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Showing 21 to 40 of 1817 Records
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2013 (11) TMI 1804
Issues Involved:
1. Whether the ex-parte decree dated 21.2.2006 should be set aside.
2. Whether the delay in filing the application u/s 5 of the Limitation Act, 1963 should be condoned.
Summary:
Issue 1: Setting Aside the Ex-Parte Decree
The appellant challenged the order dated 8.8.2011, which dismissed his application under Order 9 Rule 13 of CPC for setting aside an ex-parte decree dated 21.2.2006. The appellant argued that he was not personally liable for the debts of respondent No. 2 and that the decree was collusive since respondent No. 1, a shareholder of respondent No. 2, did not contest the suit. The court noted that both the appellant and respondent No. 2 were served with summons, and the appellant admitted receiving them but did not appear in court. The court held that the appellant's reason for non-appearance, based on assurances from respondent No. 2, did not constitute "sufficient cause" under Order 9 Rule 13 of CPC. The court cited the Supreme Court's interpretation of "sufficient cause" in Parimal v. Veena and G.P. Srivastava v. R.K. Raizada, emphasizing that the appellant was negligent and lacked bona fide in pursuing the case. The court concluded that the appellant failed to show sufficient cause for non-appearance and upheld the learned Single Judge's decision.
Issue 2: Condonation of Delay
The appellant also filed an application u/s 5 of the Limitation Act, 1963, for condoning the delay in filing the application to set aside the ex-parte decree. The court noted that the appellant became aware of the decree on 25.9.2009 but did not act promptly. The learned Single Judge had already considered the delay and found no plausible explanation for it. The court agreed with this assessment and found no merit in the appellant's request for condonation of delay.
Conclusion:
The court dismissed the appeal and the application, finding no sufficient cause for setting aside the ex-parte decree or for condoning the delay. The appellant's negligence and lack of bona fide were highlighted as key reasons for the dismissal. The decision of the learned Single Judge was affirmed, and the appeal was dismissed with no order as to costs.
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2013 (11) TMI 1803
Issues involved:
The issues involved in the judgment are the filing of a suit for recovery of a certain amount based on a promissory note, the dismissal of an application under Section 45 of the Indian Evidence Act to send the promissory note to a handwriting expert for determination of the age of the signature, and the subsequent revision of the trial court's decision.
Filing of Suit for Recovery:
The respondent filed a suit against the petitioner for recovery of an amount based on a promissory note dated 20-10-2008, alleging non-payment despite repeated demands. The petitioner contended that he had signed a promissory note in 2000 at the request of another individual, and after that individual's death, he made payments in installments. The petitioner claimed that the suit was filed with a fictitious date, despite assurances that the original promissory note would be destroyed.
Dismissal of Application under Section 45 of the Indian Evidence Act:
The petitioner filed an application under Section 45 of the Indian Evidence Act to determine the age of the signature on the promissory note dated 20-10-2008. The trial court dismissed the application, noting that while such applications are common in suits involving promissory notes, the specific request in this case was peculiar. The court highlighted the complexities involved in determining the age of a signature, especially considering factors like the age of the ink or pen used. The court emphasized that the mere determination of age does not conclusively establish the age of the signature, except in certain forensic cases. The court also referenced a judgment from the Karnataka High Court related to a criminal trial, emphasizing the different parameters involved.
Revision of Trial Court's Decision:
The High Court declined to interfere with the trial court's decision to dismiss the application under Section 45 of the Indian Evidence Act. The court advised the petitioner to present any evidence in his possession to support his contentions. The Civil Revision Petition (C.R.P.) was accordingly dismissed, allowing the petitioner to raise his plea in the written statement. The court disposed of the miscellaneous petition filed in the C.R.P. with no order as to costs.
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2013 (11) TMI 1802
Issues involved: Validity of order cancelling registration of sale deed, authority to execute sale deed, fraud and manipulation in execution of sale deed, applicability of Government Order dated 13.8.2013, protection of bona fide purchaser's interest, authority of Registering Authority to cancel sale deed.
Validity of order cancelling registration of sale deed: Petitioner challenged the order cancelling the registration of a sale deed executed in his favor, claiming to be a bona fide purchaser. Respondents alleged that the property belonged to them based on a gift deed dated 5.10.2005. The Assistant Inspector General of Registration issued notices and after an enquiry, the order cancelling the registration was passed. Petitioner argued that the cancellation was improper, while respondents contended that the sale deed was executed fraudulently.
