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2012 (2) TMI 727
Issues Involved:1. Whether the High Court was justified in passing the order dated 21.4.1998 in reverting the Appellant from the post of Chief Judicial Magistrate to the rank of Munsif (Civil Judge, Junior Division). 2. Whether the High Court was justified in passing the order of compulsorily retiring the Appellant from service in public interest. Summary:Issue 1: Reversion from Chief Judicial Magistrate to MunsifThe High Court's order of reversion was challenged on the grounds of arbitrariness and contrary to service law norms. The Appellant argued that the High Court, having accepted his explanation to the Show Cause Notice, could not have initiated departmental proceedings again, amounting to double jeopardy. The High Court contended that the explanation was accepted only for the impertinent language used, not for the allegations of granting bail indiscriminately. The Supreme Court observed that the High Court, after accepting the explanations and communicating the same to the Appellant, could not have proceeded to initiate departmental proceedings and revert the Appellant. The Court held that a second enquiry on the same charges, which had been dropped earlier, was unjustified. Therefore, the order of reversion was not sustained. Issue 2: Compulsory RetirementThe Supreme Court examined whether the High Court's recommendation for compulsory retirement was justified. The Court reiterated the principles regarding compulsory retirement, emphasizing that it is not a punishment and should be based on the entire service record, attaching more importance to recent performance. The Appellant contended that adverse remarks were never communicated, and the High Court selectively considered ACRs. The Court found discrepancies in the High Court's extracts of ACRs and the actual records, indicating selective consideration. The Court held that the subjective satisfaction of the High Court was not based on sufficient or relevant material. Therefore, the order of compulsory retirement was not justified. The Court allowed the appeal, set aside the orders, and directed that the Appellant is entitled to all monetary benefits from the date of his notional posting as C.J.M. till his notional retirement on superannuation.
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2012 (2) TMI 726
Issues Involved:
1. Whether the trial court properly appreciated the scope of Sections 20 and 118 of the Negotiable Instruments Act and applied it in the factual circumstances of this case?
2. Whether the concept 'burden of proof' was properly applied in dismissing the suit?
3. Whether the finding of the trial court that the plaintiff did not prove that he had financial wherewithal to lend a sum of Rs.3 lakhs is based on sound reasons and whether the reliance placed by it on the judgment of the criminal court in the related cheque transaction was proper?
4. Whether there is any perversity or illegality in the judgment and decree of the trial court?
Summary:
Issue 1: Application of Sections 20 and 118 of the Negotiable Instruments Act
The court emphasized that the initial burden of proof lies on the defendant to establish that there was no consideration for the promissory note. The defendant admitted to signing a printed promissory note format, which implied a prima facie authority to complete the negotiable instrument. The court held that the defendant failed to discharge this initial burden, thereby shifting the burden back to the plaintiff to prove the consideration.
Issue 2: Burden of Proof
The court observed that the trial court failed to properly apply the concept of 'burden of proof.' The plaintiff presented evidence, including his bank passbook and income tax returns, to demonstrate his financial capacity to lend Rs.3 lakhs. The trial court's reliance on the plaintiff's inability to prove agricultural income was misplaced, as the plaintiff's father owned agricultural land, and agricultural income is not taxable.
Issue 3: Financial Wherewithal and Reliance on Criminal Court Judgment
The trial court's finding that the plaintiff did not have the financial capacity to lend Rs.3 lakhs was not based on sound reasoning. The plaintiff's bank passbook showed substantial withdrawals shortly before the lending date, and his income as an LIC agent was also established. The trial court's reliance on the criminal court's judgment related to a bounced cheque was deemed inappropriate, as civil and criminal proceedings are based on different standards of proof.
Issue 4: Perversity or Illegality in the Trial Court's Judgment
The court found that the trial court's judgment was perverse and illegal. The trial court was overly influenced by the defendant's unsubstantiated claims and failed to appreciate the evidence presented by the plaintiff. The court also noted that the defendant's wife, who was central to the defense's case, was not examined as a witness, weakening the defendant's position.
Conclusion:
The appeal was allowed, and the trial court's judgment and decree were set aside. The court awarded the plaintiff Rs.3,00,000 with interest at 18% per annum from the date of the promissory note till the date of the suit, 12% per annum from the date of the suit till the date of decree, and 6% per annum from the date of decree till realization, along with proportionate costs throughout. However, there was no order as to costs for the appeal.
