
- Contracts and agreements.
5. Legal Proceedings and Contracts:
All legal proceedings by or against the telecom infrastructure undertaking of the transferor company will continue by or against the transferee company. The transferee company is authorized to execute necessary documents to give formal effect to the transfer of contracts and agreements.
6. Employee Transfer and Benefits:
All employees related to the telecom infrastructure undertaking will become employees of the transferee company on terms not less favorable than their current terms. The existing provident fund, gratuity fund, and other benefits will be transferred to the transferee company.
7. Tax Credits and Incentives:
The transferee company will succeed the transferor company in terms of tax credits and incentives. Unutilized credits for excise duties and service tax will be retained by the transferor company for its liabilities. Benefits under incentive schemes will be transferred to the transferee company.
8. Costs and Expenses:
The court ordered that the petitioners pay Rs. 20,000 to the official liquidator, which will be deposited in the common pool fund. All costs, charges, and expenses arising from the scheme will be borne by the transferee company.
Conclusion:
The court sanctioned the scheme of arrangement, declaring it binding on all shareholders and creditors of both companies. The scheme will be effective from the appointed date, i.e., the date on which a certified copy of the court order is filed with the Registrar of Companies, Delhi and Haryana. The court also provided directions for the transfer of assets, liabilities, and other procedural requirements to ensure the smooth implementation of the scheme.
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2007 (11) TMI 683
Issues involved: Whether the assessee is eligible to pay tax at the compounded rate u/s 7(7) of the Kerala General Sales Tax Act for the assessment year 2001-2002.
Summary:
The petitioner, a civil contractor, sought permission to pay tax at the compounded rate after receiving contract amounts, but the assessing authority rejected the request. The First Appellate Authority allowed the appeal, but the Sales Tax Appellate Tribunal reversed the decision. The assessee filed a Tax Revision Case challenging the Tribunal's decision.
Question of Law:
1. Whether the assessee can be denied the benefit of Section 7(7) of the KGST Act for the period prior to registration in the same financial year.
2. Whether the benefit of Section 7(7) is available only to registered dealers.
3. Whether the Tribunal was justified in canceling the first appellate order.
4. Whether the Assessing Authority was justified in completing the assessment without giving the assessee an opportunity to respond.
Court's Analysis:
The Rules mandate filing an application before receiving contract amounts to pay tax at the compounded rate. The contractor must make a bilateral agreement with the assessing authority for this purpose. In this case, the assessee applied for this benefit after receiving the contract amount, which was rightly rejected by the assessing authority. The court held that the assessee was not entitled to pay tax at the compounded rate due to non-compliance with Rule 30A(2).
Conclusion:
The court affirmed the decisions of the assessing authority and the Tribunal, rejecting the Tax Revision Case. The assessee's application for payment of tax at the compounded rate was dismissed.
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2007 (11) TMI 682
Issues involved:
Consideration for shares not paid, maintainability of petition u/s 399 of Companies Act, 1956, allegations of oppression and mismanagement.
Summary:
Consideration for shares not paid:
The petitioner had subscribed to 2,000 shares at the time of incorporation but they were not issued to him. The respondents argued that since the petitioner had not paid the consideration for the shares as agreed in the memorandum, he cannot be considered a member for the purposes of Section 399 of the Act. The petitioner contended that he was willing to pay for the shares but the respondents refused to accept the payment, which he considered as an act of oppression against him.
Maintainability of petition u/s 399:
To maintain a petition under Section 397/398 of the Act, the requirements of Section 399 need to be fulfilled. Section 399 specifies that only a member who has paid all calls and other sums due on their shares can apply under Section 397 or 398. In this case, the petitioner had subscribed to the memorandum, his name was entered in the register of members, and he was allotted 10,000 shares. However, he had not paid the consideration for the 2,000 shares he agreed to subscribe, which became due immediately on incorporation. The petitioner's offer to pay was conditional on the respondents also contributing, which they did not agree to. As a result, the petitioner failed to fulfill the requirements of Section 399, and the petition was dismissed as not maintainable.
Allegations of oppression and mismanagement:
The petitioner alleged oppression and mismanagement by the respondents for not accepting his payment towards the shares and for claiming that he cannot maintain the petition due to non-payment of consideration. The petitioner argued that the respondents' refusal to accept his payment was oppressive, and he was willing to contribute if the company agreed. However, the Board found that the petitioner had not paid the consideration due on the shares, making the petition not maintainable under Section 399 of the Act.