Authority to execute sale deed: The Court found that the property in question was owned by Kunwar Bahadur Bhatnagar, who had executed a gift deed in favor of the respondents in 2005. After his death, the respondents became the owners. The sale deed executed by the petitioner's vendors, claiming inheritance from Kunwar Bahadur Bhatnagar, was deemed fraudulent as they had no legal authority to execute it. The Court upheld the cancellation of the sale deed based on the fraudulent execution.
Applicability of Government Order dated 13.8.2013: The Government Order reiterated the authority of judicial, quasi-judicial, and administrative bodies to recall orders obtained through fraud. The Court approved the Order, emphasizing that fraud vitiates proceedings and any benefits obtained through fraud cannot stand. The Court held that the Order did not introduce new rules but reiterated established legal principles regarding fraud.
Protection of bona fide purchaser's interest: While the petitioner claimed to be a bona fide purchaser, the Court focused on the lack of legal authority of the vendors to execute the sale deed. The Court emphasized that transactions by imposters cannot be approved of, even if the purchaser is bona fide. The Court highlighted that the petitioner could seek remedies against the vendors for compensation and take criminal action.
Authority of Registering Authority to cancel sale deed: The Court cited the Full Bench of Andra Pradesh High Court, stating that registering authorities have the power to cancel sale deeds obtained through fraud. The Court emphasized that a person with a valid title must enjoy their property rights, and the registering authority can cancel fraudulent transactions to protect the true owner's rights. The Court dismissed the writ petition, stating that the petitioner could seek recourse through a civil suit if they felt their substantive rights were affected.
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2013 (11) TMI 1801
Issues involved: Validity of reopening assessment after expiry of four years u/s 147.
Summary:
The appeal was filed by the revenue against the order of the CIT(A), pertaining to the assessment year 2004-05. The ld.DR argued that the assessment proceedings were reopened after the expiry of four years, which the CIT(A) deemed invalid. The Kerala High Court judgment was cited to support the contention that the assessee's duty is to bring relevant details to the assessing officer's notice. However, the ld.representative for the assessee argued that all necessary details were provided during the original assessment proceedings, and the books of account were seized by the department. The Tribunal noted that the assessing officer had specifically requested details related to partners' capital account and current account, which were duly provided by the assessee. Therefore, the Tribunal concluded that there was no negligence on the part of the assessee in furnishing the required details for completing the assessment, and upheld the order of the CIT(A) dismissing the revenue's appeal.
The assessing officer had completed the assessment earlier u/s 143(3) and reopened it after four years, which was challenged by the revenue. The ld.DR argued that the assessee failed to bring relevant details to the assessing officer's notice, justifying the reopening. However, the Tribunal disagreed, noting that this was a search assessment where the books of account were seized by the department. The assessing officer had specifically requested details which were provided by the assessee. As there was no negligence on the part of the assessee in furnishing the required details, the Tribunal confirmed the order of the CIT(A) dismissing the revenue's appeal.
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2013 (11) TMI 1800
Issues Involved:
1. Territorial Jurisdiction
2. Forum Conveniens
Summary:
1. Territorial Jurisdiction:
The primary issue in the appeal was whether the Delhi High Court had territorial jurisdiction to entertain the writ petition challenging the State Government's decision to grant a prospecting license to respondent no. 3. The appellant argued that since the Central Government's revisional order, a significant part of the cause of action, was passed in New Delhi, the Delhi High Court had jurisdiction. The appellant cited the MMDR Act and MCDR, 1988, emphasizing that the Central Government's approval was obtained at every stage. The appellant also referenced the Vishnu Security Services case, which held that a writ would be maintainable in both the courts where the original and appellate authorities are situated.
2. Forum Conveniens:
The learned Single Judge dismissed the writ petition on the grounds of forum conveniens, stating that the Delhi High Court was not the convenient forum. The appellant contended that the learned Single Judge failed to appreciate the principles laid down in Vishnu Security Services and Jan Chetna, which allowed the petitioner to choose the forum. The respondent argued that the Single Judge had considered identical arguments and relied on the principle that the High Court should refrain from exercising jurisdiction if a substantive part of the cause of action arises outside its territorial jurisdiction.