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2012 (2) TMI 725
Royalty - Income taxable in India u/s 9(1)(vii), Explanation 2, Clause (vi) - Reversal of Directions of Dispute Resolution Panel u/s 144C(5) - Submission of assessee was that issue involved in the appeal is covered in favour of the assessee by the decision of the Tribunal in assessee’s own case M/S INTELSAT CORPORATION, C/O S.R. BATLIBOI & CO. VERSUS ASSTT. DIRECTOR OF INCOME-TAX, CIRCLE-1 (2), NEW DELHI [2011 (3) TMI 1707 - ITAT DELHI]
HELD THAT:- We have rejected the application of the learned CIT-DR requesting for adjournment and proceeded to decide the appeal of the assessee exparte qua the Department. Respectfully following the decisions of tribunal in assessee's own case and the judgment of Hon’ble Delhi High Court [2011 (8) TMI 1248 - DELHI HIGH COURT], where it was held that Learned Counsel for the Revenue could not dispute the position that issues raised in this appeal are directly covered by the judgment of this Court in the case of ASIA SATELLITE TELECOMMUNICATIONS CO. LTD. VERSUS DIRECTOR OF INCOME-TAX [2011 (1) TMI 47 - DELHI HIGH COURT]. In that judgment, a categorical view is taken that the income received from the activities undertaken by the respondent/assessee would not be exigible to tax in India, we reverse the directions under Section 144C(5) passed by the Dispute Resolution Panel - Decision in favour of Assessee.
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2012 (2) TMI 724
Issues involved:
The judgment involves issues related to penalty under u/s 271D of the Income Tax Act, 1961. The main issues include the initiation of penalty proceedings, the time limitation for passing the penalty order, and the requirement of providing bank statements.
Initiation of Penalty Proceedings:
The appellant contended that penalty u/s 271D should be deleted as there was no mention of such default in the assessment order. The appellant argued that penalty proceedings were initiated much after the completion of the assessment proceedings. However, the revenue argued that there is no requirement for initiation of penalty proceedings during the course of assessment as per Section 271D of the Income Tax Act, 1961. The tribunal dismissed the additional ground, stating that the requirement of initiation during the course of proceedings is prescribed in a different section, Section 271(1) of the Act.
Time Limitation for Passing Penalty Order:
The appellant raised another ground that the penalty was levied after a lapse of many years, therefore barred by limitation and bad in law. The appellant argued that the delay in passing the penalty order was undue. The revenue contended that there is no legal requirement to pass an order u/s 271D within a specified time period. The tribunal noted that the penalty was imposed within a few months after the completion of the assessment order and dismissed this additional ground.
Requirement of Providing Bank Statements:
The appellant failed to furnish all bank statements during the proceedings, which was considered as a systematic avoidance of the proceedings by the Ld. CIT(A). The tribunal found it absurd that the appellant asked the department to furnish bank statements when the appellant should have had access to them. Despite opportunities granted, the appellant failed to pinpoint any transaction through banking channels not in contravention with the Act. The penalty u/s 271D was confirmed due to the appellant's failure to provide sufficient evidence.
Conclusion:
The tribunal allowed the appeal of the assessee for statistical purposes and restored the issue back to the stage of Ld. CIT(A) for fresh adjudication. The issue of whether certain amounts should be considered as a loan or deposit for the purpose of penalty u/s 271D was to be examined afresh.
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2012 (2) TMI 723
Issues involved: Failure to provide information under RTI application, Allegations of improper enquiry by Police into complaints.
Failure to provide information under RTI application: The appellant filed an RTI application requesting for action taken on complaints. The CPIO replied that the complaints were under enquiry. The appellant filed a first appeal alleging no action taken on his complaints, which was upheld by the FAA. During the hearing, the appellant stated he was not informed of the action taken by the Police on his complaints.
Allegations of improper enquiry by Police into complaints: The Police conducted an enquiry into the complaints, revealing a civil dispute within the family regarding property. Preventive proceedings were initiated against the son and daughter-in-law. The appellant alleged that the Police did not properly investigate his complaints.
Judgement: The Commission directed the CPIO to provide a copy of the enquiry report to the appellant within seven days. It was noted that there is no provision for redressal of grievances under the RTI Act regarding the adequacy of Police enquiries. The appellant was advised to take up the matter with the competent authority if unsatisfied with the Police's investigation. The matter was disposed of with these directions and observations.
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2012 (2) TMI 722
The Bombay High Court admitted the Company Petition and ordered the winding up of the Respondent Company as they did not oppose the Petition. The Petition was allowed in terms of Prayer Clauses (a) and (b). Company Application No.77 of 2010 was also disposed of.