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2007 (11) TMI 681
Issues Involved:
1. Legality of the transfer of shares.
2. Compliance with Section 108 of the Companies Act, 1956.
3. Maintainability of the petition under Sections 397 and 398 of the Companies Act, 1956.
4. Delay and laches in filing the petition.
5. Allegations of fraud and destruction of company records.
6. Petitioner's qualification under Section 399 of the Companies Act, 1956.
7. Alternative remedy under Section 111 of the Companies Act, 1956.
Detailed Analysis:
1. Legality of the Transfer of Shares:
The petitioner alleged that the transfer of his 5,001 shares (50% shareholding) in the company to respondent No. 2 was illegal, as there was no legally valid instrument of transfer or transfer deed executed by him. Consequently, the further transfer of 2,500 shares by respondent No. 2 to respondent No. 3 was also deemed illegal. The petitioner sought a declaration that the transfer was null and void and requested the restoration of his shares and rectification of the company's register of members.
2. Compliance with Section 108 of the Companies Act, 1956:
The petitioner argued that, according to Section 108 and the articles of association, the transfer of shares must be accompanied by a valid and legally executed instrument of transfer, which was not produced by the respondents. The absence of such a document rendered the registration of the transfer void ab initio. The petitioner cited precedents to support this argument, emphasizing that without a legally valid instrument, the transfer could not be registered.
3. Maintainability of the Petition under Sections 397 and 398 of the Companies Act, 1956:
The respondents raised a preliminary objection, arguing that the petitioner was not a member of the company as per the register of members and therefore, did not have the right to file a petition under Sections 397 and 398. The petitioner had to establish his right to apply under Section 399 of the Companies Act, 1956, which he failed to do. The court referred to the case of Ved Prakash v. Iron Traders P. Ltd., which held that only members listed in the register could maintain a petition under these sections.
4. Delay and Laches in Filing the Petition:
The respondents argued that the petitioner had delayed filing the petition, as the alleged illegal transfer occurred in 2003, but the petition was filed in 2007. The petitioner claimed he discovered the illegal transfer in February 2007, but the respondents highlighted that no explanation was provided for the delay from 2003 to 2007. The court cited precedents emphasizing that a slothful party is not entitled to discretionary relief due to unexplained delays.
5. Allegations of Fraud and Destruction of Company Records:
The petitioner alleged that the respondents had destroyed statutory records and documents to cover up the illegal transfer of shares. During an inspection ordered by the Company Law Board, the respondents failed to produce the required documents, indicating possible destruction of evidence. The petitioner argued that these actions constituted continuous acts of oppression and mismanagement.
6. Petitioner's Qualification under Section 399 of the Companies Act, 1956:
The petitioner did not meet the necessary qualifications under Section 399 to file a petition under Sections 397 and 398, as he was not listed as a member in the company's register. The court emphasized that the petition under these sections must be accompanied by documentary evidence proving the petitioner's eligibility and status as a member with the requisite voting power.
7. Alternative Remedy under Section 111 of the Companies Act, 1956:
The court noted that the petitioner's case could be remedied under Section 111 of the Companies Act, 1956, which deals with the rectification of the register of members. Since the petition was not maintainable due to non-qualification under Section 399, the petitioner was advised to pursue this alternative remedy.
Conclusion:
The petition was dismissed on the grounds of non-qualification under Section 399 of the Companies Act, 1956. The court did not address other preliminary objections regarding delay, laches, and the petitioner's conduct, nor did it delve into the merits of the case. All interim orders were vacated, and no order as to costs was made.
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2007 (11) TMI 680
The Delhi High Court dismissed the Revenue's appeal against the Income Tax Appellate Tribunal's order dated 10th March, 2006 for the Financial Year 1997-1998 as no substantial question of law arose due to a previous decision regarding the same assessee. (Citation: 2007 (11) TMI 680 - DELHI HIGH COURT)
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2007 (11) TMI 679
Issues involved:
The legal right of the respondent for appointment against the post of three security guards advertised by the appellant institute.