The judgment referenced the Full Bench decision in Sterling Agro Industries Ltd., which emphasized the doctrine of forum conveniens, stating that even if a minuscule part of the cause of action arises within the jurisdiction of a court, the court may refuse to entertain the writ petition if it is not the convenient forum. The Full Bench clarified that the situs of the appellate or revisional authority is not the determinative factor and that the High Court should consider the convenience of all parties involved.
The court concluded that the reasons given by the learned Single Judge for refusing to entertain the writ petition were cogent and germane, as the matter had a local flavor, with the mine situated in Maharashtra and the primary decision taken by the State of Maharashtra. The court held that it was inconvenient for the Delhi High Court to entertain the writ and that the Bombay High Court was better equipped to deal with the case. Consequently, the appeal was dismissed with no order as to costs.
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2013 (11) TMI 1799
Issues Involved:
1. Whether the canteen run by HCI for Air India is a statutory canteen under the Factories Act.
2. Whether engaging contract workers in the canteen amounts to a sham and camouflage by Air India.
3. Validity of the findings and reasons recorded by the CGIT.
4. Whether the High Court's findings in setting aside the CGIT's award are erroneous.
5. Reliefs entitled to the concerned workmen.
Summary:
Issue 1: Statutory Canteen
The CGIT concluded that the canteen run by HCI for Air India is a statutory canteen required u/s 46 of the Factories Act, 1948, as Air India employs more than 250 workers. The Delhi Factory Rules, 1950, particularly Rules 65 to 70, mandate the provision of such canteens. The Notification dated 21st January 1991, issued by the Lt. Governor of Delhi, included Air India in the schedule of factories required to maintain a canteen.
Issue 2: Sham and Camouflage
The CGIT found that the employment of canteen workers through HCI, a wholly-owned subsidiary of Air India, was a sham to circumvent the statutory obligations and deny workers their legitimate rights. The practice of employing workers for 40 days with artificial breaks was deemed an unfair labor practice u/s 2(ra) of the Industrial Disputes Act, 1947. The Supreme Court, referring to the principles laid down in Hussainbhai v. Alath Factory Thezhilali Union and other cases, upheld the CGIT's decision to pierce the corporate veil and recognize Air India as the principal employer.
Issue 3: Validity of CGIT Findings
The CGIT's findings were based on substantial evidence, including admissions by Air India's witness that more than 2000 employees availed of the canteen facilities. The CGIT rightly held that the concerned workmen were employed in permanent vacancies and were entitled to regularization as employees of Air India. The Supreme Court agreed with these findings, emphasizing that the statutory obligation to provide a canteen indicates the permanent nature of the work.
Issue 4: High Court's Findings
The High Court's decision to set aside the CGIT's award was found erroneous. The High Court had relied on the separate legal identity of HCI and Air India, ignoring the statutory obligations and the real employer-employee relationship. The Supreme Court held that the High Court exceeded its jurisdiction by interfering with the CGIT's well-founded findings and failed to apply the correct legal principles.
Issue 5: Reliefs to Workmen
The Supreme Court restored the CGIT's award, directing Air India to absorb the concerned workmen as permanent employees with all consequential benefits, including back wages. The termination of services during the pendency of the dispute was deemed illegal, and the affected workmen were ordered to be reinstated with full back wages.
Separate Judgment:
Justice V. Gopala Gowda dissented, emphasizing the need to pierce the corporate veil and recognize the statutory obligations of Air India. He highlighted the unfair labor practices and the permanent nature of the work, supporting the CGIT's findings and the workmen's claims for regularization.
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2013 (11) TMI 1798
Issues Involved:
1. Title holder of the suit land.
2. Illegal dispossession by defendant No. 2.
3. Jurisdiction of the trial Court.
4. Entitlement of plaintiffs for relief.
5. Suit barred by limitation.
6. Jurisdiction of Civil Court post notification u/s 3 & 4 of the Forest Act.
Summary:
Issue 1: Title Holder of the Suit Land
The trial Court affirmed that the suit property was the ancestral property of the plaintiffs and defendants No. 3 to 5. The first appellate Court confirmed this judgment.
Issue 2: Illegal Dispossession by Defendant No. 2
The trial Court held that defendant No. 2 had illegally and forcefully dispossessed the plaintiffs and defendants No. 3 to 5 from the suit property. This finding was upheld by the first appellate Court.
Issue 3: Jurisdiction of the Trial Court
The trial Court concluded that it had jurisdiction to hear the case, noting that the Indian Forest Act, 1927 does not expressly bar the jurisdiction of Civil Courts. The first appellate Court agreed with this conclusion.