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2012 (2) TMI 721
Issues Involved:
1. Disallowance of deferred revenue expenses claimed on account of non-competition compensation.
2. Disallowance of deferred revenue expenditure claimed on account of interest premia for prepayment of term loans.
3. Disallowance of 100% depreciation claimed on waste heat recovery system and DCS for CFB 3 and 4.
4. Deletion of additions of deferred revenue expenditure (R&D expenditure) by the CIT(A).
5. Provision made towards payment on royalty.
Summary:
1. Disallowance of Deferred Revenue Expenses Claimed on Account of Non-Competition Compensation:
The assessee paid Rs.3 crores to the promoters of CPL to prevent them from starting a similar business for three years. The lower authorities treated this payment as capital expenditure, not allowable as revenue expenditure. The Tribunal, following precedents like Dr. Reddy's Lab. Ltd. Vs. ACIT and CIT Vs. Eicher Ltd., held that the non-compete fee was to protect business interests and should be considered revenue expenditure. Alternatively, if considered capital in nature, depreciation should be allowed u/s 32(1) as an intangible asset.
2. Disallowance of Deferred Revenue Expenditure Claimed on Account of Interest Premia for Prepayment of Term Loans:
The assessee paid Rs.5,11,01,671/- as prepayment premium to ICICI Bank to replace high-interest loans with lower-interest loans. The CIT(A) treated this as capital expenditure. However, the Tribunal, following its own decisions in earlier years, allowed the claim as revenue expenditure, stating it was incurred to reduce the interest burden and run the business more profitably.
3. Disallowance of 100% Depreciation Claimed on Waste Heat Recovery System and DCS for CFB 3 and 4:
The assessee claimed 100% depreciation on certain machineries classified as energy-saving devices. The lower authorities disallowed this due to lack of evidence. The Tribunal set aside the issue for fresh consideration, directing the assessee to provide necessary evidence to substantiate the claim. If the assessee fails, the assessing officer could draw adverse inference.
4. Deletion of Additions of Deferred Revenue Expenditure (R&D Expenditure) by the CIT(A):
The CIT(A) allowed the expenditure incurred on seedling development and distribution to farmers as revenue expenditure. The Tribunal, however, held that this expenditure resulted in the creation of stock in trade and should be valued at market price or cost, whichever is lower, and not charged entirely to the P&L account.
5. Provision Made Towards Payment on Royalty:
The CIT(A) allowed the provision made towards payment on royalty despite the matter being sub-judice before the Supreme Court. The Tribunal upheld the CIT(A)'s decision, following its own earlier decisions in favor of the assessee.
Conclusion:
The appeals of the assessee and the Revenue were partly allowed, with specific directions for fresh consideration and adherence to precedents. The Tribunal emphasized the need for proper substantiation of claims and consistency with previous rulings.
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2012 (2) TMI 719
Issues Involved:1. Whether the complainant, a juristic person, could change its representative during the proceedings. 2. Whether evidence tendered by the complainant on affidavit is legal evidence if the deponent fails to tender himself for cross-examination. Summary:Issue 1: Change of RepresentativeThe court addressed whether a juristic person, such as the complainant company, could change its representative during the proceedings. It was affirmed that a juristic person, being incapable of physical presence, must be represented by a living person. The complainant has the right to choose its representative, and substitution is permissible. This was supported by the decision in the case of *Associated Cement Company Limited vs. Keshavanand* (AIR 1998 SC 596) and *NATIONAL SMALL Industries Corporation Ltd. v. State (NCT of Delhi)* (AIR 2009 SC 1284). The court accepted the complainant's contention that due to changed circumstances, the substitution of PW1 with PW2 was valid. Issue 2: Legal Evidence and Cross-ExaminationThe court examined whether the evidence tendered by the complainant on affidavit, as permissible u/s 145 of the NI Act, is legal evidence if the deponent fails to tender himself for cross-examination. It was concluded that mere filing of an affidavit does not constitute legal evidence if the deponent does not appear for cross-examination. Section 145(2) mandates that the court must summon and examine any person giving evidence on affidavit if requested by the prosecution or the accused. The court emphasized that the provisions of the Evidence Act are applicable, and the affidavit must be tested through cross-examination to be considered legal evidence. The court referred to Sections 135 to 139 of the Evidence Act, which outline the necessity of cross-examination for a statement to be considered complete evidence. Conclusion:The court found that the complainant failed to establish the charge against the accused u/s 138 of the NI Act. The evidence provided by PW1 was not legally admissible as he did not subject himself to cross-examination. PW2's testimony was insufficient as he did not provide any material evidence. The court dismissed the appeal, confirming the trial court's judgment, and ruled out the possibility of a retrial under Section 167 of the Evidence Act.