Summary:
The Supreme Court considered whether the respondent had a legal right to be appointed as a security guard. An advertisement was issued for three permanent security guard posts, and the respondent's name appeared on the select list. However, he was not offered an appointment while others were. The appellant later decided to contract out some services, including security guards. A Single Judge of the High Court dismissed the respondent's writ petition, stating that the decision to abolish a post is a management decision and not arbitrary unless malice is proven. On appeal, the Division Bench held that the decision to contract out services did not abolish the vacancy, and the next person on the list should be considered for appointment.
The appellant argued that the High Court erred in finding a temporary vacancy existed. Precedents were cited to show that inclusion in a select list does not guarantee appointment, and the State is not obligated to fill all vacancies. The respondent contended that no policy decision was made to contract out security services in his department, so he had a legitimate expectation of appointment. The Court emphasized that each case must be considered on its own merit.
Citing various legal precedents, the Court reiterated that being on a select list does not confer an indefeasible right to appointment. The judgment of the High Court was upheld, noting that the respondent, an ex-serviceman, should have been offered the appointment when vacancies existed. The policy decision to abolish posts was made after the respondent filed the writ petition, and thus, the Court declined to interfere with the High Court's decision. The appeal was dismissed.
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2007 (11) TMI 678
Issues involved: Appeal against order imposing penalty u/s 8(3) and 9(1)(a) of FERA for contravention, contention of forged documents acquisition, reliance on confessional statement, evidence of remittance abroad, retraction of statement, burden of proof.
Summary:
The appellant appealed against the order imposing a penalty u/s 8(3) and 9(1)(a) of FERA for contravention. The Adjudicating Officer had imposed a penalty for failure to utilize foreign exchange as released and for remitting the same outside India without permission. The appellant contended that Section 8(3) was not attracted and the confessional statement was retracted, lacking corroboration. On the other hand, revenue argued that foreign exchange was acquired based on forged documents, fully proving offenses u/s 8(3) and 9(1)(a) of FERA.
The tribunal found that the foreign exchange was acquired on forged documents and transferred abroad, rejecting the appellant's contentions. It held that the confessional statement, though retracted, was admissible as there was no evidence of coercion. Relying on precedent, the tribunal found documentary and circumstantial evidence supporting the charges against the appellant, noting the appellant's unique knowledge of clandestine dealings. The tribunal also held that the appellant failed to discharge the burden of proof.
Upon review, the court agreed with the tribunal's findings, stating that the mere allegation of coercion in the confessional statement was insufficient without evidence. It upheld the reliance on the confessional statement and found no reason to dispute the findings regarding forged documents acquisition and remittance abroad. The court deemed these findings as factual and not perverse, leading to the dismissal of the appeal.
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2007 (11) TMI 677
Issues involved: Appeal u/s 260-A of the Income Tax Act, 1961 against ITAT order dismissing revenue's appeal for assessment years 1992-93 to 1994-95 due to low tax effect and allowing deduction u/s 80IA to the assessee.
Issue 1: Appeal against ITAT order
The appeal was filed by the revenue against the ITAT order dismissing the appeal for assessment years 1992-93 to 1994-95. The ITAT had disposed of the appeals against the CIT (A) Nagpur order, where appeals for 1992-93 and 1994-95 were dismissed due to tax effect not exceeding Rs. 1 lac, contrary to CBDT directions. The ITAT relied on previous decisions and dismissed the appeal for AY 1994-95 as well, as deduction u/s 80IA was allowed in the initial year and should not be denied in subsequent years.
Issue 2: Claim of deduction u/s 80IA
The revenue contended that the assessee's activities in the dairy division did not qualify as manufacturing activities, questioning the allowance of deduction u/s 80IA by CIT and ITAT. The revenue did not challenge the deduction granted for the initial assessment year 1992-93 due to low tax effect. On the other hand, the respondent argued that the ITAT's decision was justified, citing the principle that once a deduction is permitted in a year, it cannot be disallowed in subsequent years.
The High Court found no merit in the revenue's appeal, upholding the ITAT's decision based on the precedent set in CIT vs. Paul Brothers. The Court emphasized that if a deduction is allowed in a particular year, it cannot be denied in later years. The Court criticized the revenue for not challenging the deduction granted in the initial year, stating that they should have been aware of the legal principle. As a result, the appeal was dismissed, and no substantial question of law was found. The Court did not delve into the debate on whether the activities in the dairy division constituted manufacturing activities, as it was unnecessary given the circumstances.
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