Issue 4: Entitlement of Plaintiffs for Relief
The trial Court granted the relief sought by the plaintiffs, declaring them and defendants No. 3 to 5 as the title holders of the suit land. The first appellate Court upheld this decision.
Issue 5: Suit Barred by Limitation
The trial Court decided that the suit was not barred by limitation, as the defendants failed to provide evidence of when the suit property came under forest land. This decision was also upheld by the first appellate Court.
Issue 6: Jurisdiction of Civil Court Post Notification u/s 3 & 4 of the Forest Act
The High Court examined whether the Civil Court's jurisdiction was barred after the issuance of notifications u/s 3 & 4 of the Forest Act. The Court noted that the State Government had issued a notification u/s 4 of the Forest Act declaring the area, including the suit land, as reserved forest. The Court referred to the explanation u/s 4(1) of the Forest Act, which allows for the description of forest limits by readily intelligible boundaries rather than specific Khasra numbers. The Court concluded that the land in question falls within the reserved forest area, thus making the provisions of the Forest Act applicable.
The High Court cited precedents emphasizing that the exclusion of Civil Court jurisdiction must be explicitly expressed or clearly implied. It held that the trial Court erred in asserting jurisdiction over the suit, given the alternative remedy provided under the Forest Act. Consequently, the High Court allowed the second appeal, setting aside the judgments and decrees of the trial and first appellate Courts. The plaintiffs were advised to approach the competent authority under the provisions of the Forest Act.
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2013 (11) TMI 1797
Issues Involved:
1. Deletion of addition made on account of estimation of Gross Profit (GP) by rejecting the books of accounts u/s 145 of the Income Tax Act.
Summary:
Issue 1: Deletion of Addition on Account of Estimation of GP by Rejecting Books of Accounts u/s 145
The Revenue appealed against the CIT(A)-II, Ahmedabad's order, which deleted an addition of Rs. 1,62,22,980/- made by the AO on account of estimation of GP by rejecting the assessee's books of accounts u/s 145 of the Income Tax Act. The AO observed a significant decline in the GP rate from 13.69% in the previous year to 7.43% in the year under consideration. The assessee attributed this decline to increased costs of goods sold and provided comparative statements to support this claim. However, the AO found the explanations insufficient and estimated the GP rate by averaging the GP rates of the last two years, resulting in an addition of Rs. 1,62,77,255/-.
The CIT(A) upheld the rejection of the books of accounts u/s 145(3) but deleted the addition, noting that no defects were found in the books for the post-search period, and the fall in GP was covered by the disclosure of unaccounted income of Rs. 2.10 crores. The CIT(A) also found that the increase in purchase prices justified the decline in GP.
Upon appeal, the ITAT observed that the AO did not point out any specific defects in the post-search period books and that the CIT(A) had provided a detailed explanation for the fall in GP. The ITAT found no reason to interfere with the CIT(A)'s order, as the Revenue could not provide any material evidence to counter the CIT(A)'s findings. Consequently, the ITAT dismissed the Revenue's appeal and upheld the deletion of the addition.
Conclusion:
The appeal of the Revenue was dismissed, and the CIT(A)'s order deleting the addition of Rs. 1,62,22,980/- was upheld.
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2013 (11) TMI 1796
Issues Involved:
1. Appointment of Advocate-commissioner u/r 10A and 10B of Order 26 CPC.
2. Allegation of interpolation, forgery, and backdating in the Minutes Book.
3. Relevance of expert opinion and scientific investigation.
Summary:
1. Appointment of Advocate-commissioner u/r 10A and 10B of Order 26 CPC:
The petitioner, the first defendant in the suit, filed an Interlocutory Application seeking the appointment of an Advocate-commissioner to take possession of the original Minutes Book of the Board of Directors and deliver it to the Forensic Department for expert opinion. The petitioner alleged that certain entries in the Minutes Book were interpolated or forged.
2. Allegation of interpolation, forgery, and backdating in the Minutes Book:
The petitioner claimed that the Board's Resolution dated 30.03.2005, as recorded in the Minutes Book, was backdated and interpolated with malafide intention. The petitioner argued that the alleged agreement of sale dated 10.01.2004 was not ratified by the company and that the entries in the Minutes Book were manipulated.