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2012 (2) TMI 718
Issues involved: The judgment involves two main issues: (1) confirmation of disallowance of depreciation on BSE Membership card and (2) disallowance of claim of expenses u/s.14A.
Issue No.1 - Disallowance of Depreciation on BSE Membership Card:
The assessee claimed depreciation on membership rights which was disallowed by the AO due to demutualisation of BSE and the cessation of the asset in the form of BSE card. The Ld. CIT(A) confirmed the AO's decision. The Tribunal referred to a previous case and explained that after demutualisation, the rights of members were segregated into ownership of assets and trading rights. It was clarified that depreciation was not allowable on the trading rights as their value was equivalent to a refundable deposit, making the present value nil. The Tribunal upheld the Revenue's decision based on relevant sections dealing with capital gains computation, stating that the original cost of the share did not impact the decision. Consequently, the issue was decided against the assessee.
Issue No.2 - Disallowance u/s.14A:
The judgment referred to a decision by the Hon'ble Bombay High Court stating that Rule 8D is not applicable retrospectively, allowing only a reasonable disallowance in the absence of Rule 8D. Following this decision, the order of the ld. CIT(A) was set aside, and the matter was remitted back to the AO to determine a reasonable disallowance in line with the High Court's ruling. The appeal was partly allowed for statistical purposes.
Separate Judgement:
No separate judgment was delivered by the judges in this case.
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2012 (2) TMI 717
Issues Involved:
1. Deletion of addition related to employees' contribution to provident fund and ESI fund.
2. Direction to the Assessing Officer regarding the claim of provisions for doubtful debts.
Summary:
1. Deletion of Addition Related to Employees' Contribution to Provident Fund and ESI Fund:
The Revenue challenged the deletion of additions of Rs. 32,95,032/- and Rs. 4,81,768/- related to employees' contributions to provident fund and ESI fund, respectively. The first appellate authority directed the Assessing Officer to delete these additions on the ground that the payments were made before the due date of filing the return of income as per the provisions of section 43B of the Act. The Revenue relied on the decision from Hon'ble Bombay High Court in Pamwi Tissues Limited, while the assessee relied on the decision from Hon'ble Delhi High Court in CIT vs. AIMIL Limited and others.
The Tribunal considered the rival submissions and noted that as per section 43B read with section 36(1)(va) of the Act, the deduction cannot be disallowed if the actual payment is made before the due date of filing the return. The Tribunal affirmed that the deduction is permissible if the payment is made before the due date of filing the return, even if the contributions are paid beyond the due dates under the respective statutory enactments. The Tribunal found no infirmity in the stand of the learned Commissioner of Income Tax (Appeals) and affirmed the deletion of the additions.
2. Direction to the Assessing Officer Regarding the Claim of Provisions for Doubtful Debts:
The Revenue contested the direction to the Assessing Officer regarding the claim of provisions for doubtful debts of Rs. 1,46,07,788/-. The Revenue argued that the provision was not the actual write-off of bad debts as required u/s 36(1)(vii) of the Act. The Tribunal noted that the assessee had written off the bad debt in its books by debiting the profit and loss account and reducing the corresponding amount from the debtors' account in the balance sheet. The Tribunal referred to the decision from Hon'ble Apex Court in Vijay Bank vs. CIT, which held that it is not necessary to close each individual account of debtors to claim deduction u/s 36(1)(vii) of the Act.
The Tribunal concluded that the assessee is entitled to deduction under section 36(1)(vii) of the Act as there was an actual write-off by the assessee. The Tribunal affirmed the stand of the learned Commissioner of Income Tax (Appeals) and dismissed the appeal of the Revenue.
Final Decision:
The appeal of the Revenue was dismissed. The order was pronounced in the open court in the presence of representatives from both sides on 13.2.2012.
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2012 (2) TMI 716
Issues involved: Validity of notice u/s.158BD and assessment order based on the notice.