3. Relevance of expert opinion and scientific investigation:
The Court noted that the disputed portion of the Minutes Book was written by the same person using the same ink, and there was no change in handwriting. The Court emphasized that expert opinion is relevant but not conclusive proof. The Court referred to several precedents, including *State (Delhi Administration) v. Pali Ram* and *Chandran Udayar v. Kasivel*, highlighting that the opinion of handwriting experts should be used cautiously and that the age of the ink cannot be determined with scientific accuracy.
Judgment:
The Court dismissed the petition, stating that the petitioner had no locus standi to raise the plea on behalf of the company. The Court found no evidence of interpolation or forgery in the Minutes Book and noted that the original Minutes Book was not produced by the petitioner. The Court concluded that there was no scope for scientific investigation as the same ink was used, and the other Directors did not dispute the entries. The petition was deemed legally unsustainable and dismissed, with the Court directing the lower court to dispose of the suit on merits, uninfluenced by the findings in this order.
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2013 (11) TMI 1795
Issues Involved:
1. Constitutional Accountability and Statutory Answerability
2. Social Justice and Dignity of Living
3. Payment of Salaries and Absorption of Employees
4. Role of the State as a Model Employer
5. Liquidation Proceedings and Division of Assets
Summary:
1. Constitutional Accountability and Statutory Answerability:
The Supreme Court addressed the unbearable tragedy faced by employees due to starvation and stress caused by the abandonment of responsibility by the States of Jharkhand and Bihar. The Court criticized the States for their stance that JHALCO and BHALCO being companies under the Companies Act, 1956, the employees should initiate winding up proceedings to get their dues. The Court emphasized that such a stance is devoid of constitutional accountability and statutory answerability.
2. Social Justice and Dignity of Living:
The Court referred to various precedents to highlight the importance of social justice, dignity of living, and the judiciary's role in ensuring these principles. It stressed that the Preamble of the Constitution and directive principles of State policy cast a responsibility on the State to sustain social and economic security. The Court reiterated that the employer, within the meaning of Article 12 of the Constitution, has a sacrosanct duty to act in terms of the sacred objectives of social and economic justice.
3. Payment of Salaries and Absorption of Employees:
The litigation history revealed that BHALCO employees were not paid salaries for years, leading to starvation deaths and suicides. The Supreme Court had earlier directed the State of Bihar to deposit Rs. 50 crores for salary disbursement. Despite directions, the States failed to resolve the issue, leading to further litigation. The High Court directed the State of Bihar to pay salaries till 16.6.2011 and JHALCO to absorb the unabsorbed employees. The Supreme Court modified this, directing the States of Bihar and Jharkhand to pay salaries from 1.1.1995 to 13.9.2004, with interest, and closed the claim for absorption.
4. Role of the State as a Model Employer:
The Court emphasized that both States and Corporations have failed to act as model employers. They have shown a lack of responsibility and vision, treating employees with indifference. The Court highlighted that a model employer must ensure the legitimate aspirations of employees are not guillotined and that they are treated with dignified fairness.
5. Liquidation Proceedings and Division of Assets:
The Central Government directed the State of Bihar to initiate liquidation proceedings for BHALCO, which the State of Jharkhand conceded to. The Supreme Court noted the States' vacillating stands and directed that the States of Bihar and Jharkhand must pay the employees their due salaries for the specified periods, with interest, and compute the salary component after granting the benefit of pay revision extended to other employees. The claim for absorption was closed.
Conclusion:
The Supreme Court's judgment underscores the constitutional duty of States to ensure social and economic justice for employees, the necessity for prompt and responsible action in bifurcation scenarios, and the imperative for States to act as model employers. The Court provided specific directions for payment of salaries and interest to the affected employees, thereby addressing their prolonged suffering.
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2013 (11) TMI 1794
Issues:
The judgment involves determining whether the income derived from letting out premises should be classified as business income or income from house property.
Issue 1 - Classification of Income:
The assessee, engaged in the development of computer software, declared rental income as part of business income and claimed depreciation on the property. The assessing authority categorized the income as from 'house property' and disallowed depreciation. The Commissioner of Income-tax (Appeals) considered it as income from the exploitation of commercial assets and allowed depreciation. The Tribunal found the income to be from 'house property' but disagreed with treating it all as business income, remanding the matter for proper assessment.
Issue 2 - Nature of Business Income:
The appellant argued that the leased fully furnished office space was part of their commercial asset, thus constituting business income. The Lease Deed detailed the premises leased for business use, with agreed rent and terms. The Tribunal concluded that the income was from house property, not business, as the assessee's primary business was software development, not property rental.
Conclusion:
The High Court upheld the Tribunal's decision, stating that the income derived from renting out the premises was rightly classified as 'income from house property.' The Court emphasized that the assessee's main business was software development, not property rental, and therefore, the income should be treated as such. The Tribunal's decision to remand the matter for proper assessment of deductions related to house property income was deemed justified, with no substantial legal question arising for consideration. The appeal was dismissed.
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2013 (11) TMI 1793
Issues Involved:
1. Relationship of landlord and tenant.
2. Title and adverse possession.
3. Jurisdiction of civil court under special enactments.
4. Amendment of plaint for recovery of possession.
Summary:
1. Relationship of Landlord and Tenant:
The appellant-plaintiff filed Civil Suit No. 259A/86 for eviction and mesne profits, claiming the respondent-defendant was a tenant under the previous owner. The trial court found no landlord-tenant relationship, a finding not contested by the appellant's counsel. The High Court affirmed this, stating that without proving the landlord-tenant relationship, eviction could not be sought under the M.P. Accommodation Control Act, 1961.
2. Title and Adverse Possession:
The trial court held that the sale deed to the appellant was without consideration, and the respondent had acquired title by adverse possession. The appellate court reversed this, validating the sale deed and rejecting the adverse possession claim. The High Court, however, reinstated the trial court's decision, emphasizing that eviction could not be based on title alone without proving the landlord-tenant relationship.
3. Jurisdiction of Civil Court under Special Enactments:
The Supreme Court analyzed the jurisdictional limits of civil courts under special enactments like the M.P. Accommodation Control Act. It distinguished between suits under the Transfer of Property Act, where equitable relief under Order VII Rule 7 CPC could be granted, and suits under special rent control laws, which require proving the landlord-tenant relationship. The High Court correctly held that no equitable relief could be granted under the Act but erred in affirming the trial court's decision on adverse possession.
4. Amendment of Plaint for Recovery of Possession:
The appellant sought to amend the plaint to include recovery of possession. The High Court ruled this impermissible as it would convert the suit from eviction to one for title and possession, which is barred by limitation. The Supreme Court, however, allowed the appellant to file a fresh suit for title and recovery of possession, noting that the institution of the initial suit arrested the running of time for adverse possession.
Conclusion:
The Supreme Court allowed the appeal, permitting the appellant to file a new suit for title and recovery of possession within two months, clarifying that the time spent in the current proceedings arrested the period for adverse possession. The appeal was allowed with no costs awarded to either party.
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2013 (11) TMI 1792
Issues involved: Appeal against order of Ld. CIT(A)-III Baroda dated 22-02-2010 regarding addition of Rs. 14,13,600 and interest disallowance of Rs. 13,62,808.
Addition of Rs. 14,13,600:
The assessee, engaged in sale/purchase of TDR and construction activity, showed WIP at Rs. 1,99,97,296 without profit, claiming project completion method. AO rejected this, applying 8% profit rate on booking advance of Rs. 1,76,70,003. Ld. CIT(A) deleted the addition based on precedent where it was held that the assessee, a developer, not a contractor, so AS-7 not applicable. Tribunal upheld this, stating AS-9 applies, as no construction activity was carried out. Revenue's appeal dismissed.
Interest disallowance of Rs. 13,62,808:
AO disallowed interest paid to M.C.G.M. and on advances, citing lack of interest charged on loans given. Ld. CIT(A) deleted disallowance, noting no interest paid on loans and no diversion of interest-bearing funds. Tribunal upheld this, as no borrowings with interest payable existed. Revenue's appeal dismissed.
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2013 (11) TMI 1791
Issues involved: Appeal against Judgment under Section 34 of the Arbitration and Conciliation Act, 1996; Maintainability of the appeal due to the appellant company being struck off from the Register of Companies.
Judgment Summary:
1. The appellant challenged the award passed by the sole Arbitrator under Section 34 of the Act, alleging errors in considering the pleas raised. The appellant argued that there was no contract for arbitration, no arbitrable dispute, and issues of notice, jurisdiction, and limitation. The appellant contended that the award was without jurisdiction and sought its setting aside. Various judgments were cited in support.