Validity of notice u/s.158BD:
The appeal was filed by the assessee against the order of Commissioner of Income Tax(A), Salem for the block period 01.04.1996 to 12.12.2002. The notice u/s.158BD was issued on the assessee in the status of 'Association of persons' based on certain documents found during a search operation on Shri R.Ganesan. The Assessing Officer had found that the income belonged to Shri R.Ganesan, and there was no satisfaction that the income belonged to the AOP. The notice u/s.158BD was held invalid as it was beyond the two-year period from the date of search, in line with the decision of the Special Bench of the Tribunal and the Punjab and Haryana High Court. The assessment passed in consequence of the notice u/s.158BD was annulled, and the appeal of the assessee was allowed.
Assessment order based on the notice:
The assessment order of the present assessee's case used the same evidence as in the case of Shri R.Ganesan to make an addition for earnings from the sand quarry business. The Assessing Officer had found that the income belonged to Shri R.Ganesan, and there was no satisfaction that the income belonged to the AOP. The notice u/s.158BD was held invalid as it was beyond the two-year period from the date of search, following the decision of the Special Bench of the Tribunal and the Punjab and Haryana High Court. The assessment passed in consequence of the notice u/s.158BD was annulled, and the appeal of the assessee was allowed.
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2012 (2) TMI 715
Issues involved: Appeal against the order of Ld. Commissioner of Inc-tax (Appeals)-III, Baroda for the assessment year 2005-06 regarding addition of income and interest disallowance.
Issue 1 - Addition of Income:
The Revenue contended that the assessee, engaged in construction and trading of transfer of development rights, should have recognized income based on percentage of completion method u/s AS-7. However, the Ld. CIT(A) held that the assessee, a developer, not a contractor, should follow AS-9. As no construction activity occurred during the year, no revenue could be recognized. The Ld. CIT(A) deleted the addition made by the AO, which was upheld by ITAT Ahmedabad.
Issue 2 - Interest Disallowance:
The AO disallowed interest payable to Municipal Corporation of Grater Mumbai (MCGM) due to alleged diversion of funds. However, the Ld. CIT(A) noted that the interest was paid on delayed payments, not borrowings, and reversed the AO's order. ITAT Ahmedabad concurred, dismissing the Revenue's appeal.
In conclusion, the ITAT Ahmedabad upheld the Ld. CIT(A)'s decision on both issues, dismissing the Revenue's appeal.
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2012 (2) TMI 714
Issues Involved:
1. Applicability of the Capital of Punjab (Development & Regulation) Act, 1952 to the area of motor market of the notified area committee.
2. Legality of conversion charges claimed by the Administration for change of use of the flat portion to office or commercial purposes.
3. Whether conversion charges fall under the provision of amenity u/s 7 of the Act and if such provisions suffer from excessive delegated legislation.
Summary:
Issue 1: Applicability of the Act
The court held that following the notification dated 27.07.1994, both the Capital of Punjab (Development & Regulation) Act, 1952 (the Act) and the Punjab Municipal Corporation Act, 1976 (Municipal Corporation Act) apply to the motor market area of the notified area committee. The Municipal Corporation Act's Section 424A ensures that the provisions of the Act continue to govern the development and regulation of Chandigarh.
Issue 2: Legality of Conversion Charges
The court ruled that the conversion charges claimed by the Administration are not levied u/s 7 of the Act but are part of the terms of sale or lease u/s 3 and the user restrictions u/s 4 & 5 of the Act. The Chandigarh (Sale of Sites and Building) Rules, 1960 and the Chandigarh Lease Hold of Sites and Building Rules, 1973, which restrict the use of the site or building, support this. Therefore, the conversion fee is a condition precedent for the 'change of use' as contemplated under Rule 9 of the 1960 Rules or Rule 17 of the 1973 Rules.
Issue 3: Conversion Charges as Amenity
The court found that conversion charges do not fall under the provision of amenity u/s 7 of the Act. The term "amenity" includes services like roads, water-supply, street lighting, drainage, etc., and does not cover charges for allowing the change of use from residential to commercial. The court dismissed the argument that the conversion fee is an amenity chargeable u/s 7 and rejected the contention of excessive delegated legislation since the fee is claimed under Sections 3, 4 & 5 of the Act and related rules.
Conclusion:
The court dismissed the writ petitions, upholding the Administration's claim to conversion charges and confirming the applicability of the Act to the motor market area. The petitioners were granted liberty to seek conversion of the use of buildings per the scheme framed under the Act.