2. The respondent objected to the appeal's maintainability, stating that the appellant company had been struck off the Register of Companies, rendering it non-existent and incapable of maintaining the appeal. The respondent argued that the appellant had participated in the arbitration proceedings and was estopped from challenging the jurisdiction of the arbitrator. The respondent also highlighted the clause in the invoice allowing arbitration.
3. The appellant disputed the respondent's evidence regarding the company's striking off, claiming it was not proven according to law. The appellant argued against the acceptance of the documents presented as proof of striking off.
4. The court considered the points for determination: the maintainability of the appeal due to the company's strike off, the validity of the arbitrator's award, and the judgment passed by the trial court. The court addressed the first point regarding the company's legal entity status, emphasizing the necessity of incorporation under the Companies Act for legal standing. The court detailed the process of incorporation and the consequences of being struck off the register.
5. The court examined the evidence provided by the respondent, including search results and applications for striking off the company's name. The court found that the appellant had voluntarily sought to be struck off the register and had not applied for restoration, leading to the conclusion that the company was non-existent and therefore not entitled to sue. Consequently, the appeal was deemed not maintainable, and Points 2 and 3 were not considered.
6. The court dismissed the appeal as not maintainable, directing the parties to bear the costs of the proceedings.
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2013 (11) TMI 1790
Issues involved: Compliance with show cause notice payment including interest amount, treating writ petition as representation to respondents, time limit for disposal of issue.
Compliance with show cause notice payment including interest amount: The learned counsel for the petitioner informed the court that the payment in terms of the show cause notice, along with the interest amount calculated by the petitioner, has been made within thirty days. The counsel requested that the writ petition be considered as a representation to the respondents. It was agreed that if any further amount is due as interest, the respondents will inform the petitioner for compliance.
Treating writ petition as representation to respondents: The court accepted the statement made by the petitioner's counsel and decided to treat the writ petition as a representation to the respondents. It was directed that the respondents would pass an appropriate order, if necessary, after hearing the petitioner. The parties were given liberty to revive the petition in case of any future dispute.
Time limit for disposal of issue: Considering the nature of the controversy and the fixed time limit under the Statute, the court directed the respondents to dispose of the entire issue within two weeks from the date of receiving a copy of the order. The writ petition was disposed of, and a dasti was ordered under the signatures of the Court Master for compliance.
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2013 (11) TMI 1789
Issues Involved:
1. Conviction and sentencing under Section 307 read with Section 34 IPC.
2. Compounding of non-compoundable offences.
3. High Court's quashing of criminal proceedings based on compromise.
Summary:
1. Conviction and Sentencing under Section 307 read with Section 34 IPC:
The respondents were charge-sheeted for offences u/s 307, 323, 325, 427 read with Section 34 IPC. The Sessions Court found them guilty u/s 307 read with Section 34 IPC and sentenced them to 10 years rigorous imprisonment and a fine of Rs. 5000 each. The court noted that the attack was premeditated and not due to sudden provocation, thus rejecting a lenient view.
2. Compounding of Non-Compoundable Offences:
The High Court allowed the appeal based on a compromise between the parties, stating that the offence was more a crime against an individual than society. The High Court quashed the proceedings, emphasizing the discretionary power u/s 482 CrPC, despite Section 307 IPC being non-compoundable.
3. High Court's Quashing of Criminal Proceedings Based on Compromise:
The Supreme Court criticized the High Court for misinterpreting the principles laid down in Gian Singh v. State of Punjab regarding Sections 482 and 320 CrPC. The Supreme Court emphasized that the power to quash criminal proceedings u/s 482 CrPC is distinct from the power to compound offences u/s 320 CrPC. The Court highlighted that the nature and gravity of the crime and societal impact must be considered, which the High Court overlooked.
Conclusion:
The Supreme Court set aside the High Court's judgment, stating that the crime was against society at large and not just an individual. The case was remanded to the High Court to be decided on merits within six months, emphasizing that leniency in serious offences like this would undermine the criminal justice system and societal welfare.
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2013 (11) TMI 1788
Issues involved: Application for recall of order based on incorrect facts leading to difference of opinion between Members of Division Bench, whether order can be recalled for fresh adjudication u/s 254(2).
Summary:
The Appellate Tribunal ITAT MUMBAI considered a miscellaneous application for the recall of an order dated 30.05.2012 due to alleged incorrect facts. A difference of opinion arose between the Members of the Division Bench regarding the need for a recall, leading to the matter being referred to a Third Member.