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2012 (2) TMI 713
Issues Involved:
1. Disallowance of loss u/s 94(7) of the Income Tax Act, 1961.
2. Disallowance u/s 14A of the Income Tax Act, 1961.
3. Interest payable u/s 234B/234C on short payment of advance tax.
4. Disallowance of interest on investment.
5. Disallowance on account of commission.
Summary:
1. Disallowance of loss u/s 94(7) of the Income Tax Act, 1961:
The Assessee contested the disallowance of Rs. 18,47,960/- u/s 94(7), arguing that the A.O. failed to consider the acquisition and sale dates of units/securities. The CIT(A) partially agreed, allowing the disallowance of Rs. 53,56,924/- but upheld the disallowance of Rs. 18,47,960/-. The Tribunal found no legal infirmity in the CIT(A)'s order, dismissing both the Assessee's and the Department's appeals on this issue.
2. Disallowance u/s 14A of the Income Tax Act, 1961:
The A.O. disallowed Rs. 25,55,412/- u/s 14A, which the CIT(A) reduced to 10% of the dividend income. The Assessee argued that the CIT(A) should have followed the Mumbai High Court's judgment in Godrej & Boyce Mfg. Co. Ltd. The Tribunal set aside the assessment order and remanded the issue back to the A.O. for fresh consideration in light of the Jurisdictional High Court's principles in Maxopp Investments Ltd.
3. Interest payable u/s 234B/234C on short payment of advance tax:
No arguments were advanced by the Assessee on this issue, leading to its rejection as "not pressed."
4. Disallowance of interest on investment:
The A.O. added Rs. 48,937/- as interest income not offered for taxation. The CIT(A) held that the amount was dividend from Franklin Templeton India Ltd., which is tax-exempt u/s 10(35). The Tribunal remanded the issue back to the A.O. for verification of the exemption claim.
5. Disallowance on account of commission:
The A.O. disallowed Rs. 7,09,754/- due to unserved notices and lack of confirmations. The CIT(A) admitted additional evidence and deleted the disallowance, accepting the Assessee's explanation and proof of identity of commission agents. The Tribunal upheld the CIT(A)'s decision, finding no fault in the evidences considered.
Conclusion:
The appeals of the Assessee and the Revenue were partly allowed for statistical purposes. The Tribunal directed the A.O. to reconsider certain issues based on the principles laid down by higher courts and after giving the Assessee a reasonable opportunity of being heard.
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2012 (2) TMI 712
Issues Involved:
1. Validity of Land Acquisition
2. Compliance with Legal Procedures
3. Manipulations and Malpractices
4. Delay and Laches
5. Doctrine of Prospective Overruling
Summary:
1. Validity of Land Acquisition:
The central issue was whether the acquisition of land by the State Government for the benefit of the Appellant was for a "public purpose" as defined u/s 3(f)(vi) of the Land Acquisition Act, 1894. The Supreme Court upheld the High Court's decision, stating that the acquisition was not for a public purpose since the Appellant did not frame a housing scheme approved by the State Government before the notification u/s 4(1).
2. Compliance with Legal Procedures:
The Supreme Court noted that the Appellant failed to produce any evidence of a housing scheme approved by the State Government. The Court emphasized that compliance with Section 3(f)(vi) is a condition precedent for the acquisition of land for a cooperative society, which was not met in this case.
3. Manipulations and Malpractices:
The Court found that the acquisition process was influenced by extraneous considerations, including an agreement between the Appellant and an Estate Agent promising to secure the acquisition for a substantial fee. This was deemed a violation of Section 23 of the Contract Act, rendering the acquisition invalid.
4. Delay and Laches:
The Court rejected the Appellant's argument that the writ petition filed by Respondent No. 3 was delayed. It held that the delay was satisfactorily explained by Respondent No. 3, who was awaiting the State Government's decision on her representation for withdrawal of the acquisition.
5. Doctrine of Prospective Overruling:
The Appellant requested the application of the doctrine of prospective overruling to protect the interests of its members who had already built houses. The Court declined, stating that applying this doctrine would legitimize the influence of money over the rule of law, which is against the Constitution's edifice.
Conclusion:
The appeals were dismissed, and the Court directed the Appellant to return the vacant land to the Respondents within three months. The Appellant was given liberty to negotiate with the Respondents for purchasing the land at the prevailing market price to minimize the impact on those who had already built houses.