The Accountant Member opined that there was no mistake apparent in the decision as the penalty levy was based on proper reasoning. However, the second Member believed that the order did not reflect the correct facts, indicating a mistake apparent from the record warranting a recall.
The questions referred to the Third Member included whether the factual errors would impact the Tribunal's decision and if the order could be recalled for fresh adjudication u/s 254(2) where debatable issues cannot be considered.
The Third Member reframed the question to determine if the order passed u/s 254(1) could be recalled for fresh decision u/s 254(2). The Third Member concluded that the order should be recalled for de novo adjudication.
Ultimately, the Tribunal, based on the majority decision, recalled the order dated 30.05.2012 and scheduled the appeal for fresh hearing on 18.03.2014. The Registry was directed to inform the parties about the new hearing date. The order was pronounced in the open court on 8th November 2013.
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2013 (11) TMI 1787
Issues Involved: Challenge to show cause notice u/s 11B of the Securities and Exchange Board of India Act, 1992.
The High Court of Karnataka dismissed the petitions challenging the show cause notice dated 15-2-2011 issued by the third respondent u/s 11B of the Securities and Exchange Board of India Act, 1992. The court noted that the petitioners had not replied to the show cause notice but had directly filed the writ petitions. The court held that the show cause notice was issued to safeguard the interest of investors, and it was within the authority of the third respondent to do so. The petitioners were given the opportunity to reply to the notice within two weeks, and their response would be considered in accordance with the law. Therefore, the petitions were dismissed.
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2013 (11) TMI 1786
Issues involved: Disallowance of interest expenditure u/s 40(a)(ia) of the Act.
Summary:
The appeal was filed by the Revenue against the order of the CIT(A)-XV, Ahmedabad dated 3.9.2012. The sole issue was the deletion of disallowance of interest paid to G.E. Capital and Cholamandlam Finance Co. u/s 40(a)(ia) of the Act by the learned CIT(A).
The AO disallowed interest expenditure of &8377; 8,16,690/- as TDS was not deducted u/s 194A of the Act. The assessee argued that it was difficult to deduct TDS on interest payments made as per loan terms. The learned CIT(A) vacated the disallowance citing a Tribunal case that section 40(a)(ia) applies only to amounts payable as of 31st March.
The learned DR argued that a High Court case overruled the Tribunal's decision, stating that section 40(a)(ia) covers amounts payable at any time during the year. The assessee requested a remand for reevaluation considering the Finance Act, 2012 amendments.
The Tribunal set aside the CIT(A)'s order, remanding the issue to the AO for fresh adjudication. The AO was directed to consider the Finance Act, 2012 amendments and allow the assessee a hearing opportunity. The appeal of the Revenue was allowed for statistical purposes.
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2013 (11) TMI 1785
Issues involved: Transfer Pricing Officer's order not filed, substantial questions of law framed regarding comparables for Rule 10D, eligibility for deduction under Section 10A, interest on housing loan deduction under Section 10B, nature of compensation received, rate of depreciation on computer peripherals, interest paid on income tax refund.
Transfer Pricing Officer's Order: Appellant directed to file the order within 3 weeks, failing which costs of Rs. 10,000 to be paid for delay. Order necessary to decide raised questions/issues.
Substantial Question (i): Test and parameters for declaring comparables under Rule 10D, tribunal's findings on inclusion/exclusion legality to be examined.
Substantial Question (ii): Eligibility of AEGSC (STP) unit for deduction under Section 10A of Income Tax Act, 1961 to be determined.
Substantial Question (iii): Whether interest on housing loan for employees qualifies for deduction under Section 10B of Income Tax Act, 1961.
Substantial Question (iv): Nature of Rs. 1,62,60,000 received as compensation from landlord - whether revenue receipt.
Rate of Depreciation and Interest on Tax Refund: No substantial questions framed on rate of depreciation for computer peripherals due to precedent against Revenue. Similarly, no question on interest paid on income tax refund as it was decided in favor of Revenue.
Document Filing: Printed paper books dispensation granted, parties allowed to file relevant documents/papers submitted before authorities/tribunal.
Clarity and Efficiency: Emphasis on answering substantial question (i) promptly to prevent repetitive appeals and ensure clarity in similar cases.
Listing: Case to be included in "Regular List (Part-IIA)" starting from the week of 24th February, 2014 for further proceedings.
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