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2012 (2) TMI 711
Issues Involved:
1. Propriety, legality, and correctness of the acquittal order.
2. Interpretation and application of Section 405 IPC (Criminal Breach of Trust).
3. Evaluation of evidence regarding offences u/s 406, 420, and 468 IPC.
4. Scope of revisional jurisdiction in interfering with an acquittal order.
Summary:
1. Propriety, legality, and correctness of the acquittal order:
The revision challenges the acquittal of the accused by the Judicial Magistrate of the First Class-III, Kottayam, in C.C.No. 630/06. The accused, a former Restaurant Manager, was prosecuted for offences u/s 406, 420, and 468 IPC. The Magistrate acquitted the accused, holding that the prosecution failed to establish the guilt. The de facto complainant, represented by its Director, assailed the propriety, legality, and correctness of this order.
2. Interpretation and application of Section 405 IPC (Criminal Breach of Trust):
The learned counsel for the petitioner argued that the Magistrate misinterpreted the scope of 'entrustment' under Section 405 IPC, leading to erroneous conclusions. The Magistrate wrongly held that entrustment must continue until misappropriation occurs. The counsel cited State of H.P. v. Karanvir, 2006 (3) SCC 381, to argue that once entrustment is proved, the manner of misappropriation need not be established. The court noted that the Magistrate's interpretation was egregiously faulty and perverse.
3. Evaluation of evidence regarding offences u/s 406, 420, and 468 IPC:
The prosecution examined 16 witnesses and marked several exhibits to prove the guilt of the accused. The Magistrate concluded that the prosecution failed to prove criminal breach of trust, cheating, and forgery. The court found that the Magistrate's approach in evaluating the evidence was flawed. The evidence of PW.4, the Bank Manager, and the Forensic Science Laboratory report (Ext.P18) were misappreciated. The Magistrate's reasoning to discard Ext.P18 was found to be perverse. The court held that the findings regarding offences u/s 420 and 468 IPC also needed re-examination.
4. Scope of revisional jurisdiction in interfering with an acquittal order:
The learned counsel for the respondent/accused argued that revisional jurisdiction to interfere with an acquittal order should be exercised sparingly. The court noted that revisional jurisdiction can only be exercised if the acquittal order is perverse. The court found that the Magistrate's judgment was based on erroneous interpretation and misappreciation of evidence, warranting interference.
Conclusion:
The court set aside the acquittal order and remitted the case for fresh disposal. The Magistrate was directed to re-evaluate the evidence and dispose of the case in accordance with law within eight weeks. The accused was directed to appear before the court on 28.03.2012. The revision was allowed, and the records were sent back forthwith.
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2012 (2) TMI 710
Issues involved: Interpretation of Rule 48 of High Court of M.P. Rules, 2008 regarding the requirement for the accused to surrender before filing a criminal revision despite conviction and sentence not being suspended.
Summary:
The judgment by Mr. Sujoy Paul, J. of the High Court of Madhya Pradesh dealt with the question of whether a criminal revision is tenable when the convicted person has not surrendered or is not in custody. The Appellant's counsel argued that there is no compulsion under the Cr.P.C. for surrender before filing a revision, citing relevant case laws. On the other hand, the Respondents contended that Rule 48 of the High Court Rules makes surrender obligatory for filing a revision.
In analyzing the arguments, the Court referred to the Apex Court's decision in Bihari Prasad Singh Vs. State of Bihar and Another, which highlighted that while some High Courts have surrender requirements in their rules, there is no such mandate under the Cr.P.C. The Court also mentioned a local judgment where the specific provision of Rule 48 was not considered.
The Court concluded that Rule 48 indeed makes it mandatory for the accused to declare their custody status or surrender after conviction when filing a revision, except when the sentence has been suspended by the lower Court. The use of the word "shall" in the rule indicates the mandatory nature of the declaration. The judgment emphasized the importance of following clear statutory language without the need for further interpretation.
Therefore, the Court held that a revision petition against conviction is only permissible when it includes a declaration of the convicted person's custody status or surrender post-conviction, unless the sentence has been suspended by the lower Court. The matter was scheduled for further consideration by the regular bench as per the ruling.
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2012 (2) TMI 708
Issues Involved:
1. Jurisdiction of State Government under Article 246 and Mines and Minerals (Development and Regulation) Act, 1957.
2. Validity of State Government's decision to lift the ban on the sale of iron ore fines.
3. Compliance with Public Interest Litigation Rules, 2002.
4. Environmental concerns related to mining operations.
Summary:
1. Jurisdiction of State Government under Article 246 and Mines and Minerals (Development and Regulation) Act, 1957:
The petitioner argued that Article 246 of the Constitution demarcates the jurisdiction of the Central and State Governments. The Central Government has exclusive power to legislate on matters in List I (Union List), including the regulation of mines and minerals development (Entry 54). The Mines and Minerals (Development and Regulation) Act, 1957, and the Mineral Conservation and Development Rules, 1988, framed by the Central Government, regulate these areas. The petitioner contended that the State Government has no jurisdiction to issue directions or frame rules on subjects covered under List I, such as allowing the sale of iron ore fines.
2. Validity of State Government's decision to lift the ban on the sale of iron ore fines:
The State Government issued a policy decision on 27th August 2011, lifting the ban on the sale of iron ore fines. The Advocate General argued that this decision corrected a previous mistake and was in the State's interest to avoid loss of royalty. The State's decision was challenged on the grounds that it was beyond its authority, as the power to regulate mining operations and environmental protection lies with the Central Government. The Court found that the State Government's notification was issued without legal authority and in contravention of the Mines and Minerals (Development and Regulation) Act, 1957, and related rules.
3. Compliance with Public Interest Litigation Rules, 2002:
The Advocate General argued that the petitioner did not follow the procedure outlined in the Public Interest Litigation Rules, 2002, such as stating no personal interest and clarifying the public interest involved. The Court acknowledged this procedural lapse but chose not to dismiss the petition on these grounds alone, given the broader legal issues at stake.
4. Environmental concerns related to mining operations:
The petitioner cited environmental regulations under the Mineral Conservation and Development Rules, 1988, which mandate precautions for environmental protection during mining operations. Rule 33 specifically deals with the management of waste materials, including fines, to prevent environmental degradation. The Court noted that while fines must be managed to avoid pollution, the rules do not prohibit their sale. The State Government's policy decision included conditions for the disposal of fines, which were found to be beyond its authority.
Conclusion:
The Court dismissed the writ petition, stating that the State Government's notification dated 27th August 2011 was issued without legal authority. The Court emphasized that the right to dispose of minerals, including fines, is granted to lessees under the statutory lease deed (Form 'K') and relevant rules. The Court did not impose any costs on the petitioner but highlighted the importance of thorough research in Public Interest Litigations, especially those involving state revenue.
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2012 (2) TMI 707
Issues involved: Appeal against order of CIT(Appeals) regarding deduction on software expenditure and validity of re-opening assessment u/s 148.
Deduction on software expenditure:
The Revenue appealed against the CIT(A) order allowing the assessee's claim for depreciation on computer software at 60%. The Revenue argued that the depreciation should be restricted to 25% based on a Tribunal decision. The CIT(A) held that the re-opening of the assessment was merely a change of opinion and thus allowed the appeal. The authorized representative contended that the original assessment was completed u/s 143(3) and the re-opening was beyond the permissible period of 4 years without fresh facts. The Tribunal noted that the re-opening was solely based on a change of opinion, making it invalid beyond 4 years. Following the decision in the case of Kelvinator of India Ltd., the Tribunal dismissed the Revenue's appeal.
Validity of re-opening assessment u/s 148:
The CIT(A) based its decision on the principles laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts, emphasizing the Assessing Officer's duty to provide reasons for re-opening and address the assessee's objections. However, the Tribunal found that despite the lack of a speaking order on objections, the re-opening could not be deemed invalid. Yet, as all necessary facts were available during the original assessment, the re-opening beyond 4 years was considered invalid. Citing the decision in the case of Kelvinator of India Ltd., the Tribunal quashed the re-opening of the assessment and dismissed the Revenue's appeal.
Separate Judgement:
No separate judgment was delivered by the judges in this case.
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2012 (2) TMI 706
Issues involved: Appeal by Revenue regarding depreciation on project assets at 10% rate applicable to 'building', and amortization of project cost.
Depreciation on project assets: Revenue contended that Tribunal's decision in assessee's previous case was not final due to pending appeal before High Court. However, Tribunal held that decision in previous case applied as facts remained the same. Assessing Officer disallowed depreciation on project assets, stating assessee was not owner and not eligible for depreciation. However, Tribunal directed to allow depreciation on road at building rate based on similar case precedent. Tribunal dismissed Revenue's appeal, citing lack of evidence of Tribunal's decision reversal by High Court.
Amortization of project cost: As depreciation issue was decided in favor of appellant, this issue became irrelevant and was dismissed for statistical purposes.
Conclusion: Tribunal upheld CIT(A)'s decision to allow depreciation on project assets at building rate, based on precedent, and dismissed Revenue's appeal.